DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, LUCKNOW
CASE No.132 of 1993
Sri Pradeep Kumar Garg,
Assistant Director, Nirman and Sanyantra,
352/1, Foolbagh, P.O. Pantnagar,
District- Nainital.
……Complainant
Versus
1. Sunil Kumar Mehrotra,
Shanti Memorial Orthopaedic Centre,
Nirala Nagar, Lucknow.
2. National Insurance Co. Ltd.,
Through Divisional Manager,
DO-4, Jeevan Bhawan, Hazratganj,
Lucknow.
.......Opp. Parties
Present:-
Sri Vijai Varma, President.
Smt. Anju Awasthy, Member.
JUDGMENT
This complaint has been filed by the Complainant against the OPs for payment of compensation of Rs.1,50,000.00.
The case in brief of the Complainant is that on 19.09.1988 the Complainant met with an accident and he went to the Shanti Memorial Orthopaedic Centre the hospital of Sunil Mehrotra. After preliminary investigation and the x-ray of the Complainant a temporary ¼dPPkk½ plastering of his hands were done and for final plastering he was advised to come on 23.09.1988. When the Complainant did not get any relief from the pain then again he went on 21.09.1988 to OP No.1’s hospital where after giving pain reducing medicines, he was called the next day empty stomach for the plastering. On 22.09.1988 after final plastering of his hands and after taking another x-ray he was relieved from the hospital on 23.09.1988
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and was advised to come after two months for removing of the plaster. The OP had taken Rs.3,000.00 for x-ray and plastering and about Rs.2,000.00 was spent on the plaster materials and medicines. But despite the plaster there was no reduction in the pain of the Complainant then again he went on 25.09.1988 to the OP No.1 where the OP No.1 told him that it was natural to have the pain and asked him to come after two months. When the pain did not reduce then the Complainant for taking second opinion went to Sar Ganga Ram Hospital, New Delhi and met the Orthopaedic expert J.S. Makhani who after seeing both the x-rays told him that his hands have been wrongly joined, hence there has been no reduction in the pain. On 21.10.1988 Dr. Makhani of Sir Ganga Ram Hospital replastered his hands after breaking the joints which were wrongly joined by the OP No.1 which reduced the pain in the Complainant’s hands. The hands of the Complainant were in plaster from 21.10.1988 to 06.01.1989. Normally the hands of the Complainant should have become alright within two months but because of the wrong procedure of the OP and wrongly plastering the hands of the Complainant, the Complainant had to again get his hands examined at Sir Ganga Ram Hospital and get his hands replastered in the hospital and had to travel to Delhi remaining on leave. Because of the wrong doing of the OP No.1 the Complainant and his family suffered a lot. Even though the Complainant has made representation to the Medical Association and Medical Council but nothing has been done so far, hence this complaint for compensation etc.
The OP No.1 in his WS mainly submitted that about 6 months have elapsed, hence the OP No.1 does not remember the exact details but on the basis of OPD card etc. it is submitted that he had applied first aid in most methodical manner for reducing swelling, controlling the parts maintaining the blood supply of the parts and preparing the patient for the final treatment. The entire procedure was done
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in a most meticulous way and instructions for rest, elevation and the active finger movement were prescribed and also demonstrated. The OP No.1 performed his part of responsibility without negligence but the Complainant was negligent towards the instructions, hence the final treatment was not possible up to the date of his last attendance on 25.09.1988 and thereafter the patient never reported back, hence the line of treatment/plastering could not be done. The loss, if any, as alleged by the Complainant is the result of his own negligence towards the treatment. The OP No.1 is a qualified orthopaedic surgeon practising for the last about 12 years and has also been consultant orthopaedic surgeon and house officer of the prestigious institutions like KGMC, Lucknow and no complaint has ever been made of the OP so far. The OP has done nothing beyond medical science and even the expert committee of the doctors, did not find him to be guilty of complaint made by the Complainant. The complaint is highly time barred and without jurisdiction, hence it is liable to be dismissed with special costs.
The OP No.2 has filed the WS wherein it is mainly submitted that the Complainant has not made available any document to the answering OP for enabling him to reply the complaint properly. The Complainant has to prove through the expert opinion that the OP No.1 was negligent in the treatment of the Complainant. The answering OP has not been provided with the copy of the policy, hence in the absence of the details/copy of the policy the answering OP is not liable to indemnify to OP No.1.
The Complainant has filed reply to the WS of OP No.2.
The Complainant has filed his affidavit with 16 annexures and 15 papers with the complaint. The Complainant has filed an application with affidavit under Section 13(4)(IV) with 3 annexures. The OP No.2 has filed the affidavit of Sri H.S. Singh, Sr. Divisional Manager, National Insurance Co.
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Ltd. with photocopy of Doctors’ Indemnity Insurance Policy.
Heard Counsel for the Complainant and OP No.2 but none appeared to argue the case from the side of the OP No.1. Perused the entire record.
In this case on the application by the Complainant the expert opinion was obtained vide orders passed on 26.07.2012 by the Forum and a report from CMO, Lucknow has been obtained with the report of the Board constituted for the purpose of giving the opinion.
