State Consumer Disputes Redressal Commission
Dr. Vijaya S. Patel vs 1. Smt. Mitaben Kamleshkumar Kapasi 2. ... on 1 March, 2006
To be reported:Yes/No
BEFORE
THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE , AHMEDABAD
1. APPEAL NO. 90 OF
2001
Dr.
Vijaya S. Patel
Neelam Hospital
Opp.
Jain Derasar
Bazaar,
Naroda
Ahmedabad
382 325 Appellant
Ori.
Opp. no.1
versus
1.
Smt. Mitaben Kamleshkumar Kapasi
F/58, Parshwanath Shopping Centre
Opp. Padmavati Nagar, Nikol Road
Naroda, Ahmedabad 382 325 Ori.
Complainant
2.
The Oriental Insurance Co. Ltd.
Divisional office No.1 Ori.
Opp. No.2
Ashram Road, Ahmedabad Respondents
2. APPEAL
NO. 334 OF 2001
The
Oriental Insurance Company Ltd.
Divisional
Office No.1 Ori.
Opp. No.1
Ashram
Road, Ahmedabad Appellant
versus
1.
Smt. Mitaben Kamleshkumar Kapasi
F/58, Parshwanath Shopping Centre
Opp. Padmavati Nagar, Nikol Road
Naroda, Ahmedabad 382 325 Ori.
Complainant
2.
Dr. Vijaya S. Patel
Neelam
Hospital
Opp. Jain Derasar Ori. Opp.
No.1
Naroda Bazaar, Ahmedabad 382 325 Respondents
BEFORE:
Justice N.G. Nandi, President
Dr. Jatin P. Vaidya, Member
Appearance:
Mr. M.A. Bhatt, Advocate for
the original Complainant
Mr. A.O. Chudgar, Advocate
for original Opponent no.1
Mr. H.J. Bhatt, Advocate for
original Opponent No.2
ORAL
ORDER:[By Justice N.G. Nandi, President] Both these appeals arise out of common order and judgment dated 31.8.2000 passed in complaint No.1800 of 1993 by the learned Consumer Disputes Redressal Forum, Ahmedabad City, Ahmedabad.
2 Smt. Mitaben Kamleshkumar Kapasi (original complainant) filed complaint alleging that Complainant, 28 year old lady, mother of one daughter conceived for the second time and consulted Dr. Vijaya S. Patel, (original opponent no.1), a Gynaecologist on 7.4.1993 for the purpose of delivery of child by the complainant; that opponent no.1 was a specialist in cases related to delivery of child; that opponent no.1 told the complainant and her relatives that as the time due for the birth of the child is over caesarean operation will have to be performed on the complainant for the delivery/birth of the child; that operation charges were fixed as Rs.2,500/- and that the medicines would cost extra; that Rs.1,000/- were immediately paid to the opponent being the charges for caesarean operation; that caesarean was fixed on 8.4.1993 on 11 a.m. in the nursing home of opponent no.1. That on 8.4.1993, the complainant was taken into labour room for the caesrean operation and the operation lasted for about three hours i.e. from 11 a.m. to 2 p.m. and that a baby girl was born to the complainant in the said caesarean operation performed by opponent no.1. Soon thereafter, opponent no.1 called the mother and younger brother of the complainant and told them that during the caesarean operation in the uretor of left kidney a hole has taken place and because of that the complainant has been passing urine through the said hole and that a kidney expert will have to be immediately consulted for treatment, that opponent no.1 also said that during the operation a mistake has been committed but there is no time for discussion and that she would bear the expenses for treatment required by the complainant on account of the hole in the uretor and Dr. Mahesh Desai has been consulted for treatment and that the patient be taken to another doctor, if suggested by Dr. Mahesh Desai. Thereafter, the complainant was taken to Dr. Mahesh Desai, Kidney Specialist but Dr. Desai advised that the patient (complainant) be taken to Muljibhai Patel Urological Hospital at Nadiad as he was attached to the said hospital and would be visiting the said hospital on Saturday 10.4.1993 whereupon the complainant was taken to Muljibhai Urological Hospital at Nadiad on 9.4.1993; that she was intensively treated at Muljibhai Urological Hospital at Nadiad, that she was discharged from Muljibhai Patel Urological Hospital on 19.4.1993 and thereafter the complainant was again required to go to said hospital on 30.4.1993 for putting/inserting a tube and that the complainant was again hospitalised on 30.4.1993 and discharged on 4.5.1993. Again, the patient was admitted in said Urological Hospital from 4.6.1993 to 6.6.1993 and the complainant was required to go to the said hospital on 20.8.1993 and 6.9.93 for follow up treatment, that the complainant has been suffering from continuous pain in abdomen and sometimes the same becomes unbearable; that she is not able to do any heavy work and has lost the zeal in life and that she has been dragging on; that all these happened because of unpardonable negligence on the part of opponent no.1 doctor and that the hole in the uretor has occurred because of some pointed instrument used during the caesarean operation by opponent no.1. It is also stated that the complainant suffered tremendous mental agony, physical discomfort and pain besides the expenses incurred. On these allegations, the complainant prayed for compensation of Rs.22,022.89 for the economic loss, Rs.1,00,000/- by way of mental harassment with 18% interest and cost of Rs.5,000/-.
