KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUDTHIRUVANANTHAPURAM APPEAL NO.1021/04 JUDGMENT DATED 16.7.2010 PRESENTSRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.M.K.ABDULLA SONA -- MEMBER 1. Dr.Mammen Alexander Orthopaedician, Jishy Hospital, Mundamveli, -- APPELLANTS Kochi-7. 2. Jishy Hospial, Mundamveli, Kochi-7, reptd. By the Chief Medical Officer, Dr.George Joseph. (By Adv. M.K.George) Vs. P.J.Aledander, S/0 Joseph, Puliyanedathu, -- RESPONDENT Cheriyakadavu, Kannamali P.O, Kochi-8. (By Adv.Baby M.Perumpillil) JUDGMENT SRI.M.K.ABDULLA SONA,MEMBER This appeal prefers from the order passed by the CDRF, Ernakulam in the file of OP.No. 206/02 dated 30th September 2004. The opposite parties are the appellants who prefers this appeal under the order that the opposite parties are directed to pay a sum of Rs.50,000/- as compensation from negligence committed by the appellant/opposite parties. 2. This is a case for coming from the medical negligence alleged to commit by the appellant/opposite parties in the case of treatment. The complainant who is a mason in his employment who was traveling on his scooter on 30.7.01 met with an accident and he sustained injuries to his arms and legs and he was admitted in the first opposite parties hospital. The second opposite party /Doctor who attended the complainant and he taken his X-ray and informed him that his left foot was fractural. He was admitted in the hospital and applying plaster on 2.8.01 and he was discharged on 4.8.01with a direction to come on 4.10.01 for removal of plaster. On removal of the cast it was found that there was slight bend and oedema. But the doctor advised him to dip his leg in lukewarm saline water for half an hour for 2 months and assured that the oedema and bend will disappear soon and the leg will be normal shortly. After 2 – 3 months the complainant again approached the second opposite party /doctor with a sore foot, increased bend and oedema and the second opposite party/doctor advised him that his foot was alright. But the complainant approached another doctor and the doctor advised to him to go to the Medical College. Since the condition of the complainant’s foot was becoming worse day by day he got admitted in Lourds Hospital on 19.6.03 and he was treated there as inpatient till 5.7.03 for which he had to spend Rs.17,000/-. Even today he is continuing the treatment of the doctor at Lourds Hospital. Earlier he had to spend Rs.35,000/- at the first opposite party hospital. The complainant could not attend his work for a long time. According to the complainant, their negligence and deficiency in service on the part of the opposite parties and prays for a direction to pay Rs.5 lakhs as compensation for the mental agony suffered by him. 3. Opposite parties filed their written version jointly and denied the allegation that they will committed careless and negligence treatment to the complainant. According to the opposite parties the X-ray of the complainant and un displaced fracture of the second metatarsal bone left side. He continued that the complainant was treated according to the guidelines in Standard Text Books of orthopaedics. If there was disfigurement, the Insurance Certificate would not have been issued to the complainant on 3.10.01. There is no negligence or deficiency in service of the opposite parties and the complainant is not entitled for compensation and they prayed for the dismissal of the complaint for costs. But the opposite parties admitted the fact that the complainant was treated and applied plaster and take necessary steps etc. On the part of the complaint, complainant was examined as PW1. The Doctors were examined as PWs 2 to 4. For the documents marked as an evidence for the complainant. The second opposite party filed an affidavit and he was examined as DW1. There is no documentary evidence from the part of the opposite parties. The treatment records from the hospital of this opposite parties were produced by them as per the order passed by the forum below on the basis of the petition filed by the complainant. 4. After hearing the parties and considering the entire evidence, the Forum below found that there was deficiency in service on the part of the second opposite party and the first and second opposite parties are liable to pay compensation to the complainant for the careless and negligent treatment for the deficiency in service as per the Consumer Protection Act. The Forum below allowed the complaint. 5. On this day this appeal came before this Commission for final hearing both parties are represented for their counsels and the counsel for the appellant argued on the strength of the grounds of the appeal memorandum that the appellants done all the necessary treatment to the respondent/complainant. There is no evidence adduced by the complainant to support his allegation that the appellant/opposite parties were to committed careless and negligent treatment to the complainant. The counsel for the appellant submitted that the bent is common after unique of the fracture and it cannot be say that there is deficiency in service. But this Commission put a question to the learned counsel for the appellant that if any check up a check ‘X’ ray was taken after the plaster was applied to the foot of the complainant, but the counsel preferred that it has not done all the cases like this to take an X-ray. Thus for examine the nature of the unique of the bones. The opposite parties of the hospital is not offering free treatment to the complainant who is a laborer and who approached to the appellant hospital with a confidence that he will get proper care and treatment. He paid the entire expense. The counsel for the respondent submitted that he is a poor man he suffered lot of struggle due to the wrongful act done by the appellant/opposite parties. Due to this reason he sustained huge loss including mental agony and financial loss. 6. This Commission perused the entire case records and heard both sides. It is seen that the act of the appellant/opposite parties are nothing but a careless and negligence treatment and it is a deficiency in service as per the Consumer Protection Act. But the same time, the complainant was not having any data or any proof for this financial loss sustained by him due to the negligent and careless treatment. The Forum below assumed an amount as a quantum of compensation. But the same time, there is no interest ordered by the Forum below. In the circumstances, the counsel for the appellant who submitted that he is only praying to reduce the quantum of compensation. But the same time, the counsel for the respondent/complainant argued that the compensation is awarded by the Forum below is a very small amount only. No interest was ordered. But at last both counsels suggested that the compensation may be fixed as Rs.40,000/- in the open court. Any way we are appreciating the straight forward and honest approach of both senior counsels of the Bar. Plea bargain and plea settlement by the counsels are the best available methord of the reduction of heavy pending of the consumer cases. In the result, this appeal is allowed in part and modified the order of the Forum below about the quantum of compensation of Rs.40,000/- and set aside the order of the compensation of Rs.50,000/-. No change in the cost of the proceedings ordered by the Forum below as Rs.1000/-. In short, this Commission directed the opposite parties to pay a sum of Rs.40,000/- as compensation and Rs.10,000/- as costs to the complainant within one month after the receipt of the copy of this Judgment. Otherwise, the appellant/opposite parties are directed to pay 12% interest to the complainant. The points of the appeal answered accordingly. Both parties are directed to suffer their respective costs. M.K.ABDULLA SONA -- MEMBER M.V.VISWANATHAN -- JUDICIAL MEMBER s/L | 
