Amil Ali Shakir vs. St. John's Medical College Hospital 1997 CCJ 614

Karnataka State Consumer Dispute Redressal Comission, Bangalore

In this complaint, filed under Section 17 read with Section 12 of the Consumer Protection Act, 1986, the complainant has sought compensation to the tune of Rs. 10,00,000/- from St. John's Medical College Hospital, Bangalore. The complainant claims that his youngest son, Iftekhar Ali Shakir, who was studying in Inslamiah Institute of Technology at Bangalore, by about 4.15 p.m. on 5-12-1991, while he was proceeding on a Hero Puch motorcycle as a pillion rider, his class-mate, Sylesh Jadhav, was driving the said motorcycle, a Maruti car driving at a high speed and negligently knocked the motor cycle and sped away without halting; in consequence of which Iftekhar Ali Shakir, the pillion rider was thrown off and sustained injuries. Sylesh Jadhav also sustained some minor injuries. The students who gathered at the spot and who witnessed the occurrence, removed Iftekhar Ali Shakir in a car to the Sanjay Gandhi Accident and Rehabilitation Centre, Bangalore.
The doctors at the institution checked-up the injured and as the facilities were not available to treat such an accident-patient, advised to take him to a well equipped hospital. The students immediately removed the injured to the St. John's Medical College Hospital, Bangalore, by about 6 p.m.
The complainant alleges that the injured was first examined and treated at casualty ward. The doctors took their own time in a care free manner to conduct the investigation and remove him to the operation theatre for the operation. The doctors unusually in a leisurely fashion, examined the patient and by about 8.15 p.m. took him into the operation theatre. The patient, after the operation, was brought out of the operation theatre and taken to the intensive care unit by about 12.15 midnight. The patient expired by about 4 a.m. on 6-12-1991. The complainant further averred that the injured expired due to the negligent conduct on the part of the doctors attending on him in unnecessarily delaying and wasting time in carrying the patient into the operation theatre and in conducting the operation. The opposite party doctors wasted valuable time in consequence of which Iftekhar Ali Shakir expired. The complainant averred that Iftekhar Ali Shakir was his youngest son aged about 20 years, a bright boy studying in an Engineering College, lost his life due to the gross negligence on the part of the opposite party doctors in unnecessarily wasting the time in not exercising a reasonable degree of care. The complainant, on the basis of these averments, sought compensation in a sum of Rs. 10,00,000/- from the opposite party. The opposite party filed its version, denied the fact that there was any negligence on the part of the doctors of the opposite party in diagnosing and treating the injured. The opposite party further averred that immediately upon the arrival of the patient, a prompt action was taken to attend the patient. It was found that blood pressure had dropped to 70/50 mm. hg. The abdomen was distended and rigid. The bowel sounds were absent. A diagnosis of hypovelemic shock due to haemorrhage into the peritoneal cavity and leg fractures was made. Prompt steps were taken to resuscitate the patient by administering IV. fluids, oxygen by nasal catheter, bladder catheterisation with in dwelling catheter, blood grouping and cross-matching, a total of 19 units of blood was arranged, blood transfusion began simultaneously, X-rays were taken of the skull, abdomen, chest and left leg; a nasogastric tube was passed. As the injured had suffered with head injury and blunt injury of abdomen and fractures of both bones of the left leg, so a Neuro Surgeon was consulted and after pre-operative preparations were done, the patient was shifted to the operation theatre directly from casualty ward at about 8.20 p.m. Having regard to materials on the commission held that there was neither delay or negligence on the part of doctors. The doctors had with a reasonable degree of skill and knowledge, exercised a reasonable degree of care and did their best that they could do under the circumstances. The complainant has failed to proved negligence on the part of doctors. As a result, this complaint fails.

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Madan Mohan vs. Dr. Ashwani Sood 1997 CCJ 780

Haryana State Consumer Disputes Redressal Commission, Chandigarh

In this appeal filed by the complainant the factual position has not been disputed. Complainant, Madan Mohan, approached Dr. Ashwani Sood, for treatment of certain diseases of which the doctor claimed to be a specialisain diseases of which the doctor claimed to be a specialist and paid Rs.300/- for check-up. After the check-up Dr. Sood prescribed certain medicines, but the appellant did not feel the necessary relief. He continued visiting the clinic of Dr. Sood number of times and Dr. Sood after every check-up administered different medicines. According to the complainant, he also consulted the doctors of P.G.I. at Chandigarh, who did not agree with the treatment being given by Dr. Sood and instead gave different medicines. The appellant by taking the medicines prescribed by the P.G.I.'s doctor, recovered from the ailment he was suffering within a few days. Feeling aggrieved by the negligence and wrong treatment of Dr. Sood, the appellant approached the District Forum claiming a sum of Rs. 25,000/- by way of compensation for the deficiency in service rendered and other monetary loss caused to him. In the written statement filed by the opposite party, Dr. Ashwani Sood stated that he was M.D. in Ayurvedic and quite competent to treat patient suffering from various diseases including fissure and piles. He further stated that he had charged Rs. 25/- only and not Rs.300/- as alleged by the complainant, and it was further stated that he did not prescribed any medicine which could have the effect of aggravating the disease or causing any harmful side effect. He also produced copy of his degree of M.D. in order to establish that he was a qualified physician and not a quack. After hearing the learned Counsel for the parties, the learned District Forum did not find any deficiency in service on the part of Dr. Sood and came to the conclusion that whatever diagnosis and treatment the opposite party considered appropriate on the basis of his experience and professional skill, the same was given to the appellant.

