Brajeswar Mishra (Dr.) and Anr. vs Sirish Kumar Acharya and Ors.

APPELLANTS which were the Opposite Parties before the State Commission have filed this Appeal against the judgment and order dated 28.11.2007 passed by the State Consumer Disputes Redressal Commission, Orissa (in short, ''the State Commission'') in C.D. Case No. 13/1999 whereby the State Commission allowing the complaint has directed the Appellants jointly and severally to pay the sum of Rs. 8,00,000 to the Complainant No. 1 by 31.1.2008 failing which the amount shall carry interest @ 9% p.a. from the date of death of the deceased, i.e. 17.11.1998. Averments made in the Complaint:

Complainant/Respondent No. 1''s wife and mother of the Complainant Nos. 2 and 3 (hereinafter to be referred to as "the deceased") went to the Appellant No. 2 Nursing Home (O.P. No. 2 before the State Commission) for medical check up of her disorder in menstruation on 16.11.1998. After examining her. Appellant No. 1 Doctor (hereinafter to be referred to as "the Appellant") suspected pregnancy and suggested MTP and LAP -BTL operations. On 17.11.1998, deceased deposited Rs. 1,300 with the Appellant towards operation fees, nursing home charges and fees for anesthetist. The deceased was taken to the operation theatre for performing the operations of MTP and LAP -BTL. After half an hour, Appellant came out from the operation theatre and informed the Complainant/Respondent No. 1 (hereinafter to be referred to as "the Respondent") that he conducted only MTP operation and the LAP -BTL operation would be done at 12.00 p.m. as he had to attend operation of another patient. Since, the deceased was feeling pain and there was bleeding from her private parts. Respondent requested the Appellant to accommodate her in the nursing home but the Appellant expressed his inability as there was no vacancy. Again at 12.00 p.m. the deceased and the Respondent came to the hospital. The deceased explained the physical problems of bleeding and pain to the Appellant. However, the Appellant took the deceased to the operation theatre by stairs as there was no facility of lift. After a short while, Respondent heard the screaming of the nurse present inside the operation theatre. Suddenly, Appellant came out from the operation theatre and asked the staff to get an anesthetist. Thereafter, the dead body of the deceased was brought out from the operation theatre on a wheeled stretcher. Police was informed about the incident. Respondent alleged that there was a superficial cut like wound of 1/4 inch on lower abdomen of the deceased which was stitched; her tongue had gone inside and looked small; the maxilla portion of the face of the deceased turned bluish and pasty blood was oozing out from her private part. Complainants alleging medical negligence on the part of the Appellants/Opposite Parties filed the complaint before the State Commission.

APPELLANTS entered appearance through their Counsel but did not file the written statement. They were proceeded ex parte as none of the Appellants or their Counsel appeared at the time of final hearing. Since the averments made in the complaint and the evidence led by the Respondents remained unrebutted and uncontroverted, State Commission taking the averments made in the complaint duly supported by the affidavit of the Complainants, to be correct allowed the complaint and directed the Appellants jointly and severally to pay the sum of Rs. 8,00,000 to the Respondent by 31.1.2008 failing which the amount was to carry interest @ 9% p.a. from the date of death of the deceased, i.e., 17.11.1998 till realization. State Commission in its order observed as under:

THERE can be no dispute that the nature of MTP and LAP -BTL operation is simple and non -fatal operation conducted throughout the country as a measure of family planning programme. The Opposite Party No. 1 is a M.D. It was expected that he utilized better degree of care and caution during both the operations. The death certificate Annexure -4 shows that she died while performing laparoscopic operation. In absence of anything to the contrary, we are inclined to hold that the opposite party No. 1 was negligent in performing the operation which amounts to deficiency in service.

THE deceased was aged about 30 years at the time of occurrence. The Complainant No. 1 is deprived of his life partner at the young age. Their children -Complainant Nos. 2 and 3 are deprived of the motherly love, affection and company. Considering the age of the deceased and having regard to other aspects, we assess the compensation at Rupees 8,00,000 (eight lakh). The opposite party Nos. 1 and 2 are jointly and severally liable to pay it. We direct both the opposite parties jointly and severally to pay the aforesaid amount of Rupees 8,00,000 to the complainant No. 1 by 31.1.2008 failing which it shall carry interest at the rate of 9 per cent per annum from 17.11.1998 (date of the death of the deceased). Appellants, being aggrieved, has filed the present appeal.

We have heard the learned Counsel for the parties at length. Learned Counsel appearing for the Appellants contends that the complaint was never listed before the State Commission between 12.12.2003 to 3.10.2007 and, therefore, the Appellants had no knowledge about the progress of the case; that there was no intimation of fixing of the date of hearing either from the Complainant or from the State Commission; that the requisite due care and caution before conducting the operation was taken by the Appellants; that the death of the deceased was due to Air Embolism causing Pulmoedema and Cardiac Arrest which are the complication of the procedure; that there was no expert evidence with regard to actual cause of death.

Appellants had been duly served. They entered appearance and in spite of taking several opportunities did not file the written statement. As per the order sheet passed by the State Commission, on 12.12.2003 the case was adjourned to 28.1.2003 for hearing. Order of 28.1.2003 or any other order passed subsequent thereto upto 3.1.2007 has not been produced. The case was listed on 3.1.2007 on which date Counsel for the Respondents was present but none appeared for the Appellants. The case was thereafter adjourned to 11.10.2007 for hearing. On 11.10.2007, the case was adjourned to 22.10.2007 and thereafter to 28.11.2007. The complaint was ultimately allowed ex parte against the Appellants on 28.11.2007. Once the Appellants had engaged the Counsel, it was the duty of the Counsel to keep track of the case. Submission made by the Counsel for the Appellants that the Appellants had no knowledge about the progress of the case cannot be accepted. Appellants did not file the written statement controverting the averments made in the complaint. Appellants did not lead any evidence to show that due care and caution was taken before conducting the operation. The facts stated in the complaint duly supported by the evidence led by the Respondents remained unrebutted and uncontroverted and under these circumstances, the State Commission was justified in allowing the complaint taking the facts stated in the complaint duly supported by the evidence to be correct. Facts not denied can be taken to be correct and the State Commission has not committed any error in doing so.

Counsel for the Appellants then contended that the case should be remitted back to the State Commission to provide an opportunity to the Appellants to contest the case on merits. Complaint was filed in the year 1999. Appellants did not file any written statement or lead evidence for a period of 8 years till 2007. The case has been pending for the last 14 years. Contention raised by the Appellants seeking remand of the case to the State Commission cannot be accepted at this belated stage.

FOR the reasons stated above, we do not find any infirmity in the order passed by the State Commission. Dismissed. No order as to costs. In pursuance to our order dated 2.1.2008, Appellants had deposited 50% of the awarded amount with this Commission. We direct the Registry to release the said amount along with accrued interest to the Respondents in part satisfaction of the decree. Appellants are directed to pay the balance amount within two months failing which the amount shall carry interest @ 9% p.a. from today.