G.D. JILADIA vs MINOR DHARMISTHA CHHOTUBHAI GOSWAMI

BOTH these appeals respectively filed by the original opponent Nos. 1 and 2 Dr. G.D. Jiladiya and the New India Assurance Company Limited arise from order dated 29.5.1998 rendered by the learned Consumer Disputes Redressal Forum, Junagadh in Forum Case No. 231 of 1995 directing the opponents to pay to the complainant Rs. 1,50,000/- with interest @ 18% p.a. from the date of complaint till payment and cost quantified at Rs. 500/-.

IT was the complainant''s case that his daughter Dharmishtaben [minor complainant] aged about 7 years was taken for treatment of fever and cold to the 1st opponent doctor on 8.11.1994. Opponent No. 1 doctor prescribed medicine but the sickness could not be cured and, therefore, she was once again taken to opponent No. 1 on 9.11.1994 when he had given injection resulting into paralysis of the lower limb. Since the said minor daughter of the complainant was disabled for life and since huge expenditure was required to be incurred for her treatment, the complainant approached the learned Forum by way of aforesaid Forum Case claiming compensation of Rs. 1,50,000/-. The opponent No. 1 doctor who was insured with opponent No. 2 Insurance Company resisted the complaint inter alia on the ground that there was no deficiency in medical service rendered by opponent No. 1 doctor, that the injection given by opponent No. 1 doctor did not cause any reaction resulting into disability of the complainant''s daughter Dharmishtaben, that even if polio vaccine was given to the child, possibility of her sustaining polio and resultant paralysis could not be ruled out and that in absence of any evidence to connect the alleged administration of injection with the paralysis sustained by the aforesaid minor girl no liability should be fastened upon the opponent No. 1 and, therefore, against the opponents jointly and severally. Parties led evidence before the learned Forum, who, after considering the same and after hearing the learned Advocates for the parties, came to the conclusion that paralysis which the minor girl sustained was prima facie the result of administration of injection by opponent No. 1 doctor who failed to explain any other cause for the disability suffered by the aforesaid patient. The learned Forum also came to the conclusion that other cause of virus infection and/or bacterial infection is also not shown to have set in for the paralysis suffered by the patient. In the view of the learned Forum, 1st opponent doctor was deficient in service in not getting the test reports and administering clinical treatment. The learned Forum, therefore, proceeded to award compensation as claimed bearing in mind the varied circumstances noted in para 20 of the impugned order.

We have heard the learned Advocate for the appellants in both these appeals filed by the respective appellants against aforesaid impugned order. We have gone through the impugned order. We have gone through the evidence placed on record of the case which had been transmitted to this Commission. We now proceed to consider the submissions made on behalf of the appellants.

IT has first been submitted that the complainant failed to establish alleged reaction of the injectible medicine administered by opponent No. 1 doctor. In our considered opinion what is important to be noticed from the facts of the case is that the minor girl was hale and hearty before she was taken for treatment of cold and fever to the opponent No. 1 doctor. There was no complaint of polio paralysis or anything of the sort nor had she any disablement in the past. IT is not the case of the first opponent that he had any occasion to administer any injectible medicine after ascertaining whether the child had any reaction with regard to any of the medicines he was to administer by way of injection. As a matter of fact, after the administration of injection in question, paralysis had set in to the left leg of the minor girl. IT was, therefore, that she was required to be taken to the child specialist Dr. Vinod Variya. This was a clear case of res ipsa loquitur requiring the opponent No. 1 doctor to explain what injectible medicine he had administered and in what part of the left thigh it was administered. IT was for him to rule out possibility of faulty administration of injection or reactible medicine administered by injection. He having sat silent over this vital part of the matter before the learned Forum, the case was clearly one of res ipsa loquitur. Merely because an averment is made in the complaint that there might be reaction of medicine administered by way of injection, it cannot be concluded that that was the positive case of the complainant. In fact, the whole case was put up before the learned Forum with regard to the patient having sustained paralytic attack after administration of injection. What was the reason for such paralytic attack after administration of injection by the 1st opponent was required to be explained by him. Having failed to do so, there was no other conclusion left open for the learned Forum to reach except to find deficiency in medical service rendered by the 1st opponent doctor. It has then been submitted that there is correction in the certificate issued by Dr. Variya. We had an occasion to verify the original certificate which has been placed on record at Exh. 25. It is true that there is a correction in the writing of the date. The date which was initially written was 10.10.1994 whereas the date as corrected would read 10.11.1994. In our considered opinion, the correction is explained on the face of the document by Dr. Vinod Variya, who has made endorsement there and then to the effect ''to read 10th November, 1994''. On such endorsement Dr. Variya has also signed. There was no dispute raised with regard to such correction in the certificate before the learned Forum. In fact, this correction will not take the defence of the 1st opponent doctor any further. It was not the case of the 1st opponent that the child was required to be treated for polio or other such ailment by Dr. Variya prior to herself being treated for cold/fever by 1st opponent doctor. It was for the first time that the patient was referred to Dr. Vinod Variya after the child had sustained paralytic attack soon after the treatment of injection given by the 1st opponent. In our considered opinion, the correction in Dr. Variya''s certificate will not have any bearing on the ultimate outcome of the matter or on the merits of the case. Besides, such correction does not in any way prejudice the cause of 1st opponent. He had ample opportunity to explain how and under what circumstances the child sustained paralysis in her lower limb subsequent to the injectible treatment given by him. He having not done so, he remained answerable for the disability sustained by the child.

