State Consumer Disputes Redressal Commission
Dr Arun S Agrawal vs Mahadeo N Shirsat on 28 February, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/425/2009 (Arisen out of Order Dated in Case No. of District State Commission) 1. DR ARUN S AGRAWAL AKOLA ...........Appellant(s) Versus 1. MAHADEO N SHIRSAT AKOLA ...........Respondent(s) First Appeal No. A/621/2009 (Arisen out of Order Dated in Case No. of District State Commission) 1. UNITED INDIA INSURANCE CO.LTD NAGPUR ...........Appellant(s) Versus 1. MAHADEO N SHIRSAT AKOLA ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MR. S B SAWARKAR MEMBER For the Appellant: Advocate Mr Goenka for Dr.Arun Agrawal For the Respondent: Advocate Mr Shouche for United India Insurance Co.Ltd. Advocate Mr S M Kasture for Mahadeo N Shirsat Dated : 28 Feb 2017 Final Order / Judgement Per Mr B A Shaikh, Hon'ble Presiding Member
1. These appeals bearing Nos.A/425/2009 & A/621/2009 are filed respectively by the original opposite party Nos.1 & 2 - Insurance Company against the same order dtd.30.04.2009, passed by District Consumer Forum, Akola in consumer complaint No.64/2005, by which the said complaint has been partly allowed.
2. The case of the original complainant as set out by him in the consumer complaint filed before the Forum in brief is as under.
a. The complainant Mahadeo N Shirsat, aged about 55 years, is a Police Patil. He resides at Village Lakhonda and he is also a farmer. On 28.02.2003 he was suffering from cold, cough & temperature and therefore, he approached opposite party N.1 Dr. Arun S Agrawal for treatment on 01.03.2003. The opposite party No.1 examined the complainant and advised him for taking saline & injection. The complainant was financially weak and therefore, he told the complainant to administer him injection only. Accordingly, the opposite party No.1 administered one injection into his left hand. The complainant felt severe pain in his left hand at that time. Soon thereafter, the left hand of the complainant became paralysed. Therefore, the opposite party No.1 referred the complainant to Dr Pawade, Physiotherapist. The complainant went to Dr Pawade as per advice of opposite party No.1 from time to time for a period of three weeks and took the physiotherapy treatment. However, there was no improvement in the paralysed left hand of the complainant. The complainant also paid visit to opposite party No.1 from time to time during that period, who had assured that period, who had assured the complainant that he will get relief soon. The complainant had paid fees of Rs.200/- to opposite party No.1 and he had also consumed medicines prescribed by opposite party No.1. But he got no relief.
b. Thereafter, the complainant approached Dr Monika Malokar of Akola, who referred the complainant to Mumbai for ENG & NCD test. The brother of the complainant took him to Wokhardt Brain & Spine Hospital at Mulund, Mumbai. Dr Rajdeep Jain examined the complainant. Dr. Rajdeep Jain opined that the left hand of the complainant has been paralysed administering injection wrongly into his left hand.
c. The complainant then approached JJ Hospital of Mumbai on 05.05.2003, where he was advised for plastic surgery. But it was also said that even after plastic surgery there is no guarantee of recovery of his left hand.
d. Thereafter the complainant contacted Dr Minakshi Jalgaonkar of Mumbai on 06.05.2003, who provided Ayurvedic treatment to the complainant by charging Rs.68,000/-, Rs.42,500/-, Rs.30,500/- and Rs.10,000/-. However, the complainant got no relief. His treatment is still going on.
e. The complainant lodged complaint with the Police on 29.05.2003 against opposite party No.1. Police did not take cognizance of his complaint. Therefore, the complainant issued notice through his advocate on 11.11.2004 to the opposite party No.1. But he did not give positive response to that notice. The opposite party No.1 had taken insurance policy from opposite party No.2 as to cover the risk of patient of his hospital. Therefore, the consumer complaint was filed before the Forum by the complainant against opposite party Nos.1 & 2 claiming from them compensation of Rs.20.00 Lacs.
3. The opposite party Nos.1 & 2 appeared before the Forum and filed their separate reply and resisted the complaint.
4. The opposite party No.1 admitted that the complainant had come to his hospital complaining cough & temperature and therefore, he had administered injection into the left hand of the complainant. He denied that due to that reason the left hand of the complainant was paralysed. He admitted that he has taken the policy from opposite party No.2 Insurance Company to indemnify him to the extent of Rs.3.00 Lacs in such case. He denied the expenses incurred by the complainant for treatment as claimed in the complaint. He admitted that he had received Rs.30/- from the complainant. He denied that Dr. Rajdeep Jain opined on examination of the complaint that due to administration of injection wrongly into the left hand of the complainant, it has been paralysed. He denied the treatment taken at Mumbai, by complainant. He also denied the quantum of compensation claimed by the complainant.
