By Sri. MOHANDASAN.K, PRESIDENT

1.Complaint in short is as follows: -

     The complainant is an employee of Edarikkode spinning Mill. On 15/07/2014 while he was working, slipped and fell down and sustained injuries to right hand wrist. Immediately he was taken to MIMS Hospital, Kottakkal and X-ray taken and it was revealed fracture on the wrist of the right hand. The doctor advised for internal fixation and the expense suggested was Rs. 25,000/-(Rupees Twenty five thousand only). But the complainant being an employee with ESI coverage, he entitled for free treatment and so he requested for the discharge from MIMS hospital. Thereafter complainant approached 2^ndopposite party at ESI Hospital Feroke. The 2^nd opposite party advised him that surgery is not necessary and only plastering on right hand is sufficient. The 2^ndopposite party applied plaster on the right hand of the complainant and advised to review after 5 weeks. While after 5 weeks he approached 2^nd opposite party it was found that his right hand turned totally immobilised. The condition of the complainant was continued even after three and half months. Then the complainant insisted the doctor to conduct an X-ray examination. On that occasion it was found that the fractured bone as malunited and the movement of the right hand totally restricted. The complainant even now suffering from the injuries. The complainant alleged that, the 2^nd opposite party denied the effective treatment from the ESI hospital. The complainant had reminded the 2^nd opposite party that there was an advice from MIMS hospital to conduct surgery. The 2^nd opposite party did not consider the opinion of the Ortho department of MIMS hospital and was not even cared to examine the fracture through an X-ray. The complainant approached several doctors at Al-shifa hospital Perintalmanna, Calicut Co-operative hospital etc. The complainant states that all of them opined that the deficiency and carelessness at the time of initial treating caused this situation. The doctors advised him that not to go for a further surgery except in an unavoidable situation. The complainant thereafter from 13/04/2015 onwards joined for duty. Meanwhile on 16/01/2015 he filed a complaint before ESI Corporation and received a reply on 05/05/2015. The reply was that the 2^nd opposite party advised for surgery but the complainant refused to do the same. The said advice of opposite party was to approach KMCT Hospital. The complainant after receiving a referral letter from ESI hospital Feroke on 18/11/2014 approached KMCT Hospital on 17/01/2015. The KMCT Hospital refused to undertake the treatment.

2.                Complainant is residing along with his wife and two daughters in a rented place and he desire that not to cause any trouble in future to other employees due to this sort of attitude of the opposite parties and he pray for a compensation of Rs. 19,00,000/- (Rupees Nineteen lakh only) and also Rs. 50,000/-(Rupees Fifty thousand only) on account of deficiency in service and thereby caused mental agony and also cost of the proceedings.

3.          On admission of the complaint issued notice to opposite parties. The opposite parties entered appearance and filed version. The opposite parties denied entire allegations and averments in the complaint and also contended that the Consumer Disputes Redressal Commission have no territorial jurisdiction.

4.       The 1^stopposite party filed version contenting that the complainant was advised from MIMS Hospital to undergo fixation and it is obvious from the discharge summary dated 15/07/2014. The complainant approached ESI Hospital, Feroke and from there also he was advised for fixation which involves surgery. The complainant refused to undergo fixation surgery and voluntarily opted KMCT hospital for further treatment which is obvious from the Referral form issued by ESI hospital , Feroke dated 17/11/2014. The complainant underwent physiotherapy/Uzhichil against the advice of the doctors. The 1^stopposite party also contended that the 2^nd opposite party examined the complainant in the OP department and discussed with Senior Orthopaedic surgeon Dr. Shaji C.P, and after clinical examination and X-ray evaluation the complainant was advised surgical fixation of fracture. The complainant was not willing for surgery and so he was managed with elbow slab and was prescribed analgesic medicines and was advised to undergo rest. The complainant reported for review on 23/07/2014 before the 2^nd opposite party and in consultation with senior doctor Dr. Anilkumar has informed the complainant about the possible risk of deformity, malunion and stiffness etc which are inherent in the nature of fracture for continuing with conservative management with POP cast immobilization. The complainant opted for conservative management and accordingly below POP cast was applied and advised rest for one month with calcium tablets. The complainant did not turn up thereafter for consultation but continued follow up treatment in consultation with Dr.Shaji and Dr. Anilkumar of ESI hospital. The 1^st opposite party also contended that on receipt of complaint from complainant called details from the hospital and found that complainant as refused to undergo surgery. Accordingly a reply was also issued to complainant. The 1^st opposite party contented that they have not caused any damage to the complainant as alleged in the complaint and he is not entitled for any sort of relief as prayed in the complaint and the complaint being filed on an experimental basis without territorial jurisdiction to be dismissed in limine with cost to this opposite party.

