KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION

                    VAZHUTHACADU    THIRUVANANTHAPURAM

                   . APPEAL  NOS:1171/2001, 1174/2001 & 70/2002

                      COMMON  JUDGMENT DATED:15..11..2008

PRESENT

SMT. VALSALA SARANGADHARAN                 : MEMBER

SRI.M.V.. VISWANATHAN                                    :   JUDICIAL MEMBER

SRI. S. CHANDRAMOHAN NAIR                        : MEMBER

APPEAL  NO:1171/2001

Dr. T.K.R. Unnithan, M.S, General Surgeon,

V.S.M.Hospital, Thattarambalam,                                 : APPELLANT

Mavelikkara, Alappuzha District.

(By Adv: Sri.B.Vijayakumar & Veni.K.)

            V.

1.Smt. Sussamma Samuel,

  Paradayil House, Njakkanal-P.O, (Via),

Kayamkulam, Alappuzha Dist.

(By Adv: Sri. P.V.Sadanandan)

2.M/S V.S.M. Hospital,

  Thattarambalam, Mavelikkara-3,

Repd. by the Managing Director.                                : RESPONDENTS

(By Adv: Sri.M.S.Vijayachandra Babu)

3.Dr.N.Rajamma, M.D, D.G.O,

  Medical Superintendent and Chief Gyaecologist,

  V.S.M.Hospital, Thattarambalam, Alappuzha.

4.The Manager,

  United India Insurance Co.

  Branch Office, IInd Floor, P.B.No:78,

  Doctor’s Tower, Changanacherry.

APPEAL  NO:1174/2001

Dr.N.Rajamma,

Medical Superintendent and Chief Gyaecologist,

Formerly V.S.M.Hospital, Thattarambalam,                  : APPELLANT

Mavelikkara and presently residing at ‘Kira’.

Perunnai.P.O, Changanacherry.

(By Adv: Sri.R.Somanathan)

            V.

1.Smt. Sussamma Samuel,

  Paradayil House, Njakkanal-P.O, (Via),

Kayamkulam, Alappuzha Dist.

(By Adv: Sri. P.V.Sadanandan)

2.Proprietor,  V.S.M. Hospital,

Thattarambalam, Mavelikkara-3,

(By Adv: Sri.M.S.Vijayachandra Babu)                        : RESONDENTS

3.Dr. T.K.R. Unnithan, M.S, General Surgeon,

  V.S.M.Hospital, Thattarambalam,                              

Mavelikkara.

4.The Manager,

  United India Insurance Co.

  Branch Office, IInd Floor, P.B.No:78,

Doctor’s Tower, Changanacherry.

APPEAL  NO:70/2002

The Manager, United India Insurance Co.

 Branch Office, IInd Floor, P.B.No:78,

 Doctor’s Tower, Changanacherry,                               : APPELLANT

Repd. by The Dy Manager, Regional Office,

Hospital Road, Ernakulam.

(By Adv: Sri.Peter Tharakan)

            V.

1.Smt. Sussamma Samuel,

  Paradayil House, Njakkanal-P.O, (Via),

Kayamkulam, Alappuzha Dist.

(By Adv: Sri. P.V.Sadanandan)

2.M/S V.S.M. Hospital,

  Thattarambalam, Mavelikkara-3,

Repd. by the Managing Director.                                : RESPONDENTS

(By Adv: Sri.P.Gopalakrishna Pillai)

3.Dr.N.Rajamma, M.D, D.G.O,

  Medical Superintendent and Chief Gyaecologist,

  V.S.M.Hospital, Thattarambalam, Mavelikkara-3.

4.Dr. T.K.R. Unnithan, M.S, General Surgeon,

  V.S.M.Hospital, Thattarambalam,                              

Mavelikkara - 3.

                                  COMMON   JUDGMENT

SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER

These three appeals are preferred from the order dated:28^th day of August 2001 passed by the CDRF, Alappuzha in OP:No:A-527/96.  The complaint in the said original petition was filed by the 1^st respondent in these appeals as complainant against the opposite parties 1 to 3 therein claiming compensation of Rs.5,00,000/- with reasonable interest and cost, on the ground of deficiency of service on the part of the opposite parties 1 to 3.  The 1^st opposite party is the V.S.M.Hospital Mavelikkara, the 2^nd opposite party is Dr.N.Rajamma, the Gynecologist and Medical Superintendent of the 1^st opposite party, V.S.M.Hospital and the 3^rd opposite party is the general surgeon attached to the 1^st opposite party hospital.  It was alleged that there occurred medical negligence and deficiency of service on the part of the opposite parties 2 and 3 as doctors who conducted hysterectomy and colostomy  operations on the complainant.  Hence the compensation was claimed against the opposite parties 1 to 3.

