Tamil Nadu

StateCommission

FA/341/2011

Dr. S.S. Ravikumar(Ortho), Arunkumar Hospital - Complainant(s)

Versus

Thirupathi - Opp.Party(s)

Anand, Abdul & Vinodh,

10 Dec 2021

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

BEFORE :       Hon’ble Thiru. Justice R. SUBBIAH                          PRESIDENT

Tmt  Dr. S.M.LATHA MAHESWARI                                       MEMBER

                        

F.A.NO.341/2011

(Against order in CC.NO.54/2009 on the file of the DCDRC, Krishnagiri)

 

DATED THIS THE 10^th DAY OF DECEMBER 2021

 

Dr. S.S. Ravi Kumar, M.B.B.S., M.S.,(Ortho)

M/3, Arunkumar Hospital                                                 M/s. AAV Partners

II Phase, Tamil Nadu Housing Board                                     Counsel for

Krishnagiri                                                           Appellants /Opposite party

 

                                                         Vs.

Thirupathi

S/o. Poongavanam

Balakuri Village                                                              M/s. S. Prabhakar

Periya Bellarampalli PO                                                       Counsel for

Krishnagiri Taluk & District                                              Respondent / Complainant

 

          The Respondent as complainant filed a complaint before the District Commission against the opposite party praying for certain direction. The District Commission had allowed the complaint. Against the said order, this appeal is preferred by the opposite party praying to set aside the order of the District Commission dt.3.12.2010 in CC.No.54/2009.

 

          This appeal coming before us for hearing finally today, upon hearing the arguments of the counsel appearing on bothside and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order:

ORDER

 

JUSTICE R. SUBBIAH, PRESIDENT   

 

1.         This appeal has been filed by the opposite party as against the order dt.3.12.2010 passed by the District Commission, Dharmapuri at Krishnagiri, in CC.No.54/2009, in allowing the complaint by directing the appellant /opposite party to pay a sum of Rs.40000/- towards compensation for damages alongwith cost of Rs.2000/-. 

 

2.       The brief facts of the complaint before the District Commission are as follows:

            The complainant was a mason by avocation.  On 15.8.2008 he met with an accident during the course of his work, and he sustained fracture injury on the 4^th ring finger of left hand.  Immediately he was taken to opposite party’s hospital.  On examining the complainant, the opposite party advised him to undergo a surgery.  Hence he got admitted in the opposite party hospital on the same day, and the surgery was conducted .  To join the fracture ‘K’ wire was fitted on the left hand 4^th ring finger of the complainant by the opposite party receiving a sum of Rs.6000/- towards operation fees apart from medical expenses of Rs.15000/-.  The complainant was discharged from hospital on 16.8.2008.  Since he had developed pain on the left hand finger, again he visited the opposite party.  But the opposite party informed him that since ‘K’ wire was fixed in the left finger, there would be pain and the same would subside very soon.  Hence, the complainant was continuously suffering from pain.  But after a lapse of month again he visited the opposite party and the opposite party removed the ‘K’ wire.  Since the fractured bone was not united, the opposite party advised him to undergo another surgery and thus asked him to pay a sum of Rs.15000/-.  But the complainant had not agreed for the surgery.  Since he was suffering from pain, he issued notice dt.13.10.2008, calling upon the opposite party to pay a sum of Rs.5 lakhs towards compensation for the deficiency in service on the part of the opposite party.   On receipt of the said notice, a reply was sent by the opposite party on 6.11.2008 with false explanation.  In fact after completion of operation, the opposite party failed to take x-ray to confirm whether the bones united or not.  Further ‘K’ wire was also not properly fixed.  Therefore, the complainant went to SPARSH Hospital at Bangalore.  The doctor who examined had given certificate dt.26.11.2008 that there was non-union in his left fourth metacarpal bone non-union, which need   surgery and the approximate cost for the said surgery would be Rs.20000/-.   Hence he filed a complaint as against the opposite party praying for a compensation of Rs.2 lakhs alongwith cost of Rs.2000/-. 

 

3.       The opposite party resisted the claim of the complainant, by filing version as follows:

          The opposite party is a qualified doctor having the qualification of M.S.,(Ortho).  He has been conducting surgeries for the past 20 years.  The complainant had sustained fracture injury on the Metacarpal Bone on the 4^th ring finger of the left hand.  He was advised to undergo surgery, and the complainant had also given consent to undergo surgery.  He had paid a sum of Rs.6000/- as medical expenses.  It is false to say that he had paid a further sum of Rs.15000/- to the opposite party.  After a week from the date of discharge, again the complainant came to the opposite party and the stitches were removed.   When he came to the hospital again after a period of 3 weeks, it was found that the bones were getting united, hence the ‘K’ wire fixed at the time of operation was removed.  In fact the complainant was advised not to lift any weight for a period of two months.   But without listening to the advice of the opposite party, the complainant had proceeded to attend his mason work.  Since he has not followed the advice of the opposite party properly, he would have got pain.  He came to this opposite party only after a period of 3 weeks, from the date of operation.  When the x-ray was examined, it was found that fractured bone on the left ring finger got united.  Similarly it is fit to state that this opposite party has not suggested for any other operation.  Absolutely, there is no deficiency in service on the part of the opposite party, and thus prayed for dismissal of the complaint. 

