State Consumer Disputes Redressal Commission
Dr.Rajulan Lysander, Lysander ... vs Gurusamy & Another,Viruthunagar. on 26 May, 2022
1
IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
PRESENT: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
F.A.No.204/2012
(F.A.No.735/2011 on the file of State Consumer Disputes Redressal
Commission, Chennai)
(Against the order made in C.O.P.No.34/2005 dated 16.03.2011 on the file of
the District Forum, Virudhunagar District @ Srivilliputhur.)
THURSDAY, THE 26th DAY OF MAY 2022
Dr.Rajulan Lysander,
Lysander Hospital,
West Car Street,
Virudhunagar Town,
Virudhunagar District. Appellant/2nd Opposite party
-Vs-
1. Gurusamy,
S/o Ganagarajan,
D.No.576, Devaraj Colony,
Pallapatti Road,
Thiruthangal Town,
Sivakasi Taluk,
Virudhu Nagar District. Deceased 1st Respondent/1st Complainant
2. Dr.V.Mukaiya,
M.S.Hospital,
Sengamalanachiarpuram Road,
Thiruthangal Town,
Sivakasi Taluk,
Virudhunagar District. 2nd Respondent/1st Opposite Party
3. Alagupandiammal,
W/o Late Gurusamy,
D.No.460A, Devaraj Colony,
Pallapatti Road, Thiruthangal Post,
Sivakasi Taluk,
Virudhunagar District. 3rd Respondent/2nd Complainant
2
4. Minor Rajapandi,
Rep.by his natural guardian/
Alagupandiammal,
S/o Late Gurusamy,
D.No.460A, Devaraj Colony,
Pallapatti Road, Thiruthangal Post,
Sivakasi Taluk,
Virudhunagar District. 4th Respondent/3rd Complainant
5. Minor Padmapriya,
Rep.by his natural guardian/
Alagupandiammal,
S/o Late Gurusamy,
D.No.460A, Devaraj Colony,
Pallapatti Road, Thiruthangal Post,
Sivakasi Taluk,
Virudhunagar District. 5th Respondent/4th Complainant
6. Minor Rajathiammal,
Rep.by his natural guardian/
Alagupandiammal,
S/o Late Gurusamy,
D.No.460A, Devaraj Colony,
Pallapatti Road, Thiruthangal Post,
Sivakasi Taluk,
Virudhunagar District. 6th Respondent/5th Complainant
Counsel for Appellant/Opposite party-2 : M/s. Anand Abdul & Vinodh Associates.
Counsel for Respondent-1/Complainant-1 : Deceased.
Counsel for Respondent-2/Opposite Party-1 : Mr.P.Kannan, Advocate.
Counsel for Respondent-3/Complainant-2 : Served Called Absent.
Counsel for Respondents-4 to 6/ : Notice Served Called Absent.
Complainants-3 to 5
This appeal coming before me for final hearing on 21.10.2021 and on
perusing the material records, this Commission made the following:-
ORDER
THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
3
1. This appeal has been filed by the appellant/2nd opposite party under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the learned District Forum, Virudhunagar District @ Srivilliputhur made in C.C.No.34/2005, dated 16.03.2011, allowing the complaint.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the learned District Consumer Disputes Redresssal Forum, Virudhunagar District @ Srivilliputhur.
3. The 2nd opposite party suffering by an order, directing the second opposite party to pay a sum of Rs.50,000/- as compensation for mental agony and to pay a sum of Rs.5000/- as cost to the complainant in the hands of the learned District Consumer Disputes Redressal Forum, Virudhunagar District @ Srivilliputhur (hereinafter in short "District Forum") have preferred this appeal before this Commission.
4. The case of the complaint is as follows: The complainant approached the first opposite party on 05.01.2004 with the complaint of stomach pain. The first opposite party requested the complainant to purchase a needle and injection medicine through a prescription. The complainant purchased the said needle and injection from the medical shop kept inside the first opposite party clinic. The first opposite party had applied injection on the left side buttocks of the complainant. The first opposite informed the complainant is having appendicitis disease and asked the complainant to take scan. The complainant developed swelling on the places where the first opposite party have given injection and had once again the complainant approached the first opposite party clinic. The first opposite party prescribed the 4 medicines to the complainant for curing the swelling and pain did not heal through he had consumed medicines as prescribed by the first opposite party.
