State Consumer Disputes Redressal Commission
Ortho Centre vs Devesh Mohan Kothari on 11 April, 2022
Details DD MM YY
Date of Judgment 11 04 2022
Date of filing 02 05 2011
Duration 09 11 10
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
Appeal No. 2011/1036
Court No. 1
1. Ortho Center,
2. Dr. Rajivraj Chaudhari
142/B, Shankheshwar Complex,
Nr. Raymond Show Room, Majura Gate,
Surat. ......Appellants
Vs.
1. Devesh Mohan Kothari
Aarvibhav Society-1, House no. 560,
Pandesara Housing Board, Opp. Chikuwadi,
Pandesara, Surat.
2. Viviktam Hospital,
3. Dr. Shirish M. Desai,
Hira Moti Apartment, First Floor, Nanavat Main Road,
Surat-9.
4. New India Assu. Co. Ltd.
5. Branch Manager, New India Assu. Co. Ltd.
Center Point, First Floor, Nr. Kadiwala School, Ring Road,
Surat. ...Respondents
Appearance:
Mr. M. K. Desai and Mr. S. P. Sen, Ld Advocates for the appellants.
Respondent no. 1 is absent.
Ms. Kruti M. Desai, ld. advocate for the respondent no. 2 and 3.
Mr. P. H. Thakkar, ld. advocate for the respondent no. 4 and 5.
Coram :Hon'ble Mr. Justice V. P. Patel, President
Mr. I. D. Patel, Judicial Member
Smt. A. C. Raval, Member Order by Hon'ble Mr. I. D. Patel, Judicial Member,
1. The appellants/original opponent nos. 1 and 2 have filed the present appeal under Section 15 of the Consumer Protection Act, 1986 being aggrieved and dissatisfied with the judgment and M. B. Desai A-11-1036 Page 1 of 12 order passed by the learned District Consumer Disputes Redressal Commission, Surat (Main) (for short Learned District Commission) dated 21.2.2011 in complaint No. 47 of 2002 on the ground stated in the appeal memo.
2. The appellants are the original opponent no. 1 and 2 whereas respondent no. 1 is the original complainant and respondents no. 2 to 5 are the original opponents no. 3 to 6. Hereinafter the appellants and respondents will be referred as per their original status.
3. Facts of the case of the complainant: That the complainant met with a vehicular accident on 3.10.2000 wherein, he has sustained injury on his left leg knee and other parts of the body therefore, initially he took primary treatment in Sanjivni Hospital and thereafter he had taken treatment in opponent no. 3 hospital on 4.10.2000 and he had also taken the treatment in the hospital of opponent no.4 as indoor patient up to 8.10.2000. It is further the case of the complainant that thereafter he took the treatment in Surat General Hospital where, appellant no. 2 was also present and he examined the complainant and he advised him for operation of implant of screw in left leg knee therefore, complainant was admitted in his hospital on 4.12.2000 as indoor patient. It is further case of the complainant that appellant no. 2 had done operation of implant of screw in the left leg knee of the complainant and accordingly appellant no. 2 fixed the screw in the left knee joint of the complainant by performing surgery. It is the case of the complainant that he has paid Rs. 13,540/- for the operation to the appellant no.2 and thereafter he has also taken physiotherapy treatment as per advice of appellant no. 2 however, as per the case of complainant even after discharge from the hospital of appellant no. 2 he could not walk speedily and also could not seat cross-legged or to take weight on left leg and his left leg movement was restricted M. B. Desai A-11-1036 Page 2 of 12 upto 20% hence, as per the say of the complainant his physical condition was not improved after surgery performed by the appellant no. 2. Therefore, complainant consulted another orthopedic surgeon namely Dr. H. P. Singh and Dr. Dhiren Mahida and after examining the complainant they opined that during the operation the head of the screw and implanted is used of bigger size and therefore, he was having difficulty in left leg and advised to removal of screw to the complainant. so as per the case of the complainant, he therefore made request of removal of screw to appellant no. 2 but he has not removed screw from his left leg knee and so as per the case of the complainant, appellant no.2 has wrongly performed the surgery of left leg knee of the complainant and accordingly not performed operation properly and appellant no. 2 has shown carelessness in performing operation of the left leg knee of the complainant that amounts the medical negligence and deficiency of service on the part of appellant no. 2. Therefore, complainant suffered a great economic loss and mental harassment hence, he filed the consumer complaint before the ld. District Commission and claimed amount of compensation with interest and cost.
