State Consumer Disputes Redressal Commission
Rachna W/O.Narendra Agrawal vs Dr.Mrs.Sheel W/O.Shyam Laddha on 29 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/09/683 (Arisen out of Order Dated in Case No. of District Buldana) 1. Rachna W/o.Narendra Agrawal R/o.At and Tq.Sakri,Dist.Dhule(Maharashtra State) Dhule ...........Appellant(s) Versus 1. Dr.Mrs.Sheel W/o.Shyam Laddha R/o.Sanjeevani Surgical Hospital,Ambar Buildin,Old Bus Stand,Khamgaon Khamgaon 2. Dr.Nilesh S/o.Ramanlal Tibdiwal R/o.Sanjeevani SurgicalHospital,Ambar Building ,Old Bus Stand,Khamgaon Khamgoan ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MR. S B SAWARKAR MEMBER For the Appellant: Advocate Mr.Aalok Daga in A.No.09/683 and A/09/684 Advocate Mr.S.D.Chopade in A.No.09/844. For the Respondent: Advocate Mr.S.D.Chopade, respondent No.1 and Advocate Mr.Wadhvani, for respondent No.2 in A.No.09/683 and A/09/684. Advocate Mr.Aalok Daga for respondent No.1 and Advocate Mr.Wadhvani, for respondent No.2 in A.No.09/844. Advocate Mr.Aalok Daga,in A.No.09/844. Dated : 29 Mar 2017 Final Order / Judgement Per Shri B.A.Shaikh, Hon'ble Presiding Member.
1. These three appeals are filed against the common order dated 24/08/2009 passed by the District Forum, Buldana in two consumer complaints bearing Nos.105/2008 and 106/2008. One of the appeal bearing No. A/09/683 is filed by the original complainant Rachana Narendra Agrawal against the order dated 24/08/2009 passed in one of consumer complaint bearing No.105/2008. Another appeal bearing No.A/09/684 is filed by another complainant Prakash Gokulchand Agrawal against the order dated 24/08/2009 passed in another complaint bearing No.106/2008. Appeal bearing No.A/09/844 is filed by original opposite party (for short O.P.) No.1 Dr.Mrs.Sheel Shyam Laddha against the order dated 24/08/2009 passed in one of aforesaid complaint bearing consumer complaint No. 105/2008. The common questions of law and facts are involved in all these three appeals and therefore they are being disposed of by this common order. The parties in all these three appeals are herein after referred to by their original status in aforesaid original complaints as complainants and opposite party (for short O.P.) Nos.1 and 2.
2. The consumer complaint bearing No.105/2008 was filed by complainant namely Rachana Narendra Agrawal. The another consumer complaint bearing No.106/2008 was filed by her father Prakash Gokulchand Agrawal. Both the complaints were filed against O.P.No.1 Dr.Mrs.Sheel Shyam Laddha and O.P.No.2 Dr.Nilesh Ramanlal Tibdiwal.
3. The common case of both the complainants in both complaints as set out by them in brief is as under.
(a) The complainant Rachana Agrawal is the married daughter of Prakash Agrawal. The Complainant Rachana was carrying pregnancy of 7 months in the month of January 2000. She came to her father's house at Khamgaon. The complainant Prakash Agrawal took his daughter Rachana to O.P.No.1 Dr.Mrs.Sheel Shyam Laddha who is Gynaecologist and running a nursing home under the name and style as "Janaki Clinic" at Khamgaon. The O.P.No.1 examined her. The Complainant Rachana then went to O.P.No.1 periodically for her check up during pregnancy.
