State Consumer Disputes Redressal Commission
F.A.No.672/2012:Dr. K.Ravichandra ... vs F.A.No.672/2012:Sri G.Prathap Reddy, ... on 31 December, 2013
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD F.A.No.672/2012 against C.C.No.24/2011, Dist. Forum-1, Chittoor. Between: Dr. K.Ravichandra Reddy, MBBS., FAGE., DFH., Ravi Nursing Home, D.No.2-55/1, Near Municipal Office, Kongareddipalle, Chittoor 517 001. Appellant/ Opp.party And Sri G.Prathap Reddy, S/o.Narayan Reddy, Aged about 52 years, Guvvakallu Village, Thalambedu Post, Chittoor Rural Mandal, Chittoor . Respondent/ Complainant Counsel for the appellant : M/s.M.Venkata Ramana Reddy Counsel for the respondent : Mr.K.Ashok Reddy F.A.No.37/2013 against C.C.No.24/2011, Dist. Forum-1, Chittoor. Sri G.Prathap Reddy, S/o.Narayan Reddy, Aged about 53 years, Guvvakallu Village, Thalambadu Post, Chittoor Rural Mandal, Chittoor Dist., Andhra Pradesh. Appellant/ Complainant And Dr. K.Ravichandra Reddy, MBBS., FAGE., DFH., Ravi Nursing Home, D.No.2-55/1, Near Municipal Office, Kongareddipalle, Chittoor town & Dist.517 001. Respondent/ Opp.party Counsel for the appellant : Mr.K.Ashok Reddy Counsel for the respondent : M/s.M.Venkata Ramana Reddy QUORUM:SRI R.LAKSHMI NARASIMHA RAO,HONBLE INCHARGE PRSIDENT, SRI T.ASHOK KUMAR, HONBLE MEMBER, AND SRI S.BHUJANGA RAO, HONBLE MEMBER.
TUESDAY, THE THIRTY FIRST DAY OF DECEMBER, TWO THOUSAND THIRTEEN .
Oral Order: (Per Sri S.Bhujanga Rao, Honble Member) **** Both the appeals arose out of the order dt.08.08.2012 made in C.C.No.24/2011 on the file of the Dist. Consumer Disputes Redressal Forum-1, Chittoor. F.A.No.37/2013 is filed by the complainant and F.A.No.672/2012 is filed by the opp.party in C.C.No.24/2011.
Since both the appeals arose out of one and the same order, both appeals are heard together and are being disposed of by this common order.
For the sake of convenience, the parties are described as they are arrayed in the complaint.
The complainant filed the complaint C.C.No.24/2011, claiming compensation of Rs.10 lakhs alleging medical negligence on the part of the Dr.Ravi Chandra Reddy , the sole opposite party in the complaint.
The brief case of the complainant as set out in the complaint is that on 06.10.2009, the complainant went to the hospital of the opposite party with the complaint of fever and paid Rs.50/- towards consultation fees and after examining the complainant, the opposite party prescribed some medicines and also gave an injection to his left hand and within 15 minutes, the complainant suffered numbness to the left hand and opposite party recommended some exercise, but the complainant could not get any relief. The complainant again consulted the opposite party on the next day and as there was no proper response, the complainant went to Apollo Clinic and on their advise went to the CMC Hospital, Vellore and took treatment till 23.06.2010. Thereafter, he has continued treatment as out patient. The problem is diagnosed as post injection left radium nerve paralysis and on account of improper giving of injection, the complainant suffered disability and unable to use the left hand. As the disability occurred due to the medical negligence of opposite party, the complainant filed the present complaint.
Resisting the complaint, the opposite party filed written version denying the material allegations made in the complaint and contended that he never treated the complainant nor he did he receive consultation fee of Rs.50/- as alleged in the complaint and as such, the question of giving injection does not arise and the opposite party have never given any prescription to the complainant. Ex.A2 original prescription dt.6.10.2009 purported to have given by the opposite party is fabricated one and further for the fever the medicines prescribed by Dr.Ravi Chandra Reddy is not suitable for the patient suffering from fever. The complainant has not availed the services of the opposite party at any time. Even if the allegations made in the complaint are proved, as the complainant has not paid any consideration, there is no relationship of consumer and the District Forum has no jurisdiction. The alleged deficiency and damages are all false and the complaint is liable to be dismissed.