The complainant went to the second opposite party for further treatment and the second opposite party informed the complainant that only because of the injection applied by the first opposite party they said the place had swollen and became septic. The complainant had got himself admitted as in-patient at the second opposite party's hospital and took treatment. The complainant was admitted in second opposite party hospital on 12.01.2004 with the complaints of swelling and pain in the right side of the gluteal region for 3 days. The second opposite party performed the surgery and taking in-patient treatment from 12.01.2004 to 07.02.2004. After taking treatment at the second opposite party hospital the complainant developed further complaints of bleeding disorder. The second opposite party referred the complainant after receiving the amount from the complainant to take further treatment at Shenbagam Hospital Madurai. The complainant was brought to Shenbagam hospital on 07.02.2004 and admitted as in-patient and taking treatment till 29.02.2004. The above hospital advised to the complainant not to do any work so, the complainant not able to get any income with pain and sufferings.
In the meantime, in the month of August 2004 the wound of the place of surgery not healed he got admitted in Shenbagam hospital Madurai as a second time and taking treatment till 15.09.2004 as in patient by spending Rs.30,000/- as medical expenses and the expenses for the treatment. The complainant is doing coolie work he is having wife and children he could not get income Rs.100/- per day. Now, he is not in position to get any income and also taking treatment by spending expenses for treatment, transport and other expenses up to Rs.1,00,000/-. He also 5 lose the income from his coolie work up to Rs.40,000/-. The wrong treatment given by the opposite parties are the reason for ailments and expenses for the complainant it also amounts to deficiency in service. Therefore, directing the opposite parties to pay a sum of Rs.1,40,000/- towards deficiency in service and wrong treatment given by them from medical expenses and loss of income and also directing the opposite parties to pay a sum of Rs.1,00,000/- as compensation for mental agony.
5. Written version filed by the 1st opposite party is as follows: The complainant approached the first opposite party on 05.01.2004 with the complaint of stomach pain and admitted to the first opposite party hospital suspected that the complainant might be having appendicitis and advised him to take a scan of his stomach and come back with the scan report so that appropriate treatment can be given. The first opposite party did not give any treatment to the complainant. Infact, without seeing the scan report, the first opposite party cannot give any medicines at random or on assumption. The first opposite party injected the injection to the complainant then, the complainant should be having the prescription of the said needle and injection and medicine as alleged by him. Atleast, the complainant should disclosed the name of the medicine which he had purchased from the medical shop of the first opposite party and for what amount. The non disclosing of this material aspect will itself show that the first opposite party had not applied any injection to the complainant. Moreover, the complainant himself admitted by the 1st opposite party had advised the complainant to take scan of his stomach pain for giving treatment. The complainant is silent as to whether he had followed the advice of first opposite party by taking scan. It is pertinent to note that the non mentioning 6 of the date when developed pain on the side of buttocks and when he came back to the 1st opposite party and to which side of the buttocks he sustained swelling will all go a long way. So, that this allegations are baseless and frivolous. To substantiate his case the complainant failed to produce the prescription alleged to be given by the 1st opposite party and the name of the medicine that he took will show that the said allegations are false.
On the other hand, the complainant has simply produced letter pad of the 1st opposite party wherein in it written as "anti Haemophile Factor 8" which is not a prescription as per medical practice. If it is a prescription the name of the patient must be written the date when the prescription issued and the signature of the medical practitioner must be there. But, all the above things are missing in the document produced by the complainant. The alleged letter pad was not issued by the first opposite party to the complainant as medical prescription at any point of time. In the notice issued by the complainant he had stated that the first opposite party given cream to apply in this swelling place and now in the complaint, he has stated as if the first opposite party has given medicine for consumption which are contra in nature. The first opposite party is not concerned with the disease of bleeding disorder of the complainant and the treatment taken by him if any, with the second opposite party. The allegations that the complainant sustained loss because of the wrong treatment of the first and second opposite party and because of the deficiency of service of first opposite party is denied as false and incorrect. There is no deficiency of service on the part of the first opposite party. The first opposite party has not given treatment to the complainant at any point of time. The negligence of the doctor in injecting needle for applying the injection, the utmost 7 problem or effect will be only formation of pus in the place where needle was injected. The said ailment is called as injection abscess as per medical terms. The said injection abscess will be cured within two or three days. It is very very common diseases which are happened even in very highly sophisticated hospitals while doctors applying injection. Even assuming without admitting that the complainant had sustained injection abscess as alleged by him even then as per Medical Law, a doctor who apply injecting cannot be pointed out or accused for deficiency of service as it is not within his hands and it is only an act of God. There cannot be any negligence by applying any injection in medical history. The complainant is not a consumer of the first opposite party as he had not hired any service for money. Therefore, the complaint may be dismissed.
