National Consumer Disputes Redressal
Dr. Nilesh vs Prakash & Anr. on 5 June, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3852 OF 2017 (Against the Order dated 29/03/2017 in Appeal No. 683/2009 of the State Commission Maharashtra) 1. DR. NILESH S/O. RAMANLAL TIBDIWAL, R/O. SANJEEVANI SURGICAL HOSPITAL RAIGADH COLONY, KHAMGAON, DISTRICT-BULDHANA MAHARAHSTRA ...........Petitioner(s) Versus 1. RACHNA & ANR. W/O. NARENDRA AGRAWAL, R/O. SAKRI, TQ. SAKRI, DISTRICT-DHULE-424304 MAHARAHSTRA 2. DR. SHEEL W/O. SHYAM LADDHA, R/O. JANKI CLINIC MAIN ROAD, KHAMGAON, DISTRICT-BULDHANA MAHARAHSTRA-444303 ...........Respondent(s) REVISION PETITION NO. 3853 OF 2017 (Against the Order dated 29/03/2017 in Appeal No. 684/2009 of the State Commission Maharashtra) 1. DR. NILESH S/O. RAMANLAL TIBDIWAL, R/O. SANJEEVANI SURGICAL HOSPITAL RAIGADH COLONY, KHAMGAON, DISTRICT-BULDHANA MAHARAHSTRA ...........Petitioner(s) Versus 1. PRAKASH & ANR. S/O. GOKULCHAND AGARWAL, R/O. OLD BUS STAND, KHAMGAON, DISTRICT-BULDHANA MAHARAHSTRA-444303 2. DR. SHEEL W/O. SHYAM LADDHA, R/O. JANKI CLINIC MAIN ROAD, KHAMGAON, DISTRICT-BULDHANA MAHARAHSTRA-444303 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE SUDIP AHLUWALIA,PRESIDING MEMBER
FOR THE PETITIONER : MR. NALIN MAJITHIA, ADVOCATE. FOR THE RESPONDENT : FOR THE RESPONDENT-1 : MS. VANDANA SEHGAL, ADVOCATE
MR. MOHIT YADAV, ADVOCATE.
FOR THE RESPONDENT-2 : NEMO
Dated : 05 June 2024 ORDER
JUSTICE SUDIP AHLUWALIA, MEMBER
These Revision Petitions have been filed against the impugned Order dated 29.03.2017 passed by the Ld. State Consumer Disputes Redressal Commission, Maharashtra in Appeal No. 683/2009, vide which the Appeals filed by the Complainants were allowed, and the Order of the Ld. District Forum was modified with enhanced compensation.
2. The facts and question of law involved in these Appeals are similar and arise from the same cause of action, except for minor variations. Therefore these Appeals are being disposed off by this common Order. However, for the sake of convenience, RP/3852/2017 is treated as the lead case, and the facts enumerated hereinafter are extracted from this Complaint.
3. The factual background, in brief, is that in late January 2000, during the seventh month of her pregnancy, the Complainant travelled to Khamgaon to her parents' house for delivery and sought medical care from Dr. Sheel Laddha, a Gynaecologist who was running a Nursing Clinic called "Janaki Clinic." Under Dr. Laddha's observation, the Complainant underwent periodic examinations. On February 15, 2000, experiencing pain, she visited Dr. Laddha's clinic, where a Caesarean -4- delivery was recommended. Dr. Nilesh Tibdiwal, a Surgeon, was called upon to perform the operation, which took place at the said 'Janaki Clinic'. Following the surgery, the Complainant was informed that she had given birth to a baby girl. However, post-operation, the Complainant experienced vomiting and abdominal pain, which persisted for several days. Despite medical attention, her condition deteriorated, and she developed post-operative Peritonitis, resulting in abdominal distension and stiffness. Attempts to alleviate her symptoms, including the insertion of a Nasogastric Tube, provided little relief. Eventually, the Complainant was discharged but continued to suffer from abdominal pain and other complications. Further examinations revealed the presence of a mass in her abdomen, leading to a subsequent operation at Bombay Hospital to remove the foreign body. The operation resulted in the removal of the foreign object and damaged organs, including the Left Fallopian Tube, rendering the Complainant unable to conceive. Subsequent check-ups confirmed her physical recovery, and she was discharged from the Hospital. The Complainant contended that she had endured significant physical and emotional suffering due to the alleged medical negligence and gross deficiency in service. Unable to conceive a male child ever, she experiences ongoing mental anguish. Consequently, she filed her Complaint (CC No. 105 of 2008) with the Ld. -5- State Commission, Maharashtra, seeking compensation for the harm suffered.
