State Consumer Disputes Redressal Commission
Kundan Lal Sahu vs Dr. Ramjivan Choubey & Anr. on 11 September, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/476
Instituted on : 07.06.2017
Kundanlal Sahu, Aged 32 years,
S/o Shri Laxminarayan Sahu,
R/o : House No.474, Street No.3,
New Shankar Nagar,
Durg, District Durg (C.G.) .... Appellant (Complainant)
Vs.
1. Dr. Ramjivan Choubey, Aged about 70 years,
Gayatri Hospital, Om Parishar,
Dhamdha Road,
Durg (C.G.) .. Respondent No.1 (O.P. No.1)
2. Manager, Gayatri Hospital,
Run by Gayatri Institute of Medical Science and Research
Centre Pvt. Ltd., Om Parishar, Dhamdha Road,
Durg (C.G.) .... Respondent No.2 (O.P. No.2)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri R.K. Agrawal, Advocate for the appellant (complainant) with
appellant (complainant).
Shri Sudhir Tiwari, Advocate for the respondent No.1 (O.P. No.1) with the
respondent No.1 (O.P. No.1).
None for the respondent No.2 (O.P. No.2).
ORDER
DATED : 11 /September/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 01.05.2017, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum") in Complaint Case No.C.C./2016/620. By the impugned order, learned District Forum, has dismissed the complaint of the // 2 // complainant and also imposed cost of Rs.3,00,000/- on the complainant and directed to pay the above amount to the OPs within a period of a week from the date of order.
2. Briefly stated, the facts of the complaint of the complainant are that on 19.10.2015 the complainant was having acute pain in his abdomen, therefore, he had taken advice for treatment from Dr. Ramjivan Choubey of Gayatri Hospital. After conducting primary test, Dr. Ramjivan Choubey informed to the complainant that he is having appendicitis and after undergoing operation, he will become alright. Following the advice of Dr. Ramjivan Choubey, the complainant became ready to undergo operation and on 20.10.2015 he got admitted in Gayatri Hospital. In the primary test, test of blood, sugar test, B.P., Urine test were done and on 20.10.2015, the complainant's Appendicitis operation was conducted from 3 PM to 6 PM. After operation, the complainant became conscious at about 9.30 PM, then he found himself in the General Ward. At the place of operation large thick bandage was tied. The abdomen of the complainant was swelling and the abdomen became hard and there is possibility of bursting of abdomen. In the night the nurse of the ward was called by the complainant 3-4 times, who checked the complainant even then the complainant did not get relief. The pipe which was inserted in the penis was removed by saying that the complainant did not get relief because the urine is not passing. The swelling in abdomen and pain did not decrease. On 21.10.2015 when the bandage was removed, then the liquid material was oozing out. The // 3 // complainant did not understand it. The complainant asked the nurse regarding the same but she did not tell anything. When Dr. Choubey came, then the complainant told him regarding his problem which he suffered during night and complained that he had no relief. Dr. Choubey told the complainant that the operation was done yesterday and in operation such thing is happened and do not worry and within some days it will alright. Dr. Choubey also told that after taking medicines for 1-2 days, everything would be alright. On 21,22 and 23.10.2010 the complainant made complaint that he is having pain at the place of operation and his abdomen is swelling, but Dr. Choubey told that after completion of course of medicine, everything would be alright but he did not properly treat the complainant. On 19.10.2015 in the night the complainant was advised to take liquid diet. On 21.10.2015 and 22.10.2015, the complainant was not provided anything and the complainant was on I V bottle, thereafter on 23.10.2015, it was told that complainant be given light liquid substance i.e tea, biscuit, liquid khichdi and the complainant followed the same. The family member of the complainant prepared liquid khichdi and gave the same to the complainant. The complainant had also taken the medicines in time, which was prescribed. On 24.10.2015, when Dr. Choubey came, he opened dressing for replacing dress, then smell was coming from the place of stitching. The complainant made complaint regarding the same to DR. Choubey, but he ignored the same and he told that your discharge certificate is preparing. He told to go house and in some days everything would be alright and tell your farther to deposit the // 4 // bill of hospital and to come to hospital everyday for dressing. The complainant was discharged very