6. Written version filed by the 2nd opposite party is as follows: The complainant Mr.Guruswamy was admitted on 19.01.2004 in second opposite party hospital with the complaints of swelling and pain in the right side of the gluteal (buttocks) region for three days. He was also having constitutional symptoms of high temperature and Tachycardia. He had a swelling in the right of the gluteal region measuring 4 cm, over 4 cm. The skin was warm and very tender to touch. There was no open wound over the swelling. The movement of the right side of the leg caused severe pain over the swelling. It was diagnosed as a case of Haematoma of the right gluteal region. The cause for the Haematoma could not be accounted Mr.Gurusamy had marked anemia indicating blood loss. His bleeding time and clotting time and other temperature were within the normal limits. The following pre-operative investigation. Chest x-ray-within normal limits, ECG within normal limits, Blood Investigation - Hb72%, Total W.B.C. 8500, Polymorphs 66%. 8 Lymphocytes. 30% Eosinophils: 4%, Sugar: 86 mg% Bleeding time: 2 minutes 12 seconds, Clotting time: 5 minutes 10 seconds, Grouping: A positive. Urine analysis within normal limits. The patient and the attenders were well explained about the risks of surgery and other complications. Consent was signed by the patient and the attenders. General anaesthesia the surgical site was thoroughly cleansed and prepared. The skin was incised with a sterilized blade. Approximately 50 ml of bright red blood and clot were drained (No.pus). Then the wound was thoroughly lavaged with betadine solution and packed with sterilized Vaseline gauze after perfect Haemostasis. Since there was no pus in the swelling and there was only blood the second opposite party decided to do the clotting factors levels in the patient's blood to rule out haemophilia. But the patient and the attenders refused to do the blood test because they are expensive and they could not afford. The patient was transferred to the regular ward on 21.01.2004 he was completely alright and allowed to take normal diet. The dressing was opened and there was no bleeding in the wound. No bleeding on 21.04.2004 and 22.01.2004. On 23.01.2004 the patient complained of mild pain at the site. The dressing pads were slightly soaked with fresh blood. The 2nd opposite party strongly advised the patient to have the advanced blood test (clotting factors). But the patient and the attenders refused for the same. The second opposite party given the suggestion of going to Madurai Rajaji Hospital where they do it for free but, they strongly refused. Bleeding time and Clotting time were normal. The patient continued to have regular diet. On 24.01.2004 the second opposite party infused one unit for fresh blood. The dressing pads were mildly soaked with blood on 24.01.2004, 25.01.2004, 26.01.2004 and 27.01.2004, 28.01.2004. On 28.01.2004 one unit fresh blood transfused to the 9 patient. On 29.01.2004 the dressing pads were completely dry with good red granulation tissue at the wound. The patient still refused for the blood test and wanted to go home. The second opposite party discharged him with instructions.