4. The District Forum vide its Order dated 24.08.2009 allowed the Complaint No. 105/2008 and directed the Opposite Party No. 1 to pay to the Complainant an amount of Rs. 2,00,000/- with interest @ 9% p.a. from 15.12.2000 till the date of realization, along with Rs. 10,000/- towards litigation costs. All the original parties then filed their respective Appeals before the Ld. State Commission, which partly allowed the Appeals of the Complainants. The relevant extracts of the impugned Order are set out as below -
"26. So far as the quantum of compensation is concerned to be paid to Rachana, we find that she was required to suffer unbearable pain for more than three months due to aforesaid medical negligence and her left fallopian tube was also required to be removed in Bombay Hospital as it was badly damaged due to the presence of said foreign body in her abdominal cavity. The Forum granted compensation of Rs.2,00,000/- only. In our view the said compensation is not just and adequate considering the gross negligence of O.P.Nos. 1 and 2 and severe harm as above suffered by Rachana due to their joint negligence. Therefore we are of the view that Rachana is entitled to compensation of Rs.5,00,000/- on account of mental and physical suffering and harm caused as above to her. Thus the said amount is -6- required to be paid by O.P.No.1 and 2 jointly and severally with interest. She is also entitled to cost of Rs.25,000/- from O.P.No.1 and O.P.No.2.
27. As regards the claim of Prakash, the father of Rachana, we find that it is he who had taken Rachana to the hospital of O.P.No.1 from time to time and for sonography to other places and he had also taken her to Bombay Hospital after Rachana got no relief from O.P.No.1 and 2. It is also not the case of Rachana that he has borne all the expenses for said purposes. No doubt the receipts produced on record by Prakash show that they were issued in the name of Rachana only. However it is general experience that the name of patient is written over the receipt and not of the person who pays the money. All the receipts are produced by Prakash and not by Rachana. The Forum erred in holding that as all the receipts are issued in the name of Rachana Agrawal, the complaint filed by Prakash i.e. her father is not maintainable, particularly when Rachana did not came with a specific case of paying all the amounts by her. The complaint filed by Rachana shows that her occupation is only house hold and it does not appear that she has got any independent source of income for bearing such heavy expenses for her hospitalisation and treatment. Therefore Prakash who incurred all such expenses for treatment of Rachana also falls within the preview of definition of consumer and thus O.P.No.1 and 2 have provided service by accepting the consideration paid by Prakash. Forum -7- therefore erred in holing that complaint filed by Prakash is not maintainable for claiming all expenses incurred by him on investigation, hospitalisation and treatment of his daughter Rachana. In our view on the basis of receipts produced on record, Prakash is entitled to compensation of Rs.2,00,000/- for the expenses incurred by him for medical investigation, hospitalisation and treatment of Rachana. He is also entitled for interest over that amount @ 9% p.a. Moreover he is also entitled to cost of Rs.25,000/-.
28. We also find that previous two complaints filed by Rachana and Prakash were disposed of only because subject matter valued was beyond the pecuniary jurisdiction of the Forum. However the complainants were subsequently filed before the State Commission as per limits of pecuniary jurisdiction at that particular time. The complaints were then transferred to District Forum, Buldana as the pecuniary jurisdiction of the said Forum was enhanced up to Rs.20,00,000/-. Therefore the present complaints are tenable in law.
29. In the result of aforesaid discussion we hold that there is no merit in the appeal filed by O.P.No.1 Dr.Sheel Laddha and it deserves to be dismissed.
