K.M.BHANDARI vs TARA MATHUR

BOTH the aforesaid appeals which arise out of an order of the District Forum, Jaipur-II dated 21.8.1995; are being disposed of by this Order.

FACTS relevant for disposal of these appeals in brief are that the complainant Smt. Tara Mathur had undergone an operation of Gall Bladder through advanced Leproscopic Surgery on 3.5.1993 in a private hospital named Bhandari Hospital and Research Centre, Tonk Road, Jaipur. After being discharged the complainant Smt. Tara Mathur felt pain in her abdomen on 5.5.1993 which became severe between the night of 10.5.1993 and 11.5.1993. She was taken to the respondent Hospital on 12.5.1993 whereupon her stitches were removed. It has been the grievance case of the complainant that when her pain became unbearable; she consulted a private Doctor on 12.5.1993. On 13.5.1993, she was got examined by Dr. Subhash Nepalia of the Gastroenterology Department of the SMS Hospital, Jaipur. She was duly examined and various tests were undertaken. There she was told that because of Leproscopic operation performed on 3.5.1993; there has been swelling in her pancreas. For this ailment she was given treatment in the SMS Hospital and was discharged on 22.5.1993 advising her to take rest and also to undergo regular treatment. It has further been the grievance of the complainant that because of the operation of her Gall Bladder on 3.5.1993 she had to undergo not only physical pain and discomfort but also suffered mental agony which culminated in her getting treatment at SMS Hospital, Jaipur from 13.5.1993 to 23.7.1993. Complaining that not only she had to part with an amount of Rs. 9,000/- as fees to the respondent, she had further to spend an amount of Rs. 5,000-6,000 also for getting proper treatment at SMS Hospital, Jaipur and thus advanced a claim before the learned District Forum amounting to Rs. 97,110/- as disclosed in her complaint. The aforesaid complaint was mainly resisted by Dr. (Smt.) Rekha Bhandari and Dr. Barry Salky. Dr. Barry Salky had not appeared nor had filed any reply to the complaints, he being the Chief of Leproscopic Surgery Dn., Mount Sinai Medical University, New York, USA. Instead the stand of the respondents has been that they had performed the operation of the Gall Bladder of the complainant with due care, caution and skill available with them and also under the supervision and guideance of Dr. Barry Salky being a renowned expert in the Leproscopic Surgery of Mount Sinai Medical University, New York, USA. It has been denied that they have been negligent or careless in treating the complainant and are responsible for the suffering of Smt. Tara Mathur and urged that the complaint filed against them is without any substance should be dismissed. The District Forum after evaluation of the evidence tendered before it has partially allowed the complaint of Smt. Tara Mathur awarding a compensation of Rs. 15,000/- on account of mental agony, etc. and Rs. 500/- as cost of litigation. In her appeal No. 1921/1995, the appellant Smt. Tara Mathur has asked for enhancement of compensation to the tune of Rs. 97,110/- as claimed by her in the complaint where Dr. K.M. Bhandari and others in their appeal No. 1920/1995 have sought quashing of the impugned order of the District Forum dated 21.8.1995.

We have examined the record in great detail and heard the arguments at length on behalf of both the parties.

FROM a perusal of the complainant, it is made out that though the complainants have tried to exhibit that the respondents have been careless and negligent in the performance of the aforesaid operation but they have failed to establish whether the alleged carelessness and negligence of the respondents has been during the operation or post-operation. If we look at the material made available before the Forum, it is apparent that the complainants did not specifically complained about any carelessness or negligence on the part of the respondents during the operation of the complainant Smt. Tara Mathur. They, however, have tried to project that it was after Smt. Tara Mathur was discharged by the respondents that she suffered acute and unbearable pain in her abdomen which has been due to some defect in the Gall Bladder operation performed by the respondents and which resulted in the swelling of her pancreas. The basis of this allegation has been disclosed by the complainants as was told to them by a private Doctor and also by one Dr. Subhash Nepalia of the Department of Gastroenterology of SMS Hospital, Jaipur. In support of this version, the complainants have relied upon the letter dated 1.7.1995 issued by Dr. Subhash Nepalia and addressed to Dr. Rekha Bhandari respondent No. 2. Another line of argument has been that after the operation Smt. Tara Mathur was not properly attended to and treated and hence it has been urged that respondents in Appeal No. 1921/1995 have rendered deficiency in service by virtue of their carelessness and negligence. On the contrary, the arguments of the learned Counsel for the respondents in this appeal has been that, firstly the complainants did not fall within the category of a Consumer as defined under C.P. Act, 1986 and secondly that they have never been careless and negligent while performing the aforesaid operation or thereafter. It is urged that the alleged swelling of the pancreas, if at all it was, is not the result or consequence of the operation of the Gall Bladder of Smt. Tara Mathur which was performed under the guidance and supervision of a renowned Leproscopic Surgeon Dr. Barry Salky. Even otherwise it has been urged that the alleged swelling of pancreas of Smt. Tara Mathur cannot be attributed to the Gall Bladder operation as is evident from the medical literature available on the subject. Lastly it has been argued by the learned Counsel for the respondents that in absence of any expert opinion on the question whether the alleged swelling of the pancreas has been the result of Gall Bladder operation performed by the respondent on 3.5.1993, it cannot be held that the respondents had been careless or negligent in the performance of their professional duties. Accordingly it has been urged that the learned District Forum has not appreciated the material available on the record properly and has erred in awarding a compensation of Rs. 15,000/- to the complainants even though it has not given any clear finding about the alleged carelessness or negligence on the part of the respondent.

WE have given due thought and consideration to the controversy raised between the parties. Insofar as to the argument of the respondents relating to the question whether the complainants fall in the category of a Consumer or not; it is suffice to note that the complainants have paid an amount of Rs. 9,000/- to the respondents. The respondents disclose that this amount was required to be made for providing neat and clean room and operation theatre for Smt. Tara Mathur and related other facilities in the Bhandari Hospital and Research Centre, Jaipur where the aforesaid operation was undergone. May be, the respondents have not been specifically charged any fee for the Gall Bladder operation itself but a commoner who approaches a Medical Hospital and Research Centre, would consider the payment asked for and made not only towards the facilities which are to be provided in the Hospital but also for the services to be rendered by professional persons. The amount of Rs. 9,000/- cannot be assumed merely for the facilities and services to be provided by the Bhandari Hospital and Research Centre but would also be deemed to have been paid towards the service of medical operation. It, therefore, cannot be stated that the respondents performed the operation of Smt. Tara Mathur without charging any fees. We, accordingly, hold that the complainant more particularly Smt. Tara Mathur falls within the category of a consumer as defined under Section 2(1)(d) of C.P. Act, 1986. The argument to the contrary, therefore, is rejected. To the question of rendering deficient services in the performance of the operation of Gall Bladder of Smt. Tara Mathur, it is suffice to point out that the complainants have failed to produce any documentary evidence that the alleged swelling of the pancreas after the operation done on 3.5.1993 by the respondents has been the consequence of defective operation of the Gall Bladder. Neither the private Doctor who is alleged to have been consulted by the complainants nor Dr. Subhash Nepalia gave any certificate to this effect. Though the complainants state that they got the treatment of pancreas of Smt. Tara Mathur from the SMS Hospital from 14.5.1993 to 23.7.1993 yet they have failed to produce any medical record of the SMS Hospital, Jaipur pertaining to it. Besides this, complainant have failed to produce any authoritative opinion of any medical expert in the field confirming that the alleged swelling of the pancreas of Smt. Tara Mathur has been the result of any deficiency or defect in operation performed by the respondent Doctors on 3.5.1993. The letter dated 1.7.1995 and relied upon by the complainants in support of their contention is of no consequence. It is a letter in general terms written by Dr. Subhash Nepalia to Dr. Rekha Bhandari narrating the answer to the queries posed by Dr. Rekha Bhandari in her letter dated 12.4.1995. No evidence has been led on behalf of the complainants that Dr. Subhash Nepalia is an authority on the subject of Gastroenterology. He appears to be an Associate Professor on the subject in the SMS Hospital, Jaipur. His narration of the contents in the aforesaid letter dated 1.7.1995 is not supported by any authoritative literature on the subject. We, therefore, are of the firm opinion, that no assistance of this letter dated 1.7.1995 of Dr. Subhash Nepalia, can be taken by the complainants in support of their case of alleged rendering deficient services on the part of the respondent Doctors.

IN view of the above, we are of the view that the learned District Forum has been unable to appreciate the material made available on the record on behalf of both the parties and even in absence of giving any clear finding about the alleged carelessness or negligence on the part of the respondent Doctors, has awarded a compensation of Rs. 15,000/- more so when the burden to prove their case was on the complainants in which they have miserably failed. It may also be pointed out that Complainant No. 2 Dr. A.B.L. Mathur is an unnecessary party as he does not fall within the definition of a consumer, when Smt. Tara Mathur has herself filed the complaint to seek redressal of her grievances.

ACCORDINGLY as this Commission is of the view that the complainants have failed to prove their case against the respondents in Appeal No. 1921/1995, they are not entitled to get any compensation whatsoever from the respondent Nos. 1, 2 and 3. The learned District Forum has erred in awarding compensation to the complainants amounting to Rs. 15,000/- which is hereby quashed. Consequently, Appeal No. 1921/1995 filed by Smt. Tara Mathur and her husband does not have any substance and is hereby dismissed. So far as Appeal No. 1920/1995 filed by Dr. K.M. Bhandari and two others is concerned, in view of our analysis and assessment of the matter in Appeal No. 1921/1995, we are of the opinion that the learned District Forum has committed an error to award a compensation of Rs. 15,000/- to be paid by the appellants to the respondents. In the result, Appeal No. 1920/1995 filed by Dr. K.M. Bhandari and two others is hereby allowed while quashing the order of the learned District Forum dated 21.8.1995. Consequently both the appeals stand disposed of as above with costs on parties. Ordered accordingly.