Written Statement of opponents:
3.1 That notices were duly served to the opponents of the complainant and opponent no. 1 and 2 had submitted their written objection wherein, they denied all the allegations of the complainant about the medical negligence and deficiency of service as stated in the complaint. Furthermore, opponent no. 1 and 2 has also contended that opponent no. 2 had provide treatment as per the standard medical procedure for implant of screw in knee surgery and since the complainant was having old fracture injury the required screw was used which can give support or pulling of muscle hence, he has implanted the screw in left knee surgery as per requirement furthermore, it is M. B. Desai A-11-1036 Page 3 of 12 contended that complainant has not produced any expert opinion as stated in the complaint to prove the medical negligence on the part of appellant no. 2 and complainant has also not produced any positive and reliable evidence to prove medical negligence and deficiency of service on the part of appellant no. 2 therefore, appellant urged to dismiss the complaint filed by the complainant.
3.2 opponent no. 3 and 4 submitted the written statement denying all the allegations of the complaint and submitted that as per the complaint, complainant has not alleged any medical negligence on the part of opponent no. 3 and 4 therefore, they urged to dismiss the complaint.
3.3 That before the ld. District Commission the notice was duly served to the opponent no. 5 and 6, but they have not filed any written statement against the complainant.
4. Order under challenge: The District Commission has allowed the said complaint No. 47/2002 on 21.02.2011 and ordered the appellants to pay Rs. 50,000/- with 9% interest and also directed to pay Rs.5,000/- for the mental harassment to the complainant.
Argument of the appellant:
5. Learned advocate for the appellants has submitted written argument in this appeal whereby they have stated that appellant no. 2 are qualified reputed doctor and he has not committed any negligence or deficiency of service as alleged by the complainant furthermore, he has also submitted that appellant no. 2 has also obtained proper consent of the complainant and perform the surgery as per the standard protocol, proper skill and as per the established method and procedure of the surgery. It is also submitted that appellant has also produced documentary evidence before the Commission in the appeal at page 85-209 a M. B. Desai A-11-1036 Page 4 of 12 spiral bound containing evidence, comprising medical literature, photographs and chronological date wise along with drawings, procedure done and supporting annexure including the treatment papers and looking to the said documentary evidence there cannot be believe that there was any medical negligence or deficiency of service on the part of appellant and urged to allow the present appeal to quashed and set aside the order passed by the Ld. District Commission.
Argument of respondents:
6. That respondent no. 2 and 3 have submitted their written arguments whereby they also denied the facts stating in the complaint furthermore they also submitted that there is no allegation regarding medical negligence alleged by the complainant against the opponent no. 2 and 3 and Ld. District Commission has also exonerated the opponent no. 2 and 3 and accordingly opponent no. 2 and 3 be exonerated from the payment of liability of any amount.
7. Respondent no. 4 and 5 has also submitted their written arguments wherein it is stated that the Ld. District Commission has made liable only appellant i.e. opponent no. 1 and 2 and exonerated the respondent no. 3 to 5 from the liability of the payment of any amount of compensation, accordingly the respondent no. 4 and 5 has also submitted that the impugned judgment and order passed by the Ld. District Commission qua respondent no. 4 and 5 be upheld in this appeal.
Merits of the case:
8. That the complainant has filed the complaint no. 47/2002 under the C. P. Act, 1986 against the appellant and opponent no. 3 to 5 before Ld. District Commission, Surat on the ground of medical negligence and deficiency of service on the part of the appellants and the said allegations are denied by the present M. B. Desai A-11-1036 Page 5 of 12 appellant before the Ld. District Commission and appellant have contended before the Ld. District Commission as well as before this Commission in appeal that the appellant no. 1 and 2 have used require screw and implant as per the standard medical practice and there was no medical negligence on the part of appellants. So this is a complaint based on medical negligence or deficiency of service on the part of appellants, so in order to decide/adjudicate the present appeal by this Commission on merits it would be worthwhile to quote a few landmark judgment of the Hon'ble Apex Court and Hon'ble NCDRC on the point of burden of proof of medical negligence and nature of the evidence to be adduced by the complainant in respect of proof of medical negligence on the part of the doctor which are as under:
(i) Civil Appeal NO. 5759/2009: SGS India Ltd. vs. Dolphine International Ltd by Hon'ble Supreme Court wherein, it is observed and held that the onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.