30. Thus applying principles laid down in aforesaid cases relied by learned Advocate of Rachana and Prakash, we hold that appeals filed by Rachana and her father Prakash deserve to be partly allowed as above and appeal filed by Dr.Sheel Laddha deserves to be dismissed. Hence the following order.-8-
// ORDER // I. The appeal bearing No.A/09/683 filed by Rachana w/o Narendra Agrawal is partly allowed as under.
(a) The impugned order passed in consumer complaint No. 105/2008 is substituted and modified as under.
(b) Opposite party No.1 Dr.Sheel Shyam Laddha and the opposite party No.2 Dr.Nilesh Ramanlal Tibdiwal are directed to pay jointly and severally the complainant Rachana Narendra Agrawal, compensation of Rs.5,00,000/- (Rs. Five Lakhs) with interest @ 9% р.а. from 15/02/2000 till its realisation of the same by her.
(c) They shall also jointly and severally pay cost of Rs.25,000/- to complainant Rachana Narendra Agrawal.
II. The appeal No.A/09/684 filed by Agrawal is partly allowed as under. Prakash Gokulchand
(a) The impugned order passed in consumer complaint No. 106/2008 is set aside.
(b) The O.P.No.1 Dr.Sheel Shyam Laddha and O.P.No.2 Dr.Nilesh Ramanlal Tibdiwal jointly and severally shall pay to the complainant Prakash Gokulchand Agrawal compensation of Rs.2,00,000/- (Rs. Two Lakhs) with interest @9% p.a. from 15/02/2000 till realisation of the same by him. They shall also jointly and severally pay cost of Rs.25,000/- to the complainant Prakash Gokulchand Agrawal.
III. The appeal bearing No.A/09/844 filed by Dr.Sheel Shyam Laddha is hereby dismissed.
IV. No order as to cost in the said appeal No.A/09/844...."
-9-5. Ld. Counsel for Petitioner has argued that that the Petitioner was only called upon by Respondent No. 2 to perform the Umbilical Hernia Repair operation, as she lacked the qualifications to perform such a procedure. He did not receive any consideration from the Complainants for the operations, thus falling outside the purview of the Consumer Protection Act; That the State Commission overlooked the documentary evidence, which had correctly held the Respondent No. 2 responsible. The State Commission erred by presuming a common case for both the Complainants and issuing order for what they view as a single cause of action, which is impermissible under the Consumer Protection Act; That the Caesarean operation was pre-planned and performed by Respondent No. 2, and the Petitioner only conducted the Umbilical Hernia Repair after her completion of the initial operation. As such no liability should be attributed to the Petitioner in this matter.
6. Ld. Counsel for Respondent No. 1 has argued that the Petitioner's contention that the Respondent No. 1 has filed her Complaint with an enhanced claim, after being directed to file the Complaint before the appropriate Forum, is not tenable. The Hon'ble Apex Court in "Gulzarilal Agrawal v. Account Officer, 1996 (10) SCC 590, "Morgan Stanley Mutual Fund v. Kartick Das, 1994 (4) SCC 225", and this Commission in "Pramod Kumar Bothara v. Ishwar Chand Sharma, -10- 1996 (1) CPR 54" has categorically held that when a Complaint is returned to be filed before the correct Forum, it becomes a new Complaint. Therefore, being a new Complaint, there is nothing that bars the Respondent No. 1 from seeking an enhanced claim, especially when she has lost a Fallopian Tube, a reproductive organ, which she will never get back due to the Petitioner's negligence.
7. The Respondent No. 2 has contended that that it was the Petitioner who conducted the operation on the Complainant, with the Respondent No. 2 merely assisting. Any negligence, therefore, should be attributed to the Petitioner alone, and the orders passed by the lower Fora are inconsistent with the evidence on record; That the Complainant specifically called the Petitioner for the Caesarean operation due to its complexity, and the complaints clearly indicate this; That the State Commission's finding that the Respondent No. 2 independently performed the Hernia Operation lacks basis, as both procedures were conducted simultaneously under the same Anaesthesia by the Petitioner; That the Respondent No. 2 expressed genuine concern about the possibility of a sponge being left in the abdomen and advised the Complainant to undergo surgery for that purpose which shows her bonafides.
