AGRAWAL ORTHOPAEDIC HOSPITAL vs RAMA SHANKER UPADHYAY

THIS is an appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter called the "Act") against the judgment and order dated 1.6.2000 passed by District Consumer Forum, Kushinagar in Complaint case No. 467 of 1998.

HEARD Mr. M.H. Khan, learned Counsel for the appellant and Mr. R.K. Gupta, learned Counsel for the respondent and have perused the records. With a view to criticize the impugned judgment and order, Mr. Khan placed the following submissions: firstly, the cause of action had accrued at Gorakhpur and not at Kushinagar and as such the District Consumer Forum, Kushinagar had no jurisdiction to adjudicate the complaint in question; secondly, in a mechanical way without affording reasonable opportunity of hearing the impugned judgment has been passed and thirdly, the judgment in question is not sustainable on merit and it is not based on proper appraisal of materials available on record and attending circumstances which are relevant in nature have not been at all taken into consideration while passing the impugned judgment and order, Mr. Gupta on the other hand submitted that the cause of action accrued at Kushinagar and deficiencies in service were found at Kushinagar and, therefore, the District Consumer Forum, Kushinagar had jurisdiction. Over and above the learned District Forum has passed the impugned judgment and order, which in law is sustainable as the same is passed on just and proper evaluation of the materials available on record.

The brief facts emerging out of the pleadings of the parties amply made it clear that a complaint was filed with the averment by the complainant that he sustained fracture injuries in the first week of July 1997 by fall and he approached the appellant at his hospital at Gorakhpur on 22.7.1997 where he was examined and advised for many tests as well as for admission in his hospital for the treatment and operation. He was admittedly consequently on 23.10.1997 in the hospital and he was discharged after the operation and the treatment on 16.8.1997 and during this period he was charged Rs. 30 per day for the bed and Rs. 20,000 regarding operation expenses and his left hand was operated on 4.8.1997. It is further pleaded that after the operation he again visited the doctor at his hospital at District Gorakhpur for medicines being provided and then only the bandage was removed and the complainant was advised to come after one month. The second operation was done on 19.12.1997 after realizing Rs. 20,000 and the fixation of the fracture was done by nut/bolt to his left hand and thereafter he was discharged. Other expenses were also incurred to a tune of Rs. 50,000 in respect of charges for blood and urine tests as well as x-ray from time-to-time and thus in all a sum of Rs. 1,10,662 was realized by the appellant and over and above a further sum of Rs. 12,000 was incurred in approaching the doctor by hiring jeep, etc. A further sum of Rs. 50,000 was also claimed as compensation for mental agony. Consequently a complaint for claiming a relief of Rs. 1,22,662 and compensation of Rs. 50,000 was filed.

IN the written statement the receipt of the amount as alleged by the complainant was denied and it was stated that the hand being fractured in the first week of July is wrong in view of the entry in the bed head ticket mentioned 23rd June, 1997. The plea of medical negligence was totally denied and it was stated in para 21 that on 22nd July, 1997 when he inspected for the first time the complainant, it was found that there was fracture of the bone and inside the bone was stunk. It was also pleaded that the appellant only fixed the screw and K-wire in the first operation conducted on 4th August, 1997. Unless the medical negligence is per se, it is the obligation of the complainant to prove the case of medical negligence through consistent, clinching and reliable and surviving evidence that the medical deficiency has been committed. In the instant case the cause of the fracture admittedly is because of the fall. The complainant has proved the fracture of the left hand by fall. He has also proved the payment of the total amount towards medicine and the operation a sum of Rs. 1,22,662 on the basis of affidavit. The learned District Forum''s view thus on these two aspects need no interference.