The OP No.1 has also assailed the complaint on the ground of complaint being time barred but it transpires that this complaint is dismissed by the orders passed by the then Forum on 24.06.1995 on the basis of it being time barred but the Complainant went against this order of the Forum in Appeal No.1195/95 in Hon’ble State Commission and the Hon’ble State Commission allowed the appeal vide orders passed on 26.04.2005 and set aside the order passed by the then Forum deciding the complaint to have been filed within the time limit.
Now, in this case, it is to be seen as to whether the iDdk plastering of the hands of the Complainant was wrongly done by the OP No.1 which caused severe pain to the Complainant or not and if so, whether the OP No.1 committed deficiency in service in doing such thing if so its consequences and whether the OP No.2, as insurer of OP No.1 was liable to make the payment to the Complainant or not.
The Complainant met with an accident on 19.09.1988 and he went to the hospital of the OP No.1 where after examining the x-ray a temporary ¼dPpk½ plaster was done by the OP No.1. Thereafter on 22.09.1988, ¼iDdk½ plaster was done but as the pain did not reduce, hence the Complainant again met with the OP No.1 who asked him to come after 2 months only. The Complainant, therefore, went to Sir Ganga Ram Hospital, Delhi and met Dr. Makhani who told him that the
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plastering was wrongly done whereby the pain was not reducing and thereafter breaking open the wrong joined bones of the hands correctly joined them and thereafter replastered them. The OP No.1 admits the plastering done by him. Dr. Makhani in his report dated 16.10.1988 a copy of which has been filed by the Complainant has found “Bilateral reverse callus-smith. At present he is in AE POP into full portion of the forearm. Advised Remaniuplation and AE POP in Supination. Advised Rest x 4 weeks” and thereafter Dr. Makhani operated the Complainant’s hands as is evident from the medical and fitness certificate dated 29.10.1988 and 07.01.1989 and on the basis of all these reports it is vehemently argued from the side of the Complainant that the Complainant’s hands were wrongly plastered by the OP No.1 and that is why Dr. Makhani of the Sir Ganga Ram Hospital advised for remanipulation and supination. The Complainant has filed a copy of medical dictionary wherein the word supinate has been defined as “to turn the palm upward or to raise the median margin of the foot or to lie straight upon the back.” In view of this meaning of the term supinate it is argued by the Complainant that his hands were joined upside down and therefore there was the requirement of remanipulation and ae pop in supination for making the palm upwards whereas the OP No.1had done the plastering keeping the palms in the wrong way which was the cause of all the pains and it is only when after supination the wrongly joined bones were correctly joined and replastering was done by Dr. Makhani that the pain was much reduced. So it is because of the wrong plastering by the OP No.1 that the problem occurred and the Complainant had to suffer severe pain and remanipulation etc. for correcting the wrong done of the OP No.1. The OP No.1 has merely stated that he had not done anything wrong but from the prescriptions of Dr. Makhani it is clear that the OP No.1 had done wrong plastering which was the cause of wrong joining
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of bones and consequent severe pain. The expert opinion which was called from the CMO is not able to given any opinion, therefore it is not in any way helpful to either party. But from the evidence in the form of prescriptions of Dr. Makhani and the remanipulation and replastering done by him in Sir Ganga Hospital it is clear that the bones of the hands of the Complainant were wrongly joined because of the wrong plastering by the OP No.1 and hence the unabated pain in the hands of the Complainant. Therefore, there is sufficient evidence on record to conclude that the OP No.1 was negligent in doing the plastering which was the cause of all troubles and therefore he has committed serious deficiency in service and therefore the Complainant is entitled to get the refund of the entire amount spent by him on his treatment and also to get compensation for the mental and physical harassment caused to him and also cost of litigation.
Now the question arises as to what amount is the Complainant entitled to. From the record, it transpires that the Complainant has spent Rs.5,000.00 on the treatment, hence he is entitled to the aforesaid amount with interest from the OPs. The Complainant has filed insurance documents which shows that he was insured with the OP for the period 15.02.1986 to 14.02.1987 and thereafter 16.02.1987 to 15.02.1988 and from 16.02.1988 to 15.02.1989. Since the Complainant was insured with the OP No.2 for the period when the incident in question happened, therefore the Complainant after making payment of the amount payable by him may recover the same from OP No.2.
ORDER
The complaint is partly allowed. The OP No.1 is directed to pay expenses incurred in the treatment of Rs.5,000.00 (Rupees Five Thousand Only) with 9% interest from the date of filing of the case till the final payment is made to the Complainant.
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The OP No.1 is also directed to pay Rs.20,000.00 (Rupees Twenty Thousand Only) as compensation and Rs.5,000.00 (Rupees Five Thousand only) as the cost of the litigation to the Complainant. The compliance of the order is to be made within a month. The OP No.1 after making payment of the entire amount due may recover the same from OP No.2.
(Anju Awasthy) (Vijai Varma)
Member President Dated: 6 August, 2015
