KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL Nos. 123/2010 & 124/2010

COMMON JUDGMENT DATED. 20.8.2011 

 PRESENT:-

SHRI.S.CHANDRA MOHAN NAIR     :    MEMBER

APPEAL 123/10

 APPELLANT

The Manager,

Ranni Marthoma Medical Mission Centre,

Ranni, Pathanamthitta District,

Represented by its Secretary.

                                    (  Rep. by Adv. Sri. Mohan Varghese))

                                             Vs

 RESPONDENTS

1.     Ponnappan, Punnamoottil, Angadi, Ranni,

     Pathanamthitta District.

2.     Rajesh (minor)

S/o Ponnappan,

Punnamoottil, Angadi, Ranni,

    Pathanamthitta District.

    Represented by his father and local guardian

    Ponnappan, the 1^st respondent.

3.     President

     Dekshina Kerala Consumer Protection Council,

     Pathanamthitta District.

                                                (R1 Rep. by  Adv. Sri.  Haridas)

APPEAL 124/10

APPELLANT

Dr. Veera Raghavan,

Orthopaedic Department, Ranni,

Marthoma Medical Mission Centre,

Ranni.

                                    (  Rep. by Adv. Sri. S. Sukumaran Nair))

                                             Vs

 RESPONDENTS

1.     Ponnappan, Punnamoottil, Angadi, Ranni,

Pathanamthitta District.

2.    Rajesh (minor)

     Punnamoottil, Angadi, Ranni,

Pathanamthitta District.

Represented by his father and local guardian

Ponnappan, the 1^st respondent.

3.    Sasthamadom. K. Sreekumar,

President,

Dekshina Kerala Consumer Protection Council,

Pathanamthitta District.

     4.  The Manager,

         Ranni Marthoma Medical Mission Centre,

         Ranni, Pathanamthitta District,

                              R1  Rep. by Adv. Sri. K.R. Haridas &

                               R4 Rep. by Adv. Sri. Mohan Varghese)

COMMON JUDGMENT

SHRI.  S. CHANDRAMOHAN NAIR        :    MEMBER

          These appeals are preferred by the opposite parties in O.P. 87/01 before the CDRF, Pathanamthitta who are aggrieved by the order dated 28.12.2009. Appeal 123/10 is filed by the Ist opposite party and appeal 124/10 is filed by the 2^nd opposite party.   By the impugned order though the president had  dismissed the complaint, the 2 members disagreed with the findings and conclusions of the president and had passed a separate  order fastening liability on the opposite parties to pay to the second complainant a sum of Rs. 3 lakhs (Rs. Three lakhs only) with interest at 6% per annum from the date of complaint till the date of order and thereafter at 8% per annum till the date of payment.   The opposite parties are also under directions to pay Rs. 10,000/- as costs.  It is further directed that if the amounts are not paid within 2 months from the date of receipt of the order, the interest rate would be at 9% from the date of default till the date of payment. 

          The complainants had approached the Forum stating that the first complainant was the local guardian of the second complainant who was a minor and the 3^rd complainant was the president of the Consumer Protection Council, Pathanamthitta.  The case of the complainants is that the second complainant sustained injury to his right heel on 27.2.2000 while playing in the school and that he was taken to a local doctor on 28.2.2000 and that at the advice of the local doctor, he was taken to the first opposite party hospital where he availed the treatment of the second opposite party doctor.  It is alleged that though the second complainant was admitted on 29.2.2000 and though he had been treated there till 4.3.2000, the complainant’s ailments did not subside and due to severe pain and bleeding   he was discharged from the hospital on 5.3.2000 at the advice of a duty doctor.  It is alleged that the treatment given by the opposite parties lacks quality and that the second opposite party doctor did not attend the second complainant for 3 days from 3.3.2000 and though he had been given best treatment in the Kottayam Medical College Hospital, the complainant sustained disability to his right leg.   It is stated that the second complainant was a very brilliant and healthy boy and claiming compensation of Rs. 3,82,560/- the complaint was filed praying for directions to the opposite parties to pay the amount to the complainants with interest.

          The opposite parties resisted the complaint by filing version. It has contended that the complaint was not maintainable as there was no consideration paid by the complainants and also that there was no deficiency in service or negligence on the part of the opposite parties in giving treatment to the second complainant.  It was submitted that the second complainant was brought to the hospital on 28.2.2000 with history of blunt injury to right heel and X ray was taken wherein no abnormalities could be detected.  He was given anti inflammatory drugs and was sent home.   On the next day he came with the complaint of swelling and signs of deep pus.  He was admitted and antibiotics were given.  It  was further submitted that as some blood also came with pus,  stronger antibiotics were prescribed to avoid severe infection and incision and drainage were also done in the operation theatre.  The second opposite party denied the case of the complainant that he did not attend him for 3 days together.  It was admitted that the complainant was discharged on 5.3.2000 as the relatives wanted to take him to the Medical College, Kottayam.   But it was stated that as the complainants had no patience to wait till the 2^nd opposite party could reach the hospital, the duty doctor gave a reference letter to the second complainant.  The opposite parties further submitted that all possible and best treatments were given to the second complainant and there was no deficiency in service or negligence on the part of the opposite parties.  Contending for the position that the complaint was ill motivated, the opposite parties prayed for the dismissal of the complaint with costs to the opposite parties. 

