State Consumer Disputes Redressal Commission
Dr. A.P. Agrawal vs Harishankar Gupta on 24 August, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/1353/2018 ( Date of Filing : 20 Jul 2018 ) (Arisen out of Order Dated 30/06/2018 in Case No. C/124/2017 of District Bareilly-II) 1. Dr. A.P. Agrawal (Haddi and Jor Visheshgy) Prakash Hospital StediyamRoad Teh. and Distt. Bareilly ...........Appellant(s) Versus 1. Harishankar Gupta S/O Sri Banke Lal Gupta Niwasi Mohalla Katara Chand Khan Purana Shahar Tehsil Bareilly Thana Baradari Distt. Bareilly ...........Respondent(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 24 Aug 2022 Final Order / Judgement
राज्य उपभोक्ता विवाद प्रतितोष आयोग , उ0प्र0 , लखनऊ।
सुरक्षित अपील सं0-१३५३/२०१८ (जिला फोरम/आयोग, बरेली (द्वितीय) द्वारा परिवाद सं0-१२४/२०१७ में पारित प्रश्नगत निर्णय एवं आदेश दिनांक २१-०६-२०१८ के विरूद्ध) डॉ0 ए0पी0 अग्रवाल (हड्डी एवं जोड़ रोग विशेषज्ञ) प्रकाश हॉस्पिटल, स्टेडियम रोड, तहसील व जिला-बरेली।
...........अपीलार्थी/विपक्षी।
बनाम हरी शंकर गुप्ता पुत्र बांके लाल गुप्ता निवासी मोहल्ला कटरा चांद खॉं, पुराना शहर, तहसील-बरेली, थाना-बारादरी, जिला-बरेली।
............ प्रत्यर्थी/परिवादी। समक्ष:- १- मा0 श्री राजेन्द्र सिंह, सदस्य। २- मा0 श्री विकास सक्सेना, सदस्य। अपीलार्थी की ओर से उपस्थित : श्री ओ0पी0 दुवेल विद्वान अधिवक्ता। प्रत्यर्थी की ओर से उपस्थित : श्री नितिन खन्ना विद्वान अधिवक्ता। दिनांक :- २८-०९-२०२३. मा0 श्री राजेन्द्र सिंह , सदस्य द्वारा उदघोषित निर्णय
यह अपील, उपभोक्ता संरक्षण अधिनियम १९८६ के अन्तर्गत जिला फोरम/आयोग, बरेली (द्वितीय) द्वारा परिवाद सं0-१२४/२०१७ में पारित प्रश्नगत निर्णय एवं आदेश दिनांक २१-०६-२०१८ के विरूद्ध योजित की गयी है।
संक्षेप में अपीलार्थी का कथन है कि विद्वान जिला फोरम द्वारा पारित प्रश्नगत निर्णय एवं आदेश विधि विरूद्ध, प्राकृतिक न्याय कि सिद्धान्तों के प्रतिकूल और मनमानव निरंकुश है। विद्वान जिला फोरम ने अपीलार्थी द्वारा प्रस्तुत साक्ष्य का अवलोकन किए बिना ही निर्णय पारित -२- किया है। विद्वान जिला फोरम ने अपने न्यायिक विवेक का प्रयोग नहीं किया है। आपरेशन के बाद परिवादी को भारी सामान न उठाने, ज्यादा भाग-दौड़ न करने तथा मेहनत का काम न करने के लिए मना किया गया था किन्तु उसने इस सलाह को नहीं माना। किसी विशेषज्ञ की रिपोर्ट अपीलार्थी के विरूद्ध नहीं है और बिना विशेषज्ञ राय के विद्वान जिला फोरम ने मनमाना निर्णय पारित किया है। किसी डॉक्टर ने किए गए इलाज में कोई कमी नहीं मानी है। डॉक्टर किसी मरीज को ठीक होने की गारण्टी नहीं देता है बल्कि अपने योग्यता के अनुसार मरीज को ठीक करने का प्रयास करता है। लापरवाही का आरोप मनगढ़न्त है। बिना सोचे-समझे अपीलार्थी को दोषी मानकर ८५,०००/- रू० की वसूली व ०७ प्रतिशत ब्याज का आदेश विद्वान जिला फोरम द्वारा दिया गया है, जो गलत है। परिवादी ने ०३.