2. During the pendency of the said claim petition the 2^nd opposite party, Dr.N.Rajamma filed a petition as I.A.4/07 for getting the United India Insurance Company impleaded as additional 4^th opposite party.   And the said petition was allowed on the ground that the 2^nd opposite party had taken a professional indemnity policy with the United India Insurance Company Ltd. up to the limit of Rs.2,00,000/-.

3. The opposite parties filed written versions denying and disputing the alleged deficiency of service and contended that there was no negligence or lapse on the part of the opposite parties in conducting the operations on the complainant and that the treatment and operations were conducted with due care and caution.

4. Additional 4^th opposite party/United India Insurance Company filed written version contending that the complaint is not maintainable, that there is no consumer relationship between the complainant and the additional 4^th opposite party; that the 4^th opposite party has been impleaded in the proceedings only after the lapse of two years from the date of the alleged cause of action and thereby the claim is barred by limitation; that the issue involved can only be adjudicated by a competent Civil Court; that there was no deficiency of service on the part of the 2^nd opposite party.  The quantum of compensation claimed cannot be allowed as there is no basis for the said claim; that the 4^th opposite party may be permitted to contest the claim on all grounds that are available to the 2^nd opposite party.   The 4^th opposite party is unnecessarily dragged in the dispute without any cause or reason.   It is admitted that 4^th opposite party issued a professional indemnity policy to the 2^nd opposite party Dr.N.Rajamma to an indemnity limit of Rs.2,00,000/- for the period from 1..7..1994 to 30..6..1994.

5. Before the Forum below the complainant and her husband were examined as PWs1 and 2 and Dr.Aravindakshan Nair attached to Christian Medical College Hospital, Vellore has been examined as PW3.  Exts.P1 to P25 documents were marked on the side of the complainant.  Ext.P25 is only the argument notes filed by the counsel for the complainant.  On the side of the opposite parties the 2^nd opposite party was examined as RW1 and the 3^rd opposite party as RW2.  Dr.Sanker, retired professor of surgery, Medical College Hospital Kottayam has been examined as RW3.  Exts.B1 to B9 documents were marked on the side of the opposite parties.  Among them Ext.B9 is the argument note submitted by the counsel for the opposite parties 2 and 3.

6. On an appreciation of the evidence on record the Forum below passed the impugned order thereby finding the opposite parties 2 and 3 negligent and deficient in treating and conducting surgery on the complainant.   Opposite parties 2 and 3 were made liable to pay compensation to the complainant to the tune of Rs.2,15,412/- with 12% interest from the date of the complaint ie, 31..12..1996 till the date of realization and cost of Rs.5000/-.  The 1^st respondent V.S.M.Hospital represented by its Managing Director is made vicariously liable for the negligent treatment done by the 2 and 3^rd opposite party doctors.  The aforesaid quantum of compensation of Rs.2,15,412/- and the cost of Rs.5000/- are apportioned among the opposite parties 2 and 3.  The 2^nd opposite party Dr.N.Rajamma is made liable to pay compensation of Rs.1,95,412/- and cost of Rs.4000/- and the 3^rd opposite party Dr.T.K.R.Unnithan is made liable to pay a sum of Rs.20,000/- with cost of Rs.1000/-.  Thereby the opposite parties 1 and 3 are made jointly liable to pay Rs.20,000/- and cost of Rs.1000/-.  The opposite parties 1 and 2 are made jointly liable to pay a sum of Rs.1,95,412/- with cost of Rs.4000/-.  The 4^th opposite party being the insurer of the 2^nd opposite party is directed to deposit the aforesaid amount of Rs.1,95,412/- with interest at the rate of 12% per annum and cost of Rs.4000/-.

7. Aggrieved by the impugned order the 3^rd opposite party Dr.T.K.R.Unnithan has filed Appeal:1171/2001. The complainant and opposite parties 1, 2 and 4 are respondents in his appeal.  The 2^nd opposite party Dr.N.Rajamma filed the appeal:1174/01.  The complainant and opposite parties 1,3 and 4 are the respondents in her appeal.  The additional 4^th opposite party United India Insurance Company Ltd. filed the Appeal:70/02.   The complainant and opposite parties 1, 2 and 3 are the respondents in the said appeal.

8. We have heard the counsel for the appellants in the above 3 appeals namely appeals preferred by the opposite parties 2, 3 and 4.  The counsel for the 2^nd respondent V.S.M. Hospital, Mavelikkara was also heard in the matter.  But there was no representation for the 1^st respondent/complainant.