(b) On 15/02/2000 Rachana was feeling pain and therefore she went to O.P.No.1 Dr.Mrs.Sheel Laddha who examined her and advised for delivery by caesarean operation. As per her request, the O.P.No.2 Dr.Nilesh Ramanlal Tibdiwal was also called who was holding M.S. degree, for conducting the operation. O.P.No.1 Dr.Mrs.Sheel Laddha and O.P.No.2 Dr.Nilesh Tibdiwal then together conducted the operation at Janaki Clinic on 15/02/2000 and after operation they informed both the complainants that female baby was born to Rachana.
c) The complainant Rachana was then kept on saline in the hospital of O.P.No.1. On 3rd day both O.P.No.1 and O.P.No.2 advised her for taking tea. However after taking tea she omitted. Therefore she was again kept on saline on that day. Thereafter on next day as per advice of O.P.No.1 and O.P.No.2, when Rachana took tea and light food, she omitted the material of green colour.
d) Rachana was feeling restless and uncomfortable with abnormal pain in her abdomen. Her abdomen was expanded to the extent of 36" and became very stiff. This was because mop had remained inside the peritoneal cavity in above operation as subsequently found by the complainant and her father. The condition of Rachana was reached from bad to worst. Both O.P.Nos.1 and 2 were consulted and they said that because of formation of gas in the abdomen she was suffering pain and it was to be removed. Therefore both O.P.No.1 and O.P.No.2 inserted rubber tube through her nose for removing the gas, for about 24 hours. Rachana got no relief thereafter also. Both O.P.No.1 and O.P.No.2 then discharged Rachana from the aforesaid clinic on 23/02/2000 and asked her to come after four days for check-up. The discharge letter was also given, which is filed on record.
e) However after four days Rachana went to O.P.No.1, with the same complaint of pain in her abdomen and stiffness in the abdomen. The O.P.No.1 and O.P.No.2 did not do any thing and simply advised her to come back after four days again. They suggested Rachana for doing sonography through Dr.Chavan, at Khamgaon. Accordingly sonography was done. The report of the sonography was that, "There is a bowel loops in left lower quadrant", which is also filed on record. Dr.Chavan suspected that mop was left in the abdomen on 15/02/2000 during operation. However the said fact was hidden from the complainant and her father. There after O.P.No.1 treated Rachana for 10 days, but there was no improvement in her health. Her health was being deteriorated day by day. Lastly O.P.No.1 Dr.Sheel Laddha stated that her treatment was over and she should go for consultation to O.P.No.2 Dr.Nilesh Tibdiwal for operation.
f) The complainant Rachana then approached O.P.No.2 Dr.Nilesh Tibdiwal. He gave medicine for five days and asked Rachana to come back for check up after 15 days. However she got no relief and hence after 15 days she went to O.P.No.2 Dr.Nilesh Tibdiwal. At that time she was having acute pain in her abdomen. O.P.No.2 advised the complainant to have a sonography again at the clinic of Dr.Sanjay Kedia of Akola. Accordingly sonography was done. He gave a report as "There is a lump in the lower abdomen ? Organised fluid with granuloma and bowel adhesions ?? Bowel Mass.". It is also filed on record.
g) After receiving that report also O.P.No.2 Dr.Nilesh Tibdiwal treated Rachana for 15 days by giving strong medicines. There was no improvement in her health as mop was left in her abdomen in aforesaid operation on 15/02/2000, which came to her acknowledgment later on.
h) There after Rachana and her father felt that O.P.No.1 and O.P.No.2 have hidden the actual cause of pain from them and therefore they decided to go to Bombay Hospital of Mumbai for treatment and therefore they obtained reference letters from O.P.No.1 and O.P.No.2. Those letters were issued on 24/05/2000 by them. The O.P.No.1. Dr.Mrs.Sheel Shyam Laddha admitted in that letter that "Bowel loops sponge left in the abdomen cavity". The said letters are also filed on record.
i) On 25/05/2000 in Bombay Hospital, Mumbai, sonography was done on Rachana and report was given as, " There is a evidence of large 7.5 Cms sized echoic mass in the left lower abdomen adherent to left fundic walls and intestines,". On getting aforesaid report operation was conducted in Bombay Hospital on 26/05/2000 by Dr.Pratima Chipalkatti and Dr.Chitlange. They removed the foreign body from her abdomen during operation which was left on 15/02/2000 in operation. Moreover they also removed one of the fallopian tube of the complainant from her abdomen as it was also affected due to that sponge. Said material was sent to Histopathology Department for examination. Report about the same was received. Inrespect of the left fallopian tube, report was given that, it was distorted and its surface was covered by shaggy necrotic material and cut surface reveals marked dusky discolouration. As regards the sponge found in the abdomen, report was given that, "It is extremely foul smelling sponge measuring 22 X 20 cm and is covered by necrotic slough."
