GEETHA ALAGUVEL vs K B VISHWANATH BHAT

-THIS Appeal is by the Complainant in Complaint No. 1266/2004 on the file of the District Consumer Disputes Redressal Forum, Bangalore Urban District, against the Order dated 1. 8. 2005 dismissing her complaint. The Respondents in the appeal are the OPs before the District Forum.

THE case of the complainant, in brief is that on 9. 12. 2003 the complainant got herself admitted into the Nursing Home run by OPs for the purpose of delivery of the second child. In the early hours of 10. 12. 2003 the complainant delivered a male baby. On 11. 12. 2003 at about 2. 00 p. m. , the Complainant underwent Tubectomy operation. Soon after the operation she developed chill. The staff Nurse attending on her placed hot water bags on both the lower limbs of the complainant at the directions of the OPs, who are the Doctors in the said Nursing Home. It is contended that since the lower limbs of the complainant were under anaesthesia, the Complainant herself was not able to gauge temperature or was unable to realize temperature of the water in the bags and so she sustained severe burn injuries on account of the continuous placing of the hot water bags on her legs. It is further contended that the staff of the Nursing Home and the Doctors were negligent in placing the bags containing water at high temperature on the legs and they were also negligent in not properly monitoring or supervising the prognosis of the phenomena, which made the complainant to suffer burn injuries, for which, she had to take treatment for 15 to 20 days. The complainant has also contended that on account of the injuries she sustained, she was not able to feed her baby properly nor was she able to move around freely. It is further contended that on account of the continuous treatment that she had to take her husband has suffered monetary loss. She contends that more than Rs. 2,50,000 was spent for treatment apart from the physical and mental sufferings and hence the complaint alleging deficiency of service on the part of the OPs and seeking direction to the OPs to pay compensation of Rs. 10. 00 lakh. Ops admitted that the complainant was admitted in their Nursing Home for delivery and Tubectomy operation. They have also admitted that the Tubectomy was conducted on the complainant on 11. 12. 2003. They have admitted that the complainant suffered chill after the operation. But, they have denied placing of hot water bags on the legs. They have also denied that the complainant had suffered any burn injuries when she was under treatment in their Nursing Home. They have further contended that the chill, if any, suffered by the complainant was treated by administering drugs and by hot water therapy. They have denied deficiency of service and liability to pay any compensation.

In the course of inquiry, the complainant filed her own affidavit and got marked as Annexures-A to F in support of her contention. On the side of the OPs, both the OPs have filed their affidavit and got marked Exts. Rl to 11 in support of their defence. After hearing the arguments on both sides the District Forum came to the conclusion that the complainant has not produced expert evidence and has not produced reliable evidence to show that she suffered burn injuries on account of placing of hot water bags on her legs. The District Forum, therefore, concluded that the complainant failed to prove deficiency of service on the part of OPs and therefore dismissed the complaint.

AGGRIEVED by that order of dismissal, the complainant has preferred this Appeal contending that the appreciation of evidence by the District Forum is not proper and that District Forum has thereby came to wrong conclusions. We have heard arguments on both sides and perused the records of the District Forum.

THE only point that arises for our consideration in the Appeal is that whether the Order of the District Forum deserves interference. If so, whether the complainant is entitled to any and what relief. In order to prove the complainant''s case, the complainant has produced Annexures-A to F, which only go to show that the complainant has given birth to a male child and had undergone Tubectomy operation at the OPs'' Nursing Home on 10th and 11th December, 2003 respectively. The complainant has also produced documents to show that she has taken treatment at HOSMAT Hospital for the burn injuries. But she has not examined any Doctor of the HOSMAT Hospital. The complainant has produced before the District Forum the Audio and Video Cassettes in her attempt to prove that she had burn injuries. The District Forum has rejected the Audio and Video Cassettes produced by the complainant because the Video Cassettes did not show the face of the Doctor who treated the complainant. The District Forum observed that nothing can be made out from the Videograph and Audio Cassette. The District Forum later proceeded to assess the evidentiary value of the police complaint filed by the complainant. According to the District Forum, the Police complaint was lodged after about 3 months from the date of the incident. Police, on investigation filed ''b'' Report. The District Forum observed that the Police records did not in any way advance the complainant''s case. The DF also has observed that there was 3 months delay in filing the police complaint and much water might have flown during those 3 months. Once the Audio and Video Cassettes and the police records are eschewed from the evidence of the complainant, we have to examine as to whether there is any other evidence on which the complainant can claim to have established her case set up against the OPs.