9. The learned counsel for the appellant (3^rd opposite party) in Appeal: 1171/01 submitted his arguments based on the grounds urged in the Memorandum of the present appeal.  He canvassed for the position that there was no sort of negligence or deficiency of service on the part of the doctors in treating and doing operations and the colostomy was done on account of the accepted complication of the hysterectomy.  He also much relied on the testimony of RW3, the expert doctor who was examined on the side of the opposite parties 2 and 3 and requested for setting aside the impugned order passed by the Forum below finding the opposite parties 2 and 3 doctors negligent and deficient in rendering their service as doctors.  The learned counsel for the appellant in A:1174/01 submitted his arguments on the grounds urged in the memorandum of appeal.  He also canvassed for the position that there was no sort of negligence on the part of the appellant/2^nd opposite party in conducting the surgeries.  He pointed out that the fistula developed was the normal post operative complication and there is no basis in finding the 2^nd opposite party negligent in doing the hysterectomy on the complainant.  It is also submitted that the post operative period of the hysterectomy operation was uneventful from 11..4..1995 to 17..4..1995 and the fistula was developed and noticed only on 21..4..1995.    He also much relied on the expert evidence given by RW3 Dr.Sanker.  It is further argued that the complainant has not succeeded in establishing the alleged negligence and deficiency of service on the part of the doctors and that the finding of negligence and deficiency of service is based on assumptions and surmises.  It is also submitted that the amount of compensation ordered by the Forum below is excessive.  He pointed out that there was no prayer for interest, but the forum below has also ordered interest at the rate of 12% from the date of the complaint.  At the same time the learned counsel for the appellant/2^nd opposite party supported the finding of the Forum below in fastening liability on the 4^th opposite party/Insurance company.  Thus, the appellant prayed for setting aside the impugned order passed by the Forum below finding the 2^nd opposite party negligent and deficient in service.

10. The learned counsel for the appellant in A:70/02 pointed out the grounds urged in the memorandum of the appeal.  He challenged the order passed by the Forum below fastening liability to pay the compensation on the 4^th opposite party/Insurance company.  It is submitted that only the 2^nd opposite party Dr.N.Rajamma has taken the professional insurance policy to the limit of Rs.2,00,000/- and the 4^th opposite party/Insurance company is only liable to pay the compensation awarded against the 2^nd opposite party and that the 4^th opposite party has no liability to indemnify the 1^st opposite party V.S.M.Hospital.  The learned counsel for the appellant/4^th opposite party pointed out the joint liability to pay Rs.1,95,412/- with cost of Rs.4000/- and interest at the rate of 12% per annum on the opposite parties 1 and 2;  that the direction made by the Forum below directing the 4^th opposite party to deposit the entire sum of Rs.1,95,412/- with interest and cost cannot be justified.  Thereby appellant/4^th opposite party requested to setaside the aforesaid direction given against the 4^th opposite party and thereby to modify the impugned order passed by the Forum below.  On the other hand, the learned counsel for the 2^nd respondent/1^st opposite party supported the arguments advanced by the counsel for the appellants in A:1171/01 and 1174/01.  He requested for the dismissal of the Appeal:70/02 preferred by the additional 4^th opposite party/United India Insurance Company.

11. The points that arise for consideration in these 3 appeals are as follows:-

1.                              Whether the complaint in OP:527/96 filed before the CDRF, Alappuzha is maintainable in law?

2.                              Whether the complainant in the said OP:527/96 can be considered as a consumer coming within the ambit of the Consumer Protection Act, 1986?

3.                              Is there occurred any negligence or deficiency of service on the part of the opposite parties 2 and 3 in treating the complainant Smt.Susamma Samuel and on conducting hysterectomy and colostomy operations on the said complainant?

4.                              Whether the quantum of compensation awarded by the Forum below with interest and cost can be treated as excessive?

5.                              Whether the Forum below can be justified in directing the additional 4^th opposite party to deposit the compensation with interest and cost which was awarded against the opposite parties 1 and 2 jointly?

6.                              Is there any legally sustainable ground to interfere with the impugned order dated:28..8..2001 passed by CDRF, Alappuzha in OP.A-527/96?

12. POINTS 1 and 2:-

For the sake of convenience and for avoiding confusion we will refer the parties to these appeals according to their status before the Forum below in OP:A-527/96.