j) Due to removal of left fallopian tube, Rachana is now unable to conceive. On 06/06/2000 condition of Rachana was improved and she was discharged from Bombay Hospital on 12/06/2000. The sonography report dated 06/06/2000 is also filed alongwith discharge report of Bombay Hospital.
k) Both O.P.Nos.1 and 2 thus acted very carelessly and negligently and though they were fully aware of mop/sponge was left in the abdomen of Rachana, they did not remove the same. The complainant's father Prakash Agrawal expended money for hospitalisation and other purposes. He obtained bills of medicines which were purchased for treatment of Rachana. They are to the extent of Rs.1,68,816/- of which specification is given in the complaint No.106/2008 filed by Prakash Agrawal separately.
l) Rachana in her complaint bearing No.105/2008 claimed compensation of Rs.10,00,000/- for mental agony, torture, harassment and sufferance. She claimed interest @ 24% p.a. over that amount. She also prayed for cost of the complaint.
m) Her father Prakash Agrawal in his separate complaint bearing No.106/2008 claimed total amount of Rs.7,50,000/- from O.P.Nos.1 and 2 towards all expenses incurred by him for hospitalisation and treatment of Rachana and also towards loss of his business, mental torture and agony.
4. Both complaints were resisted by O.P.No.1 and 2 by filing their respective reply. The O.P.No.1 admitted that Rachana had come to her hospital in January 2000 as she was carrying pregnancy in advanced stage. The case of O.P.No.1 in brief is as under.
(a) O.P.No.2 Dr.Nilesh was called to her hospital at the instance of Rachana and her father as O.P.No.2 is the relative of Rachana. Caesarean operation and repair of previous Umbillical Harnia of complainant was done. The O.P.No.1 assisted O.P.No.2 in the said operation. A Female baby was born to Rachana. Rachana was uncomfortable after operation. O.P.No.1 suspected that some foreign body had remained in the abdomen of the complainant Rachana. Therefore to confirm her doubt, O.P.No.1 asked her to get sonography done. Dr.Chavan did the sonography. He did not suggest that there was a mop in the abdomen of Rachana. After sonography also O.P.No.1 suspected that there was some foreign body in the body of the complainant and therefore she had informed Rachana and her father for under going surgery for removing foreign body and for that to go to O.P.No.2. However she did not go to O.P.No.2 for that operation. Hence O.P.No.1 is not liable for any compensation.
(b) It is also submitted by O.P.No.1 that complaint is not maintainable since Rachana is not a consumer and there is also mis joinder of parties. The cause of action against O.P.No.1 and O.P.No.2 is distinct. There is no deficiency in service on the part of O.P.No.1. Therefore O.P.No.1 had prayed that complaint filed by Rachana may be dismissed.
5. The O.P.No.1 Dr.Mrs.Sheel Shyam Laddha also raise same defence in her reply to the complaint No.106/2008 filed by Prakash, the father of Rachana and submitted that it may be dismissed with cost.
