KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL 629/2000JUDGMENT DATED.7.02.2008
SRI.K.R.UDAYABHANU -- PRESIDENT
Dr.Anna Thomas, MBBS (RMO) Poopally Hospital, -- APPELLANT Chengannur. (By Adv.K.Murlidharan Nair)
Vs. P.K.Niju Kumar, Malamodiyil Poikayil, -- RESPONDENT Pannukkara Muri, Chengannur Taluk, Ala Village. (By Adv.t.S.Rajan)
SRI.K.R.UDAYABHANU,PRESIDENT
The appellant is the second opposite party in OP.210/98 who is under orders to pay a compensation of Rs.10000/- and cost of Rs.500/- to the complainant who has alleged medical negligence on the part of the opposite parties that consisted of respondents 1 to 3. It is the case of the complainant that on 15.3.98 at 6.30 PM he went to the hospital of the opposite parties with the injury sustained on the 3rd toe of the right leg as a grinding stone fell on the tip of the 3rd toe. He was admitted at the hospital of the opposite parties and undergone I.P treatment for 9 days. On 23.3.98 he was discharged and continued O.P treatment for further 5 days. The wound did not heal and there was swelling. Then he went to the Taluk Hospital, Chengannur, wherein X-ray was taken and it was found that the bone is fractured and one portion of the bone is seen placed on the above other. At the above hospital the third toe was amputed. According to him the amputation is the result of the negligence of the treatment by the opposite parties. He had claimed a sum of Rs.1.5 lakhs and a cost of Rs.5000/-. 2. Originally complainant had impleaded only the first and second opposite parties. Thereafter subsequently the third opposite party was impleaded. 3. The first opposite party had contended that he was undergoing D.M.Course in Cardiology in Manipal during the period and that he has not seen or treated the complainant. According to him the complainant was treated by Dr.P.V.Koshy and the second opposite party. 4. The second opposite party has filed version, submitting that on admission of the complainant it was found that had sustained crush injury on the third toe of his right foot, and that he was advised by the third opposite party to consult an Orthopaedic surgeon. The third opposite party felt that the hanging part will have to be removed. It is mentioned that the complainant has not willing for the above course and he begged Dr.Koshy to save his toe. Dr.Koshy told him that an attempt could be made but he was not hopeful about the success. So, the pieces were sutured by the second opposite party and splint was applied and medicines were administered. He was also shown to Dr.Radhakrishnan who is a part time consultant Surgeon at the above hospital. The complainant was discharged on 23.3.98 and adviced to go to Medical College Hospital, Kottayam for further treatment. But he attended the O.P. at the Poopally hospital itself, that too irregularly for dressing. Instead of daily dressing he came for dressing of 25th, 27th 30th of March and 2nd, 5th and 8th of April. On each occasion the second opposite party advised him to go to Medical college Hospital. But he did not do so. The allegations are totally denied. It is stressed that the third opposite party and the second opposite party advised the removal of the hanging distal end. The additional third opposite party has filed a version supporting the second opposite party. 5. The evidence adduced consisted of the testimony of PWs 1 and 2, Exts.P1 to P4; Exts.B1 to B5. 6. The Forum found that the contentions that the complainant was not willing to take X-ray and refused to consult an Orthopaedic Surgeon stood not proved, in the absence of evidence on the part of the opposite parties. 7. The forum has relied on the evidence of PW2 the Doctor had treated the complainant at Taluk Hospital and effected the amputation. The portion in her deposition that had the complainant been treated carefully, the infection would not occurred was relied on. The Forum also found that there is an interpolated entry on 5.4.98 in Ext.P1 which is that he was advised further treatment at Medical College Hospital. It is found that there is no evidence to show that the complainant was advised to be treated as Medical College Hospital on 23.3.98 ie. the date of discharge. It was also noted that there is no signature in Ext.B2. There is no evidence to show that the complainant refused to be subjected x-ray or to consult the Orthopaedic surgeon or to amputee the tip. The court relied on the evidence of PWs1 and 2 to find that there is negligence on the part of the second opposite party. I find that for the reason that other opposite parties have not been made parties in the appeal is a serious lapse. I find that the third opposite party the Doctor who examined the complainant appears to be the Senior Doctor of the Hospital; and has not been made a party in the appeal. The third opposite party is a necessary party and it is his version that it was on his advice that the second opposite party/appellant treated the complainant. Considering the fact that this Commission has got co-ordinate jurisdiction with the Forum the failure to implead the third opposite party as respondent in the appeal is a serious illegality for which above the appeal is liable to be dismissed (Surat Singh Vs. Manohar, AIR, 197 SC 240). 8. Further the respondents/opposite parties have not adduced any evidence to contradict the case of the complainant. The treatment records, as noted by the Forum contained interpolations etc. Ext.B1 and B2 treatment records have not been proved. In the absence of proof as to Ext.B1 and B2 the same cannot be relied as such. Of course, it was contended by the counsel for the appellant that PW2 the Doctor who was examined at the instance of the complainant has also testified that as per the documents produced by the opposite parties they have administered normal treatment that could be given in such a case. But, I find that the above documents are yet to be proved. It was also contended relying on Lord Denning that doctor could be found guilty only when he had fallen short of the standard of a reasonable medical care C.Kameswara Rao’s Treatise on Law of Damages and Compensation, Vols.3, 5th Edition at p.2605. The evidence of PW2, read as a whole would show that opposite parties 2 and 3 did not administered proper treatment to the complainant. It is the case of opposite parties that the complainant insisted that there is no need to take an X-ray; that there is no need to consult Orthopaedic Surgeon there is no need to amputate of the third toe. It cannot be said that with such type of treatment can be taken as the standard of reasonable medical care. The version is that there was an X-ray unit at the particular hospital. The proper course is to discharge the patient if he is unwilling to heed to the advice of doctors. There is no explanation as to why the opposite parties did not testify and face to cross examination. In the circumstances, I find no reason to disturb the findings of the trial court. In the circumstances the appeal is only to be dismissed. In the result the appeal is dismissed.
JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT
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