13. The complainant was admitted in the 1^st opposite party, V.S.M.Hospital, Mavelikkara and she was treated by the opposite parties 2 and 3 who were the doctors, at the relevant time, attached to the 1^st opposite party hospital.  There is no dispute that the 2^nd opposite party Dr.N.Rajamma conducted hysterectomy operation on the complainant and thereafter the 3^rd opposite party, the general surgeon attached to the 1^st opposite party hospital conducted colostomy operation on the complainant and the 3^rd opposite party was assisted by the 2^nd opposite party for doing the colostomy operation and the subsequent procedures and treatment.  It is also an admitted fact that the complainant availed the services of the opposite parties 1 to 3 on consideration.  If that be so, the complainant is a consumer as defined under section 2(1)(d) of the Consumer Protection Act.  It is the case of the complainant that there was deficiency of service on the part of the opposite parties in treating her and also in doing operations on her.  So the dispute in the said complaint can be treated as a consumer dispute.  It has been held by the Hon’ble National Commission and the Hon’ble Supreme Court that the issue or dispute regarding Medical negligence can be adjudicated by the District Fora, State Commissions and the National Commission.  So, the case of the opposite parties that the dispute involved in the complaint in OP:A-527/06 ought to have been referred to the decision of a competent Civil Court cannot be uphold.  The Forum below has rightly uphold the case of the complainant that her complaint is maintainable before the Forum below and that the Forum below has got the jurisdiction to entertain the dispute involved therein.

14. The additional 4^th opposite party has contended that there was no privity of contract between the complainant and the additional 4^th opposite party/United India Insurance Company and that there was no consumer relationship between the complainant and the 4^th opposite party and that no service of the 4^th opposite party had been availed by the complainant.  But it is an admitted fact that the 4^th opposite party issued a valid professional insurance policy to the 2^nd opposite party Dr.N.Rajamma and thereby the 4^th opposite party has to indemnify the 2^nd opposite party to an extent of Rs.2,00,000/-.  Admittedly the said policy was effective from 1..7..1994 to 30..6..1995.  The complainant was admitted in the 1^st opposite party hospital on 9..4..1995 and the 2^nd opposite party conduced the hysterectomy on the complainant on 11..4..1995 and that the complainant was discharged from the 1^st  opposite party Hospital on 19..5..1995.  Thus, during the relevant period there was an effective policy of insurance as far as the 2^nd opposite party is concerned.  The complaint in OP:527/96 was filed on 31..12..1996 and the additional 4^th opposite party was impleaded on 5..5..1997.  Thus the complaint and the impleadment of the 4^th opposite party was effected within the period of limitation.  Though there was no privity of contract between the complainant and the additional 4^th opposite party/United India Insurance Company Ltd, the complainant can be considered as a beneficiary in the event of the 2^nd opposite party is found negligent and deficient in rendering service to the complainant.  The impleadment of the 4^th opposite party can be treated as just and proper.  It is pertinent to note at this juncture that the 4^th opposite party was impleaded at the instance of the 2^nd opposite party, N.Rajamma who had been given the policy of insurance by the 4^th opposite party/United India Insurance Company.  It is true that in the I.A.4/97 filed by the 2^nd opposite party as the petitioner it is stated that the petition is filed by the 3rd opposite party.  But in fact the said petition was filed by the 2^nd opposite party Dr.N. Rajamma.  It is at the instance of the 2^nd opposite party (the insured)  the 4^th opposite party/insurer was impleaded.   The additional 4^th opposite party (appellant in A:70/02) was a necessary party in the said OP:527/96.  Thus, in all respects the complaint in OP:527/96 is maintainable.  These points are answered accordingly.

15. POINT NO:3:-

It was the case of the complainant that there was negligence on the part of the 2^nd opposite party in conducting the hysterectomy operation and due to the lack of care in doing the hysterectomy operation an injury was caused to the bowel of the complainant and it resulted in further complications and resulted in conducting colostomy on the complainant by the opposite parties 2 and 3.  There is no dispute that the 3^rd opposite party conducted the colostomy on the complainant with the assistance of the 2^nd opposite party.  It is the case of the complainant that the colostomy operation was also done in a negligent manner without due care and caution and it resulted in failure and thereby conducted another colostomy operation on the right side.  The complainant alleged deficiency of service on the part of the opposite parties 2 and 3 in doing hysterectomy and colostomy operations.  It is the definite case of the complainant that the 2^nd  colostomy happened to be done only because of the negligence in doing the 1^st colostomy by the opposite parties 2 and 3.  It is contended by the opposite parties 2 and 3 that only one colostomy was done to the left side of the complainant and no second colostomy was conducted.  It is also the case of the opposite parties 2 and 3 that after conducting the 1^st colostomy on the left side there was block dues to intestinal obstruction and due to peritoneal bands and adhesions and thereby a laprotomy was done.  It is also the case of the opposite parties 2 and 3 that laprotomy was done on 3..5..1995 by extending the colostomy incision in upper abdomen.  So, the first point to be considered is whether there was second colostomy operation done on the right side of the abdomen of the complainant?

