State Consumer Disputes Redressal Commission
Nirmal Singh S/O Balwant Singh vs Dr. Avtar Singh, D Ortho, Ms Ortho on 23 May, 2013
2nd Addl. Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1021 of 2008
Date of institution: 16.9.2008
Date of decision : 23.5.2013
Nirmal Singh s/o Balwant Singh r/o Village Bhathwala (Sukha), Tehsil and
District Gurdaspur.
.....Appellant
Versus
1. Dr. Avtar Singh, D Ortho, MS Ortho, Bone and Joint Specialist,
Amandeep Hospital, G.T. Road, Model Town, Amritsar.
2. Dr. Amandeep Kaur, Amandeep Hospital, G.T. Road, Model
Town, Amritsar.
3. United India Insurance Company Limited, BO283, East Mohan
Nagar, Amritsar.
.....Respondents
First Appeal against the order dated 2.7.2008
passed by the District Consumer Disputes
Redressal Forum, Amritsar.
Before:-
Shri Piare Lal Garg, Presiding Member
Shri Jasbir Singh Gill, Member Present:-
For the appellant : Ms. R.K.Manaise, Advocate
For respondents No.1&2 : Sh. Sandeep Khunger, Advocate
For respondent No.3 : Sh. Munish Goel, Advocate
PIARE LAL GARG, PRESIDING MEMBER
This is an appeal filed by the appellant/complainant-Nirmal Singh(hereinafter called 'the appellant') against the order dated 2.7.2008 of the District Consumer Disputes Redressal Forum, Amritsar(hereinafter called the 'District Forum') vide which the complaint of the appellant was dismissed by the District Forum.
2. Brief facts of the case are that the appellant suffered multiple injuries in an accident on 11.5.2005 and for the treatment of the injuries he remained admitted in Amandeep Hospital, Amritsar from 11.5.2005 to First Appeal No. 1021 of 2008 2 4.6.2005 where his left leg from upper end of thigh, joint knee and leg was operated by respondents No. 1 & 2. The appellant was assured by respondents No. 1 & 2 that he will be quite fit to work and walk within a week. Respondents No. 1 & 2 charged Rs. 2,02,643/- from the appellant as fee, boarding and lodging, medicines and for the tests. The operation was not successful and on 25.9.2005 the appellant again approached respondents No. 1 & 2 with a complaint of severe pain of his left knee. Respondents No. 1 & 2 again admitted the appellant and was again operated by respondents No. 1 & 2 on 27.9.2005. The appellant was discharged on 1.10.2005.
3. The appellant had further alleged that the 2nd operation of his knee was also not properly performed by respondents No. 1 & 2 and there was severe pain in the left knee of the appellant. The appellant approached many times to respondents No. 1 & 2, who assured that the pain of the knee will be vanished after sometime. But the pain in the left knee was remained intact and, as such, he was unable to work. The appellant got X-ray of his left knee from Arora Diagnostic Centre, Jail Road, Gurdaspur on 9.8.2006 and a fracture on the left knee joint was seen where the surgery was performed second time by respondents No. 1 & 2. The appellant alleged that inspite of two surgeries he did not recover and the severe pain was still in his left knee due to negligent operations of the left leg as well as left knee performed by respondents No. 1 & 2. It was also alleged by the appellant that a legal notice was served upon respondents No. 1 and 2 on 30.8.2006. The complaint was filed with the prayer that respondents No. 1 & 2 may be directed to pay Rs. 4,95,000/- with costs and interest to the appellant or any other relief which the Hon'ble Forum deem fit due to deficiency in treatment of respondents No. 1 & 2.