hurriedly. When the complainant asked that why he is being discharged, then the nurse informed that at the place of stitching at the abdomen, the excreta was flowing due to which smell was coming out, therefore, you are discharging hurriedly, you can go to Sector 9 hospital from here, where your treatment would be done properly. The complainant was shocked. The complainant was discharged at about 1 P.M. All procedure was completed at 4.30 P.M and he came outside the hospital. The complainant paid bill of Rs.21,300/- for treatment and paid Rs.6,000/- towards bills of medicine. Thus, the complainant paid total amount of Rs.27,300/-. After discharge from the O.P. Hospital on 24.10.2015, the family members of the complainant directly taken him to Sector 9 Hospital, Bhilai for treatment. On 24.10.2015 at about 6 P.M. , the complainant was got admitted in emergency ward of the hospital where the doctor conducted primary examination and after looking the condition of the patient informed that his condition is critical and he is required to be admitted in I.C.U., but in the I.C.U. place was not available therefore, the complainant was advised to go to another hospital. If the complainant is not got admitted in the I.C.U., the danger to his life would be increased, then other family members of the complainant went to other hospital. After two hours, the doctor of Sector 9, Bhilai obtained written consent of father of the complainant to the effect that "the condition of the patient is such to keep in I.C.U. and I voluntarily want to keep the patient in General Ward, in the meantime the condition of the patient is deteriorated, the we // 5 // shall be responsible". After obtaining written consent, the complainant was admitted in the ward where he was kept in Semi ICU and his treatment was started. The treatment of the complainant was done in Sector 9 Hospital, Bhilai from 24.10.2015 to 09.11.2015 and after becoming fit, he was discharged from the hospital. Thus complainant spent a sum of Rs.1,48,000/- in his entire treatment in both the hospitals, besides it, he spent a sum of Rs.25,000/- in medicines. Thus, the complainant spent total amount of Rs.1,73,000/- in his treatment. Hence the complainant filed instant consumer complaint and prayed for granting reliefs as mentioned in the complaint.
3. The OPs have filed their written statement and denied the allegations made by the complainant against them. The complainant was got admitted in the O.P. No.2 hospital for operation and the O.P. No.1 obtained full consent of the complainant and thereafter conducted operation taking precautions. Prior to conducting operation, instruction was given to the complainant and his family members not to commit any negligence and after operation to take medicines in time. During admission of the complainant in the O.P. No.2 hospital, his proper care was taken, medicines were given in time, and dressing was done. After conducting necessary test, operation was conducted and thereafter everyday till 24.10.2015 in morning and evening, treatment, as required was done by the O.P. No.1. After operation, with consent of the family members of the complainant, the complainant was shifted to the general ward. Prior to // 6 // operation, the complainant was admitted in general ward. Even after operation, there is possibility of minor complication in the operation of the intestine due to weakness. In the abdomen of the complainant, a thick bandage was inserted so that wasted liquid shall not be collected inside the abdomen and the same be drained out through drain and dry it in bandage. In such operation, swelling in abdomen and pain is normal process, regarding which the O.P. No.1 gave information to the complainant earlier. The O.P. No.1 clearly informed the complainant that after operation, infection is occurred and such infection is occurred which is normal process and its treatment was being done at that time. The information regarding the above fact was given by the O.P. No.1 to the relatives of the complainant. The O.P. told that after taking medicines for some days, after taking proper care and taking precautions, the complainant would become alright. After conducting operation, the O.P. No.1 properly treated the complainant and discharged him with advice to take water from time to time, do dressing, take medicines. During admission of the complainant in the O.P. No.2 hospital, proper treatment was given by the OPs to the complainant and proper care was taken. The OPs did not commit any deficiency in service. On 19.10.2015, the complainant was directed to take meal, but the family members of the