०० लाख रू० रू० की क्षति की मांग की है किन्तु उसके बारे में कोई विवरण नहीं दियाहै। परिवादी का आपरेशन पूर्ण चिकित्सीय योग्यता और मानकों के अनुसार किया गया था और उसे दिनांक २४-०२-२०१७ को अच्छी हालत में छोड़ा गया था। प्रत्यर्थी पूर्ण रूप से स्वस्थ हो गया था और पैरों में कोई समस्या नहीं थी। अपीलार्थी एक योग्य व कुशल हड्डी एवं जोड़ रोग विशेषज्ञ है तथा अपनी पूर्ण क्षमता व चिकित्सीय ज्ञान के अनुसार पूर्ण सजगता से परिवादी का इलाज किया गया था जिससे परिवादी को पूर्ण आराम भी मिला था लेकिन परिवादी द्वारा कानूनी प्रक्रिया का दुरूपयोग करते हुए अपीलार्थी की छवि को खराब करने के लिए मुकदमा दायर किया गया है। विद्वान जिला फोरम ने मा0 सर्वोच्च न्यायालय द्वारा मार्टिन एफ डिसूजा बनाम मो0 इशफाक, सिविल अपील सं0-३५४१/२००२ में पारित निर्णय व दिशा निर्देशों -३- के विपरीत प्रश्नगत निर्णय एवं आदेश पारित किया है। अत: माननीय राज्य आयोग से निवेदन है कि वर्तमान अपील स्वीकार करते हुए प्रश्नगत निर्णय एवं आदेश को अपास्त किया जाए।
हमने उभय पक्ष के विद्वान अधिवक्तागण की बहस सुनी तथा पत्रावली का सम्यक रूप से परिशीलन किया।
हमने प्रश्नगत निर्णय का अवलोकन किया। परिवादी के कथनानुसार परिवादी प्रकाश हास्पिटल डेलापीर बरेली में डॉ0 ए0पी0 अग्रवाल की सलाह पर दिनांक १८-०२-२०१७ को पैर में फ्रैक्चर का उपचार कराने हेतु भर्ती हुआ था। उपरोक्त चिकित्सक द्वारा पैर में फ्रैक्चर होना बताया तथा शल्य चिकित्सा की आवश्यकता बताई तथा दिनांक १९-०२-२०१७ को परिवादी के उपरोक्त पैर की शल्य चिकित्सा की गई। दिनांक १६-०२-२०१७ से ०३-०६-२०१७ तक शल्य चिकित्सा एवं औषधियों में परिवादी का करीब २,३५,०००/- रू० व्यय हुआ परन्तु उक्त शल्य चिकित्सा के बाद भी लगभग ०४ माह तक परिवादी का पैर सही नहीं हुआ और परेशानी बढ़ती रही तथा परिवादी चलने फिरने में बिल्कुल असमर्थ हो गया। दिनांक ०५-०६-२०१७ को परिवादी ने विवश होकर अपना पैर एस0आर0एम0एस0 इन्स्टीट्यूट आफ मेडिकल साइन्स में डॉ0 संजय गुप्ता को दिखाया तो उन्होंने एक्स-रे कराया और एक्स-रे देखकर उन्होंने बताया कि डॉ0 ए0पी0 अग्रवाल द्वारा की गई शल्य चिकित्सा बिल्कुल असफल हो गई है तथा उन्होंने शल्य चिकित्सा करानेका परामर्शदिया। दिनांक ०९-०६-२०१७ को परिवादी के उपरोक्त पैर की शल्य चिकित्सा सिद्धि विनायक अस्पताल बरेली में की गई।
सर्वप्रथम हम, उस शपथ का जिक्र करते हैं जो प्रत्येक डॉक्टर डॉक्टरी -४- के पेशे में लेता है, जो निम्नवत् है :-
"I solemnly pledge myself to consecrate my life to service of humanity.
Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
I will maintain the utmost respect for human life from the time of conception.
I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
I will practice my profession with conscience and dignity.
The health of my patient will be my first consideration.
I will respect the secrets which are confined in me.
I will give to my teachers the respect and gratitude which is their due.
I will maintain by all means in my power, the honour and noble traditions of medical profession.
I will treat my colleagues with all respect and dignity.
I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
I make these promises solemnly, freely and upon my honour."
The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by -५- implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitor is not an universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per-se by applying the doctrine of res ipsa loquitor. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha's III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based -६- on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, it has been observed in Malay Kumar Ganguli's case (AIR 2010 SC 1162) that" charge of professional negligence on a medical person is a serious one as it affects his professional statusand reputation and as such, the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient, the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient.
Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not ? It has been observed by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. SanthaIII(1995) CPJ 1 (SC) at para -७- 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, in B. Krishna Rao Vs. Nikhil Super Speciality Hospital 2010 (V) SCC513 at para 40 the Hon'ble Apex Court was pleased to hold that it is not necessary to have opinion of the expert in each and every case of medical negligence. The Hon'ble Apex Court was pleased to further hold in Nizam Institute of Medical Sciences Vs. Prashant S. Dhananka and others 2009 (VI) SCC 1 that "in a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the owner then shifts on the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence".
A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligencea plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment -८- and reach the jury without direct proof of negligence- Cox v. May Dept. Store Co., 903 P.2d 1119 (1995).
In Byrne vs Boadle, this maxim was used for the first time where the complainant was injured by a barrel that dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said "here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that such a case will, beyond all doubt, afford prima facie proof of negligence."
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent.This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
The thing speaks for itselfis the gist of the maxim Res Ipsa Loquitur Maxim. What are the essentials of this maxim .
The injury caused to the plaintiff shall be a result of an act of negligence.
There is a lack of evidence, or the evidence presented before the court is insufficient to establish the possibilities of the fault of the plaintiff or third party.
The defendant owes a duty of care towards the plaintiff, which he has breached.
There is a significant degree of injury caused to the plaintiff.
Applicability of Doctrine of Res Ipsa Loquitur The maxim of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.
-९-Consequently, it shifts the burden of proof on the defendant, logic being, where there is an event of unexplained cause, usually, the one that does not occur without the defendant's negligence in controlling the action which has caused the injury to the claimant or destroyed his goods.
In this scenario, the court shall presume negligence on the part of the defendant in such a case unless it includes an appropriate explanation compatible with his taking reasonable care.
In Achutrao Haribhau Khodwa and Others vs. State of Maharashtra and Others, it was considered that the maxim should not be applied in the case of general incidences of neglect and shall only be reflected when there is a significant degree of injury caused.
Section 106 of the Indian Evidence Act Section 106 of the Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence.
This means that while plaintiffs typically have to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain circumstantial facts, it becomes the defendant's burden to prove he or she was not negligent.
Res Ipsa Loquitur and Evidence Law -१०- Accidents happen all the time, and the mere fact that an accident has occurred doesn't necessarily mean that someone's negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendant's negligence resulted in the plaintiff's injury. Sometimes, direct evidence of the defendant's negligence doesn't exist, but plaintiffs can still use circumstantial evidence in order to establish negligence.
Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than demonstrating it outright. This allows judges and juries to infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience. Res ipsa is one type of circumstantial evidence that allows a reasonable fact finder to determine that the defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff.
This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse. At the trial, the plaintiff's attorney argued that the facts spoke for themselves and demonstrated the warehouse's negligence since no other explanation could account for the cause of the plaintiff's injuries.
As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in order to determine whether or not the defendant acted negligently.