The case of opposite party No.1 in brief is that though he wanted to administer injection in the thigh of the complainant, he refused and offered his left hand for taking injection and therefore, opposite party No.1 administered injection into his left hand. According to the opposite party No.1, he had taken every precaution while administering the injection. The complainant had told him that he was feeling some weakness in his left hand after the said injection was given. Therefore, he referred the complainant to Dr. Pawade for physiotherapy treatment. However, thereafter the complainant did not take properly physiotherapy treatment as advised. He did not meet opposite party No.1 subsequent to referring him to Dr Pawade. The papers of treatment of other doctors also produced by the complainant also show that there is only some weakness in the left hand of the complainant. Dr. Rajdeep Jain gave only history about paralysing of left hand of the complainant due to injection given to him by the opposite party No.1. The complainant himself is responsible for not taking physiotherapy treatment regularly, which caused weakness in his left hand. Therefore, it was prayed by opposite party No.1 that the complaint may be dismissed.
5. The opposite party No.2 in its reply denied the entire case of the complainant and submitted that as per the policy obtained by opposite party No.1 from it, it is a professional indemnity insurance policy and sum assured under it is of Rs.3.00 Lacs only and it is thus liable to indemnify the opposite party No.1 up to Rs.3.00 Lacs only as per terms & conditions of the policy. It therefore, submitted that the complaint may be dismissed.
6. The Forum below then heard both the parties and considered the evidence brought on record and then passed the impugned order. The Forum observed in the impugned order that Dr. Malokar, Dr. Shah of J J Hospital, Dr. R Jain of Wokhardt Hospital and Dr. Minakshi Jalgaonkar on examination of the complainant drew a same conclusion that the complainant is suffering from Radial Palsy i.e. Radial Nerve of his left hand has been damaged and due to that reason his left hand has suffered paralysis and his wrist has been dropped. The Forum below also came to the conclusion that due to injection administered into the left hand of the complainant by opposite party No.1, radial nerve of left hand of complainant was damaged and therefore his left hand was paralysed. The Forum below concluded that opposite party No.1 is guilty of medical negligence. Therefore, the Forum below assessed the compensation of Rs.5.00 Lacs payable to the complainant. The Forum below directed the opposite party No.1 to pay compensation of Rs.2.00 Lacs to the complainant out of Rs.5.00 Lacs. The Forum also directed opposite party No.2 - Insurance Company to pay complainant remaining amount of Rs.3.00 Lacs. The Forum below also directed that the said order be complied with by opposite party Nos.1 & 2 on or before 30.06.2009 and in case of default; the said amount will carry interest @ 12% p.a. with effect from 01.07.2009 till its realisation by the complainant.
7. Feeling aggrieved by that order these appeals are thus filed by opposite party Nos.1 & 2. We have heard the learned advocates of both parties and considered the evidence brought on record as placed before us in both the appeals.
8. The learned advocate of the appellant submitted that there is no proof of medical negligence on the part of opposite party No.1 and that the original complainant has suppressed his actual age which was more than 61 years at the time of filing of the complaint and that there was also contributory negligence on the part of the complainant and compensation awarded is too much. He also submitted that though the permanent disability certificate produced by the complainant shows only 45% permanent disability, the compensation awarded is excessive. He also submitted that the Forum has not properly considered the evidence brought on record to reach correct conclusion. He therefore, requested that the impugned order may be set aside. He relied on the observations made in the following cases in support of his submission.
i. Dr Rasik M Shah Vs. Dr A R Kalra, 2009(2) ALL MR (Journal) 42.
It is observed in that case that it is for the complainant to establish how the respondent doctor is guilty of medical negligence. Simply because his suggestion was turned down, it is no ground to allege deficiency in service on the part of the respondent doctor.
ii. Martin F D'souza Vs. Mohd. Ishfaq, I(2009) CPJ 32 (SC).
It is observed by the Hon'ble Supreme Court in that case that medical practitioner is not liable for negligence, simply because things went wrong from mischance / misadventure through error of judgement. Medical practitioner would be liable only where his conduct fell below that of standards of reasonably competent practitioner in his field. Standard of care has to be judged in the light of knowledge available at time of incident and not at date of trial.
Ins. Malhotra ( Ms) Vs. A Kriplani ( Dr) & Ors., 2009 (5) Mh.L.J. 17.
It is observed by the Hon'ble Supreme Court in that case that a simple lack of care, an error of judgement or an accident, is not proof of negligence on the part of a medical professional.
Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 Supreme Court Cases 343.
It is held by the Hon'ble Supreme Court in that case that in disability certificate extent of disability of limb (or part of the body) cannot be assumed to be extent of disability of whole body. Tribunal should not mechanically apply percentage of permanent physical disability as percentage of economic loss or loss of earning capacity, but must assess functional disability.
v. Sachin Kashinat Harle Vs. Prashant Babarao Nagpure & Ors., 2014(5) ALL MR 234.
In that case, it is held that claimant must adduce specific evidence and show how disability suffered by him, as affected his present and may be even future earning capacity.
vi. Kumari Femy & Ors. Vs. Kavitha V K ( Dr) & Ors., I(2013) CPJ 34 (NC).
