Tamil Nadu

StateCommission

A/218/2018

Malar Hospital, Rep by its managing Director, Mahalingapuram, Chennai-600 034. - Complainant(s)

Versus

N.D. Manchar , Vepery, Chennai-600 007and another - Opp.Party(s)

M/s. R. Parthasarathy

10 Jan 2022

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

Present:   Hon’ble THIRU. JUSTICE. R. SUBBIAH                :     PRESIDENT

                  Tmt. Dr. S.M. LATHA MAHESWARI                       :      MEMBER

F.A. No. 218 of 2018

(Against the order passed in C.C. No.214/2005 dated 09.11.2017 on the file of the D.C.D.R.F.(South), Chennai)

Monday, the 10^th Day of January 2022

Malar Hospital

Rep. by its Managing Director

No.52, 1^st Main Road

Gandhi Road, Adyar

Chennai- 600 020.                                                                                                                .. Appellant/ 2^nd Opposite Party

- Vs -

1.  N.D. Manchar @ Manohar

     No.6, Subbiah Naidu Street

     Vepery

    Chennai - 600 007.                                                                                                           .. 1^st Respondent /Complainant.

2.  Wisdom Hospitals Pvt Ltd.,

     Rep. By its Managing Director

     17, Mahalinga Chetty Street

     Mahalingapuram

     Chennai – 600 034                                                                                                           .. 2^nd Respondent /1^st Opposite Party

    Counsel for Appellant /2^nd Opposite party           : M/s.R. Parthasarathy

    Counsel for the 1^st Respondent /Complainant       : Party-in-person

    Counsel for the 2^nd Respondent / 1^st Opposite Party:  Ex-parte

This appeal is coming before us for final hearing on 10.01.2022 and on hearing the arguments of the Appellant and Complainant and on perusing the material records, this Commission made the following :-

O R D E R

HON’BLE THIRU JUSTICE R.SUBBIAH, PRESIDENT

1.        This appeal has been filed by the Appellant / 2^nd Opposite party under Section 15 read with Section 17(1)(a)(ii) of the Consumer Protection Act, as against the order dated 09.11.2017 made in C.C. No.214 of 2005 by the District Consumer Disputes Redressal Forum, Chennai (South), directing the Appellant/ 2^nd Opposite Party herein to pay the compensation amount to the First Respondent/ Complainant along with the 2^nd Respondent/ 1^st Opposite Party, jointly and severely. 

2.       The factual background culminating this appeal is as follows:  The case of the 1^st Respondent / Complainant is that he is a Graduate and Contractor by profession.  Due to his business and family stress his health was affected and he was admitted in the first opposite party hospital for treatment on 13.05.2004.  In the first opposite party hospital, during the course of treatment, he was administered with an injection on the left hand by an untrained and unqualified staff.  Due to wrong administration of injection, his left forearm had become cold and he developed onset of pain on his left upper limb.  But, no proper treatment was given to him in the first opposite party hospital, which resulted in formation of gangrene.  Since, the wrong administration of injection led to gangrene, the complainant was shifted and admitted in the second opposite party hospital for further treatment.  The second opposite party hospital diagnosed the same as acute left brachial artery Thrombosis with irreversible Ischemia.  As a life saving measure, his left forearm below elbow was amputated by the doctors in the  second opposite party hospital.  For no fault of the complainant, he lost his left forearm below elbow.  Only wrong administration of injection led to acute left brachial artery Thrombosis with irreversible Ischemia. If the first opposite party has taken any emergent steps to arrest the further growth of gangrene within six hours, the complainant would not have lost his left forearm below elbow.  Hence, on the allegation of medical negligence, he filed a complaint seeking for a direction to the second respondent/ first opposite party hospital, for the following reliefs:-

i)   to pay a sum of Rs.1 lakh for medical expenses;

ii)  to pay a sum of Rs.3 lakhs for mental agony;

iii) to pay a sum of Rs.2 lakhs for loss of future earning;

iv) to pay a sum of Rs.1 lakh for pain and suffering; and

v) to pay a sum of Rs.50,000/- as costs of this complaint and for further orders.

3.  The complaint was contested by the second respondent/ first opposite party by filing a details counter.  So far as the appellant/ the second opposite party is concerned, he was set ex-parte.  In order to prove the claim on the side of the complainant, proof affidavit was filed and 3 documents were filed as Ex.A1 to Ex.A3.  On the side of the second respondent/ first opposite party 6 documents were marked as Ex.B1 to Ex.B6. 

4.  The District Forum after analyzing the evidence and pleadings, have come to a conclusion that there is deficiency of service on the part of the opposite parties and directed both the opposite parties to pay a sum of Rs.50,000/- towards amputation of left forearm and Rs.1,00,000/- towards financial suffering and Rs.5000/- towards loss of earning with cost, to the complainant.  Aggrieved by the same, the second opposite party has come forward with the appeal.

5.  The only ground raised by the appellant/ 2^nd Opposite party is that in the complaint, the relief has been sought for only against the first opposite party and not against the second opposite party. In fact, in paragraph 9 of the complaint, the complainant had clearly stated that the first opposite party alone is liable to compensate for the sufferings of the complainant. When that being so, the District Forum ought not to have directed the second opposite party to pay the compensation jointly and severely, along with the first opposite party.  Therefore, he seeks to set aside the direction given by the District Consumer Disputes Redressal Forum (South) as against them.

6.  Heard  the arguments and perused the material available on records. 

7.  The main allegation of the complainant is that he was administered with an injection by an unskilled staff of the first opposite party, which resulted in development of gangrene.  Therefore, he was left with no other alternative but undergo another operation in the second opposite party hospital to amputate his left forearm below elbow.  Therefore, the second opposite party cannot be held responsible in any way for the negligence committed by the first opposite party. In fact, as contended by the counsel for the appellant/ second opposite party even in the complaint, the relief sought for is only as against the first opposite party.  But the District Forum without properly looking into this aspect, had directed both the opposite parties to pay the compensation amount. 

8.  Therefore, the direction given as against the appellant/ second opposite party is set aside.  Consequently, the second opposite party is exonerated from the liability of paying the compensation.  However, the direction given to the first opposite party to pay the compensation amount is upheld.  Consequently, the appeal is allowed.

 

S.M.LATHA MAHESWARI                                                              R.SUBBIAH

         MEMBER                                                                                   PRESIDENT

 

 

Index :  Yes/ No

AVR/SCDRC/Chennai/Orders/January/2022