KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL No. 125/2006

        JUDGMENT  DATED:  18-03-2011

PRESENT:

SHRI.M.V. VISWANATHAN                                              : JUDICIAL MEMBER

SHRI. M.K. ABDULLA SONA                                           :   MEMBER

Dr.Vinod Govind, S/o Rama Varma,

Pushpa, Punnayurkulam,                                                            : APPELLANT

Thrissur-679 561.

(By Adv:Sri.M.C.Suresh)

            Vs.

1.         Roy.T.K, S/o Late Kuruvilla,

Thekkummattathil house,

Kattayad.P.O, Vellamunda,

Mananthavady.

                                                                                    : RESPONDENTS

2.         The District Medical Officer,

District Hospital, Mananthavady.

                                   JUDGMENT

SHRI.M.K. ABDULLA SONA : MEMBER

This appeal prefers from the order passed by the CDRF, Wyanadu in OP.241/99 dated:21/12/2005.  The appellant is the 2^nd opposite party and the respondents are the complainant and 2^nd opposite party respectively, the appellant prefers this appeal from the order passed by the Forum below that the 1^st opposite party is directed to pay Rs.55,903/- as compensation to the complainant with 9% interest from the date of filing of the OP from 23/12/1992 within 30 days of the date of receipt of the copy of the order.  A commission was issued to examine the expert at the expense of the expert commissioner which spent by the complainant Rs.2000/-.  In short the complainant sustained fracture both bones, middle and lower 3^rd of right leg on 19/7/1998 in a motor cycle accident.  Due to this injury he was admitted in the Government District Hospital, Mananthavady and treated him by the 1^st opposite party by putting plaster.  On removal of the plaster it was found that there was Malunion of the broken bones and the same was due to the negligent treatment of the 1^st opposite party.   The Malunion was rectified from Malliya Hospital, Bangalore.  So, he claims a total amount of Rs.4,50,000/- as compensation for pain and suffering, loss of earning for shortening of life and for medical expenses for rectifying the mal union etc.

2.      The 2^nd opposite party impleaded after filing of the complaint as the 1^st opposite party was working under him.  But the 2^nd opposite party remain exparte.

3.      The 1^st opposite party filed version and contended that the complainant is not a consumer coming under the purview of the Consumer Protection Act though he did not give any fees to the 1^st opposite party.  The complainant opted for a closed reduction.  The fracture was reduced and plaster of paris long leg cast was given (POP).  Since the site of fracture was at the lower part of the right leg, clinically bone was easily palpable and complete reduction of fracture by closed manipulation was palpated and verified.  He was discharged on 30/7/1998 and advised to come back after 4 weeks for changing to a patellar Tendon bearing cast (PTB).  He was advised gradual and guarded weight on the affected limb.  On 29/8/98 the complainant visited him and the POP was changed to PTB and at that time reduction of the fracture was clinically assessed and found to be good and verified that there was no pain or discomfort at the fracture site.  When PTB was removed on 8/11/98 the fracture was united but there was malunion.  Malunion is a known possible complication in closed reduction method of treatment.  It is authoritatively accepted as per standard medical books that success rate is 90% with closed reduction method and about 2 to 3% can go for malunion or vascular complication.  There was no error in judgment at all and the patient was fully aware for all these facts.  If the malunion occurs surgery – open reduction and internal fixation of the fracture would be needed.  No facility was available in the District Hospital, Mananthavady, for doing open reduction by surgery.  At the time of POP cast application and at the time of PTB cast application the reduction of fracture was clinically verified by palpation and was found to be in correct position and no pain was also complained of  the surgery was under Anaesthesia and the patient would not feel it.  The advice to gradual and guarded weight bearing might not have stuck which might have resulted in malunion.  There was no negligence on the part of the 1^st opposite party and he is not liable to pay any compensation to the complainant.  So, he prays for dismissal of the complaint with cost of Rs.10,000/-  to him as the complaint is malafide, vexatious and frivolous.

4.      The evidence consisted of the oral testimony of PW1 and expert witness was examined as PW2 and marked Exts.A1 to A20 on the part of the complainant.  On the side of the opposite parties the 1^st opposite party doctor was examined as OPW1.  There was no expert witness examined from the part of the opposite party doctor and there were no documentary evidence produced and marked to support his contentions in the version.

Forum below raised 4 issues:-

1.    Whether the OP is maintainable in this Forum?

2.    Whether there is any negligence on the part of the 1^st opposite party in adopting closed reduction method in the case of the complainant?

3.    Whether there is any deficiency in service on the part of the opposite party No.1 in treating the complainant?

4.    Relief’s and costs?

 5.     The Forum below discussed each and every point and answered correctly on the strength of the evidence adduced by both sides and the opinion of the expert cited and examined by the complainant.