At the time of enquiry, before the District Forum, the complainant filed his evidence affidavit and got marked Exs.A1 to A7. The complainant has also got examined PW.2 Dr.Binu Prathap Thomas of CMC, Rayavellore, where the complainant has taken further treatment and marked Ex.X1 case sheet maintained by the CMC. As against that evidence, the opposite party filed his evidence affidavit, but he did not choose to file any documents, in support of his case.
Upon hearing the counsel for both the parties and on consideration of the material on record, the District Forum came to the conclusion that the complainant proved deficiency in service and also injury and held that the complainant is entitled for compensation of Rs.Rs.3,58,385/- and directed the opposite party to pay the same with interest at 9% p.a.. from the date of the complaint i.e. 18.10.2010, till the date of realization.
The opposite parties are also directed to pay costs of Rs.2000/-.
Aggrieved by the said order, the opposite party preferred appeal F.A.No.672/2012 questioning the validity and legality of the impugned order of the District Forum on various grounds.
Having not satisfied with the compensation, awarded by the District Forum, the complainant filed appeal in F.A.No.37/2013 urging that the District Forum erroneously considered the complainant as an Agricultural cooly and by taking an annual income of him as Rs.3000/- have allowed the claim partly and that the District Forum ought to have considered the profession of the complainant in the correct manner in calculating the compensation amount in a justifiable quantum. The appellant/complainant finally prayed to enhance the compensation as prayed for in the complaint and modify the impugned order accordingly.
In F.A.No.37/2013 the appellant/complainant filed a petition FAIA.211/2013 to receive the documents 1). Attested Xerox copy of Form of Certificate of Registration of tractor-trailer no.AP-03/T-2922 and 2). Attested Xerox copy of pattadar pass book issued in the name of the petitioner. The said petition was allowed and the said documents are marked as Exs.A8 and A9.
We heard the counsel for both the parties and perused the entire material placed on record.
Now the points that arise for consideration are :
1).
Whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
2).
Whether the complainant is entitled to enhancement of compensation as contended in his appeal? If so, to what amount?
3). To what reliefs?
The opposite party totally denied the complainant visiting his hospital and giving treatment to the complainant and receipt of Rs.50/- towards consultation fees.
In view of the denial of the opposite party, the burden is on the complainant to prove that he took treatment from the opposite party, by paying Rs.50/- towards consultation fee. In order to prove the same, besides his evidence affidavit, the complainant filed Ex.A2 prescription dt.6.10.2009 .
The learned counsel for the opposite party submitted that Ex.A2 is a fabricated one and that it is not in the hand writing of the opposite party and further the medicine prescribed by Dr.Ravichandra Reddy is not suitable for the patient of fever and in that prescription medicine of injection was not stated, so the question of giving injection does not arise. The complainant has not availed the services of the opposite party.
It is true that the complainant has not placed any document to show that the complainant paid Rs.50/- as consultation fees, to the opposite party. The fact that generally receipts are not passed for the payments for purchasing of medicines and most of the times, parties also did not insist, cannot be ignored.
Ex.X1 is the case sheet maintained by the CMC hospital with regard to the treatment given to the complainant. In the second sheet of Ex.X1 Case Sheet it is noted that on 6.10.2009 the complainant visited the hospital and the very opening words are Alleged h/o of (L) shoulder IM injection on 6.10.2009. Basing on the discrepancy regarding the date of giving injection to the complainant, PW.2 has stated that one day prior to 7.10.2009 the complainant said to have taken injection. The counsel for the appellant submitted that the complainant never visited the hospital of the opposite party.
In proof of his case, the complainant filed Ex.A2 prescription dt.06.10.2009 issued by Ravi Nursing Home. As seen from Ex.A2 prescription, Ravi Nursing Home is run by Dr.K.Ravichandra Reddy and Dr.Smt.K.Bhanu. The opposite party is described as Dr.K.Ravi Chandra Reddy. It is not the case of the opposite party that he has nothing to do with the said Ravi Nursing Home. Though the opposite party as RW.1 has stated in his evidence that Ex. A2 is a forged and fabricated document, nothing is suggested to PW.1, the complainant, during his cross examination, that Ex.A2 is a forged document. Admittedly, there is no prior enmity between the complainant and opp.party. It is not the case of both the parties that the complainant is frequent customer of the opposite party. If really the complainant did not consult the opposite party on 06.10.2009, in his hospital, there is no reason as to why the complainant target the opposite party no.1, to have unlawful gain, especially when there are several hospitals in Chittoor. That apart, Ex.A2 is a printed form. We do not think that the complainant would go to an extent of getting Ex.A2 printed for the purpose of implicating the opposite party in this case. Therefore, we are of the view that the District Forum rightly accepted Ex.A2 prescription issued by the opposite party, in favour of the complainant.
