KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO.321/09

JUDGMENT DATED 27.09.2011

RESENT:-

SHRI. M.V. VISWANATHAN                   : JUDICIAL  MEMBER

SHRI.M.K.ABDULLA SONA                             :  MEMBER                                                           

1.      Binu

Binu Bhavan, Edathitta,

Koduman Village,

Pathanamthitta.

(reptd. by the Power of Attorney holder)

2.      N.A.Soman                                                          --  APPELLANTS

   -do    -do

              (By Adv.P.Santhosh kumar)

                         Vs.

1.      The Proprietor,

St.Mary’s MLS Hospital,

Edathitta.

2.      George Varghese,                                    --  RESPONDENTS

Thayyil Lenin Villa,

Edathitta, Kodumon.

3.      Lenin

               -do   -do-

            ( By Adv.S.Pradeepkumar) 

JUDGMENT

SHRI.M.V.VISWANATHAN,JUDICIAL MEMBER

          Appellants are the complainants and respondents are opposite parties 1 to 3 respectively in OP.No.76/98.  The complaint therein was filed alleging medical negligence and deficiency in service on the part of the opposite parties in treating the first complainant Binu at the first opposite party  St. Mary’s MLS Hospital, Edathitta.  It was alleged that the first complainant sustained disability to his right leg for the Achilles  Tendon due to the negligence on the part of the doctor attached to  first opposite party hospital.    First complainant was a minor at the time of the injury and treatment.   Second complainant Soman is the father and the natural guardian of   First complainant.    The complainants claimed compensation of Rs.3 lakhs from the opposite parties.

          2. The opposite parties entered appearance and filed written version denying the alleged deficiency in service. They also contended that Dr. Ganesh Babu who treated the 1^st complainant at 1^st opposite party hospital left the hospital and his whereabouts are not known. The opposite parties have also contended that the treatment and the surgical procedures adopted by   Dr. Ganesh Babu were just and proper and the said procedures were done with utmost care and caution. Thus, the opposite parties prayed for dismissal of the complaint.

          3. Before the Forum below,   1^st complainant was examined as PW1 and 2 witnesses as PWs 2 & 3. Exts. P1 to P6 documents were also marked on the side of the complainants. Nobody was examined on the side of the opposite parties. They did not adduce any documentary evidence. On an appreciation of the evidence on record, the Forum below passed an order dated 20^th March 2001 allowing the complaint directing the additional 2^nd opposite party to pay compensation of Rs.1,50,000/- with 12% interest from the date of the said order till the date of realization and also to pay cost of Rs. 5,000/- to the 1^st complainant.

          4. Aggrieved by the aforesaid order dated 20.3.2011, opposite parties preferred Appeal  No. 467/01 before this State Commission. When the aforesaid appeal came up for hearing both parties agreed for remanding the matter to the Forum below for the purpose of assessing the percentage of disability; if any sustained by the 1^st complainant as a result of the operation performed by the Doctor attached to   1^st opposite party St. Mary’s MLS Hospital, Edathitta.

Thus, this State Commission passed the remand order dated 28^th March 2003 remanding the matter to the Forum below. It is pertinent to note at this juncture that this State Commission had no occasion to analyse the evidence available on record and the matter was remitted back to the Forum below on the basis of the submissions made by both parties to the said appeal.

          5. After remand,   1^st complainant was subjected for medical examination by the District Medical Board, Pathanamthitta and    disability certificate dated 6.3.07 issued by the Medical Board was marked as Ext. P7. The Chairman of the Medical Board was examined as PW4.   On the side of the opposite parties,   2^nd opposite party was examined as DW1 and   3^rd opposite party as DW2.  Ext. B1, the disability certificate dated 23.12.03 issued by the Medical Board, General Hospital, Pathanamthitta was marked on the side of the opposite parties.

          6. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 8^th April 2009 dismissing the complaint in OP 76/98.  Hence the present appeal by the complainants therein.

          7. We heard both sides.

8. The learned counsel for the appellants/complainants submitted his arguments based on the grounds urged in the present appeal memorandum. He much relied on the testimony of PW2 Dr. Chandrasekharan Unnithan who had occasion to treat the 1^st complainant at  Pathanamthitta General Hospital and argued for the position that the materials available on record would establish the Medical negligence and deficiency in service on the part of   Ganesh Babu who treated the 1^st complainant at   1^st opposite party St. Mary’s MLS Hospital, Edathitta. It is further submitted that the Forum below cannot be justified in simply relying on   P7 Medical Board Report and dismissing the complaint in OP 76/98. On the other hand, the learned counsel for the respondents/ opposite parties supported the impugned order dated 8.4.09 passed by   CDRF, Pathanamthitta in OP 76/98. He much relied on the testimony of PW4, the Chairman of the Medical Board and P7 disability certificate issued by the Medical Board, General Hospital, Pathanamthitta. It is also submitted that this State Commission by the remand order in Appeal No. 467/01 remanded the matter for getting the Medical Board Report to ascertain whether any disability was caused to the 1^st complainant as a result of the operation performed on the 1^st complainant. Thus, the respondents prayed for dismissal of the present appeal

          9. The points that arise for consideration are:-

1.                Whether the appellants/complainants have succeeded in establishing their case that there was medical negligence and deficiency in service on the part of   treating Dr. Ganesh Babu attached to the 1^st opposite party  St. Mary’s MLS Hospital, Edathitta.?