6. The O.P.No.2 Dr.Nilesh Tibdiwal filed reply and opposed both the complaints on identical grounds. His main submission in brief is that as the previous complaints filed by the complainants before District Forum have been dismissed, the second complaints are not maintainable. In the present complaints the claim is enhanced which is not legal. The complainants are not the consumers of O.P.No.2. The O.P.No.2 was not called for caesarean operation. The O.P.No.1 Dr.Sheel Laddha performed caesarean operation in her own clinic as she is Gynaecologist holding degree of MBBS, DGO. He played no rule in that caesarean operation. Rachana had Umbillical Hernia which required to be repaired under same Anaesthesia, after completing caesarean operation (LSCS). There is no need of opening of abdomen for Harnia repair. The contents are tackled on their side and peritoneal wall. During Umbillical Hernia repair usually the mop is not to be put in side the abdominal cavity. Rachana had visited O.P.No.2 after about one month of Harnia repair for abdominal pain. O.P.No.2 had advised her for sonography from Akola and accordingly it was performed and report was submitted to O.P.No.2. There was no sign of detection of mop/sponge in the sonography report. Hence O.P.No.2 had advised Rachana to under go operation for verifying the cause of abdominal pain. But she was not ready to under go the operation and she insisted for treatment by prescribing medicines only. Hence O.P.No.2 prescribed Antibiotic and some other medicines to prevent abdominal pain and dissolving bowel mass and further complications if any. It is not known whether Rachana consumed the medicines prescribed by O.P. No.2. Rachana was called back for further check up. But she did not come back except on 24/05/2000 for taking reference letter. It was also not detected from Bombay Hospital, Mumbai about left out mop in city scan or sonography test and hence Rachana was advised for under going operation for verifying abdominal pain, which advice was already given by O.P.No.2. But she had refused to under go the operation. Otherwise cause of abdominal pain could have been removed by O.P.No.2 even at earliest stage. Thus Rachana was herself negligent by not under going said operation. She ultimately got operated at Bombay Hospital after about three months. Rachana has not come with a clean hands by giving details of her treatment from 23/03/2000 to 24/05/2000. Her relatives did not pay any fees for Hernia repairs to O.P.No.2 The claim is also exorbitant. Therefore O.P.No.2 had prayed that complaint of Rachana may be dismissed.
7. As regards the complaint filed by Prakash, the father of Rachana, it was submitted by O.P.No. 2 in his reply besides making the aforesaid submission, that the copies of bills submitted by Prakash are not signed by any authority of Bombay Hospital, Mumbai. Hence they can not be taken in to consideration. The O.P.No.2 denied all the bills produced by Prakash. He submitted that no bills are produced by Prakash about treatment at Khamgaon amounting to Rs.31,900/- as claimed by him. The claim for business loss of Prakash is also untenable. Thus the total claim of Rs.7,50,000/- is denied by O.P.No.2 as made by Prakash. Hence O.P.No.2 prayed that the complaint filed by Prakash also may be dismissed.
8. The Forum after giving opportunity of adducing evidence to both parties and on hearing them passed the common impugned order dated 24/08/2009 in both the aforesaid complaint Nos.105/2008 and 106/2008.
9. The Forum came to the conclusion that the complainant Rachana is a consumer and the complaint filed by her is maintainable. The Forum also concluded that O.P.No.1 is guilty of medical negligence as the mop was left in the abdomen of the complainant during operation performed by her (O.P.No.1) and therefore she rendered deficient service to Rachana. The Forum assessed the compensation at Rs.2 lakhs and directed the O.P.No.1 under impugned order in complaint No.105/2008 to pay the said compensation of Rs.2 lakhs to Rachana with interest @ 9% p.a. from 15/02/2000 till its realisation by her and also to pay her cost of Rs.10,000/-.
10. As regards the claim of Rachana in the same consumer complaint No.105/2008 against O.P.No.2 Dr.Nilesh Tibdiwal, it is observed by the Forum in the impugned order that only O.P.No.1 received fees from Rachana, but Rachana is a consumer of both O.P.Nos.1 and 2 because it is not a case of O.P.Nos.1 and 2 that they are providing free of charge medical services to all the patients. Thus they are getting their fees from most of the patients. Thus service rendered by them to complainant also fall within purview of Consumer Protection Act, 1986 and hence complaints against both O.P.No.1 and 2 are maintainable.
11. The Forum on the basis of the documents filed on record also observed in the impugned order that both O.P.Nos.1 and 2 did not give any advice to Rachana for under going second operation to ascertain the cause of pain in her abdomen. On the contrary O.P.No.1 Dr.Sheel Laddha in her reference letter dated 24/05/2000 admitted that sponge is left in the abdominal cavity of Rachana. The Forum also observed in the impugned order that the caesarean operation was performed by O.P.No.1 Dr.Sheel Laddha and after completion of that caesarean operation, the O.P.No.2 did Harnia repair operation in the clinic of O.P.No.1 and therefore only O.P.No.1 is liable for performing operation in negligent manner and the O.P.No.2 can not be held liable for the same as he performed second operation for Harniya repair after caesarean operation was performed by O.P.No.1 in her clinic. Thus the Forum dismissed the complaint of Rachana against O.P.No.2 Dr.Nilesh Tibdiwal.
