KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION  VAZHUTHACADU    THIRUVANANTHAPURAM

  APPEAL  NO: 554/2003 

                    JUDGMENT DATED: 23-09-2010

PRESENT

JUSTICE SHRI.K.R. UDAYABHANU     : PRESIDENT

SRI.M.K. ABDULLA SONA                      : MEMBER

M.R.Radhamaniamma,

Kuzhiyakulangara house,

Pezhakkapilly.P.O,                                    : APPELLANT

Muvattupuzha.

(By Adv:Sri.Tom Joseph)

          Vs.

Dr.P.P.Pathrose,

Parathuvayalil Nursing Home,                  : RESPONDENT

Keezhillam-683 541, Perumbavoor.

                                       JUDGMENT

SHRI.M.K. ABDULLA SONA : MEMBER

This appeal prefers from the order passed by the CDRF, Ernakulam in OP.953/99 dated:22-04-2003.  The appellant is the complainant and respondent is the opposite party.  This appeal prefers from the impugned order passed by the Forum below to dismiss the complaint.  The complainant approached the opposite party for treatment for injuries sustained by her due to fall.  He had diagnosed Colles fracture (right) and bandage was applied and pain killer tablets were also prescribed.  While the bandage was removed after 70 days deformity was seeing in the fractured portion and also the movements of her right palm and fingers were totally restricted.  Though she was subjected to Physiotherapy but no improvement was seen.  Subsequently the complainant was admitted in the Nedumchalil Trust Hospital, Muvattupuzha and she underwent for an operation thereby Dr.Prabhu.B.Patel.  After the operation the movements of her hand was improved considerably.  The appellant had suffered severe pain, other difficulties and financial loss due to the negligent treatment of the opposite party.  It is alleged by the complainant that the respondent had not taken check X-ray after the application, which is mandatory in the case of undisplaced colles fracture.  The opposite party who is an Ayurvedic doctor had given allopathy treatment which he was not permitted to do so.  The opposite party contended in the written version that the allegations raised by the complainant is incorrect.  There is no deficiency of service on this part.  The fact that the complainant underwent treatment under the opposite party has been admitted.  It is also contended that even though the complainant was advised to attend the opposite party’s hospital for Navarakkizhi, she did not turn up that there was mal union has been denied.  The check X-ray is also not necessary.  These are the contentions of the opposite party, hence he prayed for dismissal of the complaint with cost.

2. The evidence consisted of the oral testimony of the complainant as PW1 and marked Exts.A1 to A3 on the side of the complainant.  DW1 and DW2 were examined on the side of the opposite party and Ext.B1 was marked.  The case sheet of Nedumchalil Trust Hospital has been marked as Ext.C1.  On the basis of the request of the complainant a medical report was called for and a medical board was examined and given a report, marked as Ext.C2.

3. The Forum below heard both sides and analysed the entire evidence adduced by both parties and reached in a conclusion that the allegation regarding the allopathy treatment by the opposite party was raised in the complaint only after getting the Ext.C2 report from the Medical Board.  The Forum below relied on the decision of the Appex Court in Poonam Verma Vs. Ashwin Patel & Others (II – (1996) CPJ 1 (SC).  It was held that a Homeopathy Doctor prescribing allopathic medicines amounts to a negligence.  This decision has no application to the facts of this case, because there is no evidence that the opposite party has himself prescribed any allopathic medicines for the complainant.  The Forum below dismissed the complaint in the absence of the evidence adduced by the complainant.  This appeal preferred by the appellant from the above impugned order passed by the Forum below. 

4. On this day this appeal came before this Commission, heard both sides and perused the case records.  The counsel for the appellant argued on the grounds of the Appeal Memorandum that the respondent/opposite party is responsible for the deformity was seen on the fracture portion due to this deformity the movements of the right palm and fingers were totally restricted.  From the version it is seen that the respondent/opposite party advised her to take Ayurveda treatment like Navarakkizhi etc.  The respondent/opposite party contended that in the opposite parties hospital there were both Ayurvedic Physicians and Allopathic qualified doctors are available.  The allegation of the complainant that the opposite party is an Ayuredic doctor who prescribed the Allopathic medicines and given treatment.  The application of bandage on the fracture colles of the complainant is incorrect.  It is submitted that he have the right to treat his patients and to cured the fracture of the complainant.  It is his professional privilege and right.  The complainant has no right to challenge it. 

5. This Commission heard and perused the entire case sheet and the medical report and seen that deformity occurred on the right radius of the complainant and due to this deformity her hand was bend and she suffered difficult to move her fingers.  It is seeing that all the negligent and careless treatment given by the respondent/opposite party after he received fee from the complainant.  The finding of the Forum below that there is no deficiency committed by the respondent/opposite party is not legally acceptable as per the evidence available in this case. Every calamity suffered by the complainant due to the negligent and careless treatment given by the respondent/opposite party.  At the same time the opposite party did not take any steps to prove that he treated the complainant with due care and caution.  In the medical negligence cases this burden shifted to the part of the opposite parties.  It is a well settled principle of law.  The order passed by the Forum below is not in accordance with law and evidence.  It is not legally sustainable.  Here the question is note that whether the opposite party is a qualified Ayurvedic doctor or an Allopathic doctor.  He contributed negligence, he alone liable for that.  The poor complainant suffered huge due to this Act done by the opposite party.  The functional loss of five fingers of her right hand is a very serious disability-“The Right is always Right” except in India Road Rules.  The doctor concerned is alone liable to answer for this entire problem.

In the result this appeal is allowed in part.  The order passed by the Forum below is set aside.  We direct the opposite party to pay Rs.25,000/- to the complainant within one month after receipt of the copy of the judgment.  The amount claimed by the complainant is Rs.1,lakh.  It is not reasonable and without any norms and principles.  Both parties are directed to suffer their own respective costs.  The points of this appeal are discussed and answered accordingly.  This appeal is disposed with above direction.

M.K. ABDULLA SONA : MEMBER

VL.

JUSTICE K.R. UDAYABHANU: PRESIDENT