5.          The 2^nd opposite party also filed version and denied the entire averments and allegations. Opposite party No.2 submitted that the complaint is frivolous, vexatious and devoid of truth or bonafides. Opposite party No.2 also contended that the Consumer Disputes Redressal Commission has no territorial jurisdiction since the opposite parties are outside the territorial jurisdiction of this Commission. It is also contended that the ESI hospital provides absolutely free of treatment and so also complaint is not maintainable. The 2^nd opposite party admitted that the complainant approached the ESI hospital on 18/07/2014 as referred from MIMS Hospital, Kottakkal. He had history of fall at work site and thereby caused tenderness, swelling and deformity on the right wrist. The X-ray right wrist revealed intra-articular fracture to the distal end of the radius. He was advised surgical fixation of fracture from MIMS hospital Kottakkal, but was not willing for the reasons best known to the complainant. The complainant approached 2^nd opposite party with a below elbow POP slab applied from MIMS Hospital. The 2^nd opposite party seen the complainant in the OP department, discussed the case with senior Orthopaedic surgeon Dr.Shaji C.P. and after clinical examination and X-ray evaluation complainant was advised surgical fixation of fracture. Since he was not ready for surgery, managed with below elbow slab and prescribed analgesic medicines and advised rest. The complainant reported for review in the OPD on 23/07/2014 before the 2^nd opposite party and the 2^nd opposite party in consultation with Dr.Anilkumar informed the complainant about the possible risk of deformity, malunion and stiffness etc inherent in the nature of fracture for continuing with conservative management with POP cast immobilisation. The complainant preferred conservative management and so after application of POP cast he was advised rest for one month along with Calcium tablets. Thereafter complainant did not turned up for consultation with 2^nd opposite party but continued follow up treatment in consultation with Dr.Shaji and Dr. Anilkumar. The 2^ndopposite party treated the complainant with due diligence and care in strict regard to accepted medical protocol in the management of the patient. Later  it was learned that complainant developed malunion and he was referred to ESI empanelled  KMCT  Hospital,  Mukkam  where he  was advised  physiotherapy  but he was not regular with it.  The complainant was not even for surgical correction of malunited wrist advice of doctors who treated him later. The 2^nd opposite party had occasion to see the complainant only twice.

