Pawan Bansal (Dr.) vs DARSHAN SINGH

BOTH these appeals one by opposite party No. 1 Dr. Pawan Bansal and other by opposite party No. 2-New India Assurance Company Ltd. have been directed against order dated 10.10.2000 passed by Consumer Disputes Redressal Forum, Mansa (hereinafter to be referred as District Consumer Forum) in complaint case No. 209/9.7.1996 whereby complaint of Darshan Singh was accepted and he was awarded compensation of Rs. 2,44,800 and Rs. 10,000 as legal expenses. Since, he had received Rs. 45,000 as compensation, so, Dr. Pawan Bansal as well as New India Assurance Co. Ltd. were directed to pay balance amount along with interest @ 12% p.a. from the date of complaint till payment. BOTH OPs were held liable to make payment jointly and severally.

BRIEFLY stated the facts are that Darshan Singh, respondent (complainant) is an agriculturist by profession. On 5.3.1996 he was cultivating fields with his tractor at village Barnala and all of sudden, the tractor turned turtle and he suffered fracture in his left arm. He was got admitted by his brothers in Barnala Nursing Home of Dr. Pawan Bansal who performed operation upon his left arm and a nail was inserted in it. However, due to his negligence pus developed in the arm and then severe pain occurred. He remained admitted there till 14.3.1996 but could not get any relief and there was every possibility about the development of gangrene and thereby necessitating amputation of left arm. He was discharged by Dr. Pawan Bansal on his request and he got admitted in Civil Hospital, Mansa where Dr. Ashok Kansal, surgical specialist told that pus had developed in his arm due to negligence of operating doctor. He removed the affected old nail by operation and inserted a new nail on 15.4.1996 and was discharged on 16.4.1996. It was next averred that although strenuous efforts were put by the Surgeon, Civil Hospital, Mansa, yet his left arm became totally unfit for doing any work and this happened due to negligence of Dr. Pawan Bansal.

Alleging deficiency in service, he claimed Rs. 3.00 lacs as compensation including costs of litigation and expenses on medicines.

DR. Pawan Bansal contested the complaint and stated that the complaint filed by Darshan Singh was frivolous and same should be dismissed with special costs of Rs. 50,000. He further stated that Darshan Singh came to him for treatment of left arm on 8.3.1996 and after