Since the laws of personal injury and evidence are determined at the state level, the law regarding res ipsa loquitur varies slightly between states. That said, a general consensus has emerged, and most states follow one basic formulation of res ipsa.
Under this model for res ipsa, there are three requirements that the -११- plaintiff must meet before a jury can infer that the defendant's negligence caused the harm in question:
The event doesn't normally occur unless someone has acted negligently;
The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and The type of negligence in question falls with the scope of the defendant's duty to the plaintiff.
As mentioned above, not all accidents occur because of someone else's negligence. Some accidents, on the other hand, almost never occur unless someone has acted negligently.
Going back to the old case of the falling flour-barrel, it's a piece of shared human knowledge that things don't generally fall out of warehouse windows unless someone hasn't taken care to block the window or hasn't ensured that items on the warehouse floor are properly stored. When something does fall out of a warehouse window, the law will assume that it happened because someone was negligent. Top of Form Bottom of Form The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for the injury. If the plaintiff can't prove by a preponderance of the evidence that the defendant's negligence cause the injury, then they will not be able to recover under res ipsa.
States sometimes examine whether the defendant had exclusive control over the specific instrumentality that caused the accident in order to determine if the defendant's negligence caused the injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the surgeon's negligence caused the injury since he had exclusive control over the sponges during the operation.-१२-
In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of injury doesn't fall within the scope of that duty, then there is no liability.
For example, in many states, landowners don't owe trespassers any duty to protect them against certain types of dangers on their property. Thus, even if a trespasser suffers an injury that was caused by the defendant's action or inaction and that wouldn't normally occur in the absence of negligence, res ipsa loquitur won't establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.
Res ipsa only allows plaintiffs to establish the inference of the defendant's negligence, not to prove the negligence completely. Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the elements listed above.
For example, the defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could fall out of the warehouse window, for instance.
A defendant could also demonstrate that the plaintiff's own negligence contributed to the injury. To go back to the flour-barrel example, if the defendant shows that the plaintiff was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.
Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa -१३- will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff.
According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for that rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or recipes omission of negligence, or make out a plaintiff's prima facie case and present a question of fact for defendant to meet with and explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.
Its use in clinical negligence gained some traction before Bolam and Bolitho. Mahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient's body.
In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour. The surgery involved cauterisation. The Court of Appeal held that this was a case where res ipsa loquitur applied. The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.
In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim's application to clinical negligence cases: "I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should -१४- not happen if due care had been used. Explain it if you can."
Ng Chun Pui Vs Lee Chuen Tat, the first defendant was driving a coach owned by the second defendant westwards in the outer lane of dual carriageway in Hong Kong. Suddenly the course across the central reservation and collided with a public bus travelling in the inner lane of the other carriageway, killing one passenger in the bus and injuring the driver and three others on the bus. The plaintiff could not prove that the defendants were negligent and had caused the accident. They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent. However, they failed to do so. And the judicial committee of the Privy Council held the defendants liable for the plaintiffs injuries. {MarkLuney and Ken Opliphant , Tort Law Text And Materials (Oxford University Press, New York, 2000) pp 173-175} In A.S. Mittal & Anr. Vs. State Of UP & Ors., AIR 1979 SC 1570, the defendants had organised an eye camp at Khurja along with the Lions Club. 88 low risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth ₹ 12,500/- were paid as interim belief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not have occurred had the doctors not been negligent in not having followed up with post-operation treatment. Res Ipsa Loquitur can be applied in matters where are the procedures have not been followed and is not just limited to the commission of an act.
We can define 'Medical negligence' as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical -१५- negligenceleads to 'Medical malpractices' where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.
Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required.
So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.
Some of the common categories of medical negligence are as follows:
Wrong diagnosis - When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
Delay in diagnosis - A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
Error in surgery - Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound -१६- effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
Unnecessary surgery - Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
Errors in the administration of anesthesia - Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient's condition, history, medications, etc. to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
Childbirth and labor malpractice - Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc. Long-Term negligent treatment - Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor's failure to monitor the effects of the treatment properly.-१७-
A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is "no," and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and Anr.[ 1969 AIR 128], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.