Taking advantage of some discrepancy regarding the date of visit of the opposite partys hospital by the complainant, in Ex.X1, the opposite party wanted us to believe that the complainant never visited his hospital. The District Forum at para 10 page 9 of its order discussed the discrepancy clearly and came to the conclusion that the complainant visited the hospital on 06.10.2009 and the opposite party gave an injection to the complainant on 06.10.2009. We find no grounds to deviate from the conclusion of the District Forum. In view of the above facts and circumstances, we are of the view that on 06.10.2009, the complainant went to the hospital of the opposite party and the opposite party treated the complainant and gave injection to the left hand of the complainant.
The next submission of the learned counsel for the appellant/opposite party is that the complainant is not a consumer within the meaning of the Consumer Protection Act, as there is no proof of payment of any consideration by the complainant to the opposite party. The District Forum has considered this aspect and what is the effect of situation where no amount has been paid to the doctor by the patient and observed as follows:
Now in this aspect, the decisions are to the effect that in case of hospitals where treatment is done free of cost to all the patients, those hospitals are not covered by the Act. However, if the hospital charged monies for some patients but does treatment free of cost to some patients, it is observed that even such cases though no consideration is paid, the very fact that doing of such free treatment is held to be for the common good of public, which will again generate goodwill and such goodwill again attracts business and it is held to be equally good consideration. In this connection, it will be appropriate to refer to the decision of Supreme Court in Indian Medical Association case (1995 CPJ 1 SC). In the above circumstances , this Forum is of the view that the contention of the opposite party on this point cannot be accepted and accordingly this point is answered in favour of the complainant.
We have also considered the evidence placed on record with reference to the question whether the complainant is a consumer within the meaning of the Consumer Protection Act and we do not find any grounds, to interfere with the above observations of the District Forum on this aspect. Therefore, we concur with the finding of the District Forum that the complainant is a consumer within the meaning of the Consumer Protection Act.
Now the question for determination is whether there is medical negligence on the part of the opposite party?
To disprove the contention of the complainant that there was medical negligence on the part of the opposite party, the opposite party is relying on the answer given by the complainant to a suggestion put to him during his cross examination.
The complainant as PW.1 during his cross-examination has stated it is true that I never visited the opposite party hospital and he never gave injection and the alleged medical negligence is not on the part of the opposite party. It is true that if the above statement of PW.1 is taken into consideration, there is no case for the complainant in this case. Instead of a stray sentence in the deposition, the whole deposition of the witness has to be taken into consideration. In this case, the first sentence in the cross examination of PW.1 is that he paid Rs.50/- as consultation fee at the desk of the clinic of the opposite party. In view of the said evidence of the complainant, the complainant would not have admitted that he had never been to the hospital of the opposite party. If whole evidence of PW.1 has taken into consideration, as opined by the District Forum, it must have been a mistake in not mentioning not in between the words is and true.
The District Forum therefore rightly observed that the opposite party cannot take advantage of the regrettable mistake committed by the District Forum at the time of recording the deposition.
The complainant examined Dr.Binu P.Thomas as PW.2. PW.2 is one of the team of doctors, who attended on the complainant at CMC Hospital. He produced Ex.X1, the photo copy of the case sheet maintained by the CMC Hospital regarding the treatment given to the complainant along with original and took back the original case sheet as the same may be required for further following up treatment . He categorically stated in his evidence that during the treatment, they have done nerve exploration surgery and neurolysis with tendon transfer for wrist trop and that according to their diagnosis, the injury was on account of damage to the nerve while administrating injection. He says that if a prudent doctor gives injection properly and takes minimum care, the radial nerve would not have got infected and as per their diagnosis, the injury to the radial nerve was due to improper giving of injection.
In a landmark judgement in Jacob Mathews vs. State of Punjab and another reported in (2005) 6 Supreme Court Cases page 1, the Honble Supreme Court observed that when a doctor shown to have done something, or failed to do an act, which ought to have done as a prudent doctor amounts to medical negligence.
