2 nd Bench STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SCO NO , SECTOR 22-D, CHANDIGARH.

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First Appeal No. 469 of 2005.

Date of Institution: 23.03.2005. Date of Decision: 18.10.2010.

Teja Singh Son of Sh. Pritam Singh, R/o Village Dhablan, District Patiala.

…..Appellant. Versus

1. Dr. B.P. Singh, Pal Genito Urinary Surgery Centre, # 9, Ghuman Colony, Sant Nagar, Patiala.

2. New India Assurance Company Limited, Chhoti Baradari, Patiala.

…..Respondents.

First Appeal against the order dated 18.01.2005 of the District Consumer Disputes Redressal Forum, Patiala.

Before:-

Sh. Inderjit Kaushik, Presiding Member. Sh. Piare Lal Garg, Member. Present:-

For the appellant : Sh. L.N. Sharma, Advocate for Sh. O.P. Nagpal, Advocate. For respondent no.1 : None.

For respondents no.2 : Sh. R.K. Sharma, Advocate.

INDERJIT KAUSHIK, PRESIDING MEMBER:-

Sh. Teja Singh, appellant/complainant (In short “the appellant”) has

filed this appeal against the order dated 18.01.2005 passed by the learned

District Consumer Disputes Redressal Forum, Patiala (in short “the District

Forum”).

2. Facts in brief are that on 11.03.2002, pain started in the abdomen

of the appellant Teja Singh and the family members went to Gupta Hospital,

Ultrasound Centre, Model Town at Patiala. The appellant was referred to Udham

Singh Lab. for dialysis, who after conducting the tests, referred the appellant to

respondent no.1 for treatment on 19.03.2002 and the appellant was admitted on

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3. After diagnosis, the appellant and his family members were told

that there are stones on both sides of kidnies and a ball will be poured in the right

side of the kidney, to stop the stone and it was accordingly done by respondent

no.1. Ultrasound report dated 11.03.2002 of Dr. Gupta Hospital, Ultrasound

Centre, showed that no stone growth was seen.

4. Respondent no.1 conducted the operation for removal of stone

from the left kidney, by opening the skin from the hick of left side and told that the

stone has been removed from the left kidney, but no such stone was shown to

the appellant or his family members. The appellant remained in the hospital till

25.03.2002.

5. On 25.03.2002, respondent no.1 discharged the appellant and

asked him to report to him (Dr. B.P.Singh) after 12 days in the hospital. After 12

days, the appellant approached respondent no.1, for cutting he stitches and

respondent no.1 asked the appellant whether he wishes to cut the stitches or not.

The appellant and his family members told respondent no.1 that they are laymen

and he being a doctor, knows very well about it. As such, respondent no.1 cut

the stitches of the appellant and asked him to walk of his own.

6. When the appellant with his family members reached the entrance

door of the respondent hospital, the skin, stitched after the operation, opened

and there was pond of blood, thrown out of the skin and intestines from the body

of the patient and the family members complained to respondent no.1, who again

started the treatment and stitched the opened body. The appellant complained

about severe pain and respondent no.1 gave him strong anti-biotics as well as

pain killer injections. After remaining in the hospital till 22.04.2002 i.e. for 29

days, respondent no.1 discharged the appellant from the hospital, saying that

seven stitches had been opened for healing the wound and the dressing can be

got done from the village dispensary.

7. When the appellant went to the village dispensary for dressing and

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admitted the patient and started treatment of infection and controlled the infection

within 4-5 ways and after stitching the opened body, discharged the patient and

called after 10-12 days, for opening the stitches and cut the stitches after 10-12

days.

8. Appellant Teja Singh was feeling difficulty to walk and remained

bed-ridden for one year and dependant upon glucose after the operation by Dr.

B.P. Singh, respondent no.1. The appellant can not walk even in the night and

find difficulty to go to the bathroom. He is mentally upset from the date the

operation was conducted by respondent no.1 and suffered a loss of Rs.5.00 lacs

for the treatment in a year. He could not do his farming as well as social work, as

he is Zila Jathedar of Shiromani Akali Dal, Badal, Punjab.

9. Due to negligence of respondent no.1, the appellant suffered from

Myopia (short sightedness) and his life has become miserable and is dependant

at the mercy of his relatives, who cause him humiliation and sometimes, impulse

to commit suicide. This all has happened because of the wrong operation and

the treatment given by respondent no.1.

10. On 24.02.2004, the appellant through his counsel, sent a legal

notice to respondent no.1 which was duly received by him and prayed that

Rs.5.00 lacs be awarded as damages and compensation along with interest @

1.56% per month from the date of treatment till realization and Rs.5500/- as

litigation expenses.

11. In the reply filed on behalf of respondent no.1, the objections were

taken that the complaint has not been signed and verified in accordance with law

and the requisite fee has not been paid. The answering respondent is a highly

qualified urologist, practicing in Patiala and has done his M.S. Surgery in 1991

and Super Specialization M. Ch. Urology in 1993 from All India Institute of

Medical Sciences (AIIMS), New Delhi. He worked at Batra Hospital, New Delhi,

and also at Jawahar Lal Nehru Institute of Post Graduate Medical Education and

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the students. On merits, it was pleaded that the appellant was referred to Dr.