12. The Forum as regards another complaint filed by Prakash Agrawal, observed that the receipts of Bombay Hospital produced on record show that they were issued in the name of Rachana only and there is no evidence to show that amounts of those receipts were paid by Prakash Agrawal. Moreover receipt for Rs.4000/- produced on record also shows the name of Rachana Agrawal only as issued by O.P.No.1. Therefore the claim of Prakash Agrawal that he incurred all the expenses is not supported by any evidence. The Forum also observed that Prakash Agrawal is not entitled to claim compensation for mental harassment and for loss in business. Hence the Forum dismissed the complaint filed by Prakash Agrawal.
13. Thus these three appeals bearing Nos.A/09/683, A/09/684 and A/09/844 are respectively filed by Rachana Agrawal, Prakash Agrawal and Dr.Sheel Laddha against the aforesaid common order passed in the two complaints.
14. We have heard Advocate Mr.Aalok Daga appearing for appellants Rachna and Prakash. None appeared for Dr.Sheel Laddha and Dr.Nilesh Tibdiwal at the time of final hearing in all these three appeals, though their respective Advocates already filed their written notes of arguments which we have considered in all these three appeals. We have also considered the evidence brought on record of the two complaints as placed before us in all these three appeals.
16. The learned Advocate of Rachana and Prakash Agrawal reiterated the aforesaid case of both the said complainants and argued that though the Forum held that both the complainants are consumers and O.P.No.1 and O.P.No.2 namely Dr.Sheel Laddha and Dr.Nilesh Tibdiwal are the service providers, still the Forum erred in not granting the entire compensation claimed by Rachana and entire expenses of the hospitalisation and treatment incurred by her father Prakash Agrawal. He relied on the decisions in the following cases in support of his submission.
Parmanand Katara.....V/s.....Union of India and others, AIR 1989 Supreme Court 2039. It is observed by Hon'ble Supreme Court that every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life of patient. The obligation is total, absolute and paramount.
Balram Prasad....V/s....Kunal Saha and Others, (2014) 1 Supreme Court Cases 384. In that case Doctor Balram Prasad had acted on the direction of the senior doctors who undertook the treatment of the claimant's wife. Doctor Balram Prasad was an independent medical practitioner with a post graduate degree. It was found that he was also negligent in giving treatment to the claimant's wife. It was observed that physician attending the operation is also liable for negligent treatment.
Nizam's Institute of Medical Sciences ....V/s....Prasanth S.Dhananka and Ors. AIR 2009 SC (Supp) 1503. It is observed by the Hon'ble Supreme Court that Court has to strike a balance between the inflated and unreasonable demands of victim and equally tenable claim of opposite party saying that nothing is payable.
Sarla Verma (Smt) and others.....V/s.....Delhi Transport Corporation and another. (2009) 6 Supreme Court Cases 121. It is observed that "Just compensation" is adequate compensation which is fair and equitable on the facts and circumstances of the case, to make good the loss suffered as a result of wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit.
Mrs.Shanta....V/s....State of A.P.& others. III (1997) CPJ 481 (DB). In that case due to negligence in performing operation by Doctors of Government Maternity Hospital, mop was left in womb and complainant suffered unbearable pain. Another operation was performed to remove foreign mop by providing nursing home. Therefore it is held that the said loss or injury caused to by negligence required to be compensated.
16. As regards the claim of Prakash Agrawal, it is submitted by his learned Advocate that Rachana is the daughter of Prakash Agrawal and it is not the case of Rachana that she bore all the expenses of her hospitalisation, treatment and for allied purposes. On the contrary it is her father Prakash who bore all the expenses and therefore Forum erred in not granting compensation to Prakash to the extent of the expenses incurred by him for the above purpose. He also argued that the Forum did not consider properly the decisions cited before it as regard the claim of Prakash Agrawal. Hence he requested that the complaints of both Rachana and Prakash may be granted in their entirety as against both O.P.No.1 Dr.Sheel Laddha and O.P.No.2 Dr.Nilesh Tibdiwal, as due to their joint negligence the mop was left in the abdomen of Rachana and she suffered severe pain due to that reason for three and half months and her left fallopian tube was also required to be removed in Bombay Hospital.