WHAT further necessary to be seen is as to whether any medical deficiency has been committed. In para 21 of the written statement the appellant has stated that "yeh ki praarthi ne bharthi ke samay dinank 22.7.1997 ko jab parivaadi ka muwaina kiya tha tho yeh paya tha ki uski haddi tooti thi tatha andar pooori tarah se sad chuki thi". This indicates that the appellant has admitted that he examined the complainant on 22.7.1997 and he found that there was fracture in the bone and from inside it was totally plumped. The question is that in view of this admission whether it was at all possible to go for operation or not for fixing it with the assistance of nut/bolt and wire. The case in this connection of the complainant which has been proved is that he was admitted in the hospital of the appellant on 23.7.1997 and remained hospitalized till 16.8.1997 though this case has been specially set up and it has been specifically written that the charge was made for the bed as well as for the operation, but in the written statement except there being bald denial, has not been satisfactorily proved. There is no evidence at all taken in defence as contained in para 22 that the complainant at no point of time committed any lapse and showed apathy in getting the treatment appropriately. There is no material to support such a stand of the appellant. In a situation if it is taken to be correct, it was not at all possible to get the fixation of the fracture of his left hand by nut/bolt. The initial step should have been to ensure curing and healing of the totally plumped portion of the injured back and then for rectifying the same steps should have been taken and according to the circumstances that could have been only possible after application of the mind over the nature of the treatment required. Obviously in view of the facts and circumstances it was not a case of fixing of the fracture by tying it with nut and bolt. In case if the damaged portion was away from the hand as it was swinging or in case if the hand was totally plumped, shattered and damaged, there was hardly any justification for charging the fee for fixing the same. The case of the complainant is that since the appropriate treatment according to the norms had not been done, the damaged portion became further damaged and it had a further hole and it resulted into pus formation. These things speak a lot that proper treatment as was expected from the appellant according to norms were not at all taken and cursory and careless approach was adopted resulting into further worsening of the situation. As regards the plea that the District Forum, Kushinagar had no jurisdiction is concerned, as the appellant''s hospital is situated at Gorakhpur and the treatment was alleged by the complainant to have been done in Gorakhpur, that argument cannot be accepted. The question of territorial jurisdiction can be decided only on the basis of the pleadings of the parties read with relevant provisions of the Consumer Protection Act. Section 11, Sub-clause (ii )(c) which provides that a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction the cause of action, wholly or in part arises. In para 6 of the complaint the complainant has alleged that as per the advice, the complainant has been attending to the appellant and has been incurring expenditure but till then because of the negligence and medical deficiency being committed by the appellant, the hand could not be corrected and he has become disabled. Thus the part of cause of action regarding the resultant deficiency has accrued at Kushinagar, the place where after discharge, he has been stationed as he was a resident of the same place. Thus the plea contrary raised regarding non-maintenance of complaint on account of lack of territorial jurisdiction is flimsy and cannot be accepted. In our view the learned District Forum has come to a right conclusion that "thadhik sthithi mei Forum es manyata ki hai ki seva ke ghor kami vipakshi sanghya 1 ke part par hai. Shikayatkarta ke ab cancer bhi ho sakta hai. Uski zindagi bekaar ho gayi hai. Vipakshi ne chand paiso ke lalach mei plate na lagaakar nut bolt se hi hathauda bajakar chhed kar ke dehati ganwar doctor ki tarah kary kar ke seva ki ghor kami dikhai hai".

AS regards the compensation is concerned, the learned District Forum has awarded a sum of Rs. 4 lacs whereas in the relief clause the complainant has claimed a compensation of a sum of Rs. 1,22,662 towards the medicinal expenses and a further amount of Rs. 50,000 as compensation towards physical and mental pain and agony. What is not claimed cannot be granted, but this settled position of law has been totally ignored by then learned District Forum. In all, a total sum of Rs. 1,72,662 was claimed whereas the learned District Forum has awarded Rs. 4 lacs. We are of the view that the complainant is entitled for a sum by way of compensation towards physical and mental discomfiture of Rs. 50,000, over and above Rs. 1,22,662. Consequently the appeal deserves to be allowed in part and the compensation awarded is reduced from Rs. 4 lacs to Rs. 1,72,662. Order The appeal is allowed in part. The amount of compensation is reduced to Rs. 1,72,662. In the event of non-compliance of this order within two months from the service of the order, the complainant will be entitled for interest at the rate of 12% per annum. Appeal partly allowed.