F.A.No.29/2008 AGAINST C.C.No.872/2005, DISTRICT FORUM-I, VISAKHAPATNAM.

Between:

K.Sundar Ramam, S/o.late K.V.Ramesam

Aged about 67 years, Occ:Doctor,

Proprietor of Sri Sitharama Nursing Home,

R/o.Chodavaram, Visakhapantam Dist.,              ...Appellant/

       opp.party

          And

Mummidisetty Venkata Krishna,

S/o.Venkata Rao, aged 26 years,

Occ:Agriculturist,

H.No.107/2, Ravikamatam Village and Mandal,

Visakhapatnam District.                                              Respondent/

          Complainant

Counsel for the Appellant    : M/s.V. Sankara Rao

Counsel for the Respondent: M/s.P.Ravi.

 QUORUM: THE HON’BLE JUSTICE  SRI D.APPA RAO, PRESIDENT                                                         AND

                             SMT.M.SHREESHA, HON’BLE  MEMBER

.

               MONDAY, THE TWENTY SECOND DAY OF  NOVEMBER, 

                                          TWO THOUSAND TEN

 Oral Order : (Per   Smt.M.Shreesha, Hon’ble Member)
***

Aggrieved by the order in C.C. No.872/2005 on the file of District Forum-I, Visakhapatnam, the opposite party preferred this appeal.

The brief facts as stated in the complaint are that the complainant was facing lot of inconvenience during intercourse as there was no movement at the time of erection of penis.  When he consulted the opposite party on 27-7-2004, advise was given to undergo circumcision, a simple surgery.  He was asked to arrange Rs.1,000/- for the surgery, which would be conducted by the son of the opposite party, as the opposite party was aged 70 years and has spinal card problem.  On 01-8-2004 after receiving Rs.1,000/- the surgery was performed by opposite party contrary to the assurance given that the surgery would be performed by his son.  It is the case of the complainant that the opposite party has given long stitches as a result the male organ was swollen and also number of big bumps appeared associated with pain. The wound did not heal as a result of negligence during surgery.   When the complainant consulted the opposite party, he was advised to undergo a second surgery.  He demanded the opposite party to the second surgery, who agreed at the first instance and later refused.  The complainant approached another doctor, Dr.Rambabu who gave costly medicines to heal up the wound and on 13-5-2005, Dr.Rambabu performed surgery and removed the big bumps around penis.  The said doctor also informed that the opposite party has removed excess skin on one side and less skin on another side with ups and downs and also with long and tight stitches which resulted in the entire skin getting hard, painful and causing itching sensation.  The complainant submitted that he was not having sexual satisfaction as the problem is persisting and had to incur Rs.15,000/- for the second operation.  Therefore, he got issued a legal notice on 02-6-2005 for which the opposite party replied.   Hence the complaint for a direction to the opposite party to refund cost of second surgery of Rs.15,000/- including medicines and transport, to refund cost of first surgery of Rs.11,000/- including medicines and transport and  to pay compensation of Rs.2,50,000/-.

Opposite party filed counter admitting that on 27-7-2004 the complainant approached with the complaint of phymosis, which is a condition when the foremost part of the penis is covered by skin and will not retract easily and he conducted circumcision surgery on 01-8-2004 successfully.  But the complainant failed to follow up post operative care  though advised by him and might have participate in sexual life during the healing process which resulted in formation of bumps on the skin.   Opposite party submitted that he is aged 62 years and is an experienced post graduate general surgeon and performed the surgery by taking all necessary care and the complaint was filed against him with false allegations and denied the allegations made in the complaint and prayed for dismissal of the complaint with costs.

Based on the evidence adduced i.e. Exs.A1 to A22 and B1 to B3 and the pleadings put forward, the District Forum allowed the complaint directing the opposite party to pay Rs.10,000/- towards treatment and other incidental expenses, it further directed to pay Rs.50,000/- towards mental agony together with costs of Rs.10,000/-.

Aggrieved by the said order, the opposite party preferred this appeal.

            The learned counsel for the respondent/complainant filed written arguments.

        The facts not  in dispute are that the complainant  is a  married 26 years old man having lot of inconvenience during his intercourse.  On 27-7-2004  the complainant approached  the opposite party   who advised him to undergo circumcision  surgery stating that  it is  a very simple surgery and he will be cured within  two weeks.  On 1.8.2004 the complainant  went to the opposite party  and paid Rs.1000/- towards fees,  and the opposite party conducted  circumcision surgery on the same day.  But the complainant contends  that opposite party did not put  the stitches properly and  the opposite party advised the complainant to undergo a second  surgery and submitted that due to negligence of the opposite party the wound did not heal and big bumps appeared with abnormal pain. The wound did not heal within two weeks even after the surgery. It is the case of the complainant that he visited another doctor Sri Narayana Rao  who advised him to  come after 6 months, then the complainant again  visited another doctor Sri Rambabu, Urologist  who advised  him  to come after the wound healed  and the complainant experienced lot  of pain.  It is also the complainant’s case that finally on 13.5.2005  the Urologist,  Dr.Rambabu conducted another surgery.

        We observe from the record that Dr.Rambabu was examined as PW.2 and he deposed that the opposite party  had removed excess skin on one side and less skin on the other side  with ups and downs  and also given long and tight stitches  as a result the entire section became hard and there was itching sensation.   During re-examination the witness stated that the doctor  at  Chodavaram  i.e. opposite party did not conduct the  operation perfectly like him.  A brief perusal  of Ex.A19 dt.12.5.2005 and the prescription of PW.2 which states that the circumcision (partial) was done   and therefore the second surgery was advised.  Ex.A14 is also the  prescription  given  by Pw.2 which states that    there is irregularity  and removal of bumps is essential.

        The learned  counsel for the appellant/opp.party  contended  that the expert doctor has stated that there is no negligence   on behalf  of the appellant doctor and that the respondent/complainant did not  follow the advise of not having sexual intercourse for 6 weeks. The appellant doctor  did not file  any medical literature  or documentary evidence to substantiate his  contention that the bumps  can be formed  due to infection  or that he has advised   the complainant  not to have sexual intercourse for  6 weeks  which the complainant had never followed.  No such precaution is  recorded  in the prescription.  Even the line of  medical treatment followed  is  not stated anywhere  in any document.   We rely on the judgement of Apex Court reported  in (2004) 8 SUPREME COURT CASES 56 in SAVITA GARG (SMT) v. DIRECTOR, NATIONAL HEART INSTITUTE  wherein  the Apex Court  observed that the  burden of proof shifts on the opposite party to explain the line of treatment followed which in the instant case the appellant has failed to establish  and has not even  filed any document/prescription explaining  the line of  medical treatment followed  as per  standards of medical parlance or precautions taken to prevent the infection, as he himself contends that the bumps may be due to infection. To reiterate,  in the absence of any evidence that there was  infection which led  to bumps or that the surgery was conducted  as per the standards of normal medical parlance we are of the considered view that the appellant doctor was negligent  in conducting the first operation.  We do not  find any irregularity in the observation  of the District Forum  that there was negligence  in the conduction  of circumcision  surgery  by opp.party no.1 which necessitated   the second surgery  for which the complainant  had to undergo  immense pain and mental agony and also inconvenience.    

        In the result this appeal is dismissed and  the order of the District Forum is confirmed . Time for compliance four weeks.

                                                                                                PRESIDENT

                                                                                                MEMBER

                                                                                              22.11.2010