17. On the other hand the learned Advocate of O.P.No.1 Dr.Sheel Laddha in his written notes of argument filed before us reiterated the aforesaid case of O.P. No.1 Dr.Sheel Laddha as put forth before the Forum and submitted that the operation was performed by O.P.No.2 Dr.Nilesh Tibdiwal and not by O.P.No.1 Dr.Sheel Laddha and that the Forum erred in holding her responsible for medical negligence. Thus according to learned Advocate of Dr.Sheel Laddha in fact it was medical negligence on the part of O.P.No.2 Dr.Nilesh Tibdiwal and not that of O.P.No.1 Dr.Sheel Laddha. He also submitted that in sonography report of Dr.Chavan submitted by Rachana, there was no diagnosis that there was mop in the abdomen of complainant. But as per that report of Dr.Chavan, there was bowel loop in her abdomen and that in sonography report of Dr.Kediya also it was shown that there is lump in left lower abdomen of Rachana. But Rachana was not ready for operation by O.P.No.2 to know the cause of pain and therefore O.P.No.1 Dr.Sheel Laddha can not be held responsible for payment of any compensation. He also submitted that the compensation granted by the Forum is also excessive and exorbitant. He therefore requested that the impugned order passed against O.P.No.1 Dr.Sheel Laddha may be set aside and O.P.No.2 Dr.Nilish Tibdiwal may be held liable for the medical negligence.
18. The learned Advocate of the O.P.No.2 Dr.Nilesh Tibdiwal in his written notes of argument filed before us supported impugned order and reiterated the case of O.P. 2 Dr.Nilesh Tibdiwal as set out before the Forum. Thus according to him O.P.No.1 in her letter of reference had admitted that the sponge is left in abdominal cavity of complainant which speaks that she was fully aware of forgetting the sponge in abdominal cavity of Rachana while performing caesarean operation in her hospital at Khamgaon and therefore only O.P.No.1 is rightly held responsible for the said negligence. He therefore requested in his written notes of argument that the contention raised by O.P.No.1 against O.P.No.2 may not be considered and all the appeals arising out of common impugned order may be dismissed.
19. It is thus not disputed that Rachana was carrying pregnancy of advanced stage and she had come to the hospital of O.P.No.1 Dr.Sheel Laddha on 15/02/2000. However on that date the O.P.No.1 Dr.Sheel Laddha called O.P.No.2 Dr.Niliesh Tibdiwal as Rachana was having Umbillical Hernia which required to be repaired under the same anaesthesia after completion of caesarean operation for delivery. Thus it is O.P.No.1 Dr.Sheel Laddha being Gynaecologist who performed caesarean operation for delivery of Rachana and female baby was born to her. It is also clear from the record that O.P.No.2 did the repair of Umbilicil Harniya immediately after caesarean operation. It is not disputed that during the operation on 15/02/2000, a mop/sponge was left in the abdominal cavity of Rachana and it was not removed either by O.P.No.1 Dr.Sheel Laddha or by O.P.No.2 Dr.Nilesh Tibdiwal even after the laps of three months and even though Rachana had repeatedly contacted both of them after that operation with a severe pain in her abdomen and also stiffness in the abdomen. It is was then removed in Bombay Hospital, Mumbai in surgical operation on 26/05/2000, as seen from documents of that hospital and histopathological report produced on record.
20. It is the case of O.P.No.2 Dr.Nilesh Tibdiwal that usually mop is not put in side abdominal cavity while performing Umbillical Hernia. However he has not come with specific case that at all he did not use mop while performing the said repair.
21. The O.P.No.1 and 2 are shifting their responsibility on each other of leaving the mop in the abdominal cavity of Rachana. In our view when O.P.No.1 Dr.Sheel Laddha and O.P.No.2 Dr.Nilesh Tibdiwal performed operations immediately one after another as above on 15/02/2000, then it is their joint and several responsibility to take every care of not leaving any foreign body in abdominal cavity and when it was left due to their negligence then to give its clear information orally as well in writing to Rachana and to take immediate steps to remove the same. But they did not do so, which proves their hiding the same from Rachana and her father.