The Hon'ble National Commission held in that case that quantum of compensation has to commensurate with loss or injury suffered. It cannot be arbitrary, imaginary or remote to the cause.
vii. New India Assurance Co Ltd., Vs. Charlie & Anr., AIR 2005 Supreme Court 2157.
It is observed by the Hon'ble Supreme Court in that case that normal rule about deprivation of income is directly not applicable to cases where agricultural income is source of deceased's or injured's income. In that case other circumstances have to be considered.
viii. State of Haryana & Anr. Vs. Jasbir Kaur & Ors., AIR 2003 Supreme Court 3696 The Hon'ble Supreme Court in that case observed that normal rule about deprivation of income is not strictly applicable to cases where agricultural income is source.
ix. United India Insurance Co Ltd. Vs. G Rajeshwar & Anr., IV(2009) ACC 368.
In that case it is held that in case agricultural income is source, normal rule about deprivation of income not strictly applicable, for assessment of compensation.
New India Assurance Co Ltd. Vs. Yogesh Devi & Ors., AIR 2012 Supreme Court 945.
The Hon'ble Supreme Court in that case observed that income derived by deceased from plying buses cannot be made basis for determining of compensation. Loss of dependency would only be extent of amount required to be paid to manager to manage bus business and driver to drive in place of deceased.
New India Assurance Co Ltd. Vs. Bhudhiya Devi & Ors., 2009 DGLS (Soft.) 1520.
The Hon'ble Supreme Court in that case observed that the rate of interest at 12% per annum as awarded by the High Court, in our opinion being on the higher side. We, in modification of the said order, direct that the rate of interest payable shall be at the rate of 9% per annum.
9. The learned advocate of opposite party No.2 also submitted that the Forum has not properly assessed the compensation. He supported the aforesaid averments of learned advocate of opposite party No.1 and he submitted that the impugned order may be set aside.
10. It is not disputed that as soon as opposite party No.1 Dr. Arun Agrawal administered injection into left hand of the complainant, the complainant suffered severe pain in said left hand and his left hand had become weak and therefore, opposite party No.1 referred the complainant to Dr Pawade for physiotherapy treatment. The letter dated 01.03.2003 issued by opposite party itself shows that after opposite party pricked injection into left hand of complainant it caused weakness in left Radial Nerve of complainant and hence opposite party referred complainant to Dr. N H Pawade. This fact itself indicates that the left hand of the complainant was severely injured due to administration of injection into his left hand by opposite party No.1. Moreover, it is also seen from the papers of treatment taken by the complainant from Dr Monika Malokar, Dr. Shah from JJ Hospital and Dr. Rajdeep Jain of Wokhardt Hospital and Dr. Minakshi Jalgaonkar that the left hand of the complainant was completely paralysed. Dr. Rajdeep Jain on examination of the complainant also gave a specific opinion about severe left radial nerve neuropathy (Axonal) and it is due to injection palsy. This consistent opinion given by aforesaid five doctors proves that due to injection administered into left hand of the complainant by opposite party No.1 his left hand was completely paralysed, as it damaged radial nerve of that hand, which per-se prove that opposite party is guilty of medical negligence.
11. Moreover, admittedly, the complainant suffered 45% of permanent disability due to paralyse of his left hand. The opposite party No.1 had tired to show that the complainant himself is responsible for the said disability as he did not undergo requisite physiotherapy treatment after he was referred to Dr Pawade. We find that the complainant had undergone the said physiotherapy as per advice of Dr. Pawade. Moreover, he had approached to aforesaid five doctors besides opposite party No.1 for treatment and he incurred heavy expenses for the same. Hence, it cannot be presumed in the absence of any evidence in rebuttal that the complainant did not undergo physiotherapy treatment and he is guilty of contributory negligence. Thus, we are of the considered view that the Forum has considered properly and correctly the evidence brought on record and reached to the correct conclusion that opposite party No.1 is guilty of medical negligence by improper administration of the injection to the left hand of the complainant and thereby caused damage to the nerve of his left hand resulting into complete paralysis to his left hand and causing 45% permanent disability to him. Therefore, the Forum has rightly held that the opposite party No.1 is liable to pay compensation to the complainant. The opposite party No.2 is liable to indemnify the opposite party No.1 to the extent of Rs.3.00 Lacs as assured under policy purchased by opposite party No.1 from opposite party No.2.
12. We also find that the compensation of Rs.5.00 Lacs assessed by the Forum is just & proper, considering the medical negligence as above and permanent disability suffered by the complainant due to aforesaid negligence on the part of opposite party No.1. The aforesaid decisions relied on by the learned advocate of opposite party No.1 are not applicable to the facts & circumstances of the present case as they are totally different from those of the present case. We find no merits in both the appeals and the appeals deserve to be dismissed.
ORDER i. Both the appeal baring Nos.A/425/2009 & A/621/2009 are hereby dismissed.
ii. No order as to costs in these two appeals. iii. Copy of the order be furnished to both parties free of cost. [HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MR. S B SAWARKAR] MEMBER