ANIL NADIR vs RAKESH DULLU

THE present appeal, filed by the appellant, under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') is directed against order dated 27.3.2003, passed by District Forum-II, Udyog Sadan Institutional Area, Mehrauli, New Delhi in Complaint Case No. 1917/1996 - entitled Dr. Rakesh Dullu v. Dr. Anil Nadir.

THE facts, relevant for the disposal of the present appeal, briefly stated, are that the respondent Dr. Rakesh Dullu had filed a complaint under Section 12 of the Act before the District Forum averring therein that on 2.11.1995 he met with an accident and was admitted in Pamposh Medicare Centre on 13.11.1995 where the appellant Dr. Anil Nadir advised him to go in for a surgery as there was fracture in the neck of the left femur. It was stated that the appellant conducted operation on 14.11.1995 and told the respondent Dr. Rakesh Dullu that the operation was successful. It was stated that the respondent Dr. Rakesh Dullu after that operation was discharged from Pamposh Medicare Centre on 18.11.1995. On 4.1.1996 the respondent went to the appellant for check-up. It was stated that on 4.1.1996 an X-ray was taken out by the appellant and after examining the X-ray the respondent was informed by the appellant that everything was normal. It was stated that on 7.1.1996 an respondent Dr. Rakesh Dullu noticed blood in urine and experienced severe pain in the lower abdomen and right thigh. THE respondent Dr. Rakesh Dullu immediately contacted the appellant who told the respondent that the pain could be due to some infection and that the respondent should take antibiotics. It was stated that pain in the abdomen and right thigh did not subside and again the respondent noticed blood in urine on 14.2.1996. THE respondent again contacted O.P. No. 1, who again examined him and advised for another X-ray. THE respondent again got an X-ray done on 17.2.1996 from Dr. Datta''s Clinic in Alaknanda. It was stated that as per the report of that X-ray taken in Dr. Dutta''s Clinic on 17.2.1996 a guide wire was found running across from left hip joint area to the right thigh area through the pelvis. On noticing the above fact an ultrasound test was done on 17.2.1996 itself which clearly revealed that the guide wire existed in the urinary bladder of the respondent. It was stated that, that guide wire was left by the appellant during the surgery. It was stated that the guide wire was reflected even in the X-ray which was done by the appellant on 4.1.1996 but the appellant had concealed that fact from the respondent. THE respondent consulted Dr. R.K. Gupta who after CT Scan, which was conducted on 20.2.1996, advised/suggested a corrective surgery which was performed by Dr. R.K. Gupta in Sukhda Hospital on 21.2.1996. Alleging deficiency in service on the part of the appellant and Pamposh Medicare Centre who were arrayed as opposite parties in the proceedings before District Forum the respondent in the complaint filed by him before the District Forum claimed Rs. 2,97,000/- with interest on account of compensation and other miscellaneous expenditure/heads as detailed in para 26 of the complaint. The claim of the respondent in the District Forum was resisted by the appellant and also by Pamposh Medicare Centre. In the reply/written version filed on behalf of the O.Ps. it was states that the respondent had failed to point out any permanent damage on account of alleged negligence. However, the presence of the guide wire in the body of the respondent and its removal by Dr. R.K. Gupta was admitted. It was stated that the expenses of Rs. 23,000/- for the operation conducted by Dr. R.K. Gupta were borne by the O.Ps. The allegation of negligence was specifically denied by the O.Ps. including the appellant.

The learned District Forum vide impugned order has held that there was negligence/deficiency in service on the part of the appellant and on the basis of the above finding has passed the order being impugned in the present proceedings.

FEELING aggrieved, the appellant has preferred the present appeal under Section 15 of the Act. We have heard the learned Counsel for the appellant at length on the question of admission of the present appeal and have also carefully gone through the documents/material on record. On the basis of documents/material on record, more particularly the law laid down by the Hon''ble Supreme Court in case Indian Medical Association v. V.P. Shantha & Ors., reported as III (1995) CPJ 1 (SC)=AIR 1996 SC 550, it is not in dispute that the respondent Dr. Rakesh Dullu, who had filed a complaint before the District Forum under Section 12 of the Act was a ''consumer'' within the meaning of Section 2(1)(d)(ii) of the Act and the appellant a medical practitioner who had performed surgery on the respondent on 14.11.1995 for consideration (fees) was a provider of ''service'' within the meaning of Section 2(1)(o) of the Act. During the course of arguments, the main thrust of the learned Counsel for the appellant is two-fold- - firstly, that there was no deficiency in service (negligence) on the part of the appellant while providing service to the respondent. The second limb of argument is that no damage was caused to the respondent and as such the respondent was not entitled to any compensation under Section 14(1)(d) of the Act. In our opinion, both the above contentions being advanced by the learned Counsel for the appellant, in support of the case of the appellant, are devoid of substance because as regards deficiency in service, on the basis of material on record it is not in dispute that a guide wire was left in the body of the respondent while performing operation by the appellant on 14.11.1995. The presence of guide wire in the body of the respondent and its removal by Dr. R.K. Gupta has been admitted by the appellant in the reply/written version filed before the District Forum. The fact that the expenses for the operation which was conducted by Dr. R.K. Gupta on 21.2.1996 at Sukhda Hospital for removing the guide wire from the body of the respondent were borne by the appellant and Pamposh Medicare Centre virtually amounts to admission on the part of the appellant about the deficiency in service (negligence).

AS regards the question as to whether any damage was caused again on the basis of material on record it is not in dispute that the respondent not only suffered severe pain in the lower abdomen and right thigh but even passed blood in urine and for the removal of the guide wire got himself admitted in the Sukhda Hospital where a corrective surgery was performed by Dr. R.K. Gupta on 21.2.1996. The learned District Forum, for the mental and physical agony undergone by the respondent Dr. Rakesh Dullu has awarded a compensation of Rs. 50,000/- together with cost of litigation amounting to Rs. 5,000/-. The order being impugned in the present proceedings is a well reasoned order which as a matter of fact suffers from no infirmity so as to call for any interference by this Commission in exercise of its appellate powers. The present appeal filed by the appellant, is therefore, devoid of substance. The same merits dismissal. Accordingly, the same is dismissed in limine with no order as to costs. Appeal dismissed.