On 31.01.2004 the complainant came back with complaints of severe pain and bleeding from the wound. On examination the wound was soaked with blood. Other examinations were within normal limits. The second opposite strongly explained the need for checking the level of the clotting factors in his blood. But he kept refusing do the test giving the same reason as before. The patient received one unit of fresh blood. On 01.02.2004 the patient with complains of moderate pain at the site, dressing pads were mildly soaked with blood and patient received one unit of blood. The dressing pads were mildly soaked with blood on 02.02.2004 and the dressing pads are not soaked with blood on 03.02.2004, 04.02.2004, 05.02.2004. On 06.02.2004 the dressing pads are again minimally soaked with blood. The patient received one unit of fresh blood on 06.02.2004. On 07.02.2004 the dressing pads are again moderately soaked with blood. Patient received one unit of blood. The patient needed at least seven or eight more blood units and that was not available at the blood bank at that time. His relatives agreed to take him to Shenbagam Hospital in Madurai so, he was referred to Madurai for further management. The complainant is suffering from some form of bleeding disorder whereby any trivial injury to blood vessel starts bleeding and it hardly stops. So, oozed blood is collected locally resulting in abscess/haematoma. Even and accidental blow, fall or dash against an object cause blunt injury to blood vessel resulting in haematoma. Inspite of repeated advise by the both second opposite party and Shenbagam Hospital. The complainant is not willing to go any test or evaluation. The complainant does not 10 suffer from any other apparently disease. There is no cause of action. The second opposite party has not committed any omission or commission. The alleged loss and damage is not due to any negligence deficiency or action of second opposite party. Therefore the complaint against second opposite party may be dismissed.
7. The Learned District Forum, after taking into account of the evidences adduced by both parties, had held that the second opposite party was negligent in performing the surgery. The second opposite party failed to prove the refusal of the complainant and the attenders for blood test. The second opposite party proceeded with the surgery without knowing the bleeding disorder and the problem in time for clotting. Without knowing the disease of bleeding disorder. The second opposite party performed the surgery and committed negligence on the part of the second opposite party and held the negligence on the part of the second opposite party. Directing the second opposite party to pay a sum of Rs.50,000/- as compensation for mental agony and to pay a sum of Rs.5000/- as cost to the complainant.
8. Being aggrieved against that order the 2nd opposite party challenging it by filing the appeal initially the appeal was filed before the Principal Bench, Chennai as F.A.No.735/2011 and the same was transmitted to this Circuit Bench after its Constitution. In the meantime, the complainant was died on 10.06.2012 at his earlier residence leaving behind his widow, one son, and two daughters. The notices sent by this Commission for the appearance, the complainant was received by his father in the year 2012 and he furnished the particulars of legal heirs of the deceased complainant. Subsequently, steps to implead the legal heirs of the deceased were taken advocate Mr.C.Arunmozhi Rajasekar undertake to file vakkalath for newly added R3 to R6 in this appeal. But, he did not appear before 11 this Commission the legal heirs not appeared and remained absent after receiving the intimation sent by this Commission they have not appeared either through advocate or in-person. The third respondent is the widow of the deceased complainant and Respondents-4 to Respondents-6 are the minor children represented through their natural guardian of mother the third respondent. Due to their absence by prolonged time the arguments on their side was closed. The 2nd respondent/1st opposite party also remained absent no written arguments was filed on the side of 2nd respondent /1st opposite party and the arguments on the side of 2nd respondent/1st opposite party was closed. The 1st respondent is the deceased complainant in this appeal. Now, the 2nd opposite party alone contesting the order of District Forum in this appeal.
9. No additional evidences were adduced by both parties in this appeal before this Commission.
10. Points for consideration are;-
(1) Whether the Principle of "Res Ipsa Loquitur" is applicable to the complainant case or not?
(2) Whether the order passed by the Learned District Forum, Virudhunagar District @ Srivilliputhur in C.O.P.No.34/2005, dated 16.03.2011 is sustainable under law or not?
11. Point: The complainant approached the first opposite party with the complaints of stomach pain. As per the case of the complainant the first opposite party prescribed some medicines it was purchased by the complainant from the medical shop available within the first opposite party hospital. The first opposite party inject the medicine below to the left and right hip and also the first opposite 12 party suggested the complainant may be suffered with "Appendicites" and asked to take scan report. The complainant approached the first opposite party as a second time with an additional complaint of swelling at the place of injection below the right side of the hip. The second time the first opposite party prescribed medicines the swelling was not cured. So, the complainant approached the second opposite party hospital. The second opposite party admitted the complainant with the complaints of swelling and pain in the right side of the gluteal region with symptoms of high temperature and Tachycardia. The second opposite party diagnosed a case of Haemotoma of the right gluteal region. The bleeding time and clotting time of the complainant's were within the normal limits.
