ASHOK KUMAR SINGH vs MOHAN THAKUR

THE case of the complainant is that he met with an accident on 28.10.1994 and sustained multiple injury in his left leg. He was admitted in Sadar Hospital at Khagaria where he was examined by Dr. Awadhesh Kumar who referred him to Dr. S.M. Thakur, Orthopaedic Surgeon in Sadar Hospital. He was examined by Dr. Thakur, a slab was given to him and he was asked by Dr. Thakur to come to Uma Nursing Home for better and regular treatment. On being so advised by Dr. Thakur, he got himself discharged from Sadar Hospital on 29.10.1994 and went to Uma Nursing Home on 3.11.1994 where his left leg was plastered and some medicines were prescribed without X-ray, etc. After one or two days he was allowed to leave the Nursing Home and was advised to come to the Nursing Home twice in a week for regular check-up. For every check-up Dr. Thakur charged Rs. 50/- as his fee. He was feeling severe pain in his left leg and was drawing the attention of Dr. Thakur towards that but the doctor assured him that he would be cured soon as he was being given right treatment. Finding no improvement he came to Patna and consulted Dr. R.N. Singh, an Orthopaedic Surgeon, who told him that he was getting faulty and negligent treatment as a result of which the fractured bone had not joined up till now. Dr. R.N. Singh advised him to do some physical exercises under the guidance of some physiotherapist. Due to negligent and faulty treatment of Dr. Thakur he has become handicapped to the extent of 43.50% as certified by the Civil Surgeon-cum-C.M.O., Khagaria and has lost his efficiency in doing physical work. Apart from that, he has been put to mental agony, physical harassment and monetary loss. On the allegations aforesaid, the complainant has prayed for compensation of Rs. 700,000/- (Rs. seven lacs).

OPPOSITE party Dr. Shree Mohan Thakur has filed written statement in the form of an affidavit and has contested the case. His case is that the complainant had been treated by him in Sadar Hospital, Khagaria without charging anything for the treatment. He was discharged from the hospital on his own request when he (complainant) stated that his residence was by the side of the hospital and he was feeling alright. It is false to say that he had been advised by the opposite party to come to Uma Nursing Home for better treatment. Had it been a fact then the complainant would have come to Uma Nursing Home on 29.10.1994, the day he was discharged from the hospital and not on 3.11.1994, i.e., nearly a week after discharged from the hospital. X-ray had been done on 28.10.1994, the day the complainant was admitted in Sadar Hospital and thereafter plaster was done and he was treated in the Sadar Hospital. It is neither the case of the complainant that he had paid any fee to the opposite party for the plaster nor there is any receipt with regard thereto. It is false to say that the complainant had been asked to come twice a week for check-up and for that he had paid Rs. 50/- as fee to the opposite party. It is not the case of the complainant that for plaster in the Nursing Home he had paid any fee or Nursing Home charge to the opposite party. If so, then the alleged payment of Rs. 50/- as fee for check-up is ridiculous and funny. In the complaint petition it has not been disclosed as to now the service provided by the opposite party was deficient and what was the proof thereof. Further case of the opposite party is that the complainant being the neighbour of the opposite party had met him once or twice, reminded him about plaster in Sadar Hospital and had talked of some inconvenience and the opposite party had possibly prescribed some medicines and vitamins from time to time in accordance with need. There was no deficiency in service on the part of the opposite party is apparent from the fact that the complainant got himself discharged from the hospital on 29.10.1994 and was attending his duty from 5.11.1994 onwards. The prescription of Dr. R.N. Singh does not show that the fractured bone of the complainant had not united and that there was any deficiency in the service provided by the opposite party. Had the fractured bone not united, Dr. R.N. Singh would not have advised for physiotherapy. The complainant has filed the case with false allegations with a view to have some wrongful gain from the opposite party which was caused not only mental agony and physical harassment to the opposite party but has also affected his reputation. On the aforesaid allegations the opposite party has prayed for dismissal of the case with cost to the opposite party.

The complainant has filed rejoinder to the written statement of the opposite party in which he has set-up a new case to the effect that he was asked by the opposite party to deposit Rs. 1,100/- as his fee for plastering his leg and he accordingly paid the said amount to the opposite party with plaster materials. His leg was plastered on 3.11.1994 and he was admitted in Uma Nursing Home of the opposite party. Steel plate which is normally required to assemble and unite the fractured bones had not been used. The opposite party had not granted any receipt regarding payments made to him and plastering had been made in a state of swelling. In absence of proper care there was a pus pocket in the lower part of thigh which was operated upon by Doctor R.N. Singh who charged Rs. 5,000/- for the same. Due to effort and service of Dr. R.N. Singh his leg was saved but he had to spend Rs. 2,000/- in the name of exercise and had to pay charge for 13 days at the rate of Rs. 70/- per day.