WHILE proceeding to consider whether the complainant has made out her case of negligence based on such evidence on record, the District Forum has proceeded on the footing that when a qualified Doctor treated the patient and if something went wrong, the Doctor cannot be held liable for negligence or deficiency in service at all. The District Forum has also observed that when the OPs have denied the fact of having put the hot water bags on the legs of the complainant, it is for her to prove that fact beyond reasonable doubt. This observation made by the District Forum does not appear to be a correct proposition. Even if the Doctor is qualified to give the treatment, there can be negligence on the part of such qualified doctor himself or on the part of his assistants in the matter of treatment. Each case has to be decided on its own merit.

IN Para-9 of the Order of the District Forum, the District Forum has observed that it is the complainant who has knocked the door of the Forum and therefore it is for her to prove the allegations made in the complaint on the strength of her own evidence and she cannot take the benefit of some weakness or lacunae in the defence put forward by the OP. This observation made by the District Forum does not appear to be the correct proposition of Law. No doubt the initial burden lies on the complainant to prove her allegations made in the Complaint. Once the complainant produced some evidence in support of her allegations the onus shifts on to the OP to rebut such evidence. It is worthy of note that when both sides adduced evidence, the burden of proof vanishes to the background and the case is to be decided on as preponderance of probabilities. It is a well settled Law that though the initial burden of proof is on the complainant, the onus is not constant, but it tilts depending upon the evidence adduced by each of the parties. It is for the Court or for the judicial Authority which decides the case to sift chaff from the corn and to give a finding on the issue based on the weight of the evidence. A consumer dispute is a civil dispute and not a criminal prosecution. It is only in a criminal prosecution it is the burden of the prosecution to prove the charge against the accused beyond all reasonable doubt. Such theory is not applicable in civil proceedings. It is not disputed by the OPs that the delivery was on 10. 12. 2003 and the tubectomy was conducted on 11. 12. 2003. The OPs have admitted in the version that after the operation the complainant has complained of chill and the chill was treated by administering drugs and by hot water therapy. The case sheet produced by the OP which is marked as Ext. R4 at Page 190 of the District Forum records goes to show that the procedure of abdominal tubectomy was done at 2. 00 p. m. and the patient complained of chill at 3. 00 p. m. The OPs do not complain as to what exactly was meant by hot water therapy. According to the complainant, the Nurse had placed hot water bags on her lower limbs at the instructions of the OP Doctors and that has caused her burn injuries. The District Forum dismissed the case of complainant on the ground that the complainant has not come out with the name of the staff Nurse who kept the hot water bags on her lower limbs. Simply because the complainant is unable to come out with the name of the Nurse who was on duty at the relevant point of time does mean that the version given by the patient cannot be believed. OPs do not have a case that every Nurse who was attending on the patient was wearing a name plate or a badge exhibiting her name. Even if she was wearing a badge, it cannot be said that every patient or her relative could read the name. It is not the case of the OP that there was an assured method of informing the name of the staff Nurse on duty to every patient who came for treatment. Under such circumstances, if the patient or her relative is unable to give the name of the staff Nurse, who, according to the complainant placed the hot water bags on her legs, no adverse inference can be drawn against such patient. The inference drawn by the District Forum is unsustainable. On the other hand when the complainant has specifically alleged in the complaint and in her affidavit that the staff nurse placed the hot water bags on her legs, the onus shifted to the OPs to rebut such allegation and evidence. The best person to rebut that evidence was the nurse herself. OPs have not filed the affidavit of the nurse to deny the complainant''s evidence. Under such circumstances, adverse inference should be drawn against the OPs for not tendering the Nurse as their witness.

According to the District Forum, the complainant has not taken steps to get the water bags seized from the OP Hospital. This again is not very much material, because the seizure of water bags from the Hospital may not lead the complainant any further in discharging the burden of proof. It is quite normal that every Hospital or a Nursing Home will be possessed of water bags for the purpose of treatment of the patients. The question is whether the OPs have instructed the staff Nurse to place the hot water bags on the legs of the complainant and whether such placing of hot water bags caused the burn injuries. In the version, as already stated above, the OPs have come out with the theory that the chill complained of by the complainant was treated by administering drugs and by giving hot water therapy. OPs have not explained as to what drugs were given for countering the chill. OPs have also not explained as to what is the hot water therapy given to the complainant, if it is something other than placing of hot water bags on the complainant''s legs. Having stated in the version that the OPs have given hot water therapy for the chill, OPs have changed their stand when it came to the stage of filing their affidavit. In Para-5 of the affidavit of OP1 filed before the District Forum on 18. 2. 2005, he has stated at Page 7 that the chill if any was treated with proper medicine by administration of drugs and by hot water therapy. This version was attempted to be changed by adding by interpolation the word "not". That is to say that when it came to the stage of filing the affidavit of OP1, OP1 has made an attempt to change his stand by way of denying that the complainant was given hot water therapy. Thus it could be seen that OPl who has admitted in his version that the complainant was given hot water therapy has changed his stand in his affidavit by denying that the complainant was given hot water therapy. Therefore, we find that the OPs themselves have taken contradictory stands at two different stages of the proceedings and the contradiction, according to us, shows the falsity of the defence. We, therefore conclude that the defence taken by the OPs does not inspire confidence.