-11-8. This Commission has heard both the Ld. Counsel for Petitioner and Respondents, and perused the material available on record.
9. It is undisputed that a piece of sponge measuring 22x20 cms. was actually removed from the abdominal cavity of the Complainant- Rachna more than 03 months after the Caesarean and UMBILICAL HERNIA REPAIR were performed upon her in Janki Hospital on the same date when the patient was under the same Anaesthesia. The Ld. District Forum in its Order had meticulously noted down the chronology of events in Para 14 of its Order by bullets indicating the various developments. For the sake of convenience, however, those bullets are being numbered here for ready reference. The chronology recorded by the Ld. District Forum is as follows -
i) On dt. 15-2-2000 the caesarean operation was carried out of the Complainant in the 'Janki Hospital', Khamgaon which is of Opposite Party no. 1 Dr. Sau. Sheel Laddha. And at that time the operation of UMBILICAL HERNIA was also done. On dt. 23-2-2000 the Opposite Party No. 1 discharged the complainant from her hospital.
ii) On dt. 29-2-2000, in accordance with the advise of the Opposite Party no. 1 Dr. Sau. Sheel Laddha, the Complainant got her sonography done from Dr. Vivek Chavan, Khamgaon, in which following report was given;
-12-Opinion: Features suggestive of localized fluid collection with aggregated bowel loops in left lower quadrant.
iii) On dt. 10-3-2000, the Opposite Party no. 1 has given to the Complainant the prescription of medicine for 5 days.
iv) On dt. 12-3-2000, the Opposite Party no. 2 has given to Complainant the prescription of medicine for 5 days.
v) On dt. 17-3-2000, the Opposite Party No. 2 Dr. Nilesh Tibdewal has given to Complainant the prescription of medicine for 5 days. And advised to get sonography done from Dr. Sanjay Kedia, Akola.
vi) On dt. 23-3-2000, Dr. Sanjay Kedia, Akola after ultrasound check-up has given the following report.
Opinion: Lump in Left Lower Abdomen? Organized fluid with granuloma and bowel adhesions?? Bowel Mass.
vii) Dt. 28-3-2000, the Opposite Part no. 2 has given to Complainant the medicine prescription for 5 days.
viii) On dt. 24-5-2000, the Opposite Party no. 1 Dr. Sau. Sheel Ladhha, and the Opposite Party no. 2 Dr. Nilesh Tibdewal has given two separate reference letters to the Complainant on the treatments done by them. In that in the reference letter given by the Opposite Party no. 1 Dr. Saul. Sheel Ladhha, it is mentioned that, "sponge left in abd cavity was in my mind".
ix) On dt. 25-5-2000, in the Bombay Hospital's ultrasound Report of the Complainant, it is mentioned that "There is evidence of large 7.5 cms sized echoic mass in left lower abdomen adherent to left fundic walls and intestines."
-13-x) On dt. 26.5.2000, in Bombay Hospital, the operation was done on the Complainant. And sponge of the size 22x20 cm was removed from the abdominal Cavity of the Complainant.
10. Now prior to removal of the said sponge by way of operation in the Bombay Hospital, its presence was noted in the Ultrasound report of the patient in the following manner-
"On dt. 25-5-2000, in the Bombay Hospital's ultrasound Report of the Complainant, it is mentioned that "There is evidence of large 7.5 cms sized echoic mass in left lower abdomen adherent to left fundic walls and intestines."
11. The question that consequently warrants consideration is whether the act of having left the said piece of sponge in the Complainant's abdominal cavity, which undoubtedly is a serious act of negligence, is attributable to the Respondent No. 2-Dr. Sheel, or to the present Petitioner namely Dr. Nilesh, or to both of them jointly. Here it may first be mentioned that after service of notice in the Revision Petition, appearance had been put in on behalf of the Respondent No. 2 namely Dr. Sheel on 16.7.2018. Subsequently, her written notes of arguments were filed on 8.1.2019. But, thereafter she remained unrepresented throughout till the matter was finally reserved for Orders after hearing the -14- submissions of Ld. Counsel for the Petitioners as well as the Respondent No. 1/ Complainant in both the Revision Petitions. This Commission has also considered the written arguments filed on behalf of Dr. Sheel/ Respondent No 2 which are available on record.