16. Ext.P1 is the discharge/reference card issued to the complainant from  the 1^st opposite party VSM hospital, Mavelikkara.   In P1 discharge card it is stated as follows:-

“Colostomy done on 27..4..1995.  But abdominal distension on 3..5..1995, colostomy was not working.  So again abdomen re-opened on 3..5..1995 and adhesions + obstruction of the particularly involving pro-small bowel.  Adhesions removed and loop colostomy done.”

P1 discharge card issued from the 1^st opposite party hospital would make it clear that the first colostomy was done on 27..4..1995 and the 2^nd colostomy was done on 3..5..1995.  The opposite parties 2 and 3 has got a case that what is written in P1 discharge card is a mistake.  RW2, the 3^rd opposite party could not give any reasonable explanation as to why such an entry has been made in P1 discharge card.  He was not in a position to say who signed the P1 discharge card.  He could say that he has not signed the P1 discharge card.  At the same time it is admitted that P1 is the discharge card issued from the 1^st opposite party hospital at the time discharge of the complainant from the hospital on 19..5..1995. So, P1 can be treated as a valuable and acceptable document.  It is also to be noted that the P1 discharge card was issued as a reference card.  The purpose of a discharge card or reference card is to facilitate the patient to have a reference of her treatment and the same can be used for her further treatment in any other medical institution.  Even if the case of the 3^rd opposite party is taken as true and correct, then also it can be seen that the opposite parties 1 to 3 were negligent in issuing such a document like P1 discharge/reference card.  It is to be noted that issuing a discharge reference card with incorrect details of the treatment would lead to serious problems and complications.  So, this itself is a ground to hold that there was negligence on the part of the opposite parties 1 to 3.

17.  The complainant has got a definite case that the 1^st opposite party hospital failed to produce the treatment records pertaining to the treatment of the complainant at that hospital.  It is alleged in the complaint that the opposite parties have manipulated hospital records concerning treatment given to the complainant with a dishonest intention of escaping from their legal liability.  The Forum below has taken note of the fact that the B8 treatment record (B8 file – patient record) was produced by the 1^st opposite party/VSM Hospital only at a later stage.  It is specifically stated in the impugned order itself that the B8 case record was produced before the Forum below after the examination of the witnesses on the side of the complainant.  It is to be noted that Dr.Aravindakshan Nair attached to Christian Medical College, Vellore has been examined as PW3.  It is also to be noted that PW3 Dr.A.Aravindakshan Nair had the occasion to treat the complainant at CMC, Vellore and he had conducted two corrective surgeries on the complainant.  He has also deposed about the P7 , P8 and P9 discharge summary issued from CMC, Hospital, Vellore in connection with the treatment of the complainant on 3 occasions at that hospital.  PW3 did not get the opportunity to peruse B8 case record pertaining to the treatment of the complainant at the 1^st opposite party/VSM Hospital, Mavelikkara.  The Forum below has categorically stated that B8 was produced after the examination of PW3 Dr.Aravindakshan Nair attached to CMC Hospital, Vellore.

18. PW3 has categorically deposed that two colostomy operations were conducted on the complainant one on the left side and the other on the right side.  He further deposed that the colostomy done on the left side was not functioning and that the colostomy done on the right side was functioning when the complainant was first seen by PW3 at CMC Hospital, Vellore.  The aforesaid testimony of PW3 would make it abundantly clear that two colostomy operations were done on the complainant at the 1^st opposite party VSM Hospital, Mavelikkara and the same were done by opposite parties 2 and 3.  PW3 in his cross-examination has also replied as to why two colostomy operations were done on the complainant.  “I do not able to understand why two colostomy is done in a patient.” (At page 6 cross-examination of PW3).  Even in the chief examination PW3 was very definite that the patient had 2 colostomy.  There is no reason or ground to doubt the testimony of PW3.  The way in which and the manner in which PW3 deposed before the Forum below would inspire confidence.  He can be treated as an independent and impartial expert witness.  His competency to depose about the procedure adopted by the doctors at VSM Hospital cannot be doubted.  It is also to be noted that PW3 had the occasion and opportunity to treat the complainant subsequently at CMC Hospital, Vellore.  Thus, in all respects the evidence of PW3 is more reliable than that of the testimony of RW3, the expert surgeon examined on the side of the opposite parties 2 and 3.  It is also to be noted that RW3 Dr.Sanker had no occasion or opportunity to see or examine the complainant as patient.  A careful study of the oral testimony of RW3 would give an indication that he made an attempt to support the 3^rd opposite party Dr.Unnithan.  It is admitted by RW3 that they are friends for the last 30 years and they had worked together in Jawaharlal Nehru Institute of Medical Science, Pondichery.  So the evidence given by RW3 is to be evaluated with much care and caution.  The learned counsel for the complainant cross-examined RW3 at length and he was confronted with medical dictionary and Text Book on surgery.  At one point of his cross-examination he even deposed that he had not heard about single barrel colostomy.  But when he was confronted with the Text Book on surgery he had to admit that there is also single barrel colostomy.  At later stage he avoided further questions stating that he had no occasion to treat the complainant and he had no occasion to go through the case records of the complainant.  So, the evidence of RW3 can only be treated as a shallow evidence without going into the true perspective and aspects of the case history.  Thus, in all respects more evidentiary value can be given to the testimony of PW3 than that of the testimony of RW3.  The Forum below has rightly relied on the testimony of PW3.