6.       The allegation of the complaint against the 2^nd opposite party is ill framed and ill advised by suppressing material facts and with misrepresentation of facts. Opposite party submitted that malunion, deformity, stiffness etc are accepted and reported complications associated with this type of distal radius fractures of wrist. The complainant was not regular on follow up treatment and it is submitted that he was in pursuit of other unscientific modalities of treatment like massaging therapy two months after fracture treatment at ESI hospital. The opposite parties submitted that the complainant attended ESI hospital only after three days of injury. The 2^nd opposite party also denied that, he advised that no need for surgery which is ill motivated and so opposite party denied. If the 2^nd opposite party had advised like that the complainant could have approached Dr.Shaji or Dr. Anilkumar or the Hospital Superintendent for the same. Normally request for surgery for this type of fractures are not entertained at ESI Hospital and so similar cases are referred to ESI empanelled hospitals. The opposite party also submitted that the complainant had an opinion to have the surgery done at MIMS Kottakkal itself and then the first opposite party would have reimbursed. The hospital bill will pay by his factory owner. So it indicates that the complainant was not at all interested in surgical treatment. The opposite party denied the allegation that the 2^ndopposite party taken X-ray after three and half months at the instance of complaint. It is false since the 2^ndopposite party had occasion to treat the complainant was only on two occasions and they are 18/07/2014, 23/07/2014 respectively. The opposite party denied that complainant caused this much issues due to carelessness and dereliction of duty and denial of treatment from the part of opposite parties. The allegation that the fractured hand was pulled and splintered for plaster applications are false. The contention of the complainant that he had consulted seven doctors in addition to 2^nd opposite party and none of them advised surgery is absolutely false. The opposite party also contended that he had resumed to his job on 13/04/2015 indicates that he was not having any sort of disabilities. The complaint is filed with intention of taking undue advantage out of his own faults as it is crystal clear from the fact that the complainant who himself preferred conservative non-surgical treatment. The claim is highly exorbitant and exaggerated without any basis and not entitled for any relief or cost as prayed in the complaint.

7.         The complainant filed affidavit and he was examined as PW1. Documents on the side of complainant marked as Ext.A1 to A17. Ext.A1 is copy of Discharge summary dated 15/07/2014 from MIMS hospital, KottakkaL. Ext. A2 is OPD slip dated 18/07/2014. Ext.A3 is copy of OPD slip from ESI, Hospital Feroke dated 5/09/2014. Ext. A4 is the copy of OPD slip from ESI, Hospital Feroke dated 01/10/2014. Ext. A5 is the copy of OPD slip from ESI, Hospital Feroke dated 15/10/2014. A6 is the copy of OPD slip from ESI, Hospital Feroke Dated 29/10/2014. Ext. A7 is the copy of copy of OPD slip from ESI, Hospital Feroke dated 01/12/2014. Ext. A8 is OP ticket from KMCT, Medical College dated 18/11/2014. Ext. A9 is OP card from Al-shifa hospital, Perintalmanna dated 10/12/2014. Ext. A10 is OP ticket from KMCT, Medical College dated 17/01/2015. Ext. A11 is OP ticket from dated 18/01/2015 from Kozhikode District Co-operative Hospital. Ext. A12 is X-ray from MIMS hosptial, Kottakakal. Ext. A13 is X-ray from ESI Hospital Feroke. Ext. A14 is X-ray from KMCT, Hospital, and Ext. A15 is OP card dated 20/11/2014 of Ayurveda College Hospital, Kottakkal. Ext. A16 is Report of Disability Assessment Board. Ext.17 is Disability certificate from Taluk Hospital. 2^nd Opposite party was examined as DW1 and document marked as Ext.B1 series. Ext.B1 (a) is Medical Board report dated 01/09/2015. Ext.B1 (b) is letter from Sub Regional Office ESI Corporation to Ulahannan dated 10/09/2015, Ext. B1 (c) is a reply received by V.K.Anilkumar from ESI Corporation dated 19/10/2015. Dr.Anilkumar was also examined as DW2. The complainant and opposite party No.2 filed argument notes.

8.   Heard both sides and following point’s arised for consideration.

1. Whether the complaint is maintainable?
2. Whether there is deficiency in service on the side of opposite parties?
3. Relief and cost.

9.  PointNo.1

                 The opposite parties have got a contention that the complaint is not maintainable before this Commission due to lacking of territorial jurisdiction. The opposite party No.1 filed IA.62/2016 on 04/02/2016 challenging maintainability of this case. As per the IA the cause of action of this complaint wholly and partly took place in Kozhikode district, it is outside the territorial Jurisdiction of this Forum. It is also contended that the cause of action aroused at Employees State Insurance Hospital located at Feroke, Kozhikode and opposite parties are residing outside the territorial limits of this Forum. Opposite parties contended that the complainant availed treatment free of cost and so there is no consideration, on that ground also complaint is not maintainable.