12. It has transpired therefrom, especially from clear statement in her Written Synopsis and Para 12 of her original Written Statement to the effect that the Caesarean operation was actually performed by the Petitioner himself and that her own role was only restricted to assisting him during such Procedure. This contention of the said Respondent/ Opposite Party is not convincing. Firstly, because it is the own case of the Complainant that the Caesarean operation on her was performed by none other than the said Dr. Sheel Laddha in her Hospital "Janki Clinic" and that the role of the Petitioner/Dr. Nilesh Tibdiwal was for performing the Procedure of 'UMBILICAL HERNIA REPAIR' which was done when the Complainant/ Patient was under the same Anaesthesia. It is also clear from the allegations of the Complainant that she had imputed medical negligence upon both the Doctors concerned, and consequently there would be no reason to infer that the role of Dr. Sheel Laddha was restricted only to "assisting" the Petitioner-Dr. Nilesh Tibdiwal. Even otherwise, this contention is illogical because it transpires that the Respondent No. 2 namely Dr. Sheel Laddha happens to be a qualified -15- Gynaecologist having qualifications of "Post Graduate Diploma in Gynaecology and Obstetrics" which is the necessary qualification for performing a Caesarean operation. On the other hand, the Petitioner, Dr. Nilesh Tiddiwal happens to be a General Surgeon having the qualification of MS (Master of Surgery), and he has his own independent Hospital in Khamgaon.
13. It is also the contention of the Petitioner that the Procedure of 'Umbilical Hernia Repair' performed by him is essentially a superficial kind of operation in which there is no need to open the abdominal cavity of a patient. In this regard, the Petitioner has also tendered three illustrative diagrams of the Human Anatomy pertaining to the abdominal region, photocopies of which are included in the following pages of this Order for a proper appreciation. Diagram No. 1 happens to be an overall illustrative indication of the various regions in the abdominal area, while diagram No. 2 focuses on the Umbilical region comprising of Umbilicus (Navel, part of the Small Intestine and Duodenum), which area is shown as Square No. 5 in the first Diagram.
Diagram 1 Diagram 2 Diagram 3 -19-
14. Admittedly, the Procedure of "Umbilical Hernia Repair" was performed by the Petitioner on this specific area depicted in Square No. 5 of the first diagram. A closer photograph of the area focusing on the Navel is the diagram No 3 and it is clear therefrom that this entire Umbilical region has no direct proximity with the left 'iliac' region comprising of the "Descending Colon" and "Sigmoid Colon" depicted in Square No. 9 of the first diagram. The said Square No. 9 happens to be directly adjacent to the "Hypo Gastric Region" comprising of the Urinary Bladder, Sigmoid Colon, and female re-productive Organs, which are all depicted in Square No. 8 of the first diagram, and such region is located directly to the adjacent right of 'Left ilac' region.
15. Now, the Discharge Summary of the Bombay Hospital which is on Page 130 of the Paper Book describes the procedure performed on the patient as follows -
"Exploratory Laparotomy done 26.5.2000 Organ insitu c/o MoP in L/o Paracolic Gutter- removed
- Resection anastomosis of small bowel and Sigmoid done"
- Cavity of mass scooped out
- Irrigation of Peroneal cavity done"
-20-As already seen from the Square No. 9 in the first diagram, the Small Intestine as well as the "Sigmoid Colon" are located in this specific area of the human body i.e. "Left ilac", which is directly adjacent and in very close proximity of the "Hypo Gastric Region" (Square No. 8) where the remaining portion of the "Sigmoid Colon" as well as the "Female Re-productive Organs" are located. Undoubtedly, Caesarean Procedure was performed on the patient/ Complainant in these areas, which have little proximity to the Umbilical Region where the navel is located.