IT has then been submitted that possibility of attack of polio paralysis cannot be ruled out and if that is so, it was for the opponent to explain that paralysis was on account of possible onslaught of polio, may be due to ineffective polio vaccine in the early childhood of the patient or less effective vaccine having been administered to the child. This argument also will not hold good inasmuch as Dr. Vinod Variya, the child specialist, has in no uncertain terms opined that the child sustained non-polio paralytic attack on her left lower limb. The complainant has also placed on record the evidence with regard to the child being hale and hearty prior to the treatment which was given by the opponent No. 1. Thus, possibility of polio paralysis is ruled out. It has finally been submitted that the finding of the learned Forum is that paralysis might have resulted on account of reaction caused by medicine administered by way of injection by 1st opponent doctor. From this it has been submitted that if the medicine reacted, the 1st opponent could not be held responsible for the same. In our considered opinion, finding of the learned Forum is one of the connectible possibilities resulting into paralysis. Another finding that could have been given is about faulty administration of injection. By faulty administration of injection, it would necessarily mean that the injection might have been given at some wrong place of the body of the child. It might have adversely affected the nerve or other avoidable part of the body where injection could not have been administered. All that was a matter for explanation for the 1st opponent doctor. He having failed to do so, only conclusion would be that the 1st opponent doctor would be liable for deficiency in service on the principle of res ipsa loquitur as stated above. As regards the quantum of compensation, it has been submitted that there is no basis for claiming compensation in the sum of Rs. 1,50,000/-. In our considered opinion, the fact that the girl sustained total paralysis on left leg was not disputed before the learned Forum. She is a young girl of 7 years of age. Such a disability will speak volumes for a female person in Indian society. That apart, this was a case of total disablement of left leg of the aforesaid young girl. She had to undergo constant physiotherapy treatment but of no consequence. The complainant has placed evidence on record to show that she had taken prolonged physiotherapy treatment. The complainant has also placed on record evidence to show that appropriate treatment was also followed by the patient but of no consequence. The young girl was studying and she was regular in her studies as can be seen from the certificate issued by the school in which she was studying. That certificate is also placed on record. Bearing in mind all these facts and circumstances of the case, claim of Rs. 1,50,000/- preferred by the complainant before the learned Forum clearly appears to be just, proper and reasonable.

IT has then been submitted that the complainant has not prayed for any interest in the complaint and yet the learned Forum has awarded interest @ 18% p.a. and that too from the date of complaint. We find substance in that submission. Bearing in mind this aspect of the case and all the facts and circumstances of the case, we propose to award running interest @ 9% p.a. from the date of complaint till payment in view of the decision of the honourable Supreme Court in the case of Kaushnumma Begum v. The New India Assurance Company Limited, reported in I (2001) SLT 300=I (2001) ACC 151 (SC)=2001 (1) Supreme P. 5. Following order is therefore passed. ORDER Impugned Order dated 29.5.1998 rendered by the learned Consumer Disputes Redressal Forum, Junagarh in Forum Case No. 231 of 1995 is hereby maintained except with regard to rate of interest which is altered from 18% to 9%. Both these appeals are accordingly partly allowed to the extent of rate of interest, with no further order as to costs. Appeal partly allowed.