This First Appeal is filed against the order of the Kerala Consumer Disputes Redressal Commission in OP No.129 of 1999. The OP-1, Fathima Hospital, is the appellant. The case of the Complainant, K. K. Jose before the State Commission was he was attracted by an advertisement in a local daily news paper Mathrubhoomi, claiming to convert today’s dwarf into tomorrow’s Amitabh Bachhan. This advertisement was given by the Appellant, Fathima Hospital. It was claimed that height could be increased by one inch within 25 days. 2. As per record of the case, the Complainant was admitted to OP-1 hospital on 6.8.1997 and the surgery was performed the next date on 7.8.1997, by OP-2 Dr. N. Selvam. The surgery comprised corticotomy on both legs (middle tibia) and putting of fixators on both legs. Fixators of 120mm on the left leg and 150mm on the right leg were put. On 23.8.1997, he was discharged from the hospital. On 7.11.1997 4 cm. lengthening was noted on both legs and further turning of rings on the fixators was decided to be stopped. 3. It is seen from the complaint petition, filed before the State Commission, that the Complainant had informed about swelling on both legs and bending of the legs. He was advised by OP-2 that it will become alright and was not a cause for concern. The complaint petition further mentions increase in pain in the left leg. “On taking the X-ray of the leg and examination it was found that the bone was increased in length by 3 c.m. and on the left leg at the place where the bone grew in length had crack. On seeing this the doctor said that Ring Fixator need not be adjusted. In the mean time the leg which already had swelling began to have pus. On several times when the complainant met the doctor saying about the pus the doctor prescribed some antibiotic tablets and asked the complainant to take those tablets.” 4. Due to continued swelling and pus formation in the left leg the ring fixator was removed and the leg was put in plaster cast. According to the complaint petition, OP-2 was aware of pus formation in the bone before the left leg was put in the plaster, for the second time in April, 1998. Putting the leg with pus formation in plaster is called by the Complainant a deficiency in service. A piece of bone of the left leg came out through the pus formed portion. The Complainant suffered sever pain and had to take three months of complete rest with antibiotics. The condition of the legs improved under the treatment of Dr. Raghavan Unni, who was the successor of OP-2 at Fathima Hospital. The Complainant states that he can walk, but only with pain. He has to lean forward while walking and feels week in both the knees. He claims to have spent a sum of Rs.2 lakhs on his treatment in Fathima Hospital and blames OP-2 for his condition in the following words:- “It is only because the 2nd Opposite Party though infact did not know the techniques for the surgery for increasing the height, but conducted the surgery on the complainant on the pretext that he is an expert in such treatment, the complainant has to suffer the deformities and difficulties explained above. The complainant is not in a position to do any work now and support this family. The complainants future itself is destroyed.” 5. The appellant/OP-1, has denied the allegation that the hospital staff were not well versed in operating the ring fixator. According to the appellant/OP-1, if the patient can be taught to operate it, the hospital staff too can be trained to do it. Interestingly, OP-1 has strongly defended the professional competence of OP-2, Dr Selvam, to perform this surgery. It is also claimed that the hospital inducts doctors only after going through their experience and qualification. The appellant/OP-1 has contended that there is no evidence and no expert medical opinion to establish that it was a case of deficiency in medical service rendered to the complainant. 6. OP-3, new India Assurance Co admits that it has issued an insurance policy “covering professional risk of the second respondent by which the limit of liability under the above policy is Rs 7 lakhs. The policy covers only the risk in the treatment given by a doctor to his patient.” 7. The main grounds of challenge to the impugned order before this Commission are— i. OP-2 Dr Selvam, who performed the surgery is a senior othopedic surgeon. ii. The allegation that the hospital staff were not well versed to operate the ring fixator, is not bourn out from the case records. iii. Even the doctor examined on behalf of the complainant has not supported his case. Complications, if any, arose due to complainant’s own fault. 8. It is also alleged by the appellant that no expert evidence was tendered in support of the case of the complainant. But, the written submission of 2.5.2011 of the appellant, itself mentions that the State Commission had forwarded certain questions to Dr P Vasudevan, (M.S. Ortho, D.Orth, DNB Orth, MV AMS). We find that his response has been considered at great length in the impugned order. Hence, this claim of absence of expert opinion is rejected. 9. Learned counsel for the appellant argued before us that the surgery was done correctly. The complainant himself was satisfied with the progress in the right leg. The problem with the left leg was tackled through corrective surgery by the same surgeon. Counsels for the complainant and OP-3 were also heard. 