10.           The complainant filed counter that the Director of Insurance, Medical services, ESI Scheme Thiruvananthapuram is one of the opposite parties in the complaint. The ESI has got hospitals in Malappuram District on various places. They have got branch offices, dispensaries and they are providing treatment as well as availing medicines in Malappuram District. On that ground the question of territorial jurisdiction does not arise.It is also to be noted that the opposite party establishment is part of labour welfare insurance scheme and is working after receiving contribution from the government and employees. So, the treatment cannot be treated as free one. The complainant later filed an application U/s 11(2)(b) of Consumer Protection Act 1986. The Consumer Protection Act 1986 Section11(2) (a) (b)(c) provides the jurisdiction conditions. They are as follows:-

• 11(2)(a) -The opposite parties or each of the opposite parties where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or [carries on business, or has a branch office or] personally works for gain, or
• (b) Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or [carries on business or has a branch office], or personally works for gain,
• PROVIDED that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or [carry on business or have a branch office], or personally work for gain as the case may be, acquiesce in such institution; or
• (c) The cause of action, wholly or in part, arises.

          So, the perusal of provision confer jurisdiction to the Forum where the opposite parties carry on business and also the District Forum can give permission to the complainant in certain cases. In this case IA.62/2016 stands closed by then the Forum with observation to consider the issue of maintainability at the time of final order and no order was passed in IA.787/2016 seeking permission on issue of territorial jurisdiction.

          At present, The Consumer Protection Act 2019 section 39(2)(d) confer the jurisdiction to the Consumer Commission where complainant resides or personally works for gain. In the above circumstances we find that it will be proper to hold the Consumer Disputes Redressal Commission has got Jurisdiction to entertain the complaint and the question of maintainability under the ground territorial jurisdiction does not arise, first point we decided accordingly.

11.  Points No.2&3

          The grievance of the complainant is that the 2^ndopposite party instead of doing surgical procedure to the injuries sustained to the complainant followed conventional procedure of plastering on complainant’s right hand. The complainant at present is not in a position to move wrist of right hand freely which happened due to the negligent treatment by the 2^nd opposite party. The complainant sustained injuries on his right hand wrist from work place at Edarikkode spinning mill and he was taken to MIMS hospital Kottakkal. The X-ray taken from the MIMS hospital revealed fracture to the wrist of the right hand of complainant. The doctor from MIMS Hospital advised surgery to the right hand and also to arrange Rs.25,000/- (Rupees Twenty-five thousand only) towards as expense. Since the complainant is covered by ESI, he is entitled for free treatment at ESI hospital and so he requested for discharge from MIMS Hospital. The complainant thereafter approached the 2^nd opposite party and the 2^nd opposite party advised him that surgery is not necessary and plastering on right hand is sufficient.

12.         The opposite parties contented that the advice from their part was to follow the surgical procedure and not for plastering. The complainant was not ready for the surgical procedure and so the plastering was done. The opposite parties contented that the complainant was not ready for surgical procedure at first instance itself and it is evident from Ext. A1 document. The Ext.A1 discharge summary from MIMS Hospital, Kottakkal shows that they advised for fixation but complainant was not willing. They also contended that the complainant approached the ESI hospital three days after discharge from MIMS hospital. The complainant approached the 2^nd opposite party with the discharge summary and the X-ray taken from the MIMS Hospital. Since the X-ray taken from the MIMS hospital prior to the consultation at ESI Hospital revealed the fracture, no fresh X-ray was taken from ESI hospital.

