NCDRC

NCDRC

FA/368/2006

T RAMESH KUMAR REDDY - Complainant(s)

Versus

MANIPAL HOSPITAL & ANR. - Opp.Party(s)

MR. D. BHARAT KUMAR

09 Mar 2010

ORDER

Date of Filing: 11 May 2006

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHIAPPEAL NO. No. FA/368/2006
(Against the Order dated 12/04/2006 in Complaint No. 36/2004 of the State Commission Karnataka)
1. T RAMESH KUMAR REDDYDOOR NO 6-2-913, OPP LAKSHMI GIRILS HOSTEL, RAMNAGAR, ANANTAPUR, ANDH ...........Appellant(s)

Vs.
1. MANIPAL HOSPITAL & ANR.DIRECTOR - ADMINISTRATION NO. 98 RUSTOM BAGH, AIRPORT ROAD, BANGALORE - 6500172. DR. S. K. MONDALCONSULTANT, ENT SURGEONMANIPAL HOSPITAL, AIRPORT ROADBANGALORE - 5600173. MRS. MALBIKA MONDAL316, sadanand Nagar, NGEF eastBangalore 560 038KARNATAKA4. MRS. NANDITA MONDALGirls hostel, IISc.BangaloreKARNATAKA ...........Respondent(s)

BEFORE:
HON'BLE MR. JUSTICE R.C. JAIN ,PRESIDING MEMBERHON'BLE MR. ANUPAM DASGUPTA ,MEMBER
For the Appellant :MR. D. BHARAT KUMAR
For the Respondent :Mr. Vivek Singh -

Dated : 09 Mar 2010
ORDER

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PER JUSTICE R.C. JAIN, PRESIDING MEMBER (Oral) Aggrieved by the order dated 12.04.2006 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, ‘the State Commission’) in complaint No. 36 of 2004, the original complainant has filed the present appeal seeking upgradation of the relief so granted to him by the State Commission. -2- 2. We have heard Ms. M. Indrani, learned counsel for the appellant and Mr. Vivek Singh, learned counsel for the respondents and have considered their respective submissions. 3. Facts and circumstances of the case, which led to the filing of the complaint before the State Commission and the pleas on which the said complaint was sought to be contested by the respondent/hospital, have been amply noted by the State Commission and need no repetition at our end. However, in order to answer this appeal, we may simply note that the complaint before the State Commission was filed claiming a compensation of Rs.45 Lakh from the respondent/hospital and the doctor alleging medical negligence and deficiency in service on the part of the hospital and the ENT Surgeon, who conducted certain surgical procedure on the left ear of the complainant on 28.12.2002, because he had the problem of non foul smelling watery discharge from his left ear with decreased hearing. It was alleged that due to negligence in the procedure and post operative care, the complainant had developed the following complications:- “(i) Facial Paralysis, (ii) Non-closure of left eye while sleeping; (iii) Disturbance in movement of eye lid; (iv) Disfiguring of face; (v) Loss of memory; (vi) Non-closure of left eye while traveling resulting in dust accumulation on eye lid ultimately damaging the eye sight; (vii) Blurring of images; (viii) Continuous watering on left eye; -3- (ix) No clarity in speech and improper pronunciation due to partial opening of left side of mouth.” 4. The State Commission, going by the respective pleas and the evidence and material brought on record, more particularly, going by the medical record, has found the respondents guilty of negligence in conducting the said surgery on 28.12.2002 and consequently, partly allowed the complaint thereby directing the respondents No. 1 and 2 to pay jointly and severally a sum of Rs.1,00,000/- to the complainant with interest @ 9% per annum from the date of the complaint till realization, besides, awarding litigation expenses of Rs.5,000/-. 5. It would appear that during the pendency of appeal, opposite party No. 2-Dr. S. K. Mondal, Consultant, ENT Surgeon, Manipal Hospital expired and his legal heirs have been brought on record. It would also appear that respondent No. 1/Manipal Hospital in compliance of the order passed by the State Commission, has paid the entire awarded amount of Rs.1 Lakh alongwith interest to the complainant. It is, therefore, manifest that the respondent/hospital has accepted the finding and order of the State Commission. However, after about four years of filing of the appeal, an application under Section 21(b) of the Consumer Protection Act, 1986, has been filed on behalf of respondent No. 1-hospital with a prayer to set aside the impugned order passed by the State Commission and dismiss the complaint. Learned counsel for the appellant has opposed the prayer primarily on the ground that the application so made by the -4- respondent-hospital, is not maintainable and, in any case, it is an after-thought as respondent-hospital failed to file any appeal against the impugned order passed by the State Commission either within the prescribed period or even after filing of the appeal by the complainant seeking enhancement of the compensation. In our view also, the application so filed by the respondent No. 1, is not maintainable and, in any case, devoid of any merit because the respondent by making the payment of awarded amount and not filing the appeal against the impugned order, will be deemed to have accepted the finding and the order of the State Commission on all fours. Even otherwise, the scope of section 21(b) of the Consumer Protection Act, 1986, is limited to the examination of an order or finding of Forum in respect of jurisdictional error, illegality or material irregularity in the said order or finding of forum. 6. Now, coming to the merits of the present appeal, in view of the above, we will have to proceed on the assumption that the finding of the State Commission in regard to medical negligence and deficiency in service on the part of the respondent has become final. We have, therefore, only to see if there is any scope for upgradation of the relief by way of enhancement of compensation payable to the complainant. The consequence of the deficiency in service in this case has been noticed in a prescription dated 7.8.2003 issued by Basavanagudi E.N.T. Care Centre as under:- “Facial nerve palsy left (Lt): Inability to raise eyebrows and close eyelids. Angulation of mouth. Absent nasolabial fold. -5- 7. Learned counsel for the appellant submits that the appellant has suffered permanent disability to the left side of his face, as a result of which he is not in a position to open and close his eye lids properly, besides suffering deformity and defacement of the said side of his face. We enquired with the learned counsel for the appellant whether the appellant had taken any treatment from some other hospital or doctor for rectification of the disability caused to the appellant and she informed that the appellant had taken treatment from one Dr. Mohan Kameswaran, Madras ENT Research Foundation (P) Ltd. at an expense of Rs.45,000/-. 8. The complainant has not filed any cogent material on record to show the extent of disability suffered by him, viz., whether it was a functional disability, permanent or temporary in nature or whether it was correctable by certain surgical procedure. The appellant was already employed in a State Government Department and continues to be so even after the surgical procedure and there is no indication that on account of the said disability and/or deformity, he has suffered any pecuniary loss. It is pertinent to note here that in the notice dated 02.08.2003 issued by the complainant to the hospital/respondent, the complainant had demanded reimbursement of a sum of Rs.11,647/- which he paid to the respondent/hospital as the charges for the said surgery, besides a sum of Rs.2500/-, which was paid for CT scan of the inner ear. At that time, he did not make any claim for any compensation for the loss and injury, which he might suffered on account of the said deformity. The State Commission took note of -6- the notice dated 02.08.2003 as also the reply given by the hospital but still awarded a compensation of Rs.1 Lakh with the stipulation of payment of interest. Having regard to the entirety of the facts and circumstances of the case and the nature and extent of resultant disability which is said to have been caused, we are of the view that compensation so awarded by the State Commission is adequate and reasonable. 9. In the result, the appeal fails and is hereby dismissed. The application filed by the respondent No. 1 being not maintainable, is also dismissed. No order as to costs.


......................JR.C. JAINPRESIDING MEMBER
......................ANUPAM DASGUPTAMEMBER