F.A.No.1604/2008 AGAINST C.C.No.294/1997, DISTRICT FORUM, Khammam

Between:

The New India Assurance Co. Ltd.,

Old Club Road, Khammam,

Rep. by its Regional manager,

Regional Office, Secunderabad.                                  Appellant/

                                                                                       Opp.party No.2

          And

1. Balina Ramulamma,

    W/o.Seetha Rami Reddy

    Hindu, aged 50 years, Household,

    R/o.Guttala Bazaar, Khammam.

2. Dr.Morthala Venkata Reddy

           (M.S. Gen.Surg.)

    Wyra Road, Khammam.                                             Respondent/                                                                                                                                                                          Complainant/O.P.1

Counsel for the Appellant: Smt.S.N.Padmini

Counsel for the Respondents: Mr.V.Gourisankara Rao-R1

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

AND

SMT.M.SHREESHA,  MEMBER

.

TUESDAY, THE THIRTIETH DAY OF NOVEMBER,

TWO THOUSAND TEN

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

Aggrieved by the order in C.C.No.294/1997 on the file of District Forum,  Khammam, opposite party No.2, preferred this appeal.

The brief facts as stated in the complaint are that the complainant in the month of December, 1996 felt pain in her throat and neck and approached opposite party No.1 for treatment and he treated her for some time.  As there was swelling at left side of neck  behind sterno clavicular joint, opposite party No.1 advised her to approach Dr.S.Pandu Ranga Rao for getting investigation report from the doctor, who is also a pathologist.  As per his advise, the complainant approached the said doctor on 20-12-1996 and after conducting final needle aspiration test, i.e. F.N.A. test, report was issued to the complainant on 23-12-1996.   After going through the investigation report, opposite party No.1 gave medicines and the complainant used the medicines for five months but there was no progress.  Again she approached opposite party No.1 who suggested the complainant to get investigation at NIMS, Hyderabad and as per his advice, the complainant got the investigations done on 10-5-1997.  After going through the report given by NIMS, Hyderabad, opposite party No.1 advised the complainant to get an operation for removing thyroid gland and on 14-5-1997, opposite party No.1 conducted operation on the complainant and informed that he removed the thyroid gland  and gave specimen for investigation.  It is the complainant’s case that opposite party No.1 cut esophagus which caused esophagus fistula and also tried to suture the same and could not succeed in his attempts and due to which the food taken by the complainant is coming out from tie fistula and complainant suffered a lot of agony.  After observing her condition, opposite party No.1 suggested the complainant to go to Hyderabad to Cardio Thoracic surgeon of  Osmania General Hospital, Hyderabad for rectification.   On  17-5-1997, the complainant went to Osmania Hospital and the doctors there advised her to admit in ENT Government hospital and suggested further operation.  After healing of the fistula, they also fixed a tube, for swallowing the fluids and further was advised to come to Osmania General Hospital for another operation.  After 15 days, the complainant approached Osmania General Hospital, Hyderabad but the fistula was not healed and therefore final operation was not conducted and the complainant was on fluids from 14-5-1997.  The doctors of ENT, Government hospital and  Osmania hospital have conducted operations and opined that opposite party No.1 had conducted operation in rash and negligent manner due to which esophagus nerve was damaged and the possibility of getting the nerve in proper condition is bleak.  The complainant submitted that she spent an amount of Rs.40,000/- for treatment at Khammam, Osmania General Hospital, Hyderabad and ENT Government Hospital, Hyderabad, respectively, an amount of Rs.20,000/- for transportation charges from Khammam to Hyderabad, an amount of Rs.40,000/- to get the operation at NIMS and for treatment and transportation charges.   The complainant also spent an amount of Rs.6,000/- for conducting operation and towards nursing charges at the hospital of opposite party No.1.  It is the case of the complainant that opposite party No.1 ought to have given proper service and therefore, she got issued a legal notice to the opposite party No.1 on 31-7-1997 for which the opposite party No.1 replied on 11-8-1997 by denying the liability.  Hence the complaint for a direction to the opposite parties to pay Rs.4,80,000/- towards damages.

