20/01/16
HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT
This Appeal is directed against the judgment and order passed by Learned District Forum, Kolkata, Unit-II in CC 222 of 2012 allowing the complaint on medical negligence with the following directions:-
“Hence, ordered, that the Complainant be and same is allowed on contest against the Opposite Party with a cost of Rs.10,000/- (ten thousand only).
Accordingly Opposite Party shall pay a sum of Rs. three lakh as composite compensation to the Complainant for negligent and deficient manner of service of the OP and also for causing damage on the both feet of the Complainant and for her mental pain and agony and also for loss of her job and salary and also medical treatment cost for her recovery from said feet burnt injuries.
Further for adopting unfair trade practice and to suppress the truth of the incident. OP is also imposed a punitive damages of Rs.25,000/- to this Forum.
OP shall comply this order positively within one month from the date of this order failing which till full satisfaction of the decree penal interest at the rate of 8% per day over the entire decretal amount shall be assessed and charged against Opposite Party and OP shall pay the said accrued amount to this Forum under proper receipt in default penal proceeding shall be started against the OP for which OP shall be liable for that and further penalty shall be imposed upon the OP.”
The case of the Complainant/Respondent, in short, is that on 21/11/11 the Complainant visited the Nursing Home for treatment of an abscess. Dr. Deb Kumar Roy at the said Nursing Home advised her to get admitted in the said Nursing Home for abscess operation. The Complainant got admitted on 21/11/11 in the OP Nursing Home. On 22/11/11 Dr. Deb Kumar Roy had done the abscess operation for which anesthesia was given. After operation was completed the Complainant was transferred to bed and she having felt cold was shivering badly for which she had been provided with blanket and injection was administered. But that proved to be insufficient and the attending ayah/nurse placed a hot water bag under both the feet around 11 a.m. The hot bag was not removed from her feet at the appropriate time and, as a result, the Complainant sustained burn injury on her feet. The hot water bag was removed when there was a change of ayah/nurse on duty in the evening. The Complainant felt severe pain in her feet and told the nurse. The nurse told her that it was nothing but the effect of anesthesia without even a look at her feet. At about 10 p.m. the Complainant shouted having severe pain in her feet and the attending nurse had a look at her feet and at that time the Complainant suffered a very big blister on her feet. The RMO was called who advised to place ‘ice block’ under the burn feet. On 23/11/11 when Dr. Deb Kumar Roy came to check the abscess he saw the burn injury in the feet and advised that the water inside the blister be removed with the help of syringe and ointment to be applied. This was the only treatment which the Complainant received for the burn injury in her feet just because of the negligence on the part of the staff of the Nursing Home. After release from the Nursing Home the Complainant had to undergo treatment under another doctor at her residence. She could not join her duty in the office even after three months due to the burn injury suffered by her at the OP Nursing Home. She was unable to attend the office for five months and, as a result, she lost her job. The Complainant approached the Consumer Affairs and Fair Business Practice Department, Government of West Bengal, but the OP did not appear. For the said reason, the Complainant filed the complaint before the Learned District Forum praying for compensation of Rs.2,50,000/-, Rs.60,000/- for loss of salary for five months, Rs.1,50,000/- for provident fund after ten years of service, Rs.35,000/- for gratuity amount and litigation cost.
The Learned Counsel for the Appellant has submitted that the Complainant was discharged on 27/11/11 and not on 29/11/11. It is contended that the subsequent prescription issued by a doctor does not contain the particulars of ailments and there is no evidence as to how and where the blister had developed. It is contended that there is no reasonable basis for awarding compensation and cost as directed by the Learned District Forum.
The Respondent in person has submitted that the date of discharge was 29/11/11 and not 27/11/11. It is contended that the burn injury, admittedly, occurred while the Complainant remained admitted in the OP Nursing Home and it was due to the utter negligence on the part of the nursing staff. It is contended that after discharge from the Nursing Home the Complainant had to undergo treatment and the prescriptions have been filed. It is submitted that the Learned District Forum was justified in passing the impugned judgment and order.
We have heard the submission made by both sides and perused the papers on record. From paragraph 10 of the W.V. it would appear that the ischio rectal abscess operation was done under spinal anesthesia and some time thereafter the Complainant felt cold and, as such, blanket and hot water bag were given by the attending nurse as per normal practice. In paragraph 11 of the W.V. it has been stated that after the change of colour of the skin came to the notice of the nurse, the hot water bag was removed and the R.M.O. was called in who advised to apply antibiotic ointment. From the averments made in paragraphs 10 and 11 of the W.V. it is clear that the Complainant got herself admitted in OP Nursing Home for abscess operation and after the operation she felt cold and blanket was provided. It further appears that hot water bag was also placed under the feet of the Complainant. From the materials on record it would further appear that the doctor advised to apply antibiotic ointment at the burn injury. Change of colour of the skin indicates the burn injury sustained by the Complainant. It further appears that after discharge from the Nursing Home the Complainant was under the treatment of Dr. Somendra Saha and the series of prescriptions have been filed although the particulars of ailments were not noted therein. From the materials on record it is abundantly clear that the Complainant sustained burn injury while she remained admitted in the OP Nursing Home and it was due to the utter negligence on the part of the nursing staff of the OP. For such injury the Complainant had to suffer a lot and she had to lose her job. Having heard the submission made by both sides and on perusal of the papers on record, we are inclined to modify the impugned judgment as hereunder.
The Appellant is directed to pay compensation of Rs.2,50,000/- and litigation cost of Rs.20,000/- to the Respondent/Complainant within 45 days from the date of passing this order failing which simple interest @ 9% p.a. will accrue on the aforesaid amount from the date of default till realisation. Other directions passed by the Learned District Forum are set aside. The impugned judgment stands modified accordingly. The Appeal is thus disposed of.