13.         The 2^nd opposite party and one Dr. Anilkumar adduced evidence before this

Commission as DW1 and DW2 respectively. The deposition of the DW2, it can be seen that the complainant was examined by opposite party No.2 and after consultation with DW2, they suggested open reduction and internal fixation for the complaint. He has stated that the patient was not willing for the surgery. It is also stated that there was no facility for surgery at ESI hospital. Hence the usual procedure was to refer the patient to empanelled hospitals. Opposite party No.2 has stated in the version that the ESI Corporation will bear the full expenses in such cases. They are not collecting any fee from the patient. According to DW2 the treatment proposed by opposite party No.2 was medically accepted one. It is to be noted that DW2 was also a doctor working at Feroke ESI hospital along with opposite party No.2. DW2 has categorically denied the negligence on the part of opposite party No.2.

14.           The perusal of documents and the depositions of DW1 and DW2 it can be seen that nowhere in treatment records that an advice for surgical procedure from the side of opposite parties. But at the same time the 2^nd opposite party has got a contention the complainant could have availed treatment from MIMS Hospital, Kottakkal itself and the entire expense will have issued by the first opposite party. But the contention of complainant is that the MIMS hospital suggested raising 25000/-(Twenty five thousand) rupees towards treatment expense and so he sought reference to ESI hospital. If treatment was available free of cost at MIMS hospital, he could have continued treatment at MIMS hospital there itself. The contention of the opposite parties is that the complainant refused to undergo surgical procedure and voluntarily opted KMCT Hospital for further management. It also contended that the complainant was examined by 2^nd opposite party in the OP department and discussed with senior orthopaedic surgeon Dr.Shaji CP and after clinical examination and X-ray evaluation, the complainant was advised surgical fixation of fracture. The complainant was not willing for surgery and so he was managed with elbow slab by the opposite party. Thereafter five days on 23/07/2014 complainant again reported before the 2^nd opposite party and he is in consultation with senior doctor Dr. Anil Kumar has informed the complainant about the possible risk of deformity, malunion and stiffness etc which are inherent in the nature of fracture for continuing with conservative management with POP cast immobilisation. In the circumstances and according to the option of complainant for conservative management, below POP cast was applied by the opposite parties. Thereafter the complainant did not turn to consult with opposite party No.2 but continued follow up treatment in consultation with Dr. Shaji and Dr. Anilkumar of ESI hospital. The first opposite party also contended that after receipt of complaint from the complainant called details from the hospital and found that complainant refused to undergo surgery. But on perusal of documents except Ext.A1 document no other documents will support the contention of the opposite parties. It has admitted by 2^nd opposite party that the proper treatment as per accepted medical protocol in this case was surgical fixation. The conventional method of POP cast is also an accepted method of treatment. But on perusal of the version and affidavit the opposite parties are convinced that the proper course of treatment to be provided in this case was surgical fixation. But the opposite parties followed conventional method of treatment and according to them which was exclusively opted by the complainant. The affidavit of the 2^nd opposite party it has stated that the complainant was informed about the possible risk of deformity, malunion and stiffness etc but the documents do not support the affirmation of opposite parties. There is no document to show that the opposite parties proceeded with conventional method after obtaining informed consent from the complainant since complication involved in the proceedings. There is no document to show that the complainant exclusively opted the conventional mode of treatment. The 2^nd opposite party contented that he had occasions only twice to treat the complainant and thereafter follow up treatment was in consultation with Dr. Shaji and Dr. Anilkumar of ESI hospital. But at the time of evidence, it was stated that he had seen the complainant on 01/10/2014 and 29/10/2014. 2^nd opposite party also admitted that though the complainant was reported before him on 18/07/2014, an X-ray was taken only on 29/10/2014. The opposite party No.2 has also  got a contention the complainant was not regular in follow up treatment. But documents speak otherwise. The complainant was reported first time before the 2^nd opposite party on 18/07/2014. Thereafter he was reported before the ESI Hospital on 23/07/2014, 25/08/2014 5/09/2014, 30/09/2014, 1/10/2014, 15/10/2014, 21/10/2014, 29/10/2014, 30/10/2014, 11/11/2014, 01/12/2014 respectively. So, it is clear that the averment of 2^ndopposite party is false and the complainant was regular before opposite parties in follow up treatment.