10. As already noted, the State Commission has examined at length the evidence of Dr P Vasudevan, an orthopedic surgeon with considerable professional qualification and experience. The Commission has considered the observation of Dr. Vasudevan that— “Deformities of the foot in limb lengthening are usually due to lack of good exercise and not walking well with the frame. If it occurs it can be managed by exercises and physiotherapy. If still not well corrected it may need another surgery to correct it.” 11. The Commission has taken a view that what needs to be considered is not whether Ilizarov or Oganesyan method was used in this surgery but whether there was any negligence on the part of OP-2 in performing the surgery. We may mention here that the complainant has produced no evidence to challenge the averment of OP-1, that OP-2, Dr N Selvam, had full qualification and experience to perform such a surgery. We are therefore, in full agreement with the State Commission that the issue to decide is negligence in and not the method of this surgery. 12. The concept of medical negligence has been examined at considerable length in the impugned order, relying upon the law as laid down by H’ble Supreme Court of India in Jacob Mathew Vs State of Punjab (2005) 6 SCC 1. On the requirement of evidence, the State Commission has relied upon the view taken in Syad Akbar Vs State of Karnataka (1980) 1 SCC 30 that in civil proceedings a mere preponderance of probability is sufficient. 13. Coming to the question whether there was medical negligence in this case or not, the findings reached by the State Commission are— i. There is no explanation from OP-1 as to why there was sinus discharge from the left leg and why did it have abnormal mobility. From the evidence of Dr Vasudevan it is clear that the small bone piece that came out was due to bone infection. From this the Commission has inferred that there was negligence. ii. Entries in the Record of Treatment show that, as of November 1998, the callus across the fracture on the left leg had regenerated (united). But, examination in February 1999 showed a 20 degree equinus. The Commission has therefore inferred that this deformity was the result of negligence in surgery. 14. The State Commission has also observed that the patient was advised to bear full weight on both legs. But he was apprehensive of walking by himself at his house and was repeatedly advised in this behalf. He was therefore admitted for physiotherapy and walking exercise. The Commission has therefore, held that the complainant was also responsible for the deformity that developed. 15. The Record of Treatment also shows that the PoP (plaster cast) was removed from the right leg on 19.3.1998 and from the left leg on 15.4.1998. On 14.7.1998 the patient had complained of sinus discharge on the left leg as well as abnormal mobility. Before that 19.6.1998, the entry again shows that the patient wanted PoP to be removed but shows no advice to remove it. These entries support the allegation of the complainant that the left leg was put in plaster cast for a second time, although OP-2 knew about the sinus discharge. This can only be viewed as an act of professional negligence. 16. We would like to note here that these findings of the State Commission are based on the material on record and opinion of Dr Vasudevan. Records show that OP-2, having performed the surgery, did not defend himself before the State Commission. The written statement of OP-3 dated 27.9.2001 says that:- “On receipt of the notice in this case, this respondent wrote a letter to the second respondent on 15.2.2001 asking about the case. The second respondent was also contracted over phone. He has informed this respondent by letter dated 20.2.2001, that he has not received any notice or any communication from the complainant or from this Hon’ble Forum about this case. The allegations in this case cannot be adjudicated without notice to the second respondent.” 17. The above statement of OP-3 clearly shows that OP-2 was fully aware of the proceedings before the State Commission. Again, in the appeal proceedings before this Commission, there was no response from OP-2. On an application moved on behalf of the appellant Fathima Hospital for making a substituted service, this Commission had allowed publication in New Indian Express, English daily. The counsel for the appellant later informed this Commission on 30.3.2009 that the publication had been made in the Express daily on 10.3.2009. Even thereafter, no one appeared on behalf of respondent No.2/OP-2, Dr. N.Selvam. Therefore, the Commission has proceeded against OP-2, Dr N Selvam, ex-parte. He was thus given an opportunity to be heard but he has chosen not to avail it. 18. In the light of the above discussion, we are of the view that the appellant has failed to make out any case against the findings of the State Commission. Coming to the liability of appellant/OP-1, we may mention that in Savita Garg Vs. Director, National Heart Institute 2004 CTJ 1009 (SC), Hon’ble Supreme Court has addressed the question of liability of the hospital even where the doctor who gave the treatment was not impleaded. It was held that:- “It is the duty of hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify and by not impleading a particular doctor will not absolve the hospital of their responsibilities.” 19. Accordingly in the present case, the State Commission has rightly held appellant/OP-1 and respondent-2/OP-2, Dr. N. Selvam, jointly and severally liable to pay a compensation of Rs.3,00,000/- to the respondent-1/complainant, K. K. Jose. Further, the impugned order has also directed the appellant/OP-1 to pay the cost of corrective surgery. In our view, the material before the State Commission was not enough to justify this direction. Hence, this part of the impugned order is set aside. 20. For the reasons detailed above, the appeal is dismissed and the order of Kerala State Consumer Disputes Redressal Commission in OP No.129/1999 is confirmed, with the modification that the direction to the appellant to pay the cost of corrective surgery is set aside. There are no orders as to costs. | 