22. Even both the O.P.No.1 Dr.Sheel Laddha and O.P.No.2 Dr.Nilesh Tibdiwal did not inform Rachana or her father Prakash that there is a possibility of leaving mop/sponge in the abdominal cavity of Rachana during operation on 15/02/2000. The O.P.No.1 Dr.Sheel in her reply filed before the Forum clearly admitted that she was aware of having foreign body in abdominal cavity of Rachana. However she did not give that information to O.P.No.2 Dr.Nilesh orally or in writing for surgery to remove the same. Both O.P.Nos.1 and 2 can not take shelter of sonography reports of not showing mop in abdominal cavity of Rachana, when due to their negligence it was left their. There is no document to show that both O.P.No.1 Dr.Sheel and O.P.No.2 Dr.Nilesh or either of them had advised Rachana or her father for under going surgical operation for removing mop/sponge from her abdominal cavity, though Rachana had approached them from time to time with severe pain in her abdomen and though as per their advise she had under gone sonography and the report of the same was submitted to them. It does not appear natural and probable that after receiving information about leaving mop in abdominal cavity, Rachana or her father would wait for three and half months for removing the same.
23) Therefore we find that it is a gross negligence on the part of both O.P.No.1 Dr.Sheel Laddha and O.P.No.2 Dr.Nilesh Tibdiwal due to which the mop/sponge was left inside the abdomen cavity of Rachana causing her severe pain more than three months and which also caused damage to her left fallopian tube, which was therefore subsequently removed in Bombay Hospital. The O.P.No1 Dr.Sheel Laddha in letter of reference dated 24/05/2000 also admitted that sponge is left in abdominal cavity and it was so in her mind. The O.P.No.2 Dr.Nilesh Tibdiwal. in his separate letter of reference dated 24/05/2000 also stated that Rachana developed Lump in her abdomen and she is referred for further management as lump is not decreased after giving antibiotics to her. In both the letters it is not stated that Rachana was advised for surgical operation by them for removing any such sponge/mop, but she refused for the same.
24. Thus the defence raised by O.P.No.1 Dr.Sheel Laddha and O.P.No.2 Dr.Nilesh Tibdiwal as above is baseless and can not be accepted. The leaving of mop/sponge in abdominal cavity of Rachana during surgical operation by both O.P.No.1 Dr.Sheel and O.P.No.2 Dr.Nilesh is perse gross-negligence and they can not blame Rachana or her father Prakash for not acting as per their advice. The O.P.Nos.1 and 2 have not adduced any evidence to prove that said mop was left in abdominal cavity of Rachana due to negligence of their counter part. It is thus joint responsibility of both O.P.Nos.1 and 2 for leaving mop in her abdominal cavity and not giing its intimation to her and not removing same immediately.
25. Therefore we hold that the Forum erred in not holding the O.P.No.2 Dr.Nilesh Tibdiwal jointly responsible with Dr.Sheel Laddha for medical negligence and carelessness about leaving mop in the abdomen cavity of Rachana during operation by them on 15/02/2000. Hence we are inclined to hold both O.P.No.1 Dr.Sheel Laddha and O.P.No.2 Dr.Nilesh Tibdiwal as liable for payment of compensation jointly and severally to Rachana for the said medical negligence.
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 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 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.
// ORDER // The appeal bearing No.A/09/683 filed by Rachana w/o Narendra Agrawal is partly allowed as under.
The impugned order passed in consumer complaint No.105/2008 is substituted and modified as under.
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% p.a. from 15/02/2000 till its realisation of the same by her.
They shall also jointly and severally pay cost of Rs.25,000/- to complainant Rachana Narendra Agrawal.
The appeal No.A/09/684 filed by Prakash Gokulchand Agrawal is partly allowed as under.
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.
The appeal bearing No.A/09/844 filed by Dr.Sheel Shyam Laddha is hereby dismissed.
No order as to cost in the said appeal No.A/09/844.
Copy of the order be furnished to both parties free of costs.
[HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MR. S B SAWARKAR] MEMBER