Present: Mr.S.M.Jain-Advocate for the appellant in A/1302/2007 &  

                                  for respondents in A/1315/2007

                                Appellant in person in A/1315/2007 & respondent in person

                                in A/1302/2007.

Per Mr.Justice S.B.Mhase, Hon’ble President

Heard both the sides. Both these appeals are directed as against the order passed by District Consumer Forum, Raigad on 05/9/2007 in consumer complaint no.69/2006. District Consumer Forum has allowed the complaint and has directed original opponent nos.1 to 5 to pay an amount of Rs.2,50,668/- jointly and severally. They are directed to pay the amount within 45 days and if not paid, there is further direction to pay the said amount with interest @ 6%. By way of cost, Opponent nos.1 to 5 were directed to pay an amount of Rs.5000/-.

Being aggrieved and dissatisfied with the above order, the original opponent nos.1 to 5 have filed First Appeal no.1302/2007.  Original complainant has also preferred the appeal for enhancement of the amount of compensation and said appeal is A/1315/2007.  Thus, Appeal no.1302/2007 has been preferred by the original O.P.nos.1 to 5 and the original complainant is respondent in said appeal.  Appeal no.1315/2007 has been preferred by the original complainant and original opponent nos.1 to 5 are respondents in said appeal.  Therefore, for the sake of convenience in this order appellants in Appeal no.1302/2007 and respondents in Appeal no.1315/2007 are referred to as ‘opponent nos.1 to 5’ and respondent in Appeal no.1302/2007 and appellant in Appeal no.1315/2007 has been referred to as ‘complainant’.

The undisputed facts are as follows:-

Opponent is a Medical Trust and they are having their hospital and in their hospital various treatments are being given. One of such treatment is the treatment and operation for fistula.  Opponent nos.3, 4 & 5 are the doctors, who have conducted an operation of fistula on complainant. On 01/10/2004 the complainant visited the opponents and after examination by the opponent nos.4 & 5, complainant was advised to get admitted in the hospital on 03/10/2004.  After examination, the operation was planned at 2.30 on 04/10/2004.  Except the problem of fistula, the complainant was not having any other complaint and the complainant was not having any injury to his leg.  Thus the complainant had been to the Operation Theatre.  In Operation theatre he found that one Videographer was taking video shooting and doctors obtained permission for video shooting and, thereafter, operation was carried out.  When complainant was brought in the ward and he returned to the senses, he realized severe pains in the left side foot and thumb and he found that there is a red spot on a foot and the leg has turned into a red.  Unbearable pains were there and, therefore, it was reported to the doctors. Though complainant makes a grievance that the Nursing staff and doctors did not pay any attention to the pains, however, it is a case of the opponents that they have treated the said injury by giving pain killer injections and also applying Alovera Ayurvedic medicine and according to the complainant, even though he was not ready to take discharge on 09/10/2004 because of the ailment of the left leg, he was given a discharge by the hospital.

It is a case of the complainant that on the advice of his friend, he has shown these injuries to one Dr.Mungle on 14/10/2004, who gave advice that the said injury has been caused because of the negligence on the part of the doctors and it is an injury of quadriplate burn injury.  He advised that complainant will have to remove the thumb of the leg and, thereafter, plastic surgery will have to be carried out.  Thereafter, advice of opponent no.5 was taken in his private hospital.  He concurred that the advice given by Dr.Mungle and Dr.Naik and also advised that opponents are running an Ayurvedic hospital and the treatment of plastic surgery, etc. cannot be carried out in the opponent’s hospital. Thereafter, complainant had been to Kolhapur i.e. his father-in-law’s place and operation was carried out.  Thumb of the left leg was removed.  Plastic surgery was carried out.  He incurred an expenditure of Rs.62,747/-.

          It further appears that after return from Kolhapur remaining treatment for fistula was taken from the opponents and, thereafter, the dispute started between the parties. It is a case of the opponents that they have treated the injury on the leg and there is no negligence on their part.