Dr. Kunal Saha vs Dr. Sukumar Mukherjee on 21 October, 2011 ( NC) original petition number 240 OF 1999 is one of the most important case regarding medical negligence. The brief facts of the case are-
Toxic Epidermal Necrolysis ( TEN ) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%.-१८-
Smt. Anuradha Saha (in short Anuradha), aged about 36 years wife of Dr. Kunal Saha (complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a university of U.S.A. She was a Child Psychologist by profession. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI), on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998.
Our Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another -१९- complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary.
The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr. Sukumar Mukherjee, Dr. B. Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr.Abani Roy Chowdhury (physician) and Dr.KaushikNandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC.
The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench -२०- presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment.
Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs.
Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No. 1727 of 2007) in the Honble Supreme Court. It would appear that even before the said appeal was filed before the Honble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos. 1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Honble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the -२१- matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr.KaushikNandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz.. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
We remit the case back to the Commission only for the purpose of determination of the quantum of compensation.We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
Summary In view of the foregoing discussion, we conclude as under:
The facts of this case viz., residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment -२२- of Anuradha makes the present case somewhat extraordinary.
The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others.
The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission.
Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity.
The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant -२३- factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties / defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue enrichment by making a fortune out of a misfortune. The theoretical opinion / assessment made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court.
There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and deficiency in service established on the part of different doctors and hospitals.
On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- ( roundedofto Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr.Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them.-२४-
In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings.
The above amount shall be paid by opposite parties no. 1 to 4 to the complainant in the following manner:
(i). Dr. Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation] .
(ii) Dr. B. Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation .
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default.