6.      Heard both sides in detail.  The 1^st issue, the question of maintainability, it treated as a preliminary issue and the Forum below found that the complainant is a consumer as per the provisions of the Consumer Protection Act.  There is no doubt that it is a beneficiary of the district hospital even though he did not pay any fee to the 1^st opposite party doctor in the hospital.  The district hospital is a part and parcel of the Department of Health, Government of Kerala.  The State and Central Government spent huge money for the running of Government Hospitals.  This money is nothing but people’s money.  This position was discussed and settled by the Apex Court and the Hon’ble National Commission.  In the reported case, Indian Medical Association Vs. V.P.Shantha and Others (1996 CLT (81) (SC) 106 and CPJ part 1 1999 43 (NC) is clearly explaining that the service rendered at the Government hospital, Health Centre or any dispensary whose service are rendered on payment of charges and also rendered free of charge to other person availing such service would fall within the ambit of the expression ‘service’ as defined under Section 2(1) of the Consumer Protection Act.  Irrespective of the facts that the service rendered free of charge to persons who did not pay or its service, free service would also be “service” and the recipients are (a) consumer under the Consumer Protection Act.  In this circumstances this complaint is maintainable.  Forum below found that the 1^st opposite party is liable for the deficiency of service during his course of the treatment provided to the complainant and he is liable to pay compensation.  The Forum below passed the above impugned order.

7.      This order is challenged by the 1^st opposite party before this commission through this appeal.

8.      On this day this appeal came before this commission for final hearing the counsel for the appellant completed his arguments and the counsel for the 1^st respondent also represented and filed detailed argument notes.  There is no representation for R2. The counsel for the appellant argued on the strength of the grounds of Appeal memorandum that there is no deficiency of service committed by the appellant and the finding of the Forum below is not in accordance with the provisions of law and evidence.  It is liable to be dismissed.  His main argument is that the 1^st opposite party, doctor who given all the necessary treatment to the complainant he examined by his medical knowledge and expertisation and satisfied that the union of the fracture of the complainant is satisfactory though due to this reason he did not take any steps to take further X-ray etc.  His further contention is that the complainant approached a local Vyadian.  He removed the plaster that was the reason for the entire calamity.  From the evidence we are seeing that the complainant approached to the 1^st opposite party further the plastering but he was very indifferent towards the complainant.  This was the reason that he approached to the traditional Vyadian.  There is a specific question arised that what is the difficulty to take a check X-ray of the fracture of the complainant.  The 1^st opposite party has no case that the X-ray plant and X-ray Technician etc are not available in the district hospital, Mananthavady.  In the facts and circumstances of this case we are not seeing any reason to interfere in the impugned order passed by the Forum below.

9.      The learned counsel for the appellant invited our kind attention that the district hospital is already a party in this OP but he did not appear before this Forum below and before this Commission (in this appeal).  He argued that the 1^st opposite party doctor is working as a Government doctor in the district hospital Mananthavady.  There is a vicarious liability between the doctor and the hospital.  But the Forum below picked and choosed only the 1^st opposite party doctor and fixed the liability upon the 1^st opposite party alone.  It is against the principle of law.  But there is no strict negligence or carelessness committed by the servant it depends upon the facts and circumstances of each case or cases.  As per the provisions of the Consumer Protection Act the complainant has the right to proceed against the person those who committed deficiency of service and unfair trade practice.  But we are seeing that the complainant have no case that he paid anything to the 1^st opposite party doctor in the head of fee etc.  He was treated by the 1^st opposite party doctor as a capacity of a Government doctor of the district hospital, Mananthavady.  The Forum below issued notice to the 2^nd opposite party hospital he did not respond the notice of the Forum below and he set exparte.  This commission also issued notice to the very same party, here also he is absent.  We do not know what is the difficulty of the hospital represented by the Superintendent of the hospital even at least filed a version in the Forum below or to represent before this Commission.  We do not know if any action taken by the hospital authorities against the doctor concerned the complainant is becoming under the purview of the Consumer Protection Act on the capacity that he approached the district hospital, Mananthavady for free medical aid.  Here the role of the hospital is very important.  We are seeing that the 2^nd opposite party hospital cannot be escaped from the liability of such a deficiency of service.  We are seeing that he is also liable to pay compensation along with the 1^st opposite party because they are having master and servant relationship.  In other words the complainant is a consumer of the 2^nd opposite party then only the second opposite party.

In the result this appeal is allowed in part.  We modified the result portion of the order passed by the Forum below.  The 1^st and 2^nd opposite parties jointly and severally liable to pay compensation under the head of the deficiency of service.  Thereby we direct opposite parties to pay a compensation of Rs.55,903/- with 9% interest from the date of the order of the complaint along with that amount of Rs.2000/- as expense spent by the complainant for taking out an expert commissioner.  The result portion of the order modified accordingly.  Other directions are set aside here with.  The points of the appeal is discussed one by one and answered accordingly.  No cost hereby ordered.

M.K. ABDULLA SONA:   MEMBER

M.V. VISWANATHAN: JUDICIAL MEMBER

VL.