The Honble Supreme Court has also observed that if the facts by themselves show the negligence on the part of the doctor, evidence of an expert may not be necessary and the Forum on the basis of the evidence can hold whether medical negligence is there or not. It is established by the complainant that he went to the hospital of the opposite party on 06.10.2009 and took treatment from the opposite party doctor and the opposite party gave injection to the left hand of the complainant. According to the evidence of PW.2, after giving the injection the needle has damaged the radial nerve of the left hand which resulted in causing semi-pleasia and after prolonged treatment, the complainant was recovered to some extent, but he was not totally recovered. As rightly observed by the District Forum, when a qualified doctor supposed to know where and how to give an injection, but still gives an injection at a wrong place, this itself nothing but negligent act. Once giving injection to the complainant is accepted, it is needless to say that it is being given at the wrong place, which amounts to negligence within the parameters of the guidelines provided by the Honble Supreme Court in Jacob Mathews case referred to above.
In view of the above facts and circumstances, the complainant established that the opposite party committed medical negligence in treating the complainant.
Now coming to the compensation, to which the complainant is entitled, the complainant has claimed damages of Rs.10 lakhs in addition to Rs.1 lakh towards medical expenses. PW.2 the doctor, who examined the complainant, in the open Forum, has stated that the complainant sustained 60% of disability, due to damage to the radial nerve of the left hand.
As seen from Ex.X1 the complainant took treatment in CMC hospital from 10.10.2009 and the treatment continued upto 30.06.2010. At page 17 of Ex.X1 , it was mentioned that the complainant got admitted again on 24.06.2010 and discharged on 30.06.2010. It appears that from 10.10.2009 to 10.04.2010 the complainant was visiting CMC hospital, Vellore and they have given treatment and finally on 10.04.2010, it was observed that the treatment so far given is not effective and require surgery and in furtherance of that recommendation, the complainant visited the hospital again on 05.05.2010, 24.05.2010 , 26.05.2010, 14.06.2010 and finally got admitted on 24.06.2010 for surgery and surgery was performed on 24.06.2010. As seen from Ex.A6 and A7, the complainant spent a sum of Rs.20,785-22 ps.
As rightly observed by the District Forum, the complainant must have taken number of trips to CMC Hospital at Vellore in Tamilnadu. Therefore, in our considered view, the District Forum has rightly granted Rs.50,000/- to the complainant towards incidental expenses of transportation and incidental stay and further amount of Rs.50,000/- was granted towards pain and suffering. The District Forum calculated the damages as per the norms under Motor Vehicles Act fixing the annual income of the complainant at Rs.36/- treating the complainant as an agricultural labour.
The complainant filed separate appeal F.A.No.37/2013 seeking enhancement of the compensation as prayed in the complaint. In this appeal the appellant/complainant filed Ex.A8 attested Xerox copy of Form of Certificate of Registration of Tractor and Trailor bearing AP-03/T 2922 and Ex.A9 attested Xerox copy of Pattadar Pass Book issued in the name of appellant/complainant as additional evidence. These two documents prove that the appellant/complainant is owning the lands and also owning the tractor. But the appellant/complainant did not adduce any evidence to show that during the period of his sickness the lands could not be cultivated and that the tractor was not used during that period for attending cultivation and nothing was realized from the lands during the relevant period. In the absence of such evidence, we are unable to enhance the compensation awarded by the District Forum. The District Forum has considered all the aspects and passed the impugned order awarding reasonable compensation For all the afore said facts and circumstances, we do not find any grounds, much less valid grounds, to interfere with the impugned order of the District Forum.
In the result, both the appeals F.A.No.37/2013 and F.A.No.672/2012 are dismissed. But in view of the facts and circumstances of the case, there shall be no order as to costs. The appellant/opposite party in F.A.No.672/2012 is directed to comply with the order of the District Forum within four weeks.
INCHARGE PRESIDENT MEMBER MEMBER Pm* Dt. 31.12.2013 Additional evidence filed before this Commission by the Appellant/complainant in F.A.No.37/2013:
Ex.A8: Attested Xerox copy of Form of Certificate of Registration of tractor-trailer no.AP-03/T-2922 Ex.A9: Attested Xerox copy of pattadar pass book .
INCHARGE PRESIDENT MEMBER MEMBER Pm* Dt. 31.12.2013