STATE CONSUMER DISPUTE REDRESSAL COMMISSION

BIHAR, PATNA

Appeal No. 619 of 2010

1. Nikhat Afrin, W/o- Late Md. Perwez Akhtar
2. Yasir Perwez, Son of Late Md. Perwez Akhtar
3. Simran Perwez, D/o- Late Md. Perwez Akhtar, Resident of Daudnagar, near thana, In front of Church (Aurangabad), District- Aurangabad, Bihar at present residing at In front of Rastria High School, Patna Road, Bhakharuan More, Bhakharua, Aurangabad, Bihar- 824113

                                                                                                                                                  …. Opposite Party/Appellant

Versus

Runa Devi, Wife of Sri Bikram Chaudhary, Resident of Village- Rampur Chai Toli Dharna, Post- Rampur chai, Thana- Karpi, District- Arwal (Aurangabad)

                                                                                                                                                   …. Complainant/ Respondent

Counsel for the Appellant: Adv. Prakash Kumar & Adv. Anil Kumar

Counsel for the Respondent:  None

Before,

Hon’ble Mr. Justice Sanjay Kumar, President

Mr. Ram Prawesh Das, Member

Dated 03.04.2024

As per Sanjay Kumar, President.

          A substitution petition along with application for condoning the delay in filing substitution petition has been filed on behalf of appellants stating therein that appellant Dr. Md. Perwez Akhtar died on 21.04.2021 leaving behind his wife, son & daughter as his legal heirs and representatives.

          For the reasons as stated in application for condonation of delay, the delay in filing substitution petition is condoned. The name of appellant is deleted from the memo of appeal and names of his legal heirs as detailed in substitution petition are substituted in his place.

O r d e r

1. Present appeal has been filed on behalf of appellant opposite party for setting aside the judgement and order dated 25.5.2010 passed by learned District Consumer Forum, Aurangabad in complaint case number 38 of 2008 whereby and whereunder appellant has been directed to pay a sum of Rs. 35,000/- to the complainant within forty five days failing which interest at the rate of 9% per annum shall become payable.
2. Briefly stated the facts of the case is that complainant suffered stomach pain on 20.4.2008 and went to the clinic of opposite party for treatment and on payment of Rs. 100/- complainant was examined by the opposite party and prescription was prepared in which several pathological tests were advised and complainant was admitted in clinic and some medicines were purchased and administered to the complainant as per advise of opposite party.
3. Complainant got her blood and urine tested in pathological lab and x-ray of  stomach was also done on 22.4.2008 and after seeing the pathological report and x-ray complainant was  diagnosed as having stone  in stomach and operation was advised for removal of stone.
4. Complainant deposited operation fee of Rs. 8,000/- on 20.4.2008 and Rs. 4,000/- for medicines and Rs. 1,000/- as bed charge for which no receipt was provided. Operation was performed but stone could not be removed and the complainant was thereafter advised to go to I.G.I.M.S. Patna for removal of stone. Complainant remained in the clinic of opposite party for recovery till 04.05.2008.
5. Complainant demanded refund of operation expenses of Rs. 18,000/- but it was refused, as such complainant filed consumer complaint case for refund of Rs 18,000/-  as operation expenses with interest as well as compensation for physical and mental harassment and cost of litigation upon which notices were issued to opposite party.
6. Opposite party appeared and filed  written statement denying any medical negligence or deficiency in service. Opposite party gave better advice for treatment in the I.G.I.M.S. Patna and explained to the husband and the elder brother  to get  stone removed by telescopic method as the stone was deeply embedded in the bladder.
7. The District Consumer Forum after hearing the parties and considering the materials available on record held that complainant was treated by opposite party and during this period pathological tests including x-ray was done. Original documents were filed by complainant which proved that before operation opposite party was aware about the position of stone which was deeply embedded in the bladder still he undertook the operation but stone could not be removed and thereafter referred complainant to I.G.I.M.S, Patna for removal of stone by telescopic method.
8. Complainant deposited operation fees of Rs. 18,000/- and Rs. 4,000/- for medicines and Rs. 1,000/- as bed charge. Operation was performed but stone could not be removed and complainant was thereafter advised to go to I.G.I.M.S, Patna for removal of stone. Complainant had to remain in clinic of opposite party for 15 days for recovery after failed operation.
9. Opposite party took fee for removal of stone but same could not be removed as such directed to refund Rs. 13,000/- to the complainant. Treatment continued for fifteen days and even being aware that it was not a normal case decided to operate without referring complainant to higher centre which amounts to deficiency in service and directed opposite party to pay Rs.  20,000/- as compensation for physical and mental harassment and Rs. 2,000/- as costs of litigation, aggrieved by which  present appeal has been filed by opposite party.
10. It is stated on behalf of counsel for the appellant that opposite party is MBBS   & MS in general surgery and has wide experience of surgery and was qualified to undertake the operation.  X-ray film showed stone in lower ureteric region as such advice was given for operation on consent by attendants on 24.4.2008.
11. Operation was done on .24.4.2008 by open surgery method as per prescribed medical procedure. Left lumber incision was given to patients for removal of left ureteric stone however, stone was so much embedded in left urinary wall that it could not be removed. Urinary bladder was opened but still it did not allow dilation. On palpation stone was found impacted about one inch above ureteric opening.
12. Perused the impugned order as well as materials available on record and written notes of argument filed by parties.
13. A medical professional who holds himself as ready to give medical  treatment impliedly undertakes that he is possessed of skill and knowledge for said purpose. He owes certain duties namely deciding whether to undertake the case or not, a duty of care in deciding what treatment to be given and a duty of care in administering treatment.   A breach of any of the duties will support an action for negligence by patient.
14. In present case  stone was deeply embedded in the urinary bladder and it was not a case of normal removal of stone which could have been done by conventional method as such opposite party was duty bound to refer the patient to higher centre and inspite of case being complex in nature and clinic of opposite party not being equipped with advanced technology and advanced medical equipment to undertake such operation, opposite party admitted patient for operation and performed operation which was unsuccessful  which amounts to breach of duty.
15. In a case where negligence is evident the principle of res ipsa loquiter operates and the complainant does not have to prove anything and it is for the opposite party to prove that he had taken adequate care and caution and done his duty as per accepted medical norms to repel charges of negligence.
16.  Opposite party has not produced any medical texts to demonstrate that the appellant applied well recognized and authentic method of treatment and treated the patient following universally accepted line of treatment.  There is nothing on record to suggest that the treatment rendered by opposite party was in conformity with the standard treatment protocol as accepted in medical field. It was incumbent upon opposite party to demonstrate that practice and procedure followed by him was in tune with the accepted medical norms.
17. In said view of the matter this Commission is not inclined to interfere in the judgment and order dated 25.10.2010 passed by the District Consumer Forum, Aurangabad in Complaint Case no. 38 of 2008, accordingly, this appeal is dismissed. However, the amount of compensation is reduced to the amount already deposited by the appellant in the State Consumer Commission (Rs. 17,500/- with interest, if any,) and in District Consumer Commission (Rs. 17,500/- with interest, if any,) while filing the appeal as well as while granting the stay.
18. With aforesaid modification in the judgment and order passed by District Consumer Forum, Aurangabad, the appeal is disposed of.

         (Ram Prawesh Das)                                                                                                   (Sanjay Kumar,J)

              Member                                                                                                                       President

Md. Fariduzzama