Opposite party No.1 resisted the claim denying the averments made in the complaint.  He admitted that the complainant approached him in the month of December, 1996 and taken treatment.  He directed her to approach Dr.S.Pandu Ranga Rao with respect to swelling on left side of the neck behind sterno clavicular joint and accordingly the complainant had undergone F.N.A.C. test vide report dated 23-12-1996.  He submitted that after going through the report, he gave medicines for five months.  He denied that there was no progress for the said treatment.  He admitted that he recommended the complainant to NIMS for investigations and the complainant was advised by the doctors at Hyderabad to undergo operation.   At the request of the complainant and her family members, he after going through the report of NIMS accepted to operate on the complainant for thyroid hashimatoes i.e. tumor in the thyroid gland after taking consent.  When he opened the neck for operation to remove the tumor to his utter surprise, he found that the tumor not only encroached and covered thyroid gland but the roots of the tumor were arising from Esophageal wall and it was arising from the left laterial side and behind the trachea and para vertebral area above the left supra clavicular area which is encapsulated.  It was removed carefully since the tumor was arising from Esophageal wall, esophageal fistula formed.  He submitted that the  tumor was detected only at the time of operation, once opened the deformed in the esophagus cannot be operated by general surgeon and it has to be rectified only by thorasic surgeon and therefore he advised the complainant to approach Cardio Thorasic Surgeon at Osmania General Hospital, Hyderabad for closing esophageal fistula.  He denied the contention that he removed the thyroid gland and submitted that the specimen given to the son of the complainant was not thyroid gland but tumor mass and the report of Dr.Panduranga Rao dated 22-5-1997 state that the complainant has got nerve sheath tumor.  He submitted that there is no evidence to state that he conducted the operation negligently without taking proper care and had cut esophagus and caused Esophagus fistula.  He denied the allegation that the complainant could not take food because of the said complaint and denied receipt of  Rs.6,000/- towards operation and nursing charges and any negligence on his behalf  in conducting the operation and prayed for dismissal of the complaint.    

During the pendency of the complaint, opposite party No.2 was impleaded as per orders in I.A.No.98/1998 dated 16-8-2000.  It denied the allegations made in the complaint.  It stated that the policy does not cover the liability arising out of a claim of this nature and that opposite party No.1 gave a reply to the notice got issued by the complainant without informing them and as such opposite party No.1 is guilty of breach of contract and not entitled to indemnified  and prayed for dismissal of the complaint.

Based on the evidence adduced i.e. Exs.A1 to A13 and B1 and B2, the District Forum allowed the complaint directing opposite parties 1 and 2 to pay Rs.40,000/- for conduction operation, for treatment at ENT Govt. Hospital, Koti, Khammam as well as Hyderabad hospitals.  Rs.20,000/- for her treatment and transportation charges, an amount of Rs.40,000/- towards operation at NIMS and also transportation charges, an amount of Rs.6,000/- spent by the complainant towards nursing charges together with an amount of Rs.3,00,000/- towards damages and in all awarded Rs.4,06,000/- to be paid with interest at 9% p.a. from the date of filing of the complaint till the date of payment together with costs of Rs.10,000/-.

  Aggrieved by the said order, opposite party No.2 preferred this appeal.

The facts not in dispute are that the complainant in the month of December, 1996 felt pain in her throat and neck and approached opposite party No.1 for treatment, he treated her for some time and as there was swelling at left side of neck behind sterno clavicular joint, opposite party No.1 advised her to undergo investigation and accordingly the complainant had undergone the investigation on 20-12-1996 and fine needle aspiration test, i.e. F.N.A. test, report was issued to the complainant on 23-12-1996.   After going through the investigation report, opposite party No.1 gave medicines and the complainant used the medicines for five months and as there was no progress, she approached opposite party No.1 who suggested the complainant to get investigation at NIMS, Hyderabad.  The complainant got the investigations done on 10-5-1997.  After going through the report given by NIMS, Hyderabad, opposite party No.1 advised the complainant to get an operation and on 14-5-1997, he conducted operation on the complainant and gave specimen for investigation. 

