BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 10^th DAY OF FEBRUARY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. The complainant seeks award of compensation of Rs.50,000/- and other reliefs against the OPs.

2. The case set up by the complainant in brief is as under:-

The complainant having difficulty and pain in folding his left hand and pain the elbow due to sprain.  The complainant underwent physiotherapy in the hospital of OP No.2 and OP No.1 treated the complainant on 27.02.2020, 28.02.2020, 29.02.2020, 02.03.2020, 04.03.2020 and 05.03.2020 as OPD patient.

3. It is further case of the complainant that on 05.03.2020 even though OP No.1 placed a pad on the hand and switched on the electric machine and warned the complainant not to move or remove the pad.  The OP No.1 left the treatment area.  Due to increase of heat, complainant has suffered lot of pain and after hearing his screaming, the nurse came and switched off the current.  This matter was brought to the notice of OP No.1 who took it lightly and informed the complainant nothing will happen.  But, the complainant found a big blister on the next day where pad had been placed.  Immediately, he approached the OP No.1 at his instance, nurse opened the blister and dress it up. But, a pain and the injury could not be reduced and pain was persisting over two weeks.  Later, complainant consulted Dr.Mruthyunjaya of Mahalakshmi Layout who prescribed Silverax ointment, some antibiotic and pain killing tablets and issued certificate.

4. There is a permanent mark over the elbow of complainant due to negligence act of the OP No.1.  Till this date, the complainant has been suffering from pain.  But, despite notice, the OPs failed to pay any compensation.  The complainant underwent turmoil due to deficiency of service on the part of OPs.  Hence, this complaint.

5.  After receipt of notice, both OPs appear and file version.  The OPs contend that OP No.2 is charitable hospital and it charges nothing.  The complaint is not maintainable as complainant is not a consumer.  The OP No.2 has been running charitable public school, Train Centre, Pre-University College, Charitable Hospital, Medical Vans, Scholarships, Degree College for Women and other social responsibilities.  They admit that the complainant took physiotherapy on respective dates.  After the treatment on 05.03.2020, OP No.1 advised the complainant to take rest and referring from doing her work.  After 05.03.2020, the complainant never approached the OPs.  There is no negligence or deficiency of service on the part of the OPs.  Infact, OP No.2 has been deficit expenditure of hundred fifty lakhs per annuam.  Therefore, they request to dismiss the complaint.

6. The complainant filed his affidavit evidence and relies on five documents.  The OPs have filed affidavit evidence of OP No.1, affidavit evidence of Medical Superintendent of OP No.2 and relies on eight documents.

7. Heard the arguments of both the sides.  We also perused the written arguments and citations furnished by both the sides.

8. The following points arise for our consideration:-

1. Whether the complainant proves deficiency of service on the part of OPs?
2. Whether the complainant is entitled to reliefs mentioned in the complaint?
3. What order?

9. Our answers to the above points are as under:

       Point No.1:  In the affirmative.

      Point No.2: Affirmative in part

      Point No.3: As per final orders

REASONS

10. Point Nos.1 and 2:  It is one of the contention of OPs that the complainant is not a consumer and OPs have not received any service charges from the complainant. The advocate for the OPs also argues that OP No.2 has been running charitable hospital.  Whereas, advocate for the complainant, controvert this argument and submits that the complainant has paid service charges for all the days.  He subsequently refers Ex.B.5 which indicates that on every day of visiting, the OP No.2 has collected Rs.80/-.  It clearly indicates that the OPs have not provided free service.  At any stretch of imagination, this payment cannot be construed as a donation as argued by the advocate for the OPs.  There is no evidence to show that Rs.80/- per sitting collected was donation.  In view of this, payment for all the five days visit, it is sufficient to show that complainant is a consumer and service provided by the OPs falls under Section 2(42) of C.P.Act, 2019.
11. It is proved from the oral and documentary evidence produced by the both parties that the complainant being the OPD patient took physiotherapy in the hospital of OP No.2 from OP No.1 on 27.02.2020, 28.02.2020, 29.02.2020, 02.03.2020, 04.03.2020 and 05.03.2020.  No incident was happened on 27.02.2020, 28.02.2020, 29.02.2020, 02.03.2020 and 04.03.2020.
12. According to the complainant on 05.03.2020 due to negligence of OP No.1, he has suffered pain and injury over the elbow due to the excess heat and after hearing his voice and cry, the nurse attached to OP No.2 hospital had come and switched off the electric button.  The OPs have not examined the nurse who is best witness to prove the contention of the OPs and disprove the contention of the complainant.  No ordinary prudent man would keep quite and cry about alleged injury due to excess heat occurred on 05.03.2020.  The photo Ex.A.3 indicate that there was an injury on the left elbow of the complainant.  According to the complainant, the next day of the incident he had been to the hospital and OP No.1 failed to take proper care.  This fact has been denied by the OPs in their affidavit evidence.  They specifically contend that after 05.03.2020 the complainant neither came to the OP No.2 hospital nor approached the OP No.1.  Even presuming that complainant had approached OP No.1 on 06.03.2020, we failed to understand that why the complainant has not obtained endorsement by paying Rs.80/- as usually done for five days visit.  The initial burden on the complainant to prove that he met OP No.1 on 06.03.2020 and OP No.1 failed to discharged duties without caring the complainant.  But, this fact is not proved through evidence.  We fail to understand why the complainant failed to consult other doctors on 6^th, 7^th, 8^th  between 16^th of March, 2020.
13. According to the complainant, he took the treatment under Dr.Mruthyunjaya on 16.03.2020 and relies on prescription dated 16.03.2020.  Even though dated 16.03.2020 bears the name and designation of Dr.Mruthyunjaya.H.S., but it does not bear the seal and signature of Dr.Mruthyaunjaya.H.S.  Moreover, the complainant has not produced any documents to show that on the basis of this prescription, he had purchased medicine. If really the pain and suffering on the left elbow of the complainant so severe, no ordinary prudent man keep quite from 06.03.2020 to 16.03.2020 without medical assistance.  Even presuming for the sake of the argument that the complainant had approached Dr.Mruthyunjaya on 16.03.2020. The gap of 11 days between 06.03.2020 to 16.03.2020 is clear is indication that the complainant had not suffered pain as stated by him.  The complainant has also not examined Dr.H.S.Mruthyunjaya to demonstrate that the complainant has suffered severe pain and injury and he advised the complainant to take rest.
14. It is true that the complainant got issued legal notice dated 05.07.2020 which has been suitably replied by OP dated 13.07.2020.
15. The OP has produced two OPDF documents which are not in dispute.  There is no endorsement.  Even though these OPD documents indicate that OP No.2 is the charitable hospital, but as indicated in the preceding paragraph, the OPs have collected Rs.80/- per day from the complainant for period of five days.  Therefore, the OP No.2 is not right in saying that the free service was provided to the complainant.  Copies of the OPD register of relevant period has been produced which indicates that the complainant took physiotherapy during above period under OP No.1 in the OP No.2 hospital.
16. The counsel for the complainant referring the following decisions vehemently argues that the complainant proves the gross negligence of OPs:-