complainant did not follow the instruction of the doctor. The O.P. No.1 informed the complainant that the process of change of colour and smell of liquid coming out is sometime occurred and it is not a general process. After satisfaction of the complainant, he was discharged from the hospital, // 7 // at that time he did not raise any objection and also did not make any oral or written complaint. The nurse of the hospital did not advice the complainant to go to Sector 9 Hospital. If the complainant was having any problem, then he would have made complaint to the OPs. The complainant mentioned that at 1 AM he had been discharged, but till 3.30 PM, the complainant did not make any complaint to the OPs. The complainant did not file any document from which it is clear that the Sector 9 Hospital sent any report against the treatment given by the OPs, from which it can be held that the OPs committed deficiency in service. The complainant has filed false complaint against the OPs with intention to extract the money, due to which the goodwill of the OPs have been adversely affected. The complainant averred in the complaint that he had taken treatment in Sector 9 Hospital, but he did not implead doctors of the above hospital and also did not file any report of All India Medical Council from which it is cleared that due to act of the OPs, the complainant suffered any loss. The O.P. No.2 personally obtained insurance policy from The Oriental Insurance Co. Ltd., which has not been made party. The complainant averred that he got admitted and took treatment in the Sector 9 Hospital on advice of the nurse, which is false averment. The complaint is liable to be dismissed against the OPs.
4. The complainant filed documents. Annexure A-1 are prescription slips issued by Gayatri Hospital, Annexure A-2 is X-ray report dated 23.10.2015 issued by Life Care, Annexure A-3 is Urine Examination Report, // 8 // Annexure A-4 is Hematology report, Annexure A-5 is Discharge Card of Gayatri Hospital, Annexure A-6 is bill dated 20.10.2015 issued by Life Care Scan & Research Centre, Annexure A-7 to A-14 are medical bills issued by Ankit Medical Stores, on various dates, Annexure A-15 is Receipt dated 2.11.2015 issued by Gayatri Hospital, Annexure A-16 is bill dated 02.11.2015 issued by Gayatri Hospital,, Annexure A-17 is In Patient Registration Sheet issued by Jawaharlal Nehru Hospital and Research Centre, Bhilai, Annexure A-17 (1) is General Consent, Annexure A-17(2) is details regarding the patient, Annexure A-17(3) is Cash Receipt, consultation slip issued by J.L.N. Hospital and Research Center, Annexure A-17(4) is details regarding payments, Annexure A-17(5) to 17(8) are Intake and Output Record, Annexure A-17(9) is Graphic Chart, Annexure A-10 is Intake and output record, Annexure A-17 (11) is Ultra Sound Requisition Form, Annexure A-17(12) is Intake & Output record, Annexure A-17(13) is details regarding dose given, Annexure A-17(14) is Procedure Notes, Annexure A-17(15) to A-17(16) are Intake & Output Record, Annexure A-17(17) is Ultra Sound Requisition Form, Annexure A-17(18) is Requisition for Blood/Blood Component Transfusion, Annexure A-17(19) is Initial Nursing Assessment Sheet of Jawahar Lal Nehru Hospital & Research Centre, Bhilai, Annexure A-17(20) is Graphic Chart, Annexure A- 17(21) and 17(22) is Blood Report, Annexure A-17(23) is clinical report, Annexure A-17 (24) is test report, Annexure A-17(25) is test report, Annexure A-17(26) is Heamogram Report, Annexure A-17(27) is General Pathology Requisition Form, Annexure A-17(27) is Blood Report dated // 9 // 25.10.2015, A-17(28) is Heamogram Report, Annexure A-17(29) is details regarding payments made to J.L.N. Hospital and Research Centre, Annexure A-17(30) to (31) is Initial Clinical Assessment, Annexure A-17(32) to 17(39) are Patient Progress and Treatment Sheet issued by Jawahar Lal Nehru Hospital and Research Centre, A-17(40) to A-17(48) are Patient Medication and Administration Sheet, Annexure A-17(49) to A-17(5) is Discharge Summary, Annexure A-17 (51) is details regarding bill which are cleared, Annexure 17(52) is final total receipt, Annexure A-17(53) to 17(55) is detailed bill, Annexure A-17(56) is Sonography Report, Annexure A-17(57) is C.T. Scan/M.R.I. Report, Annexure A-17(58) is X-ray requisition form, Annexure A-17(59) is ECG report, Annexure A-17(60) is Cash receipt and consultation slip, Annexure A-18 to Annexure A-40 are bill issued by Ambay Medical Stores, on various dates, Annexure A-41 to Annexure A-53 are bills issued by Manohar Medicose on various dates, Annexure A-54 to A-56 are cash receipt and consultation slip.