 

4.       In order to prove their respective cases, proof affidavits were filed by both parties alongwith documents, which are marked as Ex.A1 to A4 and MO1 to MO3 on the side of the complainant, and Ex.B1 and B2 on the side of the opposite party. 

 

5.       The District Commission on coming to the conclusion that there is deficiency in service on the part of the opposite party, awarded a sum of Rs.40000/- towards compensation for mental agony alongwith cost of Rs.2000/-.  Aggrieved over the said order, the opposite party has preferred this appeal. 

 

6.       The complainant had sustained fracture of the Metacarbal bone in the left hand finger.  Therefore, the opposite party had performed surgery and fixed ‘K’ wire to unite the fractured bone.  After fixing the ‘K’ wire, the complainant was   discharged in a good health condition.  The Respondent/ complainant came for removal of the sutures, and the ‘K’ wire was also removed.  He was particularly advised not to carry any weight for a period of 3 months.  But the complainant without heeding to the advice of the doctor, was going for the work, being a mason by allocation.  Furthermore, as per orthopaedic journal, there is every possibility of non-union of bone, even if the surgery was successful.  It is also medically accepted.  Therefore, no negligence can be attributed as against the opposite party.  In fact the appellant/ opposite party had followed strict medical protocol by carrying out all preliminary steps before surgery, including taking of x-ray prior to diagnosis, after fixing ‘K’ wire and after removal of ‘K’ wire.  Therefore, no negligence can be attributed against the appellant.  Moreover no expert evidence was adduced.  In the absence of any expert evidence, the District Forum has wrongly interpreted the Material objects / x-rays, and came to the conclusion that the opposite party was negligent in fixing the ‘K’ wire.   In fact, after removal of ‘K’ wire, the Respondent/ complainant had never come back to the appellant.  On the other hand he visited M/s.          SPARSH Hospital at Bangalore.  Had he visited to the appellant, he would have treated the appellant for the same ailment.  Thus the counsel for the appellant submitted that the District Forum, by merely relying upon the statement, had awarded the compensation, ignoring the fact that no proof was produced by the complainant to substantiate the case.  Thus he prayed for the dismissal of the appeal. 

 

7.       Countering the submissions, the Respondent/ complainant had made a detailed submission mainly supporting the findings of the District Commission. 

 

8.       Keeping the submissions of the parties in mind and carefully gone through the materials placed on record, we have passed the following order:

 

9.       The appellant/ opposite party would submit that the complainant had not followed the advice of the opposite party, to not to lift any weight, therefore he suffered pain in the operated place. 

          Whereas the Respondent/ complainant would submit that while the x-ray was taken at the time of removal of ‘K’ wire, he was told that the bones were not united yet and another surgery has to be performed, and for that the opposite party demanded Rs.15000/-.

          Be that as it may, on a perusal of the order of the District Commission, it was held that as seen from MO1 it was crystal clear that the broken metacarpal bone was not kept evenly in a joining position by the appellant, so as to enable the bone to reunite.  When complainant approached the SPARSH Hospital at Bangalore, the doctor who examined the complainant confirmed the non-union of left 4^th metacarpal bone, and further advised for open reduction and internal fixation with bone grafting.  Therefore, it goes without saying that the surgery conducted by the opposite party was negligent, and he failed to do the surgery properly by fixing the broken bones properly. 

          It is common knowledge, had the operation been done properly, absolutely there is no need for the complainant to go to SPARSH Hospital, Bangalore to correct the fracture injury.  Therefore, the fact remains that even after the operation by the appellant/ opposite party, he was taking treatment for the same problem in SPARSH Hospital.  Therefore, certainly there is deficiency in service on the part of the opposite party, accordingly the complainant deserves to succeed.

          In view of the above, we find no infirmity in the order passed by the District Commission by awarding a sum of Rs.40000/- towards compensation for deficiency in service, and we find no compelling circumstances warranting our interference.

 

18.     In the result, the appeal is dismissed by confirming the order of the District Commission in CC.No.54/2009 dt.3.12.2010.  There is no order as to cost in this appeal.

 

 

  S.M.LATHAMAHESWARI                                                 R. SUBBIAH

               MEMBER                                                                        PRESIDENT

 

 

 

 

INDEX : YES / NO

Rsh/dRSJ/ ORDERS