          The evidence consisted of the oral testimony of the first complainant  as Pw1, doctor of the Medical College Hospital as Pw2 and the second complainant as Pw3.  Exts. P1 to P6 were marked on the side of the complainants.  The second opposite party was examined as Dw1.

          The learned counsel for the appellant/ 1^st Opposite party  in Appeal 123/10 submitted before us that the hospital had extended all the facilities for giving best treatment to the second complainant.  However they have strongly contested the matter stating that no payments were made by the complainant for the treatment obtained from the first opposite party hospital.  It was also argued by the learned counsel that the complainants had no grievances against first opposite party hospital and hence the order as against them can not be sustained. It was also argued that the second opposite party is an experienced surgeon and has given best treatment that can be given in the given circumstances.

          The appellant in appeal 124/10 is the doctor who treated the patient in the first opposite party hospital.  The learned counsel argued before us that the complainants could not prove any negligence or deficiency in service on the part of the second opposite party while imparting treatment.  He has vehemently argued before us that the members of the Forum below also had concurred with the findings and conclusions of the president.   Inviting our attention to Ext. P3 and P4 the learned counsel contended before us that the second complainant got the same treatment in the Kottayam Medical College also which was given at the first opposite party hospital by the second opposite party.  He has also relied on the deposition of Pw2 who has stated that even when the wound is heeled there is a possibility of residual disability which in the instant case also had happened.  He has also argued that it was without completing the treatment that the second complainant left the hospital and it is also his case that the complainant had left the Medical College Hospital only on 8.5.2000 though he was admitted on 5.3.2000.  It is his further case that Pw2 has treated him only on 26.10. 2000 and the complainants are silent about the treatment they had obtained during the period from 8.5.2000 to 25.10.2000.  The learned counsel advanced the contention that culture and sensitivity test can be done only after evaluating the result of the antibiotics given atleast for 3 days.  Contending for the position that the complainants were unsuccessful in establishing their case that the second opposite party had given wrong treatment or that he had not followed the correct procedure, the learned counsel argued for allowing the appeal thereby dismissing the complaint.

 On hearing the counsel for the appellants in the respective appeals and also on perusing the records we find that it is the admitted case of the complainants that the second complainant had sustained injury on 27.2.2000 while playing in the school.  It is also admitted that he was taken to the first opposite party only on 28.2.2000 and he was given treatment.  It was only on 29.2.2000 that he was admitted in the opposite party hospital.  It is also seen that as per Ext.  P3, treatment records of the first opposite party hospital and Ext. P4 treatment records of the Medical College Hospital, Kottayam,   the second complainant was given atmost the same treatment.  The second complainant has no case that no incision or drainage was done on 1.3.2000 and no medicines were given to him.    It is also found that at the Medical College hospital also the same procedure was followed.   The evidence of Pw2 would not also establish that the second complainant had sustained the disability due to the treatment given by the second opposite party at the first opposite party hospital.  Though a specific question was asked to Pw2 he has answered;

Q.   Disability, the patient has suffered due to the result of the improper treatment given to him at the initial stage?

Ans. “ I can not say”  He has also stated  even if the disease is cured there is a possibility of residual disability and regarding culture sensitivity test, doctor has stated that only after giving antibiotics, and knowing its effects, the pus culture sensitivity test can be done.  However Pw2 is the doctor who has treated the inpatient only on 26.10.2000 whereas the patient had sustained injury on 27.2.2000.  It is also found that after discharge from the first opposite party hospital on 5.3.2000 the second complainant was given the same treatment in the Kottayam Medical College hospital and he was there under treatment till 8.5.2000.  Hence it is our considered view that the complainants could not prove their case that it was solely due to the treatment given by the second opposite party at the first opposite party hospital that the second complainant had sustained 12% physical disability as stated in Ext. P6 on a later stage on 18.1.2005.

          The members of the Forum below have found that the opposite parties did not take proper care and medication to the second complainant which amounts to deficiency in service.  On an appreciation of the entire facts and circumstances we find that no negligence can be attributed against the opposite parties.  Hence we find that the order fastening liability on the opposite parties, as ordered by the members of the Forum below, cannot be sustained.

In the result, both the appeals are allowed.  The majority decision of the members of the Forum vide order dated 28.12.2009 is set aside.  In the facts and circumstances of the present appeals, the parties are directed to suffer their respective costs. 

                                S. CHANDRA MOHAN NAIR   ;  MEMBER

ST