IN support of his case the complainant has brought on record photo copies of prescription of the doctors (including opposite party) of Sadar Hospital, Khagaria, photo copy of the prescription of the opposite party on the pad of Uma Nursing Home, Khagaria, with printed name of the opposite party thereon; prescription and other papers concerning his treatment by Dr. R.N. Singh. Disability report granted by the office of Civil Surgeon, Khagaria, affidavits dated 14.12.1998 and 3.10.1996 of the complainant, affidavit dated 1.5.1996 of Dr. Ganauri Prasad of Veterinary Hospital, Khagaria, affidavits dated 18.4.1996 of Deo Narain Yadav, Ram Bilash Singh and Dharmendra Kumar and affidavits dated 17.4.1996 of Arjun Pd. Yadav and Jaimala Devi. As against this, the opposite party has also annexed photo copies of three papers with his written statement but there is no affidavit to the effect that the photo copies are true copies of their respective originals. Certain facts are not disputed. It is not disputed that the complainant had sustained fracture injury in his left leg on 28.10.1994 and had been admitted in Sadar Hospital, Khagaria. It is also not disputed that in the said hospital he was examined by some doctor who referred him to the opposite party. It is also not disputed that in Sadar Hospital his injury was X-rayed. From para 3 of the affidavit dated 3.10.1996 of the complainant it would appear that X-ray was done at the instance of the opposite party and the left leg of the complainant was temporarily plastered by the opposite party in the Sadar Hospital itself. The admission of the complainant in para 3 of his affidavit dated 3.10.1996 falsifies his allegation in the complaint petition that his leg had been plastered without X-ray. Except the statement of the complainant himself there is no evidence to support his case that the opposite party asked him to come to Uma Nursing Home for better treatment and hence he got himself discharged from Sadar Hospital on 29.10.1994. Had it been so, the natural conduct on the part of the complainant would have been to go to Uma Nursing Home ''immediately'' after his discharge from Sadar Hospital on 29.10.1994 but he is said to have gone there on 3.11.1994. The explanation for delay in going to the said Nursing Home as given by the complainant in para 8 of his rejoinder does not appear to be convincing. So the case of the complainant that the opposite party asked him to come to Uma Nursing Home for better treatment does not inspire confidence.

THOUGH the opposite party in his written statement has denied the genuineness of the photo copies of his prescription on the printed pad of Uma Nursing Home but his handwriting and initial on his prescription of Sadar Hospital tally with the handwriting and initial on the pad of Uma Nursing Home and that goes to show that he had treated the complainant in the said Nursing Home also. The opposite party has tried to explain it by stating in his written statement that the complainant being his neighbour had possibly come to him once or twice complaining inconvenience and he had prescribed medicines and vitamins. Now the question to be considered is as to whether the complainant had paid anything to the opposite party for treatment and whether there was any deficiency in service on the part of the opposite party. In his complaint petition it is not the case of the complainant that he had paid anything to the opposite party for plastering his left leg or for his stay in the Nursing Home for one or two days. However, he has alleged that for every check-up the opposite party had charged Rs. 50/- as his fee. There is no receipt regarding payment of Rs. 50/- as fee to the opposite party for every medical check-up. It is not the case of the complainant in his complaint petition that he had asked for receipt concerning payment of fee but the opposite party did not grant the same. Being a Government servant who is entitled to medical reimbursement, the complainant must have obtained receipt from the opposite party had he actually paid any amount as fee to the opposite party. In his rejoinder (paras 4 and 5) to the written statement of the opposite party, the complainant has alleged that he had paid Rs. 1,100/- to the opposite party as fee for plastering his leg on 3.11.1994. There is no receipt concerning payment of the said amount by the complainant to the opposite party. It is not the case of the complainant in his complaint petition that he had paid Rs. 1,100/- to the opposite party as his fee. Such case has been set up for the first time in the rejoinder after filing of written statement by the opposite party. As is apparent, the case regarding payment of Rs. 1,100/- as fee to opposite party is an after-thought on the part of the complainant and hence can hardly be accepted. Furthermore the statements of Deonarain Yadav, Ram Bilash Singh (brother of complainant), Arjun Pd. Yadav, Dharmendra Kumar and Jaimala Devi (wife of complainant) in their affidavits is that Rs. 700/- had been paid as fee for plaster and Rs. 50/- as bed charge for two days. The statement of the said witnesses to the said effect falsify the allegation of the complainant in his rejoinder that he had paid Rs. 1,100/- as fee to the opposite party. Had the complainant actually paid any amount to the opposite party as his fee, there would not have been inconsistency in the statement of the complainant on the one hand and statements of the said witnesses on the other hand. That being the state of evidence, it is difficult to accept that the complainant had paid any amount to the opposite party as fee for his treatment.

DR. R.N. Singh has been examined as C.W. 1 before this Commission. He has proved his prescription concerning the complainant as Ext. 1. The other papers concerning his treatment by DR. R.N. Singh are also on record. From the evidence of DR. R.N. Singh as well as from the papers concerning treatment of the complainant by him it would appear that at the time of examination by DR. R.N. Singh the fracture was found to have united and the grievance of the complainant was that movement of his left knee was restricted. It would further appear from the evidence of DR. R.N. Singh that after plaster stiffness in the knee is usual and hence he prescribed some medicines, advised the complainant to use a particular type of shoe and resort to physiotherapy. It is neither the case of the complainant nor there is anything in the evidence of DR. R.N. Singh to show that plaster of the leg of the complainant by the opposite party was not justified. In view of the statement of DR. R.N. Singh to the said effect, the stiffness in the knee of the complainant causing restricted movement cannot be attributed to any negligence or deficiency on the part of the opposite party. As stated by DR. R.N. Singh, the fracture had united and hence it cannot be said that there was any deficiency in service on the part of the opposite party on this score. DR. R.N. Singh has further stated that finding no improvement in the movement of knee, he performed operation on 2.8.1995. He has further stated that when he examined the complainant on 16.10.1995 for the last time he found the movement of knee satisfactory. This statement of DR. R.N. Singh creates doubt about reliability of the disability report obtained by the complainant from the office of Civil Surgeon, Khagaria. A perusal of the disability report would show that it has been signed by two doctors on different dates and the third doctor has not noted the date below his signature. In his evidence before this Commission DR. R.N. Singh has nowhere stated that the complainant had become disabled to any extent. Furthermore, the percentage of disability as shown in the disability report issued by the office of the Civil Surgeon differs from the percentage of disability as shown in the office record (Annexure 3 to the written statement of the opposite party) of the Civil Surgeon. In any case the evidence of DR. R.N. Singh does not show that disability, if any, had been caused by any deficiency on the part of the opposite party.

IN para 6 of his rejoinder the complainant has stated that steel plate is required to assemble and unite the fractured bones but the opposite party had not used the same. Dr. R.N. Singh in his evidence has stated that it was not possible to use steel plate as there were two fractures and that too near the knee. So there is no merit even in the above grievance of the complainant. Though it is not the specific case of the complainant that there was no X-ray of his fractured leg after plaster but contention to that effect was advanced on behalf of the complainant. Dr. R.N. Singh in his evidence has stated that X-ray or no X-ray after plaster depends upon the self confidence of the doctor. So even if it is accepted that the opposite party did not get the leg of the complainant X-rayed after plaster, the same can hardly amount to deficiency in service. From the evidence of Dr. R.N. Singh and other papers concerning the treatment of the complainant by him it appears that at the time of operation by him pus pocket had been found in lower part of the thigh which busted open while being manipulated and dissected and the same was taken out. On being asked Dr. R.N. Singh stated that he cannot say the cause of pus pocket in lower part of thigh and the period since when the same was there. There is nothing in the evidence of Dr. R.N. Singh to suggest that pus pocket was due to any negligence or deficiency in service on the part of the opposite party. It has been taken in the evidence of Dr. R.N. Singh that fracture in the leg of an adult aged between 30 to 40 years unites between 8 to 12 weeks. At page 12 of the book "Outline of fractures" by John Crawford Adams and David L. Hamblem (Tenth edition) it has been stated that in adults the time usually required for consolidation of a fractured long bone, in favourable conditions, is about three months though in many cases it extends to four or even five months especially in the case of a large bone such as the femur. It has been further stated that in general, union tends to occur rather more rapidly in the slender bones of the upper limbs than in the large weight bearing bones of the lower limbs. There is nothing on record to show that the fractured bones of the complainant had taken more time than is usually taken. At the time of examination of the complainant, Dr. R.N. Singh had found the fractured bones united. So it cannot be said that there was any deficiency on the part of the opposite party even on this scope. There is nothing in the evidence of Dr. R.N. Singh to support the allegation of the complainant in his complaint petition that as per Dr. R.N. Singh faulty and negligent treatment had been given to him by the opposite party. Even if it is accepted for argument sake that the complainant had paid fees, etc. to the opposite party for his treatment, the same is not sufficient to entitle him to get compensation as he has failed to prove that there was deficiency in service on the part of the opposite party.

From the above discussions it is apparent that there is no merit in this case. In the result, this complaint case is hereby dismissed. The parties will bear their cost. Complaint dismissed.