5. The OPs has not filed any documents.
6. Learned District Forum, after having considered the material placed before it by the complainant, dismissed the complaint and imposed cost of Rs.3,00,000/- on the complainant and directed to pay the above amount to the OPs within a period of a week from the date of order.
7. In the instant case, the appellant (complainant) has filed applications under Order 41 Rule 27 CPC and sought to file // 10 // Website downloaded - Search report on respondent N.A. No.2 regarding registration under C.G. Nursing Home Act, photo showing two places of incision on the body of appellant (complainant), photo of appendix removed by respondent / Non applicant, Videos of surgery of appendicitis done by Indian and Foreign doctors, affidavits of the appellant (complainant) and Smt. Kunti Bai, application dated 05.07.2017 written by the appellant (complainant) to Manager, Gayatri Hospital, Durg (C.G.) and Dr. Ramjivan Choubey, for providing medical record, postal receipt, acknowledgement, information downloaded from the website.
8. We have heard learned counsel for both the parties on the application filed under Order 41 Rule 27 CPC and have perused the affidavits and documents sought to be filed by the appellant (complainant) at the appellate stage as evidence.
9. So far as the said documents are concerned, the appellant (complainant) had ample opportunity to file above documents before the District Forum. The appellant (complainant) could not file the above document before the District Forum inspite of the fact that the documents were in his possession. The appellant (complainant) had also an ample opportunity to file his affidavit and affidavit of his mother before the District Forum, but he could not file the above documents and affidavits before the District Forum. The appellant (complainant) has not properly and sufficiently explained that in which circumstances he could not file the above documents before the District Forum, therefore, the appellant // 11 // (complainant) cannot be permitted to file the above documents as additional evidence at the appellate stage for fulfilling lacuna of his case.
10. Therefore, the applications filed by the appellant (complainant) under Order 41 Rule 27 CPC , are hereby dismissed.
11. Shri R.K. Agrawal, learned counsel appearing for the appellant (complainant) has argued that on 19.10.2015 the complainant was having acute pain in his abdomen, therefore, he had gone to Dr. Ramjivan Choubey of Gayatri Hospital for taking advise. . After conducting primary test, Dr. Ramjivan Choubey (O.P. No.1) informed to the complainant that he is having appendicitis and operation is required to be conducted and after operation, he will become alright. On 20.10.2015, the appellant (complainant) he got admitted in Gayatri Hospital and primary tests like blood, sugar test, B.P., Urine tests were done and Appendicitis operation was conducted by the O.P. No.1 from 3 PM to 6 PM. After operation, the abdomen of the complainant was swelling and the abdomen became hard and there is possibility of bursting of abdomen. In the night, the ward Nurse, who was in duty checked the complainant even then the complainant did not get relief. The pipe which was inserted in the penis was removed by saying that the complainant did not get relief because the urine is not passing. The swelling in abdomen and pain did not decrease. On 21.10.2015 when the bandage was removed, then the liquid material was oozing out. The complainant informed regarding the problem to the O.P. No.1. when he came in the hospital, but the O.P. No.1 told the complainant // 12 // that the operation was done yesterday and in operation such thing is happened and do not worry and within some days it will become alright. The appellant (complainant) was discharged in the same condition. The condition of the appellant (complainant) became worst, then the appellant (complainant) was immediately taken to Jawahar Lal Nehru Hosptial & Research Centre, Bhilai (C.G.), but in the I.C.U. place was not available therefore, the complainant was advised to go to another hospital. The consent was obtained by the doctors from the father of the appellant (complainant) and the appellant was shifted in semi ICU and treatment was started. The appellant (complainant) spent a sum of