In the appeal, the State Commission heard the learned Counsel for the appellant at length, but did not find any material on record to arrive at a different conclusion to reverse the finding of the learned District Forum. In order to prove that Dr. Sood was not professionally competent and there was deficiency in his service, the appellant should have examined some doctor from the P.G.I. or any other medical specialist, who could opine about the correctness or otherwise of the treatment given by Dr. Sood. Simply because the treatment given by Dr. Sood, who was an Ayurvedic doctor, did not bring the necessary results to cure the appellant, does not necessarily mean that Dr. Sood was not professionally competent or there was deficiency in his service. Accordingly, the appeal deserves to be dismissed with no order as to costs.

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Satwant Kaur vs. Dr. Kanwaljit Kaur 1997 CCJ 781

Punjab State Consumer Disputes Redressal Commission, Chandigarh.

This appeal filed by the complainant, Satwant kaur challenging order of the District Forum, Amritsar whereby the complaint was dismissed. Satwant kaur delivered a female child through caesarean operation on 1-9-1993 at Guru Amar Dass Hospital, Amritsar. The delivery was conducted by Dr. Kanwaljit Kaur, the opposite party. Since pain in the abdomen persisted, she was readmitted on 24-10-1993. A surgery was conducted by the opposite party for tubectomy. Finding no relief, another surgery was conducted by the opposite party to probe the cause. At this stage, it may be observed that this part of the version of the complainant is denied by the opposite party. Ultimately in December, 1993, the complainant was removed to Dr. Prem Rai Nursing Home where Dr. Harbilas Rai performed the operation and recovered a cotton sponge from the rectum, which gave ultimate relief to the complainant. Alleging negligence on the part of the opposite party in leaving the cotton sponge in the body of the complainant while performing the operation referred to above, the complainant claimed Rs. 7,00,000 as compensation for the loss suffered. The complainant had to employ a servant and a teacher for household duties at the rate of Rs. 300 per day from 1-9-1993 and compensation on that count was claimed. Costs of Rs. 1,000 were also claimed. The opposite party on notice of the complaint submitted her version admitting about delivery of the child through caesarean operation and thereafter performing tubectomy. It was denied that during the operation performed, any cotton sponge was left. Story of recovery of sponge from the colon was denied. Even otherwise, it was stated that it was improbable as the colon had no connection with the uterus on which the opposite party had operation. Both the parties produced their evidence on affidavits. The statement of Dr. harbilas Rai was recorded by the District Forum. The District Forum vide detailed impugned judgment came to the conclusion that the complainant had failed to solve the mystery as to how the sponge was found in the colon. While making reference to the evidence of Dr. Harbilas Rai, which was recorded in the Forum, the opinion was expressed that sponge could not be thrusted into body through anus or through mouth, the only two approaches to the colon. Furthermore, with the existence of the sponge, the patient could not live for about four months as the sponge had completely blocked the exit(anus).

It may be observed that Dr. Harbilas Rai did not refer to any damage/injury caused to the colon that it could be assumed that sponge could enter the colon. It may be observed that all the vital organs in the body remain sealed and in separate compartments. It is only after injury is caused that the contents of such organ would come into cavity and cause damage to other organs. Dr. Harbilas Rai rightly stated when unable to give source of entry of the sponge in the colon that it was for the complainant to explain. Otherwise, his evidence is not helpful to the complainant in coming to the conclusion that while performing Caesarean operation for delivery of the child or for tubectomy or for probe operation of the abdomen without causing injury to the colon, the sponge could enter therein. Ipse dixit of the complaint in such like matters cannot be accepted to hold the charge of negligence on the part of the doctor in such circumstances.

The District Forum rightly came to the conclusion that the complaint was frivolous and dismissed the same. This was a case where the complainant should have been burdened with costs. Since no order was passed by the District Forum, the present appeal is dismissed with costs of Rs. 1,000/-. The costs would be paid within one month from receipt of copy of the order.

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Dr. Ashok Dhawan vs. Surjeet Singh 1998 CCJ 77

National Consumer Disputes Redressal Commission, New Delhi.