15.           The contention of the opposite parties that the opposite parties followed accepted mode of treatment following the standard protocol. According to them there is no lapse or deficiency or dereliction in duty in treatment of the complainant. But in this case, it can be seen that the opposite parties itself admitted that the treatment to be opted was surgical fixation. The 2^nd opposite party also admitted that he was aware of the complications in conventional procedure, if opted in this complaint. It is also pertinent to note that ESI Hospital is not conducting surgical procedures in this sort of cases. The version of opposite parties is that they will opt to refer the patients to the empanelled hospitals in such cases. So, the documents show that the act of the opposite parties not to referring the complainant to an empanelled hospital for surgery itself is denial of proper treatment to the complainant. There was no bar for the opposite parties in referring the complainant to an empanelled hospitals for surgical management. The opposite parties establishment and the Doctor is working as part of a labour welfare scheme that too after receiving contribution towards insurance premium from wages of the employee. It is also to be noted that the opposite parties have not properly informed the complications of conventional mode of treatment. The DW2 is none other than the co-worker of the 2^nd opposite party. He has deposed that there is no negligence in treatment of complainant from the part of opposite parties. It is to be noted that DW2 also had occasions to see the complainant and to give proper medical advice. That also not done by him. It is also to be noted that, the version and contention of the first opposite party is in tune with 2^nd opposite party. The 1^st opposite party has got nothing to depose about the treatment given by the 2^nd opposite party in the hospital. At the same time the 1^st opposite party is liable for the actions of the 2^nd opposite party.

16.             The opposite parties filed detailed argument note with an article on distal radius fracture malunion. Learned counsel for opposite party No.2 argued that the malunion, non-union and delayed union of fractures are well documented and accepted complications in orthopaedic treatment. No liability can be fasted upon a doctor simply because there is malunion of fracture. The article concludes that the distal radius malunion is a major complication of distal radius fracture and also the importance of initial management. The grievance stated by the complainant is that the opposite party did not refer the complainant to empanelled hospital for surgical management at initial stage and he was referred after long span of time and so he lost his chance to repair his malunion. The judgement after evaluation of fracture by DW1 and DW2 in this case was to conduct the surgical procedure and admittedly there was no facility in ESI hospital to do the same and so the usual practice was referring to empanelled hospital. The examination of an expert witness is not necessary to establish this factual position. So, we find that there is deficiency in service and dereliction of duty as alleged by the complainant in the complaint.

17.        The complainant was an employee working in spinning mill and he is covered by ESI. So, his disability was examined by the medical board constituted by the ESI and they issued a disability certificate of 0%. Thereafter, he was examined by Taluk Medical Board attached to Government Taluk hospital, Thirurangadi and they issued a disability certificate of 10%.It is to be noted that he reported for duty on  13/04/2015.  So, the perusal of disability certificate it can be seen that though he has got disability and inconvenience there is no occupational disability that is why he reported for work.

18.             The complainant pray for huge amount of Rs.19,00,000/-(Rupees Nineteen lakh only) as compensation and Rs.50,000/-(Rupees Fifty thousand only) as compensation on account of mental agony and also cost. It is to be noted that, the entire treatment expenses were born out by 1^st opposite party. Hence, complainant is entitled only for a reasonable amount as compensation on account of deficiency in service and thereby caused mental agony and the Commission allows the compensation of rupees 1,00,000/-(Rupees One lakh only) on that account.

19. In the above circumstances we allow the complaint as follows: -

1. The opposite parties hereby directed to pay Rs. 1,00,000/- (Rupees one lakh only)  to the complainant on account of deficiency in service and thereby caused in convenience and hardships and disabilities to the complainant.
2. The opposite parties also directed to pay Rs. 10,000/-(Rupees Ten thousand only) as cost of the proceedings.

              The opposite parties shall comply this order within 30 days from the date of receipt of copy of this order, failing which the above said amount will carry interest at the rate of 12% per annum from today to till realisation.

                         Dated this day of 6^thDecember, 2021