State Consumer Disputes Redressal Commission
Mr.Ankush Vithoba Dhokale vs Dr.Anant Dinkar Bhosale & Anr on 10 August, 2010
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI CONSUMER COMPLAINT NO.88/1997 Date of filing: 04/04/1997 Date of order : 10/08/2010 Mr.Ankush Vithoba Dhokale Bhan Master chawl Takiya ward, R.no.7 Opp.Kurla Court Kurla(W), Mumbai 400 070 Complainant v/s. 1.Dr.Anant Dinkar Bhosale B.A.M.S.(Bom) 2.Dr.Swati A.Bhosale B.A.M.S.(Bom) Takiya ward, Khot chawl Opp.Kurla Court Kurla(W), Mumbai 400 070 Opposite parties Quorum: Mr.Justice S.B.Mhase, Honble President Mr.S.R.Khanzode, Honble Judicial Member
Mr.Dhanraj Khamatkar-Honble Member Present: Mr.M.G.Barve-Advocate for the complainant.
Mr.Rajeev Chavan-Advocate @ Mrs.Anita Marathe-
Advocate for the opposite parties.
: ORDER:
Per Mr.S.R.Khanzode, Honble Judicial Member
1. This consumer complaint which is for alleged medical negligence vis--vis deficiency in service on the part of O.P.no.1-Dr.Anant Dinkar Bhosale (for administering Voveron injection on the wrong part of the body contrary to the prescription instructions) and his wife/original O.P.no.2-Dr.Swati Bhosale. It was decided and the consumer dispute was settled as per the order of this Commission dated 08/07/2004. As per the said order, appellant/O.P.no.1 was directed to pay compensation of Rs.3,50,000/- and Rs.50,000/- along with cost of Rs.10,000/-.
The consumer complaint stood dismissed as against appellant/original O.P.no.2-Dr.Swati Bhosale. Feeling aggrieved thereby matter was taken up to the National Consumer Disputes Redressal Commission, New Delhi (herein after referred as National Commission) in First Appeal no.331-332 of 2004. The National Commission as per its order dated 28/4/2009 (Quorum : Justice Shri R.C.Jain-Presiding Member and Shri Anupam Dasgupta-Member) uphold the case of medical negligence vis--vis deficiency in service as per the above referred decision and confirmed the finding of this Commission to that extent. However, considering the submissions made by O.P. and the additional evidence they want to tender, the matter was remitted back only to reconsider the issue as to the compensation payable by O.P.no.1 to the complainant, after considering all the relevant circumstances, evidence and the material which may be produced before this Commission.
2. Both the parties appeared accordingly before us. Additional documents were only submitted and with a request to consider the same, O.P.no.1 submitted that he does not want to cross examine the complainant but the documents filed may be considered. Complainant also filed pursis that he does not want O.P.no.1 for the cross examination. Written briefs of arguments were also filed.
3. Heard both the counsels for the parties.
4. Additional documents sought to be tendered by O.P.no.1 inter-alia include certain information, which he tried to seek in respect of alleged permanent disability of the complainant and it includes communication dated 21/3/2005 received from All India Institute of Physical Medicine and Rehabilitation to O.P.no.1 and which shared the information about the certificate issued by it bearing no.0223 dated 13/3/1997 and which certified that at the time of issuing said certificate, complainant-Mr.Ankush V.Dhokle was suffering disability more than 40%.
5. It also further clarified that disability certificates are issued for the people with Locomotor Disability and is issued only for availing various concession given by Government for physically handicapped and for settlement of claim, etc. from insurance. It is the treating Doctor or the hospital has to give the history, and course of management of the case.
6. O.P.no.1 also tried to assert that the complainant since then now suffered no disability and he is gainfully engaged in plying an Auto Rickshaw. He produced certain photographs showing that the complainant is plying an Auto Rickshaw. Documentary evidence as to renewal of driving license of the complainant to ply an Auto Rickshaw is also referred. According to complainant, he renewed the driving license only to keep the driving license alive. Complainant maintained that he suffers the disability, which is also duly certified by the Civil Surgeon, as per the disability certificate on record. We also have an opportunity to see the complainant personally during the course of hearing. He does suffer the disability and his hand is certainly still paralysed. Obviously, he cannot use the same to the fullest extent. Affidavit relied upon by O.P.no.1 about certain agricultural operations and cultivations to which O.P.no.1 tried to rely upon were countered by the complainant by filing affidavits of the persons from the village itself confirming disability and the fact that he cannot gainfully engaged in the cultivation. Thus, there is word against word on oath covering the issue.