परिवादी के कथनानुसार वह प्रकाश हास्पिटल डेलापीर बरेली में डॉ0 ए0पी0 अग्रवाल की सलाह पर दिनांक १८-०२-२०१७ को पैर में फ्रैक्चर का -२५- उपचार कराने हेतु भर्ती हुआ था, जिसकी शल्य चिकित्सा दिनांक १९-०२-२०१७ को की गई। इस शल्य चिकित्सा से जब वह ठीक नहीं हुआ तब उसने दिनांक ०५-०६-२०१७ को एस0आर0एम0एस0 इन्स्टीट्यूट आफ मेडिकल साइन्स में डॉ0 संजय गुप्ता को अपना पैर दिखाया जिन्होंने एक्स-रे कराया जिसे देखकर बताया कि डॉ0 ए0पी0 अग्रवाल द्वारा की गई शल्य चिकित्सा असफल हो गई है। दिनांक ०९-०६-२०१७ को परिवादी के उपरोक्त पैर की शल्य चिकित्सा सिद्धि विनायक अस्पताल बरेली में की गई। एस0आर0एम0एस0 के डॉ0 संजय गुप्ता ने यह भी बताया था कि पैर का आपरेशन यथाशीघ्र कराना पड़ेगा अन्यथा पैर में संक्रमण फैल सकता है तब उसने सिद्धि विनायक अस्पताल बरेली में डॉ0 ब्रजेश्वर सिंह से अपने पैर का आपरेशन कराया। सिद्धि विनायक अस्पताल द्वारा निर्गत प्रलेख में Diagnosis DHS Revision तथा Procedure DCS Angle Plat Osteotomy अंकित है जिससे स्पष्ट होता है कि पहली शल्य चिकित्सा असफल रही। कोई भी डॉक्टर यह नहीं चाहता है कि उसके द्वारा की गई चिकित्सा के कारण उसकी छवि खराब हो, अत: वह अपनी क्षमता के अनुसार कार्य करता है किन्तु कभी-कभी लापरवाही भी करता है, इस सम्बन्ध में विभिन्न न्यायिक दृश्टान्तों उपर्लिखित को देखने की आवश्यकता है :-
परिस्थितियॉं स्वयं बोलती हैं, का सिद्धान्त यह है कि जब भी कोई व्यक्ति गलती करता है तब आस-पास की परिस्थितियों से यह आंकलन हो जाता है कि उसके द्वारा गलती की गई है। विपक्षी की ओर से डॉ0 मुनीष चन्द्र ने यह कहा है कि परिवादी ने अपीलार्थी/विपक्षी द्वारा दी गई हिदायतों का पालन नहीं किया और चलने-फिरने से मना करने के उपरान्त भी पैर -२६- पर भार डाला गया। यह केवल अनुमान है क्योंकि इसका कोई प्रत्यक्ष प्रमाण नहीं है और यह भी सम्भव नहीं है कि जिस व्यक्ति के पैर में रॉड पड़ी हो वह तुरन्त चलना-फिरना शुरू कर देगा। यदि परिवादी की शल्य चिकित्सा भली भांति हुई होती तब वह दूसरी बार शल्य चिकित्सा के लिए आगे क्यों आता। इससे स्पष्ट होता है कि पहली शल्य चिकित्सा से सम्बन्धित डॉक्टर द्वारा लापरवाही बरती गई इसलिए परिवादी को दूसरी बार अपनी शल्य चिकित्सा करवानी पड़ी।
विद्वान जिला फोरम ने अपने निर्णय में विभिन्न न्यायिक दृष्टान्तों और साक्ष्यों का मूल्यांकन करते हुए निम्नलिखित आदेश पारित किया है :-
'' परिवाद इस प्रकार स्वीकार किया जाता है कि परिवादी प्रतिपक्षी से रू० ५०,०००/- क्षतिपूर्ति प्राप्त करने का अधिकारी है। मानसिक एवं शारीरिक कष्ट हेतु परिवादी, प्रतिपक्षी से रू० २५,०००/- प्राप्त करने का अधिकारी है। उपरोक्त धनराशियों का भुगतान एक माह के अन्तर्गत न होने पर परिवादी, परिवाद संस्थित किये जाने की तिथि से उपरोक्त धनराशियों का भुगतान होने तक परिवादी उपरोक्त धनराशियों पर ७ प्रतिशत वार्षिक साधारण ब्याज प्राप्त करने का अधिकारी होगा। परिवादी प्रतिपक्षी से वाद व्यय के रूप में रू० १०,०००/- प्राप्त करने का अधिकारी है। '' अब हम यह विचार करते हैं कि Diagnosis DHS Revision तथा Procedure DCS Angle Plat Osteotomy क्या है ?
The Dynamic Hip Screw (DHS) or Sliding Hip Screw can be used as a fixation for neck of femur fractures. This would usually be considered for fractures that occur outside the hip capsule (extracapsular), often stable intertrochaneric fractures . This is -२७- because there is a reduced chance of interruption to the blood supply to the head of the femur, and so it may be possible to preserve the joint. However, it may also be appropriate for younger patients with fractures within the hip capsule (intracapsular) if there is a good chance that the blood supply is preserved, reducing the risk of avasular necrosis.
ORIF - Dynamic condylar screw Trochanteric fracture, intertrochanteric A closed reduction should always be attempted. If unsuccessful, a limited open reduction is necessary. It is done on a fracture table and subsequently, an appropriate fixation device is chosen. In most instances it will be an intramedullary device.
Note:
Only stable proximal femoral fractures can be treated with the DCS (dynamic condylar screw) plate. The DCS plate does not allow for controlled collapse and compression.-२८-
2. Reduction Closed reduction The use of a traction table depends on the surgeon's preference. In fresh cases, a traction table might not be necessary and the procedure can be done with the patient positioned on a translucent table designed for use with image intensification. In this case traction can be applied by an assistant.
If a traction table is used, the patient should be positioned as indicated in the drawing with his ipsilateral arm elevated in a sling while the contralateral uninjured leg is placed on a leg holder.