12. The complainant marked Ex.A1 and A2 slips printed the name of the first opposite party hospital as "M.V.Hospital" scan, x-ray and blood testing lab, Thiruthangal, the issuance of first slip with hand written the name of the complainant "Gurusamy", appendicitis, scan abdomen on 5/1/ first opposite party also admits the signature found place on the first slip. The first opposite party denied the second slip written as "Anti Haemophilia -8" no signature was found place in the second slip. The first opposite party would contend that no treatment given by him to the complainant. After seeing the complainant appeared with stomach pain he suggests to take scan for the abdomen, possibility of the problem of appendicitis. The first opposite party says the complainant did not appear for the second time he had not turned up for the treatment.
13 The first opposite party admits maintaining a medical shop within his hospital. The complainant alleged that he purchased the medicines from the shop the prescription given by the first opposite party to him was retained at medical shop. 13 The complainant did not have the problem of swelling on his gluteal region he approached the first opposite party only with stomach pain, without examining the first opposite party diagnosed that the complainant may be suffered with appendicitis. The complainant was admitted in the second opposite party hospital and take in-patient treatment. Subsequently, he was transferred from there and he was admitted at Shenbagam Hospital at Madurai and taking in-patient treatment for a prolonged period. Even after taking a prolonged treatment, no treatment was given to him for the disease of appendicitis. It is not the case of the second opposite party that the complainant suffered with appendicitis he admit except the blood clotting problem, the complainant did not suffered any other disease therefore in the absence of giving any treatment for the disease of appendicitis the diagnosis of first opposite party may be a wrong one. The first opposite party admit stomach pain is an identical symptom for the patient, having blood clotting problem he suspect the complainant may suffered with Haemophilia. It is a rare disorder in which the blood does not clot in the difficult way. Because, it does not have enough blood clotting proteins (clotting factors). - deep internal bleeding - bleeding that occurs in deep muscles can cause the joints to swell. The swelling can press on nerves and lead to numbedness or pain. Internal bleeding can put pressure on the joint causing severe pain (www. mayoclinic.org.).
14. The first opposite party diagnosed the disease of appendicites and haemophilia. The first opposite party did not suspect the disease of haemophilia while issuing the first slip. The second slip alone it was written as Anti Haemophilia. It is not the case of the first opposite party he issued only one slip, but he denied the second slip since, his signature not found place in it. As an illiterate patient the 14 complainant approached the first opposite party only with a symptom of stomach pain. When the first opposite party diagnosed the disease of appendicites there is an every chance of prescribing some medicine for the ailments. The first opposite party has not taken any steps to prove the procedure followed in his clinic whether the prescription issued by him are retained within the medical shop and the medicines only supplied without retaining the prescription. The failure on the part of the first opposite party, to prove those aspects the allegations raised by the complainant in his complaint that the prescription given by the first opposite party was retained at the medical shop remains unchallenged. Therefore, we can safely come to a conclusion that the complainant purchased some medicines from the medical shop running inside the hospital belongs to the first opposite party and it was supplied to the complainant. To prove the visit of complainant with the first opposite party, the second slip is available for the visit of two times. The first opposite party changed his diagnosis and suspect to the disease of Haemophilia at the time the complainant is having the problem of swelling on gluteal region. The preponderance of probabilities only in favour of the complainant the medicines supplied is injected by the first opposite party alone created the new problem of swelling on the gluteal region. The first opposite party have not taken steps to discharge the burden the reason of swelling on the gluteal region. Admittedly, the complainant did not suffered with any other disease. When no treatment was given for the disease of appendicites as diagnosed by the first opposite party, the swelling was only due to the treatment given by the first opposite party.
15. The complainant was finally discharged from the Shenbagam Hospital Madurai on 15.09.2004. After discharging from the hospital he can be survived for 15 eight years and he was died on 10.06.2012 he also appeared before the District Consumer Disputes Redressal Forum for the trial of his case. The learned District Forum also noted the appearance before them for the enquiry in its order. Therefore, the survival of the complainant itself proves he did not suffer any rare disorder as claimed by the first opposite party. The question was raised by the counsel for the complainant before the District Forum that the right leg of the complainant was shrunked he was unable to do any work for getting income by doing coolie work.