3 The learned City Forum, considering the material on record found negligence and deficiency in service on the part of opponent no.1 and awarded Rs.15,372.89 by way of expenses incurred from time to time, Rs.10,000/- by way of compensation on account of mental agony and harassment and Rs.5,000/- as cost of the litigation, in all awarded Rs.30,372.89 with 12% interest.
4 Being aggrieved with the above order passed by the City Forum, original opponent no.1 Dr. Vijayaben S. Patel has preferred Appeal No. 90 of 2001 whereas original opponent no.2 The Oriental Insurance Company has preferred Appeal No. 334 of 2001.
5 It is submitted by Mr. A.O. Chudgar, learned advocate for original opponent no.1 that there is no negligence and therefore no deficiency in service on the part of opponent doctor in treating the complainant for her pregnancy and delivery of the child, that opponent doctor is a qualified medical practitioner practising as Gynaecologist; that on examination it was found that uterine contraction started and cervix taken. The cervix dilated by 11 a.m. and after rupture of membrane as lower segment caesarean was required it was decided accordingly. The operation started at about 1.30 p.m., that the opponent performed the operation very carefully and after checking all the organs properly, the abdomen was closed in layers and after the successful operation, the patient and child were normal;
that on the next day at about 6.30 a.m., as the bed sheet of the patient was found wet, catheter was checked and it was found that urine was coming out through vagina of the patient. The patient was taken to operation theatre to know the exact position and it was found to be uretero-vaginal fistula and it was decided to take opinion of Urosurgeon. Dr. Mahesh Desai was consulted on phone and Dr. Desai suggested to transfer the patient to Nadiad kidney Hospital at the earliest. It is further submitted that all necessary care has been taken before, during and after the caesarean operation and there is no negligence and deficiency in service on the part of opponent no.1.
6 Mr. H.J. Bhatt, learned advocate for the insurance company has submitted that since opponent no.1 is not negligent in performing the caesarean operation and for that matter no deficiency in service, there is no question of awarding any compensation to the complainant and therefore no question of indemnifying opponent no.1 by the insurance company.
7 It is suggested from the record, especially from the reply of opponent no.1 that the complainant did go to the nursing home of opponent no.1 and on 8.4.93 caesarean operation was performed on the patient by opponent no.1 and a child was born to the complainant. It is also suggested that the complainant passed urine through vagina. On opponent no.1's own say, the complainant had developed uretero-vaginal fistula and for that Dr. Mahesh Desai was first consulted and on his advice complainant taken to Muljibhai Patel Urological Hospital, Nadad.
Thus, it is amply suggested that the caesarean operation was performed by opponent no.1 on the complainant and a baby girl, as per the complainant was born to her and thereafter the complainant started passing urine through vagina. Rest is also an admitted position.
8 The only question that would arise is whether the development of uretero-vaginal fistula - passing of urine through vagina after the caesarean operation could be attributed to the caesarean operation performed by opponent no.1 on the complainant.
9 It need hardly be stated that for the purpose of caesarean operation for delivery of child by a woman, incision on abdomen is required to be done at appropriate place. Uterus and ureter are positioned side by side and incision even slightestly more than required for caesarean operation would touch the ureter and the instrument used for caesarean operation would pierce into the left side kidney-ureter. Now, unless there is a puncture or hole in the ureter in the left kidney, a patient would not pass urine through vagina and therefore uretero-vaginal fistula.
In our opinion, the principle of Res Ipsa Loquitor (thing speaks for itself) would be attracted in the present case looking to the facts as above and therefore we are in agreement with the City Forum that opponent no.1 doctor was negligent in performing the caesarean operation on the complainant since the incision is more than required for caesarean so as to puncture the ureter in the left kidney and the same would be nothing but negligence and deficiency in service leading to further complication as it is in the present case.
10 Now, coming to the question of compensation awarded by the impugned order, we are of the view that awarding of Rs.15,372.89 by way of actual expenses incurred does not call for interference since all the expenses are supported by bills/vouchers etc. In the impugned order an amount of Rs.10,000/- has been awarded for mental agony and harassment. In our opinion, compensation under the head of mental agony and harassment is slightly on higher side and calls for reduction in the same. In our view an amount of Rs.7,000/- by way of compensation under the head of mental agony and harassment would be an adequate compensation under this head.
11 It, therefore, follows from the above that the present appeals are required to be partly allowed only to the extent that the amount of Rs.10,000/- awarded for mental agony and harassment reduced to Rs.7,000/-. We, therefore, pass following order.
O R D E R Both these appeals are partly allowed. Order dated 31.8.2000 passed in complaint No.1800 of 1993 by the Consumer Disputes Redressal Forum, Ahmedabad City, Ahmedabad is modified only to the extent that the original complainant would be entitled to Rs.7,000/- by way of compensation for mental agony and harassment instead of Rs.10,000/- awarded under the impugned order. Rest of the order passed by the City Forum is confirmed. Both these appeals are disposed of accordingly. No order as to cost in appeals.
Pronounced on this ______ day of March, 2006.
[N.G. Nandi] President [Dr. Jatin P. Vaidya] Member