19.Opposite parties 2 and 3 categorically contended in their versions that the complainant was discharged from the 1^st opposite party hospital on 19..5..1995 and thereafter the complainant never turned up, though she had advised to come to the hospital for further treatment and management.  The 2^nd opposite party as RW1 and the 3^rd opposite party as RW3 had also deposed that the complainant was discharged from the 1^st opposite party Hospital on 19..5..1995 and thereafter she did not come to the 1^st opposite party hospital or to the opposite parties 2 and 3 doctors.  But a perusal of B8 patient record produced from the side of the 1^st opposite party hospital would show that on 27..5..1995 the complainant had treatment at the 1^st opposite party VSM Hospital in connection with her treatment under the opposite parties 2 and 3.  At page 14 of B8 patient record it is written as 13..5..1995 she had consultation and thereafter on 27..5..1995.   Therein it is recorded that generally well,  Minimal slough + of the wound site slough cut and advised stemetil stugeron and Becozime.  At page 13 of B8 it is also written the patient name Susamma Samuel Hospital No:3689/95 and there is also details regarding the treatment given on 5..5..1995 and 9..5..1995.  It is also to be noted that on the cover page of B8 patient record the Hospital No: written as 3689/95.  The very same Number as given at page 13 of B8 patient record.  At page 31 of B8 patient record it is specifically stated colostomy on 27..4..1995, laprotomy for obstruction-3..5..1995, date of admission- 9..4..1995, date of discharge- 19..5..1995.  It is to be noted that discharge card or reference card could be issued only based on the patient record.  It is based on the entries in the patient record or the case record or case sheet, the discharge summary/reference card will be issued.  In P1 discharge card/reference card it is recorded that two colostomy operations were done.  If there was no such 2 colostomy operations done on the complainant there would not be such an entry in P1 discharge card,  Especially in the light of the entries at page 31 and other places in B8 patient record regarding the procedures followed in the 1^st opposite party hospital.  This is also a strong circumstance which would lead to the conclusion that some manipulations/alterations have been effected to the case record pertaining to the treatment of the complainant at the 1^st opposite party VSM hospital.  These entries in P1 discharge card would give an indication that B8 patient record is a forged one or some manipulations have been made in the patient record pertaining to the treatment of the complainant at 1^st opposite party hospital.  So no reliance can be placed on B8 patient record.