7. The happening is dated 09/11/1996, when the complainant was attended for his complaint of cough, cold, head-ache and fever by O.P.no.1 Dr.Anant Bhosale and who administered him Overon injection on the back of left arm above elbow. Soon after the injection, the complainant noticed adverse reactions and, ultimately, he has to suffer the disability in question. We need not to refer again as to whether O.P.no.1-Dr.Anant Bhosale is negligent in administering the said injection vis--vis deficiency in service on that count, on his part since this Commission has already recorded a finding which is duly confirmed by the National Commission, supra. At present, we are only concerned with quantum of compensation for above referred deficiency in service in terms of section 14(1)(d) of Consumer Protection Act, 1986 (Consumer Act in short).
8. The income of the complainant at the time of happening was already assessed at Rs.3000/- per month and earlier the compensation was calculated after taking into consideration the same. There is no challenge as to this aspect of monthly income assessment of the monthly income of the complainant. The complainant, certainly, after happening of the above referred incidence suffered a trauma of getting paralysed his one hand and loss of earning, which is an inevitable circumstance. He tried to recover over it and concur the situation by trying to engage himself in plying auto rickshaw, as alleged by the appellant, still that will not diminish his permanent disability which is recorded at 40%. It is just another case similar to the case of famous Ms.Sudha Chandran (Nache Mayuri) and, therefore, it will not have much effect to negative the claim of the complainant.
9. Apex court in the matter of Charan Singh V/s.Healing Touch Hospital and others, III (2000) CPJ 1 (SC) (CP) on the issue of compensation has observed as under:-
12. While quantifying damages, Consumer Forums are required to make an attempt to serve the ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.
10. As earlier pointed out, the monthly income long back in the year 1996 was assessed at Rs.3000/- per month and it was taken into consideration when the earlier order of this Commission was passed on 08/7/2004. Much water has flown since then and the prices of essential commodities day to day witness escalation. There is no attempt made after pointing that complainant is engaged in plying an Auto Rickshaw, as to what is his present income.
10. No attempt has been made to throw light on the circumstances as to what are the present needs of the complainants. Therefore, we have to generally consider and take into consideration the overall circumstances of the status of complainant. One should not loss sight of the fact that a simple injection to meet normal complaint of cold, fever ultimately caused the complainant which totally changed his life due to his 40% disability. He certainly had to suffer lot of mental and psychological trauma, which cannot be perhaps adequately compensated in terms of money. His life is totally changed. Therefore, considering the totality of the circumstances, we find it just, reasonable, fair and proper in the background of the circumstances of this case to award compensation of Rs.2,50,000/- to the complainant covering all aspects.
11. Complainant is fighting this consumer complaint since from the year 1997. Litigation also took a round with National Commission. 12 years have already passed. No doubt the complainant perhaps to some extent reimbursed from the amount deposited as per the direction of National Commission, supra. Therefore, considering these facts and the length of litigation, we find it proper and just to award interest as per final order below and quantify Rs.25,000/- as cost.
12. For the reasons stated above, we hold accordingly and pass the following order:-
OPERATIVE ORDER
1.
Complaint is partly allowed.
2. O.P.no.1-Dr.Anant Dinkar Bhosale is being held deficient in rendering service to the complainant in administering Voveron injection on the wrong part of the body contrary to the prescription instructions and directed to pay compensation of Rs.2,50,000/- to the complainant Mr.Ankush Dhokale along with simple interest @ 6% p.a. from the first date of decision of consumer complaint i.e.8th July, 2004 till its realization. Due adjustment be given to the amounts paid to or received by the complainant from O.P.no.1-Dr.Anant Bhosale. Complaint against Dr.Swati Bhosale stands dismissed (as per previous order dated 08.07.2004 and confirmed in F.A.no.331-332/2004 by the National Commission).
3. O.Ps to bear their own cost and O.P.no.1-Dr.Anant Bhosale do pay Rs.25,000/- as cost to the complainant Mr.Ankush Dhokale.
4. Copies of the order be furnished to the parties as per rules.
(Dhanraj Khamatkar) (S.R.Khanzode) (S.B.Mhase) Member Judicial Member President Ms.