Reduction will be achieved by first pulling on the leg in order to distract the fragments and regain length. This should be controlled under image intensification.
The second step is internal rotation of the leg. Again it has to be checked under image intensification in 2 planes as the reduction determines the degree of internal rotation.
-२९-Open reduction Through a lateral approach a straight 10 cm skin incision is made starting at the greater trochanter and carrying it downwards, parallel to the femoral axis. The fascia lata is incised in line with the skin incision and in line with its fibers. The vastus lateralis muscle is elevated from the intermuscular septum just enough to expose the fracture. To avoid bleeding, tie off the perforating vessels. If necessary use a small Hohmann in order to visualize the bone.
A pointed reduction clamp is used to reduce the fracture and maintain reduction.
3. Insertion of the dynamic condylar screw Technique of insertion Lateral approach between the vastus lateralis muscle and intermuscular septum.
-३०-Application of the aiming device The aiming device for the DCS is chosen. It is placed against the lateral cortex. Its position should be checked using image intensification in an AP view, according to the anticipated position of the guide wire.
Insertion of a guide wire for the screw The guide wire is inserted through the aiming device. In the AP view it should be in the lower or caudal half of the femoral head. On the axial view it should be parallel to the axis of the neck and in the middle of the neck. The guide wire is advanced into the subchondral bone and its tip should lie 10 mm off the joint.
-३१-Determination of the length of the DCS screw Determine the length of the DCS screw with help of the measuring device. Select a screw which is the same length as measured.
Drilling Adjust the cannulated triple reamer to the chosen length of the screw.
-३२-Drill the hole for the screw and the plate sleeve.
Screw insertion The selected screw is mounted on a handle and inserted over the guide wire.When the screw has reached its final position, the T-handle has to be in line with the longitudinal axis of the femur to guarantee that the plate will come to lie on the femoral shaft.
Remove handle and leave guide wire in place.
-३३-4. Fixation of the DCS plate Application of the DCS plate The length of the plate is determined by the extent of the fracture. One should aim to have at least five screw holes distal to the fracture since one needs eight cortices of screw purchase to ensure adequate fixation. In osteoporotic bone, five screws (10 cortices) are advised.
The DCS plate is now inserted and seated with the impactor. Compression of the fracture might be achieved if the cortical screws are inserted in a load position starting with the most distal screw. One might also use the articulated tension device if indicated. If the fracture pattern allows, additional cortical screws should be inserted into the proximal fragment to augment the fixation.
Insertion of holding screws The plate is fixed to the femoral shaft with an appropriate number and size of plate holding cortical screws. If possible insert lag screw(s) -३४- through the plate to compress the fracture.
5. Postoperative treatment Begin with partial weight bearing for the first 6 weeks. Take x-rays at six-week intervals. If at six weeks healing is progressing uneventfully, more loading might be allowed. Healing is usually complete by three months and full weight bearing can be resumed.
Implant removal Only if necessary, and then not before 18 months.
Prognosis of proximal femoral fractures After surgery the outcomes of greatest concern are mortality loss of independence loss of mobility residual pain.
-३५-Mortality Mortality generally occurs within the first six months after fracture; studies have shown that these rates range from 12-37%.
Predictors of higher mortality rates are patients who are:
older male have other comorbid conditions (such as cardiac failure, diabetes, and chronic air flow limitation) have cognitive disorders.
Prior to the use of DHS sliding screws, angled blade plates were -३६- used[2]. These fixed plates matched the angle of the femural head. These plates had a number of complications, including failure to purchase, requiring frequent osteotomies. They also did not allow any compression across the fracture site, leading to stress failures and frequent non-union. Therefore, the DHS, with sliding barrel, was created to allow controlled compression across the fracture site. This is important for bone healing.
Considerations post surgery:
Post op instructions and weight bearing status Infections / wound healing Neurovascular complications Pain Self-efficacy and motivation Fear of falling Physiotherapy interventions:
Transfers (bed, chair, toiletting).
Mobility (+/- appropriate aid).