20. Case of the complainant is that 2^nd opposite party conducted the abdominal hysterectomy on 11..4..1995 without due care and caution and she  did it in a negligent manner and it resulted in causing injury to the large bowel and developed Recto Vaginal Fistula (RVF). On the other hand, the 2^nd opposite party contended that there was no negligence on her part in doing the hysterectomy and that she did it with due care and caution and no injury was caused to the bowel.  It is also her case that the recto vaginal fistula developed as a post operative complication.  PW3, the doctor who repaired the recto vaginal fistula and closure of the colostomy at Christian Medical College Hospital, Vellore has deposed about P7, P8 and P9 discharge summaries issued from CMC Hospital, Vellore.  He categorically deposed that in P7 discharge summary it is stated that the complainant had rectal injury during hysterectomy.  P7 and P8  discharge summaries issued from Christian Medical College Hospital, Vellore would also show that the complainant had sustained rectal injuries during hysterectomy operation.  PW3 in his cross-examination has deposed that the possibility of adhesions with the rectum would make the hysterectomy very difficult and fistula is a possible complication.  But he categorically deposed that fistula is not an acceptable complication of hysterectomy.  PW3 has also deposed that there is no positive indications fistula developed as a post operative complication.  According to PW3, as far as the complainant is concerned there is no positive indication of a post operative complication for developing recto vaginal fistula, though, it is possible as a post operative complication.  PW3 further deposed about the possibility of causing an injury to the intestine which can be small or large but in such a situation the Surgeon could be very careful to detect or ascertain as to whether any such injury is caused to the intestine and if there occurred any such injury the same is to be repaired  then and there otherwise it may result in more complications.  PW3 has also deposed that a Surgeon or Gyneacologist  must be very cautious while doing  hysterectomy in a case where there is adhesions.  Thus, the appraisal of the oral testimony of PW3 would give an indication that rectal or intestinal injury was caused during hysterectomy operation and it resulted in fecal peritonitis and thereby developed recto vaginal fistula.  His evidence would also show that there was no positive indication for the recto vaginal fistula as a post operative complication.  Thus, the evidence of PW3 would support the case of the complainant that the 2^nd opposite party Dr.N.Rajamma was negligent in doing the hysterectomy operation and due to her negligence injury caused to the bowel and resulted in recto vaginal fistula.  There is no contra evidence forthcoming from the side of the opposite parties to disprove the testimony of PW3.  We have already compared the testimony of RW3 with that of PW3. The evidence of RW3 is not sufficient to inspire confidence.  On the other hand, the evidence of PW3, the expert doctor attached to Christian Medical College Hospital, Vellore would inspire confidence.  Thus, the complainant has succeeded in establishing her case regarding negligence of the 2^nd opposite party in doing the hysterectomy operation.  The Forum below has rightly appreciated the evidence on record in its correct perspective and found the 2^nd opposite party negligent and deficient in rendering service as a doctor.

21. We have already discussed about the negligence and lapse on the part of the 3^rd opposite party in doing the colostomy operation with the assistance of the 2^nd opposite party.  The evidence on record would show that the first colostomy operation was a failure and that the opposite parties unnecessarily conducted the 2^nd colostomy operation.  Even according to RW2, the 3^rd opposite party there was no need for a 2^nd colostomy and there was only a laprotomy required.  Thus, the available evidence on record is sufficient enough to come to a just and proper conclusion that there was negligence on the part of the opposite parties 2 and 3 in conducting colostomy operation on the complainant.  The said finding of the Forum below can only be upheld.

22. We have also considered Ext.B8 patient record produced from the side of the 1^st opposite party at the late stage of the case before the Forum below.  The complainant had the genuine doubt about the case record produced from the side of the 1^st opposite party.  It was alleged in the complaint itself about the possibility of doing manipulation with respect to the case record pertaining to the complainant.  We have already noticed the manipulation done by the opposite parties with respect to P8 patient record.  There is no quarrel or dispute that the complainant was discharged from the 1^st opposite party hospital on 19..5..1995 and thereafter she had no occasion to go to the 1^st opposite party hospital or to have medical consultation with opposite parties 2 and 3.  But in B8 case record there is an entry with respect to consultation on 27..5..1995.  The said entry at page 14 of B8 would establish the manipulation of the patient record by the opposite parties.  What prompted the 1^st opposite party or the other opposite parties to make such an entry with the date 27..5..1995?  The reason is very simple.  The aforesaid entry was made to make it appear that B8 patient record is a genuine and properly maintained one.  The opposite parties were prompted to make such an entry because of the review date shown as 27..5..1995 in P1 discharge/reference card issued from the 1^st opposite party hospital to the complainant.  The aforesaid date for review noted in P1 discharge card prompted the opposite parties to make such an entry at page 14 of B8 patient record.  We have also noticed the disparities in P1 discharge/reference card and B8 patient record with respect to the number of colostomy operations.  As per P1 the first colostomy was done on 27..4..1995.  But as per B8 patient record there was only one colostomy done on 27..4..1995 and on 3.5..1995 only a laprotomy was done.  Thereby the intestinal obstruction was removed and re-established the colostomy.  But the evidence of PW3, the doctor attached to CMC hospital, Vellore made it abundantly clear that there were two colostomy operations one on the left side and the other on the right side and at the time when he examined the complainant the colostomy on the right side was functional.  It is established that the 1^st opposite party purposefully manipulated B8 patient record so as to suit the case of the opposite parties 2 and 3.  The Forum below is perfectly justified in finding the opposite parties 2 and 3 negligent in conducting the hysterectomy and colostomy operations on the complainant.  We have no hesitation to uphold the said findings of the Forum below.  This point is found against the appellants/opposite parties.

