State Consumer Disputes Redressal Commission
Dr. Anita Bhushan, Mbbs vs Sumita Sharma on 12 October, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.3031 and 3098 of 2004 Date of Institution: 17.11.2004 & 28.11.2004 Date of Decision: 12.10.2010 Appeal No.3031 of 2004 Dr. Anita Bhushan, MBBS w/o Dr. D.K. Bhushan, Clinic/Hospital at Mahesh Nagar, Ambala. Appellant (OP) Versus Sumita Sharma w/o Sh. Sandeep Sharma, R/o H.No.11-A, Shiv Partap Nagar, Mahesh Nagar, Ambala Cantt. ---Respondent (Complainant) Appeal No.3098 of 2004 Sumita Sharma w/o Sh. Sandeep Sharma, R/o H.No.11-A, Shiv Partap Nagar, Mahesh Nagar, Ambala Cantt. Appellant (Complainant) Versus Dr. Anita Bhushan, MBBS w/o Dr. D.K. Bhushan, Clinic/Hospital at Mahesh Nagar, Ambala. ---Respondent (OP) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. Diwan Singh Chauhan, Member. For the Parties: Mr. S.S. Behl, Advocate for Dr. Anita Bhushan (OP) Mr. R.D. Bedi, Advocate for Sumita Sharma (Complainant) O R D E R
Justice R.S. Madan, President:
These two appeals have arisen out of the order dated 11.10.2004 passed by the District Consumer Forum, Ambala whereby complaint No.79 of 2000 filed by Sumita Sharma (Complainant) filed against the opposite party Dr. Anita Bhushan, for medical negligence and deficiency service has been accepted by granting following relief:-
we are fully convinced that there was a breach of duty on the part of the Doctor respondent and the breach of duty from the part of respondent-Doctor was the real cause of damages complained of and as such damages was reasonably forcible and in this light, case of negligence is made out by the complainant against the respondent and accordingly the complaint is allowed. However, the complainant claimed damages to the tune of Rs.1,50,000/- and other expenses, which seems to be on the higher side. So, we allow the damages to the tune of Rs.50,000/- and Rs.9000/- spent by the complainant on the medicines etc and the opposite party is directed to comply with the following directions within 30 days from the receipt of this order:-
i) To pay Rs.50,000/- towards damages on account of mental agony, physical sufferings etc.
ii) To pay Rs.9000/- on account of charges of medicines
iii) Rs.1000/- as costs of the proceedings;
iv) In case the opposite party failed to pay the aforesaid damages and costs etc. within 30 days, from the receipt of this order, the opposite party shall be liable to pay interest @ 6% p.a. on the aforesaid amount till its payment.
The grievance of the respondent-complainant before the District Consumer Forum was that on 21.09.1999 she got installed a Copper-T from the appellant-opposite party to avoid further pregnancy. However, the complainant conceived a child and when she visited the opposite party on 28.01.2000 for examination, she was told that a male child was in the womb and the complainant was advised for removal of the Copper-T. The complainant gave her consent and when the opposite party was removing the Copper-T, the threat broken due to the negligence of the opposite party due to which the Copper-T entered above the internal part of uterus. According to the complainant the opposite party advised to the complainant for abortion of the child for removal of the Copper-T as the same had entered in the upper portion of the uterus, failing which there was great risk to the life of the complainant. Ultimately, the opposite party aborted the pregnancy of the complainant but still the Copper-T could not be removed. Thereafter, the complainant was referred to Dr. Ajay Madan at Ambala City for removal of the Copper-T by way of operation. Ultimately, the complainant was operated upon by Dr. Ajay Madan and the Copper-T was removed. It was further pleaded by the complainant that lateron she came to know from other medical-practitioners that there was no need for abortion for removal of the Copper-T and thus attributed medical negligence and deficiency of service against the opposite party for the aforesaid treatment. Thus, the complainant sought compensation from the opposite party.
Upon notice, the opposite party appeared and contested the complaint. In the written statement, it was admitted that the complainant had conceived after using Copper-T. However, took the plea that the complainant was advised to keep the child and was assured that there would be no problem but the complainant herself had wanted abortion of the child as she was not willing to give birth to a child. The opposite party further took the plea that the complainant was referred to Dr. Madan for Ultrasound to ascertain the exact location of the Copper-T. It was further pleaded that the MTP was done on the insistence of the complainant and the operation was done without charging any money from the complainant. Thus, denying any kind of medical negligence and deficiency of service, the opposite party prayed for dismissal of the complaint.
Both the parties led evidence in support of their respective claims. On appraisal of the pleadings of the parties and evidence brought on record, the District Consumer Forum accepted the complaint by granting relief as noticed in the opening para of this order.
Aggrieved against the order of the District Consumer Forum, the opposite party has filed appeal No.3031/2004 for setting aside the impugned order and the complainant has filed appeal No.3098/2004 for enhancement of the compensation.
We have heard learned counsel for the parties and perused the case file.
It is contended by the learned counsel for the opposite party-Dr.Anita Bhushan that no doubt the complainant had conceived after installation of Copper-T by the opposite party however when the complainant had visited the opposite party, she was advised to keep the pregnancy as there was a male child in the womb, but the complainant herself wanted to get aborted her child as she was willing in spacing of children and on her insistence MTP was done.
We do not subscribe to the contention raised on behalf of the appellant-opposite party. Undisputedly, the complainant had given birth to a female child on 15.08.1999. It is also admitted that Copper-T was got inserted by the complainant from the opposite party and inspite of Copper-T, she conceived. It is also admitted that at the time of examination by the opposite party on 28.1.2000 the pregnancy was of four months and it was a male child. Thus the plea taken by the opposite party that the complainant herself wanted to get the child aborted is proved falsified in view of the admission of the parties. It is a matter of common knowledge that in the Indian Society a lady who is having only a female issue, would not allow to abort a male child.
More so, it is admitted case of the opposite party that despite of installation of Copper-T, the complainant had conceived a child. Thus, the medical negligence and deficiency of service fully stands proved on record against the opposite party. The plea of the opposite party that the operation was conducted without any charges, does not absolve the liability of the opposite party to compensate the complainant for the negligence committed by her.
In view of the facts and circumstances of the case and the evidence produced on record, it is a well proved case of medical negligence and deficiency of service against the opposite party and as such the opposite party has rightly been held negligent and deficient in treating the complainant.
While dealing with the appeal of the complainant for enhancement of compensation, in our view the complainant has been awarded adequate compensation and no case for further compensation to the complainant has been made out.
As a sequel to our aforesaid discussions, we hardly find any ground to interfere with the impugned order passed by the District Consumer Forum. Hence, both the appeals i.e. appeal No.3031/2004 for setting aside the impugned order and appeal No.3098/2004 for enhancement of compensation are dismissed.
The original order be attached with appeal No.3031/2004 and certified copy of the order be attached with appeal No.3098/2004.
The statutory amount of Rs.25,000/- deposited at the time of filing appeal No.3031/2004 be refunded to the appellant-opposite party against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: (Justice R.S. Madan) 12.10.2010 President (Diwan Singh Chauhan) Member