16. As per the allegations in the complaint the medicines given by the first opposite party not cured the swelling over the gluteal region he approached the second opposite party for treatment. The second opposite party admits him for in- patient treatment and performed surgery he found the bleeding from the operation site not stopped. He arranged for transmission of fresh blood to the complainant and also given in-patient treatment. The second opposite party diagnosed as a case of Haematoma, it is an abnormal collection of blood outside of a blood vessel. It occurs because the wall of a blood vessel, artery, vein, or capillary, has been damaged and blood has leaked into tissues where it does not belong. The Haematoma may be Tachycardia with just a lot of blood or it can be large and cause significant swelling. It may cause symptoms of inflammation including pain, swelling and redness. Haematoma may occur anywhere in the body it is a collection of blood outside the blood vessel (www.mayo.clinic.org). Both the opposite parties 1 and 2 diagnosed difference disease of Haemophilia and Haematoma. Haemophilia is a rare disorder whereas Haematoma is the collection of blood due to damage the blood vessel, artery, vein, and capillary.
16
17. As per the allegation set out in the complaint the first opposite party inject some medicines on the gluteal region. Therefore, the injection alone may cause the swelling on the gluteal region. The first opposite party raised plea that in the written version that even assuming without admitting the complainant says is true, he has himself admitted in the complaint that the first opposite party had requested the complainant to purchase the new syringe (needle) and medicine for injection to cure stomach ache. So, it is a fresh and new syringe. Whatever be the negligence of the doctor in injecting needle for applying the injection, the utmost problem or effect will be only formation of pus in the place where needle was injected. The ailment is called us injection abscess as per medical terms. The said injection abscess will be cured within two or three days. It is a very very common disease. "As per medical law, a doctor who apply injecting cannot be pointed out or accused for deficiency of service as it is not within his hands and it is only an act of God. There cannot be any negligence by applying any injection in medical history". By raising such contention the first opposite party admits the complainant purchased new syringe. We can presume it was used by the first opposite party to inject some medicines for the complainant. The first opposite party did not give the medicines supposed to be given for stomach pain. When he admits the identical symptom of stomach pain the patient suffered with Haemophilia as claimed by him without knowing the drug which may cause any bleeding problem. In the absence of any explanation, on the side of first opposite party the preponderance probabilities only in favour of the complaint that the injection injected by the first opposite party alone is the reason for the swelling on the gluteal region.
17
18. The second opposite party diagnosed the disease without following the usual practice at the time of admitting the complainant for giving in-patient treatment. The second opposite party did not give any treatment for appendicitis. He performed surgery only and drained the blood clotted in the swelling he found no pus. He did not asked the questions at the time of admission to know the bleeding tendency with a surgical procedure is answered their hospital of a bleeding tendency should be ruled out. A simple question may reveal a diagnosis of Haemophilia. The patient should also be asked if he or she is taking medications that cause bleeding such as aspirin, warfarin (coumadin), and non steroidal anti inflammatory drugs. He should ask questions in a way that will pinpoint the diagnosis or narrow the differential diagnosis - Book referred - Principles and Practice of surgery Colon, Rectum, and Anus - by Philip H.Godon at page 65 and 68". The above normal practice was not followed by the second opposite party while admitting the complainant for surgery.
19. The complainant survived after taking in-patient treatment in second opposite party hospital and taking treatment in Madurai Shenbagam Hospital after referring by the second opposite party to the hospital. The complainant survived for eight years. The second opposite party also failed to prove the complainant suffered with the rare bleeding disorder. In the reply notice Ex.A15 issued by the second opposite party dated 15.04.2004 informing that "the cause for the Haematoma could not be accounted. Mr.Gurusamy had marked anemia indicating blood loss. His bleeding time and clotting time and other parameters were within normal limits" therefore, the second opposite party not able to diagnosis the disease in a proper way. He raised a contention that he suggests the complainant to the classical test of blood clotting time. At the same time, he found his bleeding time and clotting time were 18 within normal limits. When the limits are normal at the time of blood test taken at hospital belongs to the second opposite party, the necessity for classical test to verify the clotting time not explained how it was required. The complainant after discharged from the Shenbagam Hospital for the consult period of eight years proves he does not suffered with any rare and peculiar disease as claimed by the first and second opposite parties. The second opposite party raised a contention that he advised the complainant to go for the blood test at Madurai Rajaji Hospital done at free of cost and at Vellore CMC Hospital. As a normal practice is when the patient refused to follow the advice of the doctor, may send the patient need not to proceed with the treatment. The second opposite party also not followed the normal procedure.