1. In the Supreme Court of India Criminal Appeal Nos.144-145/2004 – Jacob Mathew Vs. State of Punjab and others
2. 2011 (9) SCC 541 – Rajeev Hitendra Pathak and others Vs Achyut Kashinath Kaarekar and another
3. 2012 SCC online NCDRC 558 – M/s Hind Frieght Service Pvt. Ltd., agents and representatives of M/s MSC Agency (India) Pvt. Ltd., Vs. Mr.Ankit Agarwal, Proprietor of M/s Bigapole Life and others
4. 2009 (4) SCC 410 – Vadiraj Naggappa Verni Kara (dead)rep. by LRs Vs. Sharadchandra Prabhakar Gogale
5. AIR 2003 MP 156
6. (1998) 4 SCC 39
7. (2010) 5 SCC 513
8. AIR 1969 SC 128
9. (2010) 3 SCC 480
10. (2010) 5 SCC 513
11. (2014) 9 SCC 256
12. (1974) 1 SCC 690
13. (2014) 9 SCC 256
14. (1974) 1 SCC 690
15. AIR 1968 SC 1413
16. (2003) 8 SCC 204
17. (2014) 1 SCC 384

17. Whereas, the counsel for the OPs referring the following decisions vehemently argues that the complainant failed to prove the deficiency of service on the part of OPs and claiming of compensation is not only exorbitant but OPs are not liable to pay the same:-

1. AIR 2009 SC 2049 – Martin F D’Souza Vs. Mohd Ishfaq.
2. (2010) 1 CPJ 29 (SC)
3. (1992) II CPR 431 (NCDRC)
4. (1999) 1 CPJ 13 (NCDRC)

18. We carefully perused the facts and ratio involved in the above decisions, there is no need to go in detail about these decisions as the matter in issue is so simple. 
19. It has been proved that the complainant has suffered some injury and pain due to incident occurred on 05.03.2020.  The OPs have not adduced the evidence of the nurse to disprove the contention of the complainant.  There is negligence on the part of OPs and complainant has suffered some injury and pain, but at the same time, complainant fails to prove that he had suffered severe pain between 05.03.2020 till 16.03.2020 and thereafter.  But, no ordinary prudent man would keep quite without taking treatment for 11 days if really such person sustained severe pain and injury.  The complainant for the reasons best known to him to never took the treatment after 05.03.2020 till 16.03.2020. Under such circumstances, it may be easily held that the pain and suffering claimed by the complainant is not so severe.  Under such circumstances, the compensation claimed by the complainant is too exorbitant.
20. Even though complainant proves deficiency of service on the part of OPs.  But, the complainant has not examined Dr.Mruthyunjaya and no proper explanation is offered by the complainant for non-taking treatment between 05.03.2020 till 16.03.2020.  Under such circumstances, it is proper to award compensation of Rs.10,000/- only.  The complainant availed the service of advocate therefore, cost of litigation is quantified at Rs.2,000/-.
21. Point No.3:- In view of the discussion referred above, the complaint requires to be allowed in part.  The OPs are liable to pay compensation of Rs.10,000/- and Rs.2,000/- towards cost of litigation.  Hence, we proceed to pass the following 

  O R D E R

1. The complaint is allowed in part.
2. The OPs shall pay Rs.10,000/-  as compensation and Rs.2,000/- towards litigation cost to the complainant.
3. The OPs shall comply this order within 30 days from this date.
4. Furnish the copy of this order and return the documents to the complainant with extra pleadings.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 10^th day of February, 2022)

Documents produced by the Complainant which are marked as Ex.A.1 to Ex.A.5:

Documents produced by the OP Nos.1 and 2 which is marked as Ex.B.1 to Ex.B.8: