KHARAITI LAL vs KEWAL KRISHAN

HAVING failed before the District Forum, the complainant is in appeal. Kharaiti Lal claimed Rs. 6 lacs as compensation from the opposite party Dr. Kewal Krishan of Abohar. Since the claim was inflated the complaint was ordered to be returned to be filed before the District Forum. Subsequently the complaint was tried before the District Forum, Ferozepur.

KHARAITI Lal had abdominal pain and consulted the opposite party on December 9, 1994. The doctor administered injection containing four medicines namely Fortawin, Calmpose, Anafortan and Norphen. Due to negligence, the injection was administered in the artery instead of the vein. There was severe pain felt by the complainant. In spite of that the complete injection was administered. The complainant went to Civil Hospital and consulted Dr. Vinod Pal Sethi, who opined that this was on account of negligently administration of the injection and his fingers were to be amputated. Similar advice was given by Dr. Lal Chand Thakral also of the Civil Hospital. Subsequently, the complainant was admitted in Christian Medical College and Hospital, Ludhiana on December 13, 1994 and discharged on December 22, 1994. He was again admitted in the same Hospital on March 2,1995 and discharged on March 4, 1995. His fingers were amputated. He gave the details of the expenses incurred on the treatment in the aforesaid hospital, which amounted to Rs. 70,000/-. He also gave details of other expenses incurred on journey etc. In all, he claimed Rs. 4.50 lacs on account of mental and physical tension and a sum of Rs. 1.50 lac on account of expenses incurred. On notice of the complaint, the opposite party submitted its version taking up preliminary objections regarding maintainability of the complaint as well as on merits. It was denied that he had administered injection, For other matters, the complainant was put to proof. The complainant filed a replication reiterating his stand taken up in the complaint. Both the parties produced their evidence on affidavits and documents. The District Forum held that the complainant had failed to lead any cogent evidence to establish that the damage was due to the negligence of the opposite party. Hence, the complaint was dismissed on December 10,1996. During the pendency of the appeal, an application was filed on behalf of the complainant to record statement of Dr. Mohan Varghees, a doctor from CMC. The application was also allowed and the statement of the doctor was recorded, who was cross examined by the opposite party. We have heard learned Counsel for the parties and we have also gone through the record.

The first question for consideration is as to whether the complainant was administered injection by the opposite party ? On this point, the opposite party had completely denied having administered the injection. Before referring to the medical evidence produced in this case, it may be observed that the factum of amputation of three fingers of the right hand of the complainant has successfully been established by the complainant. The complainant produced his own affidavit and affidavits of three more persons namely Banwari Lal, Surjit Singh and Mohan Lal. Out of them, complainant and Banwari Lal deposed about wrong administration of the injection by the doctor whereas Surjit Singh and Mohan Lal deposed about Dr. Kewal Krishan having admitted before them of wrongly administering of the injection to Kharaiti Lal. On the other hand. Dr. Kewal Krishan produced his own affidavit and affidavits of Des Raj, his landlord and Rajinder Kumar, whose shop is situated opposite his shop. According to two witnesses Des Raj and Rajinder Kumar, they did not see Kharaiti Lal at the shop of the doctor and did not hear any noise raised about wrong administra tion of injection by Kharaiti Lal. Much importance cannot be attached to the evidence of the witnesses produced by the parties. There is no reason being put forth on the record as to why Kharaiti Lal would falsely implicate the opposite party-the doctor for the damage caused to his hand. The very fact that the damage in fact has been caused to the hand on account of wrongly administered injection-having been successfully proved, the only corollary to follow would be to accept his statement that it was on account of wrongly administration of the injection in the artery in place of the vein. There was no previous enmity between Kharaiti Lal and Dr. Kewal Krishan. The case of the complainant stands further corroborated that on following day, he had gone to the Civil Hospital and has consulted Dr. Sethi and Dr. Thakral. Both of them had found appearance of gangrene on the fingers and had advised amputation. The prescription slips issued by them have already been produced on the record as Exs. C12 and C13. The criticism raised against these documents is that affidavits of Dr. Sethi and Dr. Thakral have not been produced by the complainant. In the summary proceedings, it was not expected of the complainant to produce the entire link evidence. These prescription slips of these two doctors go to show that the complainant had consulted them on the following day of the wrongly administered injection by the opposite party. The complainant relied upon Ex. C1, which contains the names of the four medicines, which were administered through injection. The writing is admittedly in the handwriting of Dr. Kewal Krishan. The explanation offered by Dr. Kewal Krishan is that wife of Kharaiti Lal had approached him for writing the names of the medicines clearly and he did so. Otherwise, he denied having administered the injection. This story put forth by the doctor is not plausible. Even if the names of such medicines were written on another paper, which was with the wife of the complainant, she could approach any Chemist for purchase of such medicines and the Chemist would have helped her. As to why wife of the complainant had approached the opposite party for simply writing the names of the medicines in clear hand is not coming forth. Rather this prescription slip as produced by the complainant supports his case that these were prescribed by the opposite party for the complainant. It may be observed that apart from the medicines, the word ''Rx'' is written which itself indicates that such medicines were prescribed. This document also lends corroboration to the evidence of the complainant that these medicines were in fact administered by the opposite party in the artery. Finally, it was in the CMC, Ludhiana that the complainant for follow-up treatment got admission twice and ultimately his fingers were to be amputated as gangrene had developed. At this stage, it may be observed that no evidence on behalf of the opposite party has been produced that on any other account gangrene on the fingers of the complainant had developed that the complainant''s story should be discarded.