Udham Singh, a senior Nephrologist by Gupta Hospital. Dr. Udham Singh

referred the appellant to respondent no.1 on 19.03.2002 and he was admitted on

the same day, vide indoor no.405. The appellant had undergone Hemodialysis

on 18.03.2002, implying that he was suffering from advance stage of kidney

failure. Chronic renal failure is a condition when the kidneys are not able to

excrete the waste products produced in the body, in an efficient manner through

the urine. The defect can be because of diabetes, hypertension or the kidneys

being not able to pass the products out, due to some obstructions in the passage

of urine to the exterior. The obstructions could be at the level of the tube i.e.

ureter, connecting the kidneys to the urinary bladder with stones/strictures in

both the ureters or in the bladder like bladder tumours or at the level of bladder

neck i.e. prostatic growths which might be benign or malignant.

12. The fact that the appellant was having chronic renal failure, is

evident from the record supplied by him to the answering respondent on

11.03.2002, wherein the appellant had blood urea of 273 mg% and S-creatinine

of 13.6 mg%. The normal blood urea should have been 20-40 mg% and

S-creatinine 1.2 to 1.5 mg%. The urine examination report dated 11.03.2002

showed that the appellant had Pyouria i.e. passage of puss cells in the urine,

which is common in the presence of urinary tract infections, which can occur at

any level from bladder to the kidney.

13. The appellant and the relatives were told that there ere obstructing

stones on both sides which were the primary cause for his chronic renal failure

and he would benefit from the passage of stents from the bladder to the kidney

on both the sides. The same fact had been explained to the appellant by Dr.

Udham Singh also. On 19.03.2002 when the double J stent was passed along

side the stone on the right side, it was not possible to bye-pass the stone on the

left side. Hence, a ureteric catheter was left in below the level of the left stone,

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performed at City X-ray and Ultrasound Centre, Patiala, which confirmed correct

placement of the stent on the right side and also showed that the stone on the

left side, was lying in upper ureter/pelviureteric junction and very little dye, went

beyond the stone. In the afternoon, the patient was taken up for surgical removal

of the stone on the left side. This was done through left flank incision with rib

resection. The stone was taken out and a double J stent was put in from the level

of kidney to the bladder. The stone was handed over to the attendant of the

appellant, for chemical analysis. The allegation that there was no stone on the

right side, is wrong because of the following reasons:-

(i) The ultrasound done at Gupta Hospital on 11.03.2002 had shown dilatation of the pelvicalyceal system and the upper ureter on the right side.

(ii) The patient also carried an X-ray of the Chest and KUB region done on 11.03.2002 which showed radio opaque shadows in the region of upper ureters/PU Junction on both the sides.

(iii) The RGP done on 20.03.2002 also showed the presence of stones on both the sides.

(iv) The KUB X-ray got done by the complainant on 16.08.2002 also confirms the presence of the stone on the right side.

14. It was admitted that the patient was discharged on 25.03.2002 and

was advised to visit again on 29.03.2002 and not after 12 days. The appellant

came to respondent no.1 on 29.03.2002 and the stitches were removed, as the

wound appeared to be well healed. The appellant came after half an hour, with

partially opened wound margins. The appellant was attended to immediately and

the treatment was started by way of anti-biotics and twice daily dressings. The

appellant remained admitted upto 22.04.2002 and during this period, the

appellant suffered from urinary tract infection with deterioration of the kidney

functions. This was promptly diagnosed and corrective measures were taken by

way of hemodialysis on 12.04.2002 and 16.04.2002. After this, the appellant

started recovering from his renal failure as well as urinary infection and he was

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functions, control of urinary infection and flank wound condition. The appellant

suggested that he can get the dressing done from his village dispensary. Since

no stitches were applied and as such, removal thereof, did not arise either from

respondent no.1 or from the village dispensary, as alleged by the appellant. The

appellant came to the answering respondent on 30.04.2002 and 07.05.2002 for

follow up examination and no complaint was made. The appellant again came to

the answering respondent, regarding his treatment on the right side and the

answering respondent came to know that the appellant got himself admitted with

Dr. Sudhir Verma, who is a physician and cardiologist. The appellant was

admitted on 16.08.2002 for treatment of right ureteric stone after proper

evaluation, by means of hemogram/serum creatinine (which had showed great

improvement) and plain X-ray of the KUB region. However, the appellant

absconded the same day. He was finally got admitted on 26.08.2002 vide indoor

no.524 and he underwent right RGB/percutaneous nephrolithotomy(PCNL) and

removal of the left double J stent under general anaesthesia and was discharged

on 29.08.2002 after successful surgery.

15. On 14.09.2002, double J stent on the right side, was also removed

by the answering respondent on OPD basis. Had the patient been not satisfied,

then he would not have gone for second operation from him. The complaint is

false and frivolous and prayed that the same be dismissed.

16. In the reply filed on behalf of respondent no.2-insurance company,

the objections were taken that the appellant is not a consumer and is not

competent to file the complaint, no cause of action has arisen against the

answering respondent. The present complaint has been filed just to harass the

respondent and deserves to be dismissed with special costs of Rs.10,000/-. On

merits, similar pleas were taken as that by respondent no.1, which are not

required to be repeated and the prayer for dismissal of the complaint was made.

17. Parties led evidence in support of their respective contentions by

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18. After going through the documents and material placed on file and

after hearing the learned counsel for the parties, the learned District Forum

allowed the complaint and awarded compensation of Rs.10,000/- inclusive of

costs.

19. Aggrieved by the impugned order dated 18.01.2005, the

appellant/complainant has come up in appeal, for enhancement of

compensation.

20. We have gone through the pleadings of the parties, perused the

record of the learned District Forum and heard the arguments of the learned

counsel for the appellant and respondent no.2-insurance company.

21. It was contended by the learned counsel for the appellant that the

prayer is for enhancement of the compensation. The appellant was operated

upon by respondent no.1 and the wounds were stitched, but when the same

were removed, the wound opened again because of the negligence on the part

of respondent no.1 and second time again, the wounds were stitched. The

appellant has to be re-admitted on 29.03.2002 and was discharged on

22.04.2002. The appellant remained bed-ridden and suffered loss of income. He

spent lacs of rupees on his treatment, medical tests, X-rays, but the learned

District Forum has not considered the medical record and awarded a meager

compensation.

22. Learned counsel for respondent no.2 contended that the

respondent insurance company is not liable to pay any amount and the

compensation has been wrongly awarded. There is no reason to enhance the

compensation and in the absence of any bills, the appellant is not entitled to any

compensation and the appeal deserves to be dismissed.

23. We have considered the submissions made by the counsel for the

parties.

24. The appellant has placed on file, the documents Ex.C1 to Ex.C59

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prescription slips etc. The appellant first approached respondent no.1 on

11.03.2002 and he was admitted for treatment on 19.03.2002 and remained

admitted till 25.03.2002. After 12 days, when the stitches were removed, the

wound opened and there was pond of blood thrown out of the skin and intestines

from the body. Again the wound was re-stitched by respondent no.1 and the

appellant remained admitted in the hospital for about 29 days, but the wound

was not healed. Consequently, the appellant was admitted in the hospital of Dr.

Sudhir Verma because in the meantime, infection had developed and he again

stitched the wounds. There is un-rebutted evidence that the appellant remained

bed-ridden for about a year and suffered loss of income. Respondent no.1 has

also placed on file, the documents and x-ray reports Ex.R1 to Ex.R70 which are

the prescription slips, test reports and admission record. These documents relied

upon by respondent no.1 further support the case of the appellant that the huge

amount was spent on the treatment and various tests, x-ray examination etc.

were admitted. The appellant also remained admitted in the hospital for more

than a month. The learned District Forum has come to the conclusion that the

negligence and carelessness on the part of respondent no.1, is apparent and the

principle of res-ipsa-loquitur is attracted and the appellant is entitled to some

compensation. This finding of the learned District Forum has not been

challenged by respondent no.1 and the principle of res-ipsa-loquitur has again

been held to be applicable in the recent judgment of the Hon’ble Supreme Court

in “V. Kishan Rao Vs Nikhil Super Speciality Hospital & Another”, 2010(2)

RCR (Civil)-929(SC), where in Para Nos.47 to 49, it was held as under:-

” “47. In a case where negligence is evident, the principle of

res-ipsa-loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case, it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.

48. If the general directions in paragraph 106 in D’souza’s (supra) are to be followed, then the doctrine of res-ipsa-loquitur which is applied in

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cases of medical negligence by this Court and also by Courts in England, would be redundant.

49. In view of the discussions aforesaid, this Court is constrained to take the view that the general direction given in paragraph 106 in D’souza (supra) cannot be treated as a binding precedent and those directions must be confined to the particular facts of that case.

25. Learned District Forum has awarded a meager compensation of

Rs.10,000/- which in our view, is not at all proportionate to the miseries,

sufferings, torture undergone by the appellant and the huge amount has been

spent on the treatment which is evident from the medical record produced on the

file, but for not producing the bills. The appellant cannot be punished for fault of

the counsel for not bringing on record all these bills. The Consumer Protection

Act being beneficial legislation is to protect the interest of the consumers and it is

in the interest of justice, to enhance the compensation.

26. Accordingly, the appeal is accepted and the amount of

compensation awarded by the learned District Forum, is enhanced to

Rs.50,000/-(Rupees Fifty Thousand). The appellant is also entitled to cost of

litigation i.e. Rs.5,000/-.

27. The respondents are directed to comply with the order within two

months from the receipt of copy of the order.

28. The arguments in this appeal were heard on 07.10.2010 and the

order was reserved. Now the order be communicated to the parties.

29. The appeal could be decided within the stipulated timeframe due to

heavy pendency of Court cases.

(Inderjit Kaushik) Presiding Member

(Piare Lal Garg)

Member

October 18, 2010.

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