Question that arises for consideration basically as to whether there was any negligence on the part of the opponents while carrying out operation for fistula. However, from the complaint it appears that so far as treatment for the fistula is concerned, there does not appear to be any dispute between the parties.  There is no case made out that the operation for the fistula was carried out in any way in negligent manner.  But one thing is very very certain that prior to the operation the complainant had no burn injury to the left foot and after he returned from the Operation theatre, injury was found.  No doubt the injury to the foot cannot be connected to the operation of fistula but the fact remains that the complainant suffered said injury while the complainant was in the Operation Theatre and, therefore, it was for the opponents to explain as to how the complainant suffered the said injury.  On the advice of Dr.Mungle or Dr.Naik the complainant is making a statement that this burn injury is because of improper application of quadriplate which is to be used in the said operation.  But assuming for the sake of argument that this is not a reason for the injury as contended by the opponents, then what is the other reason for causing this injury.  The said burden is on the opponents because said injury has been caused to the complainant while the complainant was in the Operation theatre and he was under the effect of Anesthesia.  Therefore, it is only the opponents and their Nursing staff who were in the operation theatre and Videographer, they are supposed to know the cause of injury.  None of them have explained as to how the complainant got the said injury. But if the fact remains that while the complainant was in their custody in the Operation theatre under the effect of the Anesthesia, they have to explain the cause of injury.  Since the injury is admitted and according to them, it is not related with the operation then what can be the other cause.  That explanation is not coming forward.  Fact still remains that since the injury has been caused under  the above referred circumstances, the opponents are responsible for the said injury.  Said injury must have been caused because of the improper use of the quadriplate and/or electric shock either as an improper use of the wires of the Videographer and/or some other electric wire coming in contact with the complainant and, therefore, whole responsibility of the said injury lies on the opponents. Only inference follows while carrying operation of fistula, service which is rendered by them to the complainant while in the Operation theatre was substandard and other precautions which are required to be taken while the complainant as a patient was under their custody were not taken by the opponents and, therefore, only inference follows that the opponents are responsible for the injury which is cause to the left leg of the complainant and they cannot run away from the responsibility and liability of the said injury.

Since the said injury ultimately resulted into removal of thumb and plastic surgery, whatever expenditure complainant has suffered for that they are under obligation to pay it. District Consumer Forum has allowed the said amount. 

Apart from that the District Consumer Forum has allowed the other charges amounting to Rs.1,06,668/-.  What we find that while allowing damages in respect of period from 09/11/2004 to 21/1/2005 by way of pay and salary, District Consumer Forum has only allowed a basic pay. However, that is not correct. Once we find that complainant has suffered a loss on account of pay and salary and the Bonus for this period, the Basic pay plus Dearness allowance which are admissible shall be paid to the complainant. To that extent we disagree with the District Consumer Forum and, therefore, we are inclined to allow the appeal of the complainant to that extent. So far as appeal of the original opponents is concerned, we do not find any merit in the said appeal and we are inclined to dismiss it. Therefore, we pass the following order:-

                                                            ORDER

1.     Appeal filed by the original opponent nos.1 to 5 being Appeal no.1302/2007 is hereby dismissed.

2.     Appeal no.1315/2007 filed by original complainant is hereby partly allowed.

3.     Order passed by the District Consumer Disputes Redressal Forum  directing to make payment of Rs.2,50,668/- is confirmed.

4.     Rate of interest as granted by the District Consumer Disputes Redressal Forum  is also confirmed and the cost granted by the District Consumer Disputes Redressal Forum  is confirmed. 

5.     We only modify the order to the extent that the damages of salary which have been shown for period 09/11/2004 to 21/1/2005 are shown to be the basic salary of Rs.16,830/- and we direct opponent nos.1 to 5 to pay Dearness Allowance and other allowances which are payable on the basic salary for this period includes Bonus.

6.     With this modification order of the District Consumer Disputes Redressal Forum  is hereby confirmed.

7.     By way of cost of these appeals, we direct opponent nos.1 to 5 to pay to the original complainant an amount of Rs.5000/-.  Original opponent nos.1 to 5 shall bear their own costs.

8.     Copies of the order be furnished to the parties.