Rs.1,48,000/- in his treatment and also spent a sum of Rs.25,000/- in medicines. Due to negligence committed by the respondents (OPs), the appellant (complainant) suffered mental and physical agony as well as financial loss. The respondent No.1 (O.P. No.1) Dr. Ramjivan Choubey, committed medical negligence, hence the appellant (complainant) is entitled to get compensation from the respondents (OPs), but learned District Forum without going through the documents produced by the appellant (complainant) has dismissed the complainant and imposed cost of Rs.3,00,000/- on appellant (complainant) and directed to pay the above amount to the respondents (OPs) within period of a week from the date of order. Under Section 26 of the Consumer Protection Act, 1986, the District Forum can only impose cost upto Rs.10,000/-, but in the instant case, learned District Forum imposed cost of Rs.3,00,000/- on the appellant (complainant), which is without jurisdiction. Therefore, the appeal filed by // 13 // the appellant (complainant) may be allowed. The impugned order passed by the District Forum is liable to be set aside.
12. Shri Sudhir Tiwari, learned counsel appearing for the respondent No.1 (O.P. No.1) and the respondent No.1 (O.P. No.1) have argued that the respondent No.1 (O.P. No.1) did not commit any medical negligence. The appellant (complainant) has not been able to prove the allegation of medical negligence. The onus to prove that treating doctor committed medical negligence, is on appellant (complainant), but the appellant (complainant) did not produce any evidence regarding medical negligence. The matter was sent to Civil Surgeon Cum Chief Hospital Superintendent, District Hospital, Durg for expert opinion and the expert opinion was obtained by the District Forum, in which Dr. Sarita Minz, Surgery Specialist, Dr. Lal Mohammad, Anesthetist and Dr. R.K. Nayak, Medical Officer, District Hospital, Durg gave their findings that in operation of Recurrent Apendicitis with Phlegmon the occurrence of Post Operative Fecal Fistula / Leakage is not uncommon. This is not case of medical negligence and only it was Surgical Complication. It shows that the respondent (O.P. No.1) did not commit any medical negligence. The respondent No.1 (O.P. No.1) has argued that he is very reputed Surgeon of Chhattisgarh State and the appellant (complainant) harmed his reputation, due to which he is feeling insulted, which cannot be compensated by money. Looking to the facts and circumstances of the case, the learned District Forum, has rightly dismissed the complainant and award cost of // 14 // Rs.3,00,000/-. The appeal filed by the appellant (complainant) is liable to be dismissed.
13. None appeared for the respondent No.2 (O.P. No.2) inspite of service, on 21.08.2017, when the case is fixed for final hearing.
14. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum as well as the impugned order.
15. Firstly, we shall consider whether the respondent No.1 (O.P. No.1) committed medical negligence while conducting operation of the appellant (complainant) ?
16. In Ravindra Dnyaneshwar Patil and Anr. Vs. Dr. Vinay Tule and Anr. 2017 (3) CPR 452 (NC), Hon'ble National Commission has observed that "Onus of proving alleged medical negligence in treatment or diagnosis lies with person alleging medical negligence. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field".
17. In Dr. Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole and another, AIR 1969 Supreme Court 128, Hon'ble Supreme Court has observed thus :-
"11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.
// 15 // Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires : (cf. Halsbury's Laws of England, 3rd ed. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency..........."
18. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and 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 good. 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 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 // 16 // 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 chosen to follow or resort to that practice or procedure which the accused followed.
(3) The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised 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 reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.