2.                Whether the Forum below can be justified in passing the impugned order dated 8^th April 2009 in OP No 76/98 solely based on the testimony of PW4 Dr. Thomas Philip and Ext. P7 disability certificate dated 6.3.07 issued by the Medical Board, General Hospital, Pathanamthitta.?

3.                What order as to reliefs and costs?

10. Point 1 & 2 : -

There is no dispute that   1^st complainant Binu was admitted in  1^st opposite party St. Mary’s MLS Hospital, Edathitta on 14.7.97 with an injury to the Tendon of his right leg namely, Achilles Tendon. He continued his treatment in   1^st opposite party hospital as an inpatient up to 19.7.1997. He was discharged from the hospital on 19/7/1997 and he continued his treatment as an out patient up to 4.8.97. Admittedly,   1^st complainant was treated by   Dr. Ganesh Babu attached to   1^st opposite party hospital. Dr. Ganesh Babu had also performed surgery on   1^st complainant for the injury sustained to his Achilles Tendon.

11. It is the case of the complainants that   1^st complainant was not cured by the treatment from the 1^st opposite party hospital and so  1^st complainant was taken to the Govt. Hospital, Pathanamthitta on 5.8.97.  In the Govt. Hospital, 1^st complainant continued his treatment as inpatient upto 5.9.97. It is the further case of the complainants that even after the treatment given from the Govt. Hospital,   1^st complainant sustained disability to his right leg.  It is the definite case of the complainants that   1^st complainant sustained disability to his right leg only because of the medical negligence and deficiency in service on the part of   Dr. Ganesh Babu who treated   1^st complainant at  1^st opposite party St. Mary’s MLS Hospital, Edathitta.

 12. 1^st opposite party is the St. Mary’s MLS Hospital, Edathitta represented by its proprietor. The additional 2^nd opposite party is George Vargheese, the owner of   1^st opposite party hospital. The additional 3^rd opposite party is the son of   additional 2^nd opposite party. It is the case of the complainants that additional 3^rd opposite party was a medical student at the relevant time when 1^st complainant was treated at   1^st opposite party hospital and that the additional 3^rd opposite party Lenin had assisted Dr. Ganesh Babu in performing the surgical procedure on   1^st complainant.

13.  It is the definite case of the opposite parties that Dr. Ganesh Babu who performed surgery on   1^st complainant and treated the 1^st complainant left the 1^st opposite party hospital and his whereabouts are not known to the opposite parties. The complainants had also moved the Forum below to get Dr. Ganesh Babu impleaded in the complaint. But, because of the non availability of the present address   of Dr.Ganesh Babu, he could not be impleaded as a party to the said complaint.

14.The opposite parties denied the alleged medical negligence and deficiency in service on the part of  Dr.Ganesh Babu.   According to the opposite parties, the surgery was performed on   first complainant with utmost care and caution and that   first complainant sustained the disability not  because of the medical negligence in treating the patient;  but the disability was resulted in, on account of the injury to the right Achilles Tendon. 

          15. On the side of the complainants, PW2 Dr. Chandrasekharan Unnithan attached to the Government Hospital, Pathanamthitta was examined.  PW2 had the occasion to treat the first complainant from the Govt. Hospital, Pathanamthitta.  Ext.P4 is the discharge certificate issued from the General Hospital, Pathanamthitta.  PW2 has  given evidence about P4 discharge certificate.   The evidence of PW2 would make it crystal clear that  Doctor Ganesh Babu who treated the first complainant in first opposite party hospital was negligent in treating first complainant.  PW2 categorically deposed that  Dr.Ganesh Babu failed to apply proper plaster for the injury sustained to the first complainant.    He has deposed about the procedure to be followed in treating a patient with an injury to the   Achilles Tendon.  PW2 categorically  answered to the question put to him by the CDRF by stating that the disability ought not have occurred if the first treating doctor (Dr.Ganesh Babu) treated the first complainant as treated by him  “\5T*a3M /U*UOHU/b8W\=T[D #:_^/U*UOHU/b \5T*a3M /U*UOHU/bUCWkX "vUO $]8*CTLa  %tT*WATBUCW\kT?

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16. On a reading of   the question and answer  would make it crystal clear that there was medical negligence  on the part of  doctor Ganesh Babu who treated the first complainant  at the first instance in    first opposite party St. Mary’s MLS Hospital, Edathitta.       

17. The Forum below totally ignored the testimony of PW2 and the documentary evidence proved through him.  No reason or ground is stated in the impugned order for not relying on the testimony of PW2.  The aforesaid failure on the part of the Forum below can be considered as a very serious omission.  On going through the entire  testimony of PW2, it can very safely be held that there occurred medical negligence and deficiency in service on the part of   Doctor Genesh Babu in treating the first complainant at first opposite party hospital.  The evidence of PW2 is strengthened and supported by the documentary evidence proved through him. 

