ANITA vs Rajashree

BOTH these revision petitions are against the common order dated 10.3.2011 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (State Commission for short) and hence they have been taken up together and are being disposed of by this order.

THE common respondent in both the petitions was the complainant before the District Forum and the petitioner of R.P. No.1260 of 2011 was OP No.1 and petitioner of R.P. No.1261 of 2011 was OP No.2 before the District Forum. A consumer complaint came to be filed against the OPs by the complainant alleging deficiency in medical service and wrong advice. It is the case of the complainant that on 21.11.2009, she approached OP-1 complaining pain in the stomach. OP-1 after examining the complainant and doing sonography, came to the conclusion that the complainant was suffering from acute appendicitis. Initially OP-1 advised surgery but later it was indicated that acute appendicitis could be cured by medicine. Hence, OP-1 got the complainant admitted in her hospital for 3 days during which treatment was given and medicines were prescribed. On 23.11.2009, after doing sonography test in her hospital, the OP-1 told the complainant that she had been cured and charged Rs.2,950/- and in addition to it, the complainant also spent Rs.2,000/- towards medicines. On 30.11.2009, the complainant again had pain in her stomach and went to OP-1. On examining the complainant, OP-1 opined that there was acute appendicitis which was severe one and had not been cured by medicine and would require surgery. On the advice of OP-1, the complainant went to OP-2 for surgery. On the same day, the complainant went to OP-2 with her husband. After examining the complainant, OP-2 advised immediate surgery and the complainant was sent to Shivani Scan Centre. THE complainant underwent radiology test at the said scan centre and obtained report. However, the radiologist at the centre told the complainant and her husband that she was not suffering from acute appendicitis and no surgery was required although advised by OPs 1 & 2. When the complainant and her husband came back to OP-2 and showed the report, OP-2 again advised for surgery reiterating that the complainant was suffering from acute appendicitis, which required immediate operation. Feeling shocked by the misguidance and unfair practice by giving wrong advice to grab money, the complainant without further loss of time approached Tukkar hospital for consultation. Dr. Tukkar opined that there were small cysts in the left ovary and there was no acute appendicitis, as opined by OPs 1 & 2. Dr. Tukkar treated the complainant prescribing some medicines by which the complainant got relief without any surgery. Alleging deficiency in service as well as negligence on the part of OPs which could have caused heavy expenditure and trauma of surgery if their advice had been accepted, the complainant lodged a consumer complaint against OPs seeking refund of Rs.7,950/- paid to OP-1 and Rs.750/- paid to OP-2 in addition to a compensation of Rs.50,000/- and cost of proceedings. THE complainant filed her affidavit in support of the allegations and also produced documentary evidence. OPs on being noticed resisted the complaint and filed their affidavits along with the case sheet of the complainant. THEy denied all the allegations made in the complaint against them. After hearing the arguments and on appraisal of the issues and the evidence adduced, the District Forum partly allowed the complaint vide its order dated 09.12.2010 by passing the following order:- a) THE complaint is partly allowed. b) THE 1st OP is hereby directed to refund a sum of Rs.7,950/- the charges collected and further, pay a sum of Rs.25,000/- compensation to the complainant, within a month from the date of the order, failing which the amount will carry interest at the rate of 10% P.A. c) THE 2nd OP is hereby directed to refund a sum of Rs.750/- the charges collected and further, pay a sum of Rs.25,000/- compensation to the complainant, within a month from the date of the order, failing which the amount will carry interest at the rate of 10% P.A. d) So also, each of the OPs shall pay a sum of Rs.1,000/- to the complainant towards cost of the proceedings.

Aggrieved by the aforesaid order of the District Forum, both the OPs challenged the same by filing separate appeals, Appeal No. 101 of 2011 by OP-1 and Appeal No.102 of 2011 by OP-2 before the State Commission which came to be partly allowed by the common impugned order dated 10.3.2011 passed by the State Commission. By its impugned order, the State Commission has partly allowed the appeals and given the following directions:- The appellants / OPs in both the appeals are jointly and severally liable to pay compensation of Rs.10,000/- towards mental agony to the complainant for the wrong diagnosing the patient. The DF directing the OPs 1 and 2 to refund the sum of Rs.7,950/- and Rs.750/- the charges collected is set aside. The appellants / OPs are jointly and severally to pay litigation expenses of Rs.1,000/- to the complainant. The appellants are directed to comply with the order within 30 days from the date of this order.

The present revision petitions have been filed by the respective Ops challenging the above order of the State Commission.

WE have heard learned counsel for the petitioners. The short question involved in these revisions is as to whether the OPs gave wrong advice which compelled the complainant to spend considerable amount and also could have led the complainant to undergo major surgery. Based on the facts which are not under dispute, both the fora below have returned their concurrent finding regarding deficiency in service and rendering professional advice on the part of the OPs. While both the District Forum and the State Commission held that there was deficiency in service in regard to rendering of wrong professional advice on the part of the OPs, the State Commission on appeal filed by the petitioner was of the considered view that in the facts and circumstances of the case, the order of the District Forum required to be modified in respect of the refund of charges and amount of compensation. In view of this, the State Commission allowed the appeals in part, set aside the order in respect of refund of charges and reduced the amount of compensation. While giving partial relief to the petitioners, the State Commission has observed as under:- In our considered view even after the earlier stage if the complainant had approached Dr. Tukkar he would have prescribed to undergo certain clinical and laboratory test like sonography and radiology test. If a person who is suffering from stomach pain usually Doctor will advise the patient to undergo such type of tests. But the question is the OPs have misguided the complainant to undergo immediate surgery by conducting certain tests and for the same complainant was to be suffered. Therefore, we feel that the order passed by the District Forum is to be modified.

We agree with the view taken by the State Commission. Under these circumstances, we find that whatever relief could be considered justified in favour of the petitioners keeping in view the concurrent finding of facts, has already been granted by the State Commission by its impugned order. We do not see any reason or justification to interfere with this impugned order of the State Commission while exercising our revisional jurisdiction. The revision petitions, therefore, stands dismissed.