(ii) I (2020) CPJ 63 (SC): Indigo Airlines and Anr. vs. Kalpana Rani Debbarma and Ors., wherein, it is held that burden of proof would shift on appellants only after respondents/complainants had discharged their initial burden in establishing factum of deficiency in service.
(iii) 2019 (0)AIJEL-SC 64313 Mukesh Tyagi V/s Fortis escorts Heart Institute, wherein, it is held that complainant must discharge burden of proving medical negligence.M. B. Desai A-11-1036 Page 6 of 12
(iv) 2017 (0)AIJEL-HC 238669 Nayanaben Hiteshbhai Patel V/s Vaishnav, J. wherein, it is held that simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.
(v) IV (2013) CPJ 195 (NC) Moola Ram V/s Singhal Medical Surgical Maternity Centre & Ors and III (2013) CPJ 681 (NC) Chandrakanta S. Kothari vs. Sir Hurkirondas Narrotumdas Hospital and research center & Ors. wherein, it is held that A doctor is not negligent, if he has acted in accordance with a Proper by practice accepted as a responsible body of medical men skilled that particular- art.
(vi) 2010 (3) SCC 480 Kusum Sharma V/s Batra Hospital & Medical Research Centre wherein, it is held that as long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence.
(vii) 2009 (7) SCC 130 Dr. C.P. Sreekumar, M.S., (Ortho) V/s S. Ramanujam wherein, it is held that onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence.
(viii) AIR (2010) SC 1050 Kusum Sharma Sharma vs. Batra Hospital and Medical Research Center, wherein, relying upon the decision of Bolam vs. Friern Hospital Management Committee 1957 WLR 582, wherein, Hon'ble Supreme Court has held that Doctor is not negligent if he is acting in accordance with the practice excepted as proper by reasonable body medical man skill in their particular are and merely because of there is body of such opinion of it cannot be said there is medical negligence on the part of doctor.M. B. Desai A-11-1036 Page 7 of 12
(ix) 2022(1) CPR 45 (NC): Des Raj Singla and Ors. vs. Dayanand Medical College & Hospital and Ors. wherein, Hon'ble National Commission held that a mere averment in a complaint by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide hard evidence to prove the case of medical negligence against the doctors/hospitals.
9. So, in the light of the law laid down by Hon'ble Apex Court and Hon'ble National Commission this Commission has to examine/re-appreciate the evidence lead/produced by the parties before the Ld. District Commission (Surat) to prove their case more particularly by complainant of medical negligence or deficiency in service on the part of opponent doctor.
10. That before the Ld. District Commission (Surat), complainant has produced discharge card and payment receipt along with the complaint and filed counter affidavit the reply of opponent doctors and the complainant has not produced any written expert opinion of H. P. Singh and Dr. Dhiren Mahida who had advised him that appellant no. 2 had wrongly used big size screw and implant in the surgery on the left leg knee and that creates a problem in the left leg knee of the complainant nor complainant has produced any affidavit of H. P. Singh and Dr. Dhiren Mahida to prove the medical negligence on the part of appellant no. 2 Dr. Rajivraj Chaudhary.
11. Looking to the allegations of medical negligence or deficiency of service on the part of appellant made in the complaint, mainly based on Dr. H. P. Singh and Dr. Dhiren Mahida opinion.
M. B. Desai A-11-1036 Page 8 of 1212. That on the other side appellant no. 2 has categorically denied allegations of alleged medical negligence or deficiency service in their written statement and specifically contended that they have use standard size of implant and screw in left leg knee of the complainant.
13. That in this appeal appellant has produced statement papers at page 152-160 as well as drawing done, photographs while performing operation of complainant at page 85-93 along with the medical literature furthermore, the appellant has also produced the certificate of Crystal Distributor, leading dealer of Major implant companies of India and as per its certificate the screw used in complainant is a non canulated 4.00 mm malleoler screw of Shushrut company which is a well established Indian company. Furthermore, appellant has also produced the opinion of Dr. Jay Bhatt, Arthroscopy Surgeon wherein, it is specifically stated that he has seen the case papers and after seeing the case records, the treatment given to him including surgical procedure, are in complete concurrence with the treatment as per prevailing standard medical protocol for this injury.
14. That against the said documentary evidence produced by the appellant before this Commission, the original complainant has not produced any cogent evidence in this appeal and though the notice was duly served to the original complainant through Sandesh Newspaper, he is not appeared before this Commission.