20. The above discussions would go to show that the complainant approached the first opposite party only with stomach pain and wrongly diagnosed as "Appendicites and Haemophilia and Haematoma" no treatment was given for the above disease either of both opposite parties and allowed the complainant suffered with transmission of blood and prolonged treatment with heavy expenses and also suffering loss of income, pain, and other problems. Therefore, the principle of "Res Ipsa Loquitur" is applicable. When the principle of Res Ipsa Loquitur is applicable the burden of prove in every aspect with the both opposite parties. The complainant need not to prove anything. Both opposite parties are failed to discharge their burden to prove the disease suffered by the complainant.
21. It is pertinent to note that after discharging from the Shenbagam Hospital the complainant was died on 10.06.2012 at his residence leaving behind his widow, one son, and two daughters at the age of 33 without knowing the disease. Therefore, 19 the Principle of Res Ipsa Loquitur is applicable to the present complaint and answered accordingly for the point for consideration no.1.
22. Point:2 The complainant claim filed in the year 2005. After discharging from the Shenbagam Hospital Madurai in his complaint he claim Rs.1,40,000/- for negligence, medical expenses, loss of income, and Rs.1,00,000/- compensation for mental agony against the both opposite parties. The learned District Forum after holding that the negligence cost only on the part of second opposite party and directing him to pay Rs.50,000/- as compensation for mental agony and Rs.5000/- as cost to the complainant.
23. The learned District Forum in its order the complainant failed to prove his disability and his loss of income. The learned District Forum failed to consider the question raised in cross examination of both opposite parties and on the side of complainant that due to, wrong treatment given by the first and second opposite party the right leg of the complainant was shrunked (Become smaller) and not able to walk and also the learned District Forum mentioning the regular appearance of complainant before it for hearing of the case. Therefore, the learned District Forum to be considered the disability as pointed out by the complainant which will affect his income from coolie work, it does not require any proof that a person affected by wrong treatment and his leg was shrunked and also not able to walk that he cannot do any work for getting income. The legal heirs of the deceased complainant were not appeared before this Commission. The complainant was died on 10.06.2012 at his residence leaving behind his widow, one son, and two daughters. Both opposite parties failed to prove their claim that it is a case of having classic symptom and unexplained bleeding disorder and Haemophilia. When the complainant was refused 20 for any blood test the opposite parties need not to proceed with the treatment they ought to have transferred to other hospital for better treatment.
24. The complainant is the bread winner of his family. The learned District Forum not fixed an appropriate amount of compensation. The legal heirs of the deceased are eligible for claiming compensation as claimed in the complaint but, they have not appeared before this Commission. Therefore, the order passed by the learned District Forum it requires modifications and answered accordingly for the point for consideration no.2.
25. In the result, the appeal is dismissed by modifying the order of the learned District Consumer Disputes Redressal Forum, Virudhunagar District @ Srivilliputhur made in C.O.P.No.34/2005, dated 16.03.2011 as follows:-
(a) The order passed by the learned District Forum, there is no deficiency of service on the side of the first opposite party is hereby set aside.
(b) The complaint is allowed against the first and second opposite parties and,
(c) directing the first and second opposite parties are jointly and severally to pay a sum of Rs.1,40,000/- as compensation for deficiency of service to the complainants and also,
(d) to pay a sum of Rs.1,00,000/- towards compensation for mental agony to the complainants.
(e) There shall be no order as to cost in this appeal. 21
Time for compliance; Two months from the date of receipt of copy of this order, failing which, the above award amount shall carry interest at the rate of 9% per annum from the date of receipt of copy of this order till its realization.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 26th day of May 2022.
Sd/-xxxxxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
'