18. PW4, the Chairman of the Medical Board, Pathanamthitta has deposed to the effect that the disability sustained by the complainant is not due to the negligence of the Doctor who performed the surgery on   first complainant.  The evidence of PW4 would also show that the disability was caused not due to the surgery, but due to the injury to the right Achilles Tendon.  But, PW4  would not give any reason for making such an opinion.  It is a well settled position that   opinion of an expert must be supported and strengthened by the well considered reason or reasons  opinion given by an  expert without reasoning is to be ignored.  It is the duty of the expert to assist the court or the legal authority in arriving at a just and proper conclusion.  But in this case the expert doctor namely PW4 failed to give any reasoning for his opinion.  Thus, the evidence of PW4 can be negatived.  It is not  at all safe in relying  on the  testimony of PW4.  Ext.P7 disability certificate dated 6.3.07 issued by the medical board is also lacking in giving the reason or reasons.  They simply assessed the disability at 4%.  But there is nothing on record to show that the said disability was caused due to the negligence in performing the surgery for the injury to the right Achilles Tendon  or due to the injury caused to the tendon.  On a comparative study of the testimony of PW2 with that of PW4, one can make a proper decision that it is safe to rely on PW2 and that it is not  at all safe to rely on PW4.

19. Another important aspect to be noted at this juncture is the fact that PW2, Doctor Chandrasekharan Unnithan had the occasion and opportunity to treat the patient, the first complainant.  The patient was under the treatment of PW2 from 5.8.97 to 5.9.97.  Thus, the evidence of PW2 is to be given more weight and  value than that of PW4.   It is also to be noted that PW4 had no occasion to treat  first complainant as a patient.  He examined   first complainant after the lapse of 10 years of the injury to    right  Achilles Tendon.  Thus, in all respects it is safe to rely on the testimony of PW2.  The evidence of PW2 would make it abundantly clear that there was negligence on the part of the treating Doctor  Ganesh Babu who was then attached to   first opposite party    St. Mary’s MLS Hospital, Edathitta.

20. The opposite parties 2 & 3 were examined only after remanding the matter.  No document is forthcoming from the side of the opposite parties to substantiate their contention that there was no negligence on the part of   Doctor Ganesh Babu in treating   first complainant at first opposite party hospital.  So, this State Commission have no hesitation to hold that there was negligence and deficiency in service on the part of Dr.Ganesh Babu, who was then attached to first opposite party hospital.

 21. The second opposite party George Varghese being the owner of   first opposite party St. Mary’s MLS Hospital, Edathitta is vicariously liable for the medical negligence and deficiency in service on the part of   Dr.Genesh Babu.  Hence we hold that the additional second opposite party George Varghese, Thayyil Lenin Villa, Edathitta, Kodumon being the owner of St. Mary’s MLS Hospital, Edathitta, Kodumon  is liable to compensate the first complainant who suffered mental agony, financial loss and physical disability on account of the medical negligence on the part of   Dr.Ganesh Babu.

22. The forgoing discussions and the findings thereon would make it abundantly clear that the impugned order dated 8.4.09 passed by CDRF, Pathanamthitta in OP.No.76/98 is to be set aside.  Hence we do so.  These points are answered accordingly.

23. POINT NO.3:-

          The complainants claimed compensation of Rs.3 lakhs for the deficiency in service on the part of the opposite parties.  The Forum below by the order dated 20^th March 2001 ordered compensation of Rs.1,50,000/- with interest at the rate of 12% per annum and cost of Rs.5,000/-.  This State Commission  vide remand order dated 28^th March 2003   in A.467/01 set aside the aforesaid order passed by the Forum below.  It is come out in evidence that the first complainant who was a minor boy aged 17 years in the year 1997 sustained disability to his right leg.   He was  examined by the Medical Board, General Hospital, Pathanamthitta during March 2007, and his disability has been assessed at 4%.  Considering all the relevant aspects of the case, this Commission is of the view that a compensation of Rs.1 lakh will be sufficient to meet the ends of Justice.  The aforesaid compensation of Rs.1 lakh is to be paid within one month from the date of this judgment, failing which the aforesaid amount will carry interest at the rate of 9% per annum from the date of this judgment till realization.  The first complainant Binu is also entitled to get cost of RS.10,000 from the additional second opposite party George Varghese.  This point is answered accordingly.

          In the result, the appeal is allowed.  The impugned order  dated 8.4.09 passed by CDRF, Pathanamthitta in OP.76/98 is set aside and the complaint in the said OP.76/98 is allowed.  Thereby, the first complainant  Binu is awarded a compensation of Rs.1 lakh with cost of Rs.10,000/-.  The additional second opposite party (second respondent in this appeal) George Varghese is made liable for payment of the aforesaid compensation and costs within one month from the date of this judgment,  failing which the compensation amount of Rs. 1 lakh  will carry interest at the rate of 9% per annum from the date of this judgment till realization.

  M.V. VISWANATHAN  : JUDICIAL  MEMBER

 M.K.ABDULLA SONA  :  MEMBER