BIHARILAL THAVAIT vs PRAKASH LADIKAR

SHRI Biharilal Thavait, aged 26 years, a polio patient has filed this complaint against Dr. Prakash Ladikar, Orthopaedic Surgeon making allegations, stated in brief as under : (i) That he was a polio patient from his childhood but was able to walk and was provided a tricycle by Panchayat Department in 1988. (ii) That when he went to meet the District Collector, SHRI Uday Verma, for replacement of his old tricycle, SHRI Uday Verma told him that his legs appear to be quite good and may be further improved by an operation for which he talked to Dr. Prakash Ladikar on phone and advised him to contract Dr. Prakash Ladikar in his Nursing Home. (iii) That he was operated by Dr. Prakash Ladikar on 19.11.1988 and was advised to use callipers for walking. (iv) After operation on 19.11.1988 he was discharged from Nursing Home on 15.3.1989. (v) He was again admitted in Dr. Ladikar''s Nursing Home on 17.4.1989 for treatment and was discharged on 3.6.1989. (vi) That Dr. Ladikar continued to advise him for a period of five years not to fold his legs with the result that he is not in a position now, to fold his legs at all and thus, Dr. Ladikar cheated him. (vii) That because of his legs could not be folded, he could not be able to get appointment of a teacher and he has no strength in his muscles. (viii) That on 14.11.1988 when he went to Dr. Ladikar he was charged Rs. 3,000/- for which he was not given any receipt and was assured that he will be able to walk without callipers and walking frame. (ix) That as a result of deceitful assurance by Dr. Ladikar he suffered this deformity of not be able to fold his legs at all. He has requested this Commission to direct the opposite party to pay Rs. 15,00,000/- as compensation. (x) That before filing this complaint he had issued a notice to Dr. Ladikar through his Advocate on 26.10.1996 filed as Ex. P 10 through which he had directed the opposite party to pay him Rs. 15,00,000/- as compensation failing which he will take recourse to file complaint against him for compensation and criminal prosecution in appropriate Courts of law.

THE opposite party furnished his reply alongwith photocopies of 23 documents stating as under : (i) That he was not paid any consideration for operation or treatment or stay in his Nursing Home. (ii) That he gave to the complainant full treatment without any charge as per desire of the then Collector. (iii) That he had not given any kind of guarantee to the complainant that he will recover fully and there was no negligence or any kind of deficiency by him in operation or treatment. (iv) That the operation was performed on 19.11.1988 and the complaint has been filed in 1996 i.e. after 8 years and, therefore, the complaint is time- barred. (v) "That when the complainant came to his Nursing Home he was totally disabled and was not able to walk and the opposite party Dr. Prakash Ladikar treated him free of costs and made him able to walk with a frame and callipers. (vi) That the complainant also filed a complaint before the District Forum, Bilaspur which has already been dismissed vide the Forum''s order dated 4.8.1988 passed in their case No. 7/96, copy of which is filed as Ex. D23. (vii) That the complainant is in the habit of making complaints here and there, frequently without any rhyme or reason, e.g. to Divisional Commissioner, Human Rights Commission, IMCR etc. (viii) THE note sheet of District Rehabilitation Officer dated 13.7.1995, copy of which has been filed as Ex. D/7 clearly mentions that the complainant is in the habit of making such complaints to higher officers every now and then without any rhyme or reason. (ix) THE Consumer Protection Amendment Act, 1993 applicable with effect from 18.6.1993 has specially added Section 26 for dismissal of frivolous and vexatious complaints with directions to the complainant to pay to the opposite party such cost as may be decided in order to be deterrent for filing of such frivolous and vexatious complaints and this Commission has also given such directives in O.A. No. 18/92, M.P. Bhaya v. Government of India. (x) That the complainant has not come with clean hands and in his application dated 13.1.1995 to District Rehabilitation Centre, Bilaspur for sanction of payment, copy of which filed as Ex. Dl, the complainant has himself stated in categorical words that he used to crawl down to his school in Class III or was by being brought to this school by his parents meaning thereby that he was totally disabled before the performance of the operation. (xi) That it is wrong to say that he was advised not to fold his legs. On the other hand he was advised to go for physical therapy, which advice he did not follow at all. (xii) That charges for callipers and walking frame were also not paid by the complainant, but were paid by the District Rehabilation Centre. (xiii) That Dr. Ladikar kept the complainant in his Nursing Home for 5 months and spent thousands of rupees in his treatment and instead of being grateful to him, the complainant has filed this complaint with an intention to get some kind of compensation from him. (xiv) That when the complainant came to his Nursing Home for treatment he was aged 16 years and was suffering from polio since childhood. 16 years period is a very long period in case of a polio patient and the complainant already had tremendous stiffness in his knee joints and hip joints, etc. (xv) THEre was no movement in his leg fingers and it is clearly mentioned in the book on Orthopaedic surgery that such deformities are of the residuary steps when an operation cannot give 100% relief. (xvi) In the instant case, after operation, the complainant had started walking on callipers and walking frame and therefore, the opposite party did not commit any kind of negligence and deficiency in his operation or treatment.

Heard the arguments of both the parties and perused the record of the case.

On a perusal of the record of the case we find that in his old application dated 29.12.1995 filed before District and Sessions Judge and the President, Consumer Forum, Bilaspur he has categorically stated that his operation on 19.11.1988 was performed by Dr. Prakash Ladikar "free of costs", copy of which is filed as Ex. D11. In his letter dated 18.3.1995 filed as Ex. D-12 he has again stated that the operation performed was "free of costs". In his application dated 19.9.1995 addressed to Shri I.K. Patel, School Education, copy filed as Ex. D-13, he again stated that the operation was performed "free of costs". In his application dated 17.9.1996 addressed to Divisional Commissioner, Bilaspur, copy filed as Ex. D-16, he again stated that his operation was performed "free of costs".

IN the report No. RD 97 dated 9.1.1997 of the District Rehabilitation Officer, Bilaspur sent to Divisional Commissioner, Bilaspur, copy filed as Ex. D 17, the District Rehabilitation Officer has categorically stated that the operation performed by Dr. Ladikar was free of costs and the callipers and walker were provided free of costs to Shri Biharilal through District Rehabilitation Centre and since Dr. Ladikar had not charged any fees from Biharilal question of any kind of fraud or cheating does not arise. That the complainant-Biharilal Thavait was provided Rs. 5,000/- from the Chief Minister''s Relief Fund and the complaint filed by Biharilal Thavait before the Human Rights Commission of which an enquiry was conducted by the Sub-Divisional Officer, was found to be false as has been stated in the report of the District Collector, Bilaspur in his letter No. Sa- Va-Le-96/64/25196 sent to the Human Rights Commission.

THAT the District Rehabilitation Officer has further stated in the report dated 9.1.1997 that Mr. Biharilal Thavait is in the habit of making complaints to various officers to some how get some kind of financial relief and that he is now not deserving of any kind of financial relief. Ex. D3 is the photocopy of a certificate filed by the complainant himself wherein Dr. Ladikar has certified that the complainant- Biharilal Thavait aged 25 years was operated on 19.11.1988 and that he was a case of Bilateral Post Polio Contracture of Hip, Knee and Ankle joints. This certificate appears to have been given by Dr. Ladikar to the complainant Biharilal Thavait on his own request, meaning thereby, that till 20.3.1995 the complainant had no grievance against Dr. Ladikar. Ex. P9 filed by the complainant himself being the prescription of Dr. Agrawal, though states that there will be no improvement of muscle power after surgery, it does not in any way state that there has been any kind of negligence or deficiency in service during operation on 19.11.1988 or during the course of post-operative treatment for a period of 4-5 months by opposite party Dr. Prakash Ladikar. Ex. P10 filed by the complainant is a photocopy of a registered notice issued to Dr. Ladikar by his Advocate only to pay Rs. 15,00,000/- to him as compensation for not treating him properly and for stiffness in his legs occurring due to opposite party''s advice that he should not fold his legs. There is no prescription, suggestion, medical advice or evidence to the effect that the operation was performed negligently or that there had been any kind of deficiency in treatment given to the complainant by Dr. Ladikar. A simple allegation that he is not able to move his legs does not indicate any kind of negligence on the part of the opposite party in performance of operation or his treatment. On the other hand, we find that in his application dated 13.1.1995, copy filed as Ex. PI, the complainant has himself mentioned in first paragraph that he used to crawl to school while studying in Class-III or was being brought to school by his parents. In this application, he has further stated that he is getting strength in his legs and he has only to put on calipers. In Ex. D8, the photocopy of note sheet of the District Rehabilitation Officer, Bilaspur it is specifically mentioned that the complainant was advised Physiotherapy which advice he did not follow due to pain and his joints got stiffened.

NOT only that there is, on opinion, advice or evidence to the effect that there has been any kind of negligence on the part of Dr. Ladikar, we find further that the Indian Medical Association had written a letter No. IMA/F.22 (23)/1818 dated March 15/21,1996, copy filed as Ex. D14, to the complainant-Shri Biharilal stating categorically as under : "it is felt that it is only because of the surgery performed by Dr. Ladikar, you have been able to stand on your own legs with the help of calipers. Before surgery you were totally bed-ridden and could not move at all. You are advised that you should be thankful to the Doctor rather than blaming him for all the help which he has rendered to you."

IN view of such categorical comments of INdian Medical Association and in view of the facts as stated earlier we have no option but to hold categorically that there has been no negligence by the opposite party Dr. Prakash Ladikar in the operation performed or treatment given to the complainant. We further feel that the complainant has taken too much of the liberty of the sympathetic approach of and assistance given by Shri Uday Verma, the then Collector and also further in subsequent years when he was no more a Collector of the District. We are of the view that because of this sympathetic approach of the District Administration and as a result of personal interest taken by Shri Uday Verma, the complainant went on making frivolous and vexatious allegations against a surgeon who went out of the way to operate him and treat him in his own nursing home for months together, at his own expense. It appears to be a rare case of exemplary approach of a private physician to treat a patient at his own costs. But instead of having been grateful to him, the complainant has come forward making such'' allegations against him demanding compensation, and so much so that once having filed a complaint before the District Forum, he filed another complaint before the State Commission with a view to extract as much as amount of compensation as could be possible and filed this complaint for compensation of Rs. 15,00,000/- because the District Forum was not competent to grant a compensation of more than Rs. 5,00,000/-.

We also feel, that as contended by the opposite party, operation having been performed on 19.11.1988 and the complaint having been discharged from the Hospital in April, 1989, the complaint filed before us in 1996 is time- barred also and was not maintainable, though admitted by us.

IN the result, the complaint fails and has to be dismissed as frivolous and vexatious complaint filed against the opposite party who with best of his ability and expertise, without charging any amount of fee and expenses incurred in treatment in his Nursing Home on sympathetic consideration rendered medical help so as to treat the complainant of his permanent deformities. For that the complainant ought to have been grateful to him instead of that the opposite party was dragged by the complainant in litigation. Therefore, it is a case where the costs under Section 26 deserve to be awarded. However, considering the condition of the complainant who is a poverty stricken disabled person and the complaint has been filed through legal aid, we do not award any amount of costs. In the result, the complaint fails and is dismissed with no order as to costs. A copy of this order be conveyed to the parties. Complaint dismissed.