First Appeal No. 1021 of 2008 3
4. Upon notice, respondents No. 1 & 2 filed the reply by taking preliminary objections that the complaint was not maintainable, there was no negligence or deficiency in service or unfair trade practice on the part of the answering respondents, no negligence of the respondents disclosed in the complaint, there was no reason or basis for the grant of compensation, respondent No. 2 never treated the appellant. On merits, it was not denied that the appellant was admitted in Amandeep Hospital on 11.5.2005 with multiple injuries sustained in road side accident. After the accident the appellant was admitted in Civil Hospital, Gurdaspur where he was treated. After that he had taken the treatment from Uppal Neuro Hospital, Rani Ka Bagh, Amritsar and then he was referred to Amandeep Hospital. The appellant was operated upon on 11.5.2005, 13.5.2005 and 15.5.2005 by a team of experts, who are qualified, competent and experienced Surgeons.
5. The first surgery was performed on 11.5.2005 immediately as thumb bone of the appellant was lying outside the skin. So after preliminary wound, debridement, closed reduction of MCP for thumb and P.P. fore finger head were done with suture of FDS and FDP. The second surgery was conducted on 13.5.2005 and the appellant's open reduction and internal fixation of his hip fracture was done alongwith bone grafting. On 15.5.2005, operation of the appellant's left leg was performed, which was badly shattered into multiple pieces and was having poor skin over it due to injury. The fracture was not fit for platting due to poor skin condition, therefore, this injury was treated with best of the methods i.e. illizarov. Illizaro is a Russian method of treatment in which bone is not exposed and no incision is given over the fracture site. The illizaro treatment was given by Dr. Ajay Abrol. Ph.D. in Illizarov technique from Russia and having over 15 years experience to perform the surgery in one of the best set ups taking all due precautions. The appellant responded well to the surgery for humorous fracture, as such, he was discharged on 4.6.2005. First Appeal No. 1021 of 2008 4
6. Later during follow up it was found that Tibial fracture was going into delayed union, therefore, the appellant was readmitted on 25.9.2005 for bone grafting and after the bone grafting the appellant was discharged uneventfully and his fractures were fully healed. It was further pleaded that the appellant suffered fractures in many parts of his body i.e. head injury, hand injury, shoulder fracture, hip fracture, pelvic fracture and leg fracture and it was not possible for such injured person to walk in seven days after the discharge from the hospital. All bones of the appellant were united due to sincere efforts of the answering respondents as well as the competent doctors, who also helped the answering respondents during the operations/treatment of the appellant. No assurance was given by the answering respondents to the appellant that he will be quite fit to work and walk within a week. It was also denied that the appellant paid Rs. 2,02,643/- for his treatment. In fact the appellant paid Rs. 72,750/- for his treatment from 11.5.2005 to 4.6.2005 and Rs. 9925/- for the period of his treatment from 25.9.2005 to 1.10.2005. The other allegations of the appellant were denied as incorrect and dismissal of the complaint was prayed.
7. Respondent No. 3 was impleaded vide interim order dated 1.8.2007 as Amandeep Hospital was insured with respondent No. 3. Upon notice, reply was filed by taking preliminary objections that the appellant has no cause of action, no privity of contract between the appellant and answering respondent, the District Forum had no jurisdiction to fix the liability upon the answering respondent and no claim was also submitted by respondents No. 1 & 2 with the answering respondents. On merits, the averments of the complaint were denied for want of knowledge and dismissal of the complaint was prayed.
8. The District Forum after hearing the counsel for the parties and going through the record, dismissed the complaint of the appellant. First Appeal No. 1021 of 2008 5
9. Aggrieved from the order of the District Forum, the present appeal was filed by the appellant on the grounds that the District Forum has gravely erred in holding that the appellant has not specifically pointed out even a single act of deficiency in service on the part of treating doctors, the order of the District Forum is vague and the contentions of the appellant have been very conveniently over looked, which has caused a mis-carriage of justice, the District Forum has not applied judicious mind while passing the impugned order under appeal.
10. We have gone through the pleadings of the parties, grounds of appeal, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties.