Neither the very highest nor a very low degree of care and competence judged in the // 17 // light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
// 18 // X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
19. In the instant case, the appellant (complainant) simply pleaded that the abdomen of the appellant (complainant) was swelling and became hard and he was feeling that his abdomen will be burst. The swelling in abdomen and pain did not decrease. On 21.10.2015 when the bandage was removed, then the liquid material was oozing out. According to the appellant (complainant), he got admitted in Jawahar Lal Nehru Hospital & Research Centre, Bhilai for treatment. The respondents (OPs) pleaded that the respondent No.1 (O.P. No.1) clearly informed the appellant (complainant) that after operation, infection is occurred and such infection is occurred which is normal process and its treatment was being done at that time. The respondent No.1 (O.P. No.1) told the relatives of the appellant (complainant) that after taking medicines for some days, after taking proper care and taking precautions, the appellant (complainant) would become alright.
// 19 //
20. According to the appellant (complainant), he got admitted in Jawahar Lal Nehru Hospital and Research Centre, Bhilai on 24.10.2015. The appellant (complainant) filed document Annexure A-17, which is In Patient Registration Sheet. In the Patient Registration Sheet, the provision diagnosis is mentioned as Post Operative, Fecal Peritonitis. In Discharge Summary of the Jawahar Lal Nehru Hospital & Research Centre, Bhilai it is not mentioned that the complications were occurred to the appellant (complainant) due to wrong treatment given or operation was wrongly conducted by the respondent No.1 (O.P. No.1).
21. The District Forum obtained expert report form Medical Board. In the Expert report, it is mentioned thus :- "
"vfHker%&ge lc fo'ks"kK fpfdRldksa ds erkuqlkj%& ¼v½ miyC/k nLrkost tks lk{; ds :i esa izLrqr fd;s x;s ds vuqlkj ejht dks RECURRENT APENDICITIS WITH PHLEGMON ds vkWijs'ku esa POST OPERATIVE FECAL FISTULA/LEAKAGE dk gksuk UNCOMMON ugha gSA ¼c½ ;g izdj.k fpfdRldh; ykijokgh u gksdj SURGICAL COMPLICATION gSA"
22. In Kailash Malhotra Vs. Centre for Sight (Hospital) and Anr., 2017 (3) CPR 445 (NC), Hon'ble National Commission, has observed that "Every medical complication cannot be treated as medical negligence."
23. Looking to the above facts, it appears the appellant (complainant) has utterly failed to prove that the respondent No.1 (O.P. No.1) committed medical negligence while conducting operation of the appellant // 20 // (complainant). Every medical complication cannot be treated as medical negligence.
24. Now we shall consider whether learned District Forum has rightly imposed cost of Rs.3,00,000/- (Rupees Three Lakhs) on the appellant (complainant) ?
25. Section 26 of the Consumer Protection Act, 1986 runs thus :-
"26. Dismissal of frivolous or vexatious complaints. Where a complaint instituted before the District Forum, the State Commission or, as the case may be, the National Commission is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding ten thousand rupees, as may be specified in the order."
26. According to the provisions of Section 26 of the Consumer Protection Act, 1986 has only power to impost cost upto Rs.10,000/- (Rupees Ten Thousand). In the instant case, the District Forum, has imposed cost of Rs.3,00,000/- (Rupees Three Lakhs) on the appellant (complainant), without jurisdiction. Looking to the facts and circumstances of the case, it is just and proper to impose cost of Rs.10,000/- (Rupees Ten Thousand) on the appellant (complainant).
27. So far as merits of the case is concerned, the appeal being devoid of any merits, deserves to be and is hereby dismissed.
28. Regarding the cost imposed by the District Forum on the appellant (complainant), the appeal is partly allowed and it is directed that the // 21 // appellant (complainant) will pay a sum of Rs.10,000/- (Rupees Ten Thousand) to the respondents (OPs) towards cost instead of Rs.3,00,000/- (Rupees Three Lakhs). No order as to cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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