23. POINT NOS:4 to 6:-

The complainant had claimed compensation of Rs.10.lakhs in her letter issued to the opposite parties claiming compensation.  But in the complaint she limited her claim for compensation at Rs.5,00,000/- with reasonable interest and cost.  But the Forum below has only awarded compensation of Rs.2,15,412/- with 12% interest from the date of the complaint and cost of Rs.5000/-.  Considering the sufferings, inconvenience and monetary loss suffered by the complainant the compensation awarded by the Forum below can be treated as low.  At any rate the Forum below has taken a very lenient view infavour of the opposite parties in fixing the quantum of compensation.  It is to be noted that the complainant had to undergo additional 4 operation ie, two colostomy operations, one for repairing the recto vaginal fistula and the 4^th one for closing the colostomy.  Unnecessary treatments were undergone by the complainant only because of the negligence on the part of the 2^nd opposite party in doing hysterectomy operation.  There is no dispute that the complainant had gone to Christian Medical College Hospital, Vellore for the last two operations.  The pain and sufferings undergone by the complainant cannot be compensated in terms of money.  The medical expenses and other incidental expenses which were met by the complainant would warrant reasonable and adequate compensation.  The case of the opposite parties that the compensation awarded by the Forum below is excessive cannot be upheld.  We do not find any ground to interfere with the order passed by the Forum below regarding quantum of compensation.  The Forum below is also justified in apportioning the said compensation and thereby directing the opposite parties 1 and 2 jointly to pay a sum of Rs.1,95,412/- with cost of Rs.4,000/- and interest at the rate of 12% from the date of the complaint and making the opposite parties 1 and 3 jointly liable to pay compensation of Rs.20,000/- with cost of Rs.1000/- and interest at the rate of 12% from the date of the complaint.

24. The 1^st opposite party is the VSM Hospital represented by the Managing director.  The opposite parties 2 and 3 doctors were attached to the 1^st opposite party hospital.  So the 1^st opposite party hospital is vicariously liable for the negligence of its doctors Viz.; the opposite parties 2 and 3.  The Forum below has made the 1^st opposite party jointly liable to pay the aforesaid compensation along with the opposite parties 2 and 3.  There is no dispute that the 2^nd opposite party Dr.N.Rajamma had the professional insurance coverage and that the 4^th opposite party is legally bound to indemnify the 2^nd opposite party.  It is pertinent to note that the 4^th opposite party is only liable to indemnify the 2^nd opposite party.  It had no legal liability to indemnify the 1^st opposite party or the 3^rd opposite party.  It is also to be noted that the opposite parties 1 and 2 are made jointly liable to pay Rs.1.95.412/- with cost of Rs.4,00/- and interest at the rate of 12%.  It is also to be borne in mind that the liability of the 4^th opposite party/Insurance company is limited to the extent of Rs.2,00,000/-.  But the compensation amount of Rs.1,95,412/- with cost of Rs.4,000/- and interest at the rate of 12% from 31..12..1996 would exceed Rs.2,00,000/-.  It is also to be noted that there is no joint and several liability, it is only joint liability as per the order passed by the Forum below.  If that be so, one half of the said compensation, cost and interest are to be paid by the 1^st opposite party and the other half is to be paid by the 2^nd opposite party.  The 2^nd opposite party is to be indemnified by 4^th opposite party/Insurance company.  Then, the 4^th opposite party need only deposit Rs.97,706/- as compensation with cost of Rs.2,000/- and interest at the rate of 12% on the said sum of Rs.97,706/- from 31..12..1996 till the date of realization.  The impugned order passed by the Forum below is modified to that effect.  In all other respects the impugned order is confirmed.  These points are answered accordingly.

In the result A.Nos:1171/01 and 1174/01 are dismissed.  A.70/02 is allowed partly.  The impugned order passed by the Forum below is modified and thereby the 4^th opposite party is directed to deposit Rs.97,706/- with cost of Rs.2000/- and interest at the rate of 12% per annum on the said sum of Rs.97,706/- from the date of complaint (31..12..1996) being the liability of the 2^nd opposite party, Dr.N.Rajamma whose liability is to be indemnified by the 4^th opposite party/Insurance company.  In all other respects the impugned order is confirmed.  As far as these three appeals are concerned, the parties are directed to suffer their respective costs.  

                   M.V.. VISWANATHAN      :   JUDICIAL MEMBER

VALSALA SARANGADHARAN    : MEMBER

S. CHANDRAMOHAN NAIR: MEMBER

VL.