THE next question is as to whether with the wrong administration of the injection containing four medicines as referred to above in the artery, the gangrene on the fingers of the hand could be caused or not ? In this context statement of Dr. Mohan Varghees, Professor of Cardio THErapy and General Surgery, CMC, Ludhiana recorded before this Commission is relevant. He has categorically stated about the admission of Kharaiti Lal with severe pain and swelling on the right hand and fore-arm with radial and ulnar pulses palpable on December 13,1994. THE complainant was also having ecchymotic patches on the palm and capullary filling on the right thumb and index finger, which appeared to be normal. Whereas it was sluggish in the middle and ring fingers and gangrene of the right middle finger and the tip of the middle finger being cold was observed. He referred to the treatment given. Ultimately, the amputation of the three fingers was done on March 3, 1994. He categorically stated the cause to be wrong administration of injection containing the four medicines referred to above. In other words, he co-related the ailment with the nature of the medicines prescribed or that the injection having been given in the artery could result in such loss. During cross examination, nothing cogent was brought on the record to discard his testimony. His opinion which is of expert nature can well be accepted. This clearly supports the complainant''s case that ultimately he had to lose his three fingers partly on account of development of gangrene which was the result of wrongly administered injection in the artery of his hand by the opposite party Dr. Kewal Krishan. At the time of arguments, it was otherwise pointed out that Dr. Kewal Krishan is only a Registered Medical Practitioner. If that is so, he was not competent to administer injection containing Allopathic medicines as he was a Registered Medical Practitioner in Ayurveda speciality. In the affidavit filed by Dr. Kewal Krishan, he did not disclose his qualifications to practise as a doctor. The same are also not disclosed in the reply filed by the opposite party. Be that as it may, a finding having been recorded as above that it was the opposite party Dr. Kewal Krishan who had negligently administered the injection, the opposite party has not led cogent evidence that either he was competent to administer the injection or otherwise competent to prescribe such medicines. Before filing the complaint, legal notice was issued to the opposite party to which reply was given by the opposite party (Page 169). Even in this reply, the qualifications of the opposite party are not mentioned and the stand taken up is the same as has been taken up in the written statement.

THE next question for consideration is about the quantum of compensation to which the complainant is entitled to. THE complainant has produced Exs. C14 to C29, receipts and bills of the medicines purchased and hospital charges, which comes to Rs. 9,207.50. Apart from the above amount, the complainant is also entitled to the expenditure incurred on the journey performed from Abohar to Ludhiana on different occasions and for that Receipts Exs. C8 to C11 have been produced. THE total amount of these receipts comes to Rs. 5.800/- (Taxi Bills). THE complainant is also entitled to this amount. THE complainant suffered disability of his hand as three of his fingers had to be partly amputated. As per evidence of Dr. Mohan Varghees, the disability of the hand itself is to the extent of 50%. Though for writing purpose, the capability is not effected but for driving a scooter or lifting packet etc. his capacity is effected as the assistance of other fingers would have been helpful. THE complainant is aged about 27 years and is doing the business of selling biscuits etc. (Bakery Products). To some extent, the disability aforesaid is going to affect his business. He suffered pain and mental tension during all this period for which a reasonable compensation is required to be fixed. For the remaining life, he is to live with this disability. A sum of Rs. 50,000/- is considered just compensation payable to the complainant on these counts and we order accordingly. In this manner, the total of amount of compensation payable to the complainant would be Rs. 65,007.50. For the reasons recorded above, this appeal is allowed. Order of the District Forum is set aside. THE complaint is allowed. A direction is given to the respondent Dr. Kewal Krishan to pay the aforesaid amount of Rs. 65,007.50 as compensation to the complainant alongwith interest @ 18% p.a. thereon w.e.f. 9.12.1994 till realisation. THE complainant would also get costs of litigation of the two Courts, which are assessed at Rs. 5,000/-. THEse directions be complied within one month from the receipt of copy of the order. Appeal allowed with costs.