Goal setting Advising patient and team on pain management and expectations post-surgery Advice on swelling management Exercises Balance retraining and confidence building Gait retraining Considering home environment.
Interactions with family and carer DHS Vs Hemiarthroplasty:-३७-
Compared to hemiarthroplasty, the DHS has been found to have a superior hip functional outcome. However, the DHS has a higher chance of blood loss requiring blood transfusion and complications requiring revisions. Both were comparable for duration of surgery, length of stay in hospital and early mobilisation[4]. Therefore, may have benefits for return to function for a selected patient group.
Internal fixation of NOF:
The FAITH study (2014) suggests that most studies into internal fixation of fractured NOF compare against hemiarthroplasty. This means there is a lack of evidence for different methods of internal fixation[5]. RCTs with direct comparison are too small and lack sufficient power. Therefore, the FAITH study looked at the effects on patients after cancellous screws and sliding screws.
The FAITH study (2017) suggests that both are comparable for revision / reoperation rates at 24 months, but the sliding hip screw group had a greater instance of avasular necrosis. However, this was not a significant difference and the DHS was found to be more beneficial for displaced fractures and reduced rates of reoperation. It was also thought to be beneficial for those with poor bone density, such as smokers. The authors noted that this finding of benefits for displaced fractures was inconsistent with other study findings.
Precautions post surgery Post surgical complications Intra-capsular surgery may require a period of partial or protected weight bearing to ensure no displacement of the humeral head -३८- Avasular necrosis of the femural head Operation site infections Foot drop post-op Risk of fracture to bone below metal plate Haematoma Non-union or malunion Rarely, the hip screw might protrude into the hip joint articular surface. This can present as increased pain on mobilisation and may result in surgical intervention, such as revision to a hemi to total hip replacement.
समस्त परिस्थतियों और विभिन्न तथ्यात्मक तथ्यों को देखने के पश्चात् यह स्पष्ट होता है कि इस मामले में अपीलार्थी ने उपेक्षा और लापरवाही प्रदर्शित की है। विद्वान जिला फोरम का प्रश्नगत निर्णय विधि सम्मत है और उसमें किसी प्रकार के हस्तक्षेप की आवश्यकता नहीं है। विद्वान जिला फोरम ने सूक्ष्म धनराशि अदा करने के सम्बन्ध में आदेश दिया है जबकि यह मामला उससे गम्भीर प्रकृति का है किन्तु प्रत्यर्थी/परिवादी ने विद्वान जिला फोरम द्वारा दिए गए अनुतोष को बढ़ाए जाने हेतु कोई अपील प्रस्तुत नहीं की है, अत: इस सम्बन्ध में विद्वान जिला फोरम द्वारा दिया गया निर्णय स्वीकार होने योग्य है तथा प्रस्तुत अपील निरस्त होने योग्य है।
आदेश वर्तमान अपील सव्यय निरस्त की जाती है। जिला फोरम/आयोग, बरेली (द्वितीय) द्वारा परिवाद सं0-१२४/२०१७ में पारित प्रश्नगत निर्णय एवं आदेश दिनांक २१-०६-२०१८ की पुष्टि की जाती है।
अपील व्यय उभय पक्ष पर।
उभय पक्ष को इस निर्णय की प्रमाणित प्रति नियमानुसार उपलब्ध करायी जाय।
वैयक्तिक सहायक से अपेक्षा की जाती है कि वह इस निर्णय को आयोग की -३९- वेबसाइट पर नियमानुसार यथाशीघ्र अपलोड कर दें।
(विकास सक्सेना) (राजेन्द्र सिंह) सदस्य सदस्य
निर्णय आज खुले न्यायालय में हस्ताक्षरित, दिनांकित होकर उद्घोषित किया गया।
(विकास सक्सेना) (राजेन्द्र सिंह) सदस्य सदस्य प्रमोद कुमार वैय0सहा0ग्रेड-१, कोर्ट नं.-२. [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER