C.Sivakumar vs JOHN ARTHUR

THE complainant C. Sivakumar, doing Plus Two by correspondence course is a permanent resident of Viswareddipalayam in Villupuram Taluk. He was having urinal trouble. For this, he approached the 1st opposite party Dr. John Arthur who was working in Primary Health Centre, Radhapuram, on 10.6.1993. THE 2nd opposite party was working as a compounder there. THE 1st opposite party advised for testing urine. According to the complainant, the 2nd opposite party on 17.6.1993 told him that the 1st opposite party was ready to perform operation on the petitioner and agreed to cure the urine blockage by performing operation and advised him to meet the 1st opposite party. Upon this the complainant went to the 1st opposite party. He demanded a sum of Rs. 300/- for the operation. THE complainant paid a sum of Rs. 150/- undertaking to pay the balance amount after successful operation. THEn on the same day the 1st opposite party took the complainant to D.S. Clinic and at 7.30 p.m. he performed operation on the penis of the complainant. THE case of the complainant is that in the said D.S. Clinic the operation theatre was not fully equipped with modern facilities for performing this sort of major operations. THE further case of the complainant is that after the operation there was over-bleeding from the region of penis and hence the 2nd opposite party took the complainant to the Government General Hospital, Villupuram and there they were advised to take the complainant to Jipmer Hospital, Vellore. However, the opposite parties took the complainant to Ashwini Hospital. THEn the petitioner was taken by the opposite parties to Jipmer Hospital where he was admitted on 18.6.1993 at 10.30 a.m. in the casualty ward. THEre the petitioner came to know that his penis had been cut and removed by the improper and negligent operation performed by the opposite parties. THE Jipmer Hospital authorities reported the matter to the police. Since the penis was permanently damaged they made a hole as a temporary device to pass urine. In the Jipmer Hospital the complainant was treated as an in- patient from 18.6.1993 to 13.7.1993. THE further case of the complainant is that his penis has been permanently damaged and on account of that he has to pass urine only through the temporary hole and there is no possibility to get his penis in its normal condition. THE further case of the complainant is that due to the negligence on the part of the opposite parties, he had been rendered impotent permanently and is unable to pass urine and not to have sexual intercourse due to which he has been deprived of having any issues. On these allegations the complaint has been filed for an award of Rs. 10 lakhs to be paid by the opposite parties.

THE 1st opposite party in his written version contends that the complaint is not maintainable in law. He would contend that as seen from the complaint itself the complainant had taken treatment in the Government General Hospital, Villupuram, Ashwini Hospital, Villupuram and Jipmer Hospital, Pondicherry and therefore they are all necessary parties to the complaint, but the complainant has failed to implead them. THE complainant had undergone operation both at the Government General Hospital, Villupuram and also Jipmer Hospital and these material facts have been suppressed by the complainant and for these reasons alone the complaint is liable to be dismissed. THE complainant approached the 1st opposite party for curing the defect in passing urine with which he was suffering from for a number of years. On examination the 1st opposite party took the view that the complainant had Phimotic penis and advised to have a circumcision. THE complainant expressed his willingness to undergo circumcision at D.S. Clinic owned by Dr. Rahothaman a Civil Assistant Surgeon. Pre- operative preparations were made. On a careful examination of the penis, the 1st opposite party came to the conclusion that initially dorsal slit had to be made. As the complainant had chronic posthitis with fibrosis constrictions the prepuce could not be retracted and hence proper examination inside was not possible. Only dorsal slit was made by the 1st opposite party as well as Dr. Rahothaman who was assisting him. THEn they found it was a very complicated one due to long-standing phimosis adhesions extensively formed. In these circumstances, with sufficient care the 1st opposite party made suture on the skin covering the penis with prepuce and neatly dressed the same. THEn the complainant was taken to the Government General Hospital at Villupuram for further examination and operation. THEre the complainant was admitted as an in-patient. On 17.6.1993 at 10.30 p.m. in I.P. No. 6939 Dr. Sankaramurthy and Dr. Neelakantan performed an operation for about 45 minutes. This fact has been suppressed by the complainant with some ulterior motive. THEn the complainant was discharged from that hospital around midnight and he was then taken to Ashwini Hospital. From there the complainant was taken to Jipmer Hospital, Pondicherry. It is then contended that it is not correct to say that the 1st opposite party demanded money from the complainant and a sum of Rs. 150/- paid to him was hardly sufficient for travelling and making arrangement for preparations for the operation and for purchase of necessary drugs. THE 2nd opposite party was not working with him as a compounder as alleged. This opposite party denied that he operated on the penis of the complainant and also denied that his clinic was not equipped with modern facilities to perform major operations. He would also deny that he took the complainant to the Government General Hospital, Villupuram and then to Jipmer Hospital. It is contended that after dorsal slit opening this opposite party referred the complainant to the Government General Hospital, Villupuram and he had nothing to do with what happened there and thereafter in Ashwini Hospital, Villupuram and Jipmer Hospital, Pondicherry. Thus there was no deficiency in service on the part of the 1st opposite party and hence the complaint has to be dismissed. The 2nd opposite party in his written version would contend that he never worked as a compounder of the 1st opposite party and he never advised the complainant to take treatment or get operated upon by the 1st opposite party. As such he is not at all a necessary party to the proceedings. As requested by the complainant''s brother he accompanied the complainant to Government General Hospital, Villupuram. Therefore the complaint is liable to be dismissed as against him.

The point that arises for consideration is whether the opposite parties were negligent or deficient in service and if so, what reliefs can be granted to the complainant.

POINT: It is common case that the complainant went to the 1st opposite party Doctor for his urine trouble and it is further according to the complainant and the 1st opposite party that the complainant was told that circumcision had to be done to relieve the complainant of his problem. It is also not in dispute that the complainant paid to the 1st opposite party a sum of Rs. 150/- and the complainant was taken by the 1st opposite party to D.S. Clinic on 17.6.1993. The case of the complainant (who was examined as PW 1) is that there at 7.30 p.m. the 1st opposite party assisted by his compounder the 2nd opposite party did the operation on his penis round and round up to the end. At the last round it bleeded much. Immediately the Doctor sutured and bandaged and took the complainant to the Government Hospital, Villupuram. The further case of the complainant is that there the Doctors stating that it was a serious case wanted the complainant to be taken to Pondicherry. The opposite parties took the complainant to the nearby Ashwini Hospital. The Doctors there also said they could not do anything and the complainant could be taken away. Next day morning the opposite parties took the complainant to Jipmer Hospital, Pondicherry. There the Doctors told that the nerve itself had been cut and that had caused permanent damage and permanent disability to pass urine. The Jipmer Hospital authorities made a complaint to the police and made another hole as a temporary device to pass urine since the penis was permanently damaged. He was treated there from 18.6.1993 to 13.7.1993. But the penis had been permanently damaged and the patient is passing urine only through an artificial hole made in the Jipmer Hospital. The contention of the 1st opposite party is that he made necessary arrangements for circumcision in D.S. Clinic and while he with the assistance of Dr. Ragothaman, a Civil Assistant Surgeon there made a small dorsal slit to the foreskin through the pinhole opening on the skin, they found that due to the complainant''s long standing phimosis, extensive additions with bands had formed on his glans and foreskin and on seething this they discovered that the patient could not undergo circumcision and local anaesthesia at the said clinic, and therefore the 1st opposite party did 2 or 3 sutures to control the blood loss of about 25 to 30 ML and neatly dressed and took the patient by cycle rikshaw to the Villupuram Government Hospital, and there the complainant was admitted at 10.30 p.m. and the patient was discharged at 12.10 p.m. and he was taken to Ashwini Hospital. According to the 1st opposite party at the Government Hospital, Villupuram the patient had been treated and operated and this has been suppressed by the complainant. Thus according to the 1st opposite party if any damage had been done to the penis it had been only at the Government Hospital, Villupuram. Then it is the case of the 1st opposite party that from the Government Hospital, Villupuram, the complainant had been taken to Ashwini Hospital and thereafter the complainant had been taken to Jipmer Hospital, Pondicherry. In his evidence as RW 1 the 1st opposite party would state that he accompanied the patient all through i.e., from the Government Hospital, Villupuram to Ashwini Hospital and from there to Jipmer Hospital, Pondicherry. Therefore there is no doubt that the 1st opposite party accompanied the complainant from D.S. Clinic up to Jipmer Hospital, Pondicherry. The definite case of the complainant is that the 1st opposite party had only done the operation at D.S. Clinic and no where else any operation had been performed. Apart from the 1st opposite party''s own interested testimony as RW 1 there is no other evidence to support his case. If really any operation had been done at Government Hospital, Villupuram, the 1st opposite party could have taken steps for summoning the records or he could have examined any witness there from. He has not done any of such things. The complainant as PW 1 has stated that when in the Jipmer Hospital, he was questioned by the Doctors there as to who did the operation, and he pointed out the 1st opposite party. If it was not the 1st opposite party who did the operation and somebody else had done the operation, there is no reason as to why the complainant should say that it was only the 1st opposite party who did the operation. What is more, Ex. A2 is the Discharge Slip issued by the Jipmer Hospital, Pondicherry. Therein it is stated that it was alleged that amputation of penis had been done in a private nursing home namely D.S. Clinic, Villupuram. From all these, it is beyond any doubt that operation was done only by the 1st opposite party in D.S. Clinic, Villupuram and nobody else anywhere. It is not disputed by the opposite parties what the complainant says that his penis has been cut off and that has caused disability to pass urine. The complainant as PW 1 has clearly deposed so. This has not been challenged in the cross-examination. The complainant has filed MO4 as the photo showing the present position of his penis. This photo shows that almost the entire penis had been cut off and only a small stump has been left. We ourselves personally saw the organ and found the photo to be true and correct. It is not the case of the opposite parties that such cutting of the organ was necessitated in any way. These facts and circumstances lead to irresistible conclusion that a gruesome tragedy had happened to the complainant only due to the gross negligence or utter carelessness on the part of the 1st opposite party who was to treat the complainant for his urine trouble.

NOW, as seen above the penis has been almost totally cut off. For the complainant the penis has become a dead and lost organ. He has been rendered, as he would claim, impotent. He is not able to pass urine in the normal way, but through only an artificial hole made. The complainant is a boy of just 23 years. He bewails that he cannot marry and have issues. Certainly the loss and trauma the complainant suffers cannot be adequately described in words. Indeed no amount of financial compensation would equate the loss. Considering all these, we award a compensation of Rs. 8,00,000/-. This amount shall be paid by the 1st opposite party only because the 2nd opposite party, even according to the complainant, just assisted the 1st opposite party as the compounder. In the result, therefore, we direct the 1st opposite party to pay to the complainant a sum of Rs. 8,00,000/- with interest there on @15% p.a. from today till the date of payment. We further award a sum of Rs. 2,000/- towards costs of this proceeding. We also order that Rs. 2,00,000/- shall be paid within three months and Rs. 3,00,000/- within three months therefrom and the balance amount within three months thereafter. Complaint allowed with costs.