16. In the second photograph, the location of "Umbilical Hernia" is depicted directly on the Navel area, in the form of a small button like mass. The Caesarean operation leading to delivery of the female child was obviously performed by the Female Gynaecologist concerned, which happens to be Dr. Sheel Laddha in her own Hospital by the name of "Janki Clinic". So, the mop/sponge left inside the abdominal cavity, in the "Left iliac" region could not have been left there by the General Surgeon, whose role was limited to the "Umbilical Hernia Repair" in the "Umbilical Region" alone, which was obviously done separately from the Caesarean Procedure performed by the Respondent-Dr. Sheel Laddha. Furthermore, the fact that in her own document dated 24.5.2000 which was led in evidence as Exhibit - E, and which is on record at Page No. 126 & 127 of the Paper Book. It was specifically noted by Dr. Sheel -21- Laddha, in her own handwriting that "sponge left in abdominal cavity was in my mind". This noting itself is a give-away that the said Gynaecologist was aware of the fact that sponge in the abdominal cavity had been left, which obviously could have been done only by her, as the Caesarean part of the Procedure was performed by her alone as a Gynaecologist, while role of the Petitioner was restricted to repair of the Umbilical Hernia, located in a different region of the patient's body, although the two procedures were performed on the same date for taking advantage of the Anaesthesia which in any case had to be administered to her for either of the procedures.
17. In the totality of the aforesaid circumstances, this Commission is in agreement with the conclusion of the Ld. District Forum that no case of medical negligence as against the present Petitioner/Opposite Party No. 2 could be established and the negligence by way of leaving the sponge in the patient's abdominal cavity was squarely on the part of the Gynaecologist/ Respondent No. 2- Dr. Sheel Laddha, in whose Hospital the procedure had been performed. The Ld. State Commission, however, would appear to have not appreciated these finer details, on account of which it reversed the well-reasoned decision of the Ld. District Forum by generalising that since the Caesarean operation as well as 'Umbilical Hernia Repair' on the patient were performed when -22- she was under the same Anaesthesia, so both the Doctors conducting their Procedures restricted to their specific areas would be liable for the subsequent suffering of the patient, which for the reasons mentioned in the preceding paragraphs would not appear to be a valid conclusion.
18. Similarly, it is a matter of record that services by way of surgery and subsequent treatment were availed by the patient- Smt. Rachna Agrawal, and not personally by her father-Mr. Prakash Agrawal. So, the Ld. District Forum was also correct in its view that the patient's father could not have been regarded as a 'Consumer' of the Opposite parties, since no services were provided to him personally.
19. Therefore, the decision of the Ld. State Commission of awarding compensation to the patient's father- Mr. Prakash Agrawal for the reason that the expenses for treatment were borne by him on account of which he would be entitled for compensation is not tenable. It might be that he had actually borne such expenses for treatment of his daughter, but the compensation on account of such expenses could have been claimed only by his daughter being the 'Consumer' of the Opposite Parties. After realising such compensation, it was always open to the patient to disclose the relevant medical expenses borne by her father to him, which course would have been in perfect harmony with the provisions of Section 70 of the Indian Contract Act, 1872. At any rate, the -23- compensation of Rs. 5.00 lakhs awarded to the patient- Smt. Rachna Narendra Agrawal, which was enhanced from Rs. 2.00 lakhs awarded by the Ld. District Forum, in the opinion of this Commission, was sufficient to enable her to also disburse the medical expenses borne by her father- Mr. Prakash Agrawal.
20. For the aforesaid reasons, these two Revision Petitions are allowed after modifying the impugned Order passed by the Ld. State Commission to the effect that the entire compensation of Rs. 5.00 lakhs awarded to the Complainant- Mrs. Rachna Narendra Agrawal shall be borne by the Respondent No. 2 namely, Dr. Sau. Sheel Laddha, and the Petitioner, Dr. Nilesh Tibdiwal, is not held liable to make any payment from his side. Further, the Order passed by the Ld. State Commission in allowing the Appeal filed by the patient's father, Mr. Prakash Agrawal (Respondent in RP No. 3853 of 2017) is set aside.
21. Parties to bear their own costs.
22. Pending application(s), if any, also stand disposed off as having been rendered infructuous.
......................................J SUDIP AHLUWALIA PRESIDING MEMBER