11. It is admitted case of the parties that the appellant was admitted in the hospital of respondents No. 1 & 2 due to multiple injuries, which was suffered in a road side accident on 11.5.2005. There is also no dispute that the left leg, knee as well as thigh of the left leg was badly crushed. The appellant was operated upon by respondents No. 1 & 2 with the help of Dr. Ajay Abrol, Ph.D. in Illizaro technique from Russia having 15 years experience in the said field.
12. No allegation is levelled by the appellant in the complaint regarding the ability and qualifications of respondents No. 1 & 2. There is also no pleading in the complaint regarding the deficiency in the treatment of respondents No. 1 & 2. The appellant has also not tendered into evidence any expert opinion to prove that respondents No. 1 & 2 were negligent in conducting operations of the left leg as well as left knee and treatment for the same.
13. In the grounds of appeal, it is alleged by the appellant that when the appellant had not got the relief of severe pain of his left knee then he approached Dr. Karam Singh Memorial Orthopaedic Hospital Amritsar for treatment on 22.8.2007 where he was admitted and his left First Appeal No. 1021 of 2008 6 knee was again operated by the Doctor of abovesaid hospital. The appellant was discharged on 28.8.2007 from the above hospital and as per the summary of discharge card, it was clearly mentioned that the patient - appellant is unable to bend his knee properly and is unable to work properly. Further, there is no discharge of pus from sinus below knee left side and has been treated for fracture at Amandeep Hospital. These facts were argued at length before the District Forum but the District Forum failed to give a thoughtful consideration to the same.
14. We have perused the discharge card Annexure A-6 annexed with the appeal but it is nowhere mentioned in the said discharge card that there was any negligence in the treatment or operations, which were conducted by respondents No. 1 & 2 upon the left knee of the appellant.
15. The version of respondent No. 1 is that the leg bone of the appellant was badly shattered into multiple pieces and had poor skin over it due to injury. The fracture was not fit for plating due to poor skin condition, as such, the injury was treated with best of the methods i.e. illizarov which is a Russian method of treatment in which bone is not exposed and no incision is given over the fracture side. The surgery was performed with the help of Dr. Ajay Abrol, Ph.D. in Illizarov technique from Russia and had experience of over 15 years, by taking all the precautions and the appellant had responded well to the surgery for humorous fracture. On the other hand, there is neither any allegation nor any evidence to back up this wide claim. There is also no allegation against respondent No. 1 regarding not taking the pre and post-operative measures which needs to be taken by respondent No. 1.
16. It has been observed in "Jacob Mathew v. State of Punjab & Anr.", (2005) 6 SCC 1 as under:-
"(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and First Appeal No. 1021 of 2008 7 reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds goods. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: "duty", "breach"
and "resulting damage".
(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chose to follow or resort to that practice or procedure which the accused followed."
17. It was also held by Hon'ble Supreme Court in case "Kusum Sharma Vs. Batra Hospital & Medical Research Centre", 2010 AIR (SC) 1050 as under:-
"81. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals."
18. Regarding the negligence of the doctors, the following principle was also laid down by the Hon'ble Supreme Court of India in case "V. Kishan Rao - Appellant Versus Nikhil Super Speciality Hospital & Another - Respondents", 2010(2) R.C.R.(Civil) 929 in para 18 as follows:-
"A Doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular are"(See page 122 placitum 'B' of the report)."
19. In view of the above discussion, it is clear that the appellant failed to prove any negligence on the part of respondents No. 1 & 2. The First Appeal No. 1021 of 2008 8 order passed by the learned District Forum is legal, valid and speaking one and there is no ground to interfere with the same. The appeal being without any merit is dismissed and the impugned order of the District Forum is affirmed and upheld. No order as to costs.
20. The arguments in this appeal were heard on 15.5.2013 and the order was reserved. Now the order be communicated to the parties.
21. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Piare Lal Garg)
Presiding Member
May 23, 2013. (Jasbir Singh Gill)
as Member