15. looking to the above documentary evidence produced by the appellant, it appears that the appellant has acted in accordance with the proper by practice accepted in medical field of implant of screw, appellant has exercise an ordinary degree of professional skil and competence and treatment given by him is M. B. Desai A-11-1036 Page 9 of 12 as per the prevailing standard medical protocol for the injury suffered by the complainant.
16. That on the other side complainant has only relied upon the complaint, discharge card and counter affidavit of the opponent no. 1 and2 reply nothing more has produced by the complainant in fact, when the foundation of the complainant is of the opinion expert Dr. Singh and Dr. Mahida and as per the settle position of law, complainant ought to have produce vital piece of evidence that is written opinion of Dr. H. P. Singh and Dr. Dhiren Mahida or on their affidavits of evidence before the Ld. District Commission to prove the case against appellant or to discharge initial burden of proof of medical negligence lies on him but complainant has miserably failed to discharge his initial burden by producing cogent and reliable medical evidence as per the above mentioned judgments of the Hon'ble Supreme Court as well as Hon'ble National Commission.
17. That as per the decision of the Hon'ble Supreme Court in case of Des Raj Singla and Ors. vs. Dayanand Medical College & Hospital and Ors. in case of medical negligence or deficiency of service on the part of the doctor onus to prove is on the complainant and complainant has to prove by adducing hard evidence and mere averment in a complaint is not sufficient to prove the medical negligence or deficiency of service on the part of doctor.
18. That the Ld. District Commission has allowed the complaint mainly on the ground that appellant no. 2 has not produced any case papers of treatment and appellant no. 2 has to disprove medical negligence on his part while performing the operation of the left leg knee of the complainant but as per the above mentioned judgment of the Hon'ble Apex court and Hon'ble M. B. Desai A-11-1036 Page 10 of 12 National Commission initial burden to prove medical negligence on the part of doctor by leading cogent and reliable evidence lies on the complainant if the complainant discharge his initial burden then the burden shift on appellants to disprove the case of the complainant but here in this case the complainant has utterly failed to discharge his initial burden to prove the medical negligence on the part of appellant no. 2 by produce cogent and reliable evidence thus, as per the documentary evidence produced by the appellant before this Commission in appeal it appears that there is no medical negligence or deficiency of service on the part of appellant Dr. Rajivraj Chaudhary in performing the operation of left leg knee of the complainant hence, on perusal of the judgment and order passed by the Ld. District Commission it appears that the Ld. District Commission has allowed the complaint only on the ground that appellant no. 2 has not produced the case papers of the treatment of the complainant or not disprove the medical negligence on his part. But as per the settle position of law the initial burden was lies on the complainant to prove the medical negligence and then the burden shift to the appellant doctor to disprove the case of the complainant. But here in this case, when the complainant himself has failed to prove the medical negligence on the part of appellant, then there is no question to disprove the case of the complainant by appellant by leading cogent and reliable evidence and therefore, in our opinion the finding recorded and conclusion arrived at by Ld. District Commission to the effect that since there was medical negligence or deficiency of service on the part of appellant doctor is totally erroneous, unjust and against the settle position of law with regard to the burden of proof of medical negligence and as such impugned judgment and order passed by the Ld. District Commission, Surat (Main) is required to be quashed and set aside in this appeal and accordingly appeal filed by the appellant is required to be M. B. Desai A-11-1036 Page 11 of 12 allowed and hence, we pass the following final order of this appeal.
ORDER I) The appeal No. 1036 of 2011 filed by the appellant is hereby allowed.
II) The impugned judgment and order dated 21.2.2011 passed by the District Consumer Disputes Redressal Commission, Surat (Main) in Complaint No. 47/2002 is hereby quashed and set aside.
III) The appellant is directed to apply to the Account section of the State Commission with all details of Appeal No.1036/2011/CMA No. 307/2011, Xerox copy of the receipt to withdraw the amount deposited in the State Commission. The office is hereby ordered to pay deposited amount with accrued interest on proper verification to the appellant by Account payee cheque and the cheque be handed over to the learned advocate for the appellant after obtaining receipt.
IV) No order as to costs. V) Copy of this order to be provided free of costs to the parties.
Registry is directed to send a copy this order to the Ld. District Commission Surat (Main) through E-mail in PDF format for taking necessary action.
Pronounced in the open Court today on 11th April, 2022.
[Justice V. P. Patel] President [Mr. I. D. Patel] Judicial Member [Smt. A. C. Raval] Member M. B. Desai A-11-1036 Page 12 of 12