It is the complainant’s case that opposite party No.1 cut esophagus which caused esophagus fistula and also tried to suture the same and could not succeed in his attempts and due to which the food taken by the complainant is coming out from tie fistula and complainant suffered a lot of agony.  After observing her condition, opposite party No.1 suggested the complainant to go to Hyderabad to Cardio Thoracic surgeon of  Osmania General Hospital, Hyderabad for rectification and alleged that it was due to the negligence in conducting the operation by opposite party No.1.  While opposite party No.1 contends that after going through the report of NIMS, he accepted to operate on the complainant for thyroid hashimatoes i.e. tumor in the thyroid gland after taking consent.  When he opened the neck for operation to remove the tumor to his utter surprise, he found that the tumor not only encroached and covered thyroid gland but the roots of the tumor were arising from Esophageal wall and it was arising from the left lateral side and behind the trachea and para vertebral area above the left supra clavicular area which is encapsulated.  It was removed carefully since the tumor was arising from Esophageal wall, esophageal fistula formed.  He submitted that the  tumor was detected only at the time of operation, once opened the deformed in the esophagus cannot be operated by general surgeon and it has to be rectified only by thoracic surgeon and therefore he advised the complainant to approach Cardio Thoracic Surgeon at Osmania General Hospital, Hyderabad for closing esophageal fistula.  He denied the contention that he removed the thyroid gland and submitted that the specimen given to the son of the complainant was not thyroid gland but tumor mass and the report of Dr.Panduranga Rao dated 22-5-1997 state that the complainant has got nerve sheath tumor.  He submitted that there is no evidence to state that he conducted the operation negligently without taking proper care and had cut esophagus and caused Esophagus fistula.  He denied the allegation that the complainant could not take food because of the said complaint and denied receipt of  Rs.6,000/- towards operation and nursing charges and any negligence in conducting the operation and prayed for dismissal of the complaint.   

The learned counsel for the appellant/insurance company contended that the claim is only for Rs.1,50,000/- and the policy is for an amount of Rs.5,00,000/-.  The learned counsel for the appellant contended that the District Forum has awarded a compensation of Rs.3,00,000/- and other expenses totaling to Rs.4,06,000/- with interest at 9% p.a. and 10,000/- towards costs and the claim amount is only Rs.1,50,000/-. 

We observe from the record that the doctor, who is insured by the appellant has not preferred any appeal and the order of the District Forum against the opposite party No.1 doctor has become final.  The learned counsel for the appellant contended that no fees of Rs.10,000/- was even paid to the doctor, who is insured.  Taking into consideration the material on record i.e. Exs.A1 to 13 which show that the first operation was  on 14-5-1997 by opposite party No.1 doctor and underwent treatment on account of the complications that arose due to the operation done by opposite party No.1.  Ex.A2 & A3 is dated 21-6-1997  and 9-9-97 are out patient ticket of Osmania General hosptial, Ex.A4 is discharge ticket of Osmania General hospital dated 13-5-2001, Ex.A5 is report given by S.R.Diagnostic, Khammam.  Ex.A6 is letter given by opposite party referring to Osmania General hospital   dated 17-5-1997, Ex.A7 is biopsy dated  22-9-97, Ex.A8 is cyto pathology report dated 10-5-1997, Ex.A9 is Govt. hospital out patient card.  Ex.A10 is the legal notice dated 31-7-1997, Ex.A12 is medical bill from 21-7-1997 to 2-1-2002 clearly establish that the treatment was necessitated because of the operation negligently done by opposite party No.1.  We reiterate that opposite party No.1 did not prefer any appeal.  It is pertinent to note that though the complainant in his initial prayer sought for direction to award damages of Rs.1,50,000/- later amended the complaint for damages of Rs.4,80,000/-  together with costs.  Taking the expenses incurred, we are of the considered view that the direction with respect to payment of Rs.40,000/- for conducting operation and for treatment at ENT Government hospital as well as Hyderabad hospital, an amount of Rs.20,000/- for treatment and transportation charges, an amount of Rs.40,00/- for operation expenses at NIMS together with transportation charges and an amount of Rs.6,000/- spent by the complainant towards transportation charges is confirmed.    However a compensation of Rs.3,00,000/- awarded by the District Forum without any substantial grounds  is excessive and we feel it just and expedient to reduce this amount to Rs.25,000/-.  The District Forum, however, has not given any substantial grounds as to how the complainant is entitled for compensation of Rs.3,00,000/-.  We are of the view that Rs.25,000/- would suffice.  We confirm the interest at 9% p.a. awarded by the District Forum and however reduce the costs from Rs.10,000/- to Rs.5,000/-. 

In the result the appeal is allowed in part and the amount granted by the District Forum from Rs.4,06,000/- is reduced to Rs.1,06,000/- while confirming the interest and modifying the order of the District Forum with respect to reducing the compensation from Rs.3,00,000/- to Rs.25,000/- and  costs awarded from Rs.10,000/- to Rs.5,000/-.  Time for compliance four weeks.

The amount of Rs.75,000/- deposited by the insurance amount while granting stay in FA.IA.No.2966/2008 is directed to be transmitted to the District Forum in order to enable the complainant to withdraw the same.

Sd/-PRESIDENT.

                                                                                                Sd/-MEMBER.

JM                                                                                                     Dt.30-11-2010