ADMITTEDLY, the complainant was a long standing patient to the OPs. There was no ill-feeling between the two until the cause of action for this complaint arose. It is highly improbable that a long standing patient of a Doctor complains of negligence on the part of the Doctor unless there is strong reason for the patient to make complaint against the Doctor. OPs have not made out a case that the complainant had such strong reason to make any false complaint. The complainant has produced before the District Forum two Photos of her own showing that the burn injuries suffered by her have left white patches on her both legs. She has also produced medical Bills to show that she has taken treatment for the burn injuries suffered by her. With this evidence read along with affidavit filed by the complainant, we feel that the complainant has substantially proved the allegations of negligence on the part of the OPs and the staff of their Nursing Home. One of the arguments advanced on behalf of the OPs is that if really hot water bags were placed on the legs of the complainant to prevent chill, the complainant would have in the normal course complained of burning sensation when the temperature in hot water bags started burning the tissues of her legs. The absence of such complaint on the part of the complainant, according to the OPs, is suggestive of the fact that there was no burning on account of the hot water bags. This argument was countered by the learned Counsel for the Complainant on the ground that the complainants immediately after coming out of the Operation Theatre, had complained of chill and at that time her legs or body was under the influence of anaesthesia. This argument is substantiated by the entries in Ext. R4 which go to show that the Tubectomy Operation was slated for 2. 00 p. m. on 11. 12. 2003. At 3. 00 p. m. she must have been brought out of the Operation Theatre. At 3. 00 p. m. , there is a note in the note sheet that the patient complained of chill and also of mild chest pain. Even if there is no evidence, in particular; that tubectomy operation was conducted under the influence of anaesthesia, it is a matter of general knowledge that the operations are generally conducted in the Hospitals and Nursing Homes with the aid of anaesthesia. It is not the case of the OPs that Tubectomy operation was conducted without the aid of anaesthesia. It is not the case of the OPs that at 3. 00 p. m. on the same day, the patient was out of the influence of anaesthesia and that she was able to gauge the temperature of the hot water bags placed on her body. Under such circumstances, we accept the arguments of the learned Counsel for the complainant that the complainant herself was unable to gauge the temperature of the hot water contained in the bags so as to enable her to complain of burning sensation. Under such circumstances, we also feel that it was the duty of the Doctor or the Nurse who was in attendance to take care of the legs of the complainant upon which hot water bags were placed to prevent chill. If the Doctors and Nurses have not taken care of the temperature in the hot water bags, it is nothing but negligence on their part. We are of the considered view that no expert evidence is necessary to come to such conclusion. This is a case of where the res ipsa loquitur applied. The only conclusion that can be drawn from the circumstances is that the OPs were guilty of negligence in the matter of treatment to the complainant and they are bound to compensate her for her sufferings, monetary loss and mental agony.

THE complainant has contended that on account of the negligence on the part of the OPs, she has spent Rs. 2. 50 lakh for treatment and also has undergone perpetual mental agony and pain. The Bills produced by the complainant at Annexure-Dl show that she has spent some amount for treatment of the burn injuries. She must have also undergone physical pain and mental agony during the treatment. Under such circumstances, we are of the view that a global compensation of Rs. 50,000 in favour of the complainant would meet the ends of justice. In the result, we pass the following Order: order the Appeal is allowed. Order under Appeal is reversed. The complaint is partly allowed. OPs are jointly and severally directed to pay to the complainant Rs. 50,000 (Rupees fifty thousand only) as compensation for the deficiency of service and Rs. 2,000 (Rupees two thousand only) as the complainants'' costs throughout. The amounts shall be paid within 30 days from the date of this Order. On failure to pay the amounts within 30 days, the amounts shall carry interest @ 10% p. a. from this day till the date of payment. Appeal allowed.