This revision petition is directed against the order of the State Consumer Disputes Redressal Commission, Haryana, by which the appeal filed by the revision petitioner herein, was dismissed. The facts of the case which are necessary for the disposal of this petition are that the complainant (respondent herein) filed a complaint before the District Consumer Disputes Redressal Forum, Karnal, against Dr. Ashok Dhawan, on the ground that Dr. Dhawan was running a medical clinic at Karnal and that on 25-5-1992 he gave an injection on the right arm of the complainant without proper test after which his arm stopped moving and he was unable to make use of the arm. The complainant consulted the opposite party with the complaint that his right arm was not moving at all. The opposite party advised the complainant for massage of vicks or balm but the complainant got no relief. Thereafter the complainant consulted a number of doctors and is stated to have spent a huge amount of Rs. 97,000/-. With these allegations, he preferred a complaint before the District Forum for award of compensation on the ground of negligence of the doctor. The doctor denied having provided any service to the complainant on the ground that no patient by the name of Surjeet Singh, i.e., the complainant ever came to him and he never prescribed any injection to the complainant. A plea was also taken that the Forum had no jurisdiction to adjudicate upon the complainant. After taking into consideration the material placed on the record by the parties, the District Forum found that the opposite party had given an injection to the complainant on account of which the complainant suffered the disease called 'Radial N. Palsy'. On the question of quantum of compensation, the District Forum returned the finding that there was no direct evidence on the record to establish the loss suffered by the complainant except his bald assertion that he had spent about Rs., 70,000 on his treatment. It was further observed by the District Forum that the complainant must have spent at least Rs. 10,000/- on his treatment. Consequently, a direction was given to the opposite party to pay to the complainant an amount of Rs. 10,000/-. Costs of Rs.2,000/- were also awarded against the opposite party.

Aggrieved by the order of the District Forum, the complainant as well as the doctor filed appeal before the State commission which were dismissed by the impugned order. The State Commission affirmed the finding of the District Forum on the question of negligence of the doctor. Regarding compensation, it was observed by the State Commission that no proof of having spent the amount was produced before the District Forum except complainant's bald assertion and the District Forum was right in awarding Rs. 10,000/- on account of amount spent on treatment as well as harassment caused to the complainant. However, the matter did not rest there. The opposite party, i.e., Dr. Dhawan, revision petitioner herein, has preferred this revision petition by assailing the order of the State Commission.

Mr. Santosh Paul, Counsel appearing on behalf of the revision petitioner, canvassed before Commission that the District Forum and the State Commission wrongly held that the petitioner had given an injection. In response the Commission observed that we are afraid we cannot go into this question of fact in this revision petition in view of the concurrent finding of fact arrived at by both the Forums that the petitioner had given an injection to the complainant and on that account the complainant had suffered. The finding is based on the material placed on the record and calls for no interference. It was also contended by Mr. Paul that the compensation awarded by both the Forums was excessive and on the higher side. We have considered this aspect. No material was placed on record by the complainant which could throw light as to how much amount the complainant had spent for his treatment. We find that the compensation of Rs.10,000/- awarded to the complainant is on the higher side. In our opinion, it will meet the ends of justice if the compensation is reduced from Rs. 10,000/- to Rs. 5,000/-. As a result, the order of the District Forum as well as the State Commission is modified to this extent. The complainant shall be entitled to Rs. 5,000/- as compensation. The petition stands disposed of. Parties are left to bear their own costs in these proceedings".

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Tapan Kumar Nayak and Others vs. State of Orissa and Others 1998 CCJ 193

National Consumer Disputes Redressal Commission, New Delhi.

This is a very unfortunate case where an infant who was administered the triple antegen injection as well as anti-polio drops to immunise it against contracting diphtheria, tetaio drops to immunise it against contracting diphtheria, tetanus, whooping cough and polio myelitis developed severe reaction resulting in damage to his brain causing muscular deformity and deficiency as in the case of polio myelitis.

The complainants i.e., the father and mother of the infant brought the complaint before the State Commission, Orissa, claiming compensation from the Government of Orissa on the allegation that there was negligence on the part of the concerned doctors who administered the medicine and it was the result of such negligence that the child suffered irreversible damage. The State Commission enquired into the matter in detail and found that the allegations of negligence levelled against the concerned Government doctors were not established and that hence there was no scope for awarding relief to the complainants under the Consumer Protection Act. Though it had been suggested before the State Commission by the complainants that the DPT which was administered to the child was defective, from the enquiry report submitted by the District Immunisation Officer, Cuttack, which is at page 13 of the paperbook it is seen that none of the other children who had also been vaccinated out the same batch of the vaccination has suffered any complication of the present kind and hence it could not be said that there was any defect int eh vaccine which was administered to the infant of the complainant Nos. 2 and 3. In these circumstances, we confirm the order passed by the State Commission dismissing the complaint on the aforementioned ground that no negligence had been made out against the opposite parties. We also affirm the observation made by the State Commission that necessary action should be taken by the State Government of Orissa against the staff who was responsible for displaying such indifference as not noting the batch number, date of manufacture and expiry date, etc., in the registered maintained in respect of the administration of vaccines to infants.

The Commission also observed that, the State Commission was quite right in recording the finding that the complainant in the case cannot be regarded as 'consumers' entitled to maintain the complaint inasmuch as there was no arrangement of hiring of service for consideration as between them and the opposite parties. Having regard to the very unfortunate nature of this case and the very indigent position in which the parents of the infant are placed, the Commission recommended to the State Government that steps may be taken by the State Government to render all possible assistance to the parents of the child in the matter of providing proper rehabilitation treatment to the child since there is every possibility that a substantial portion of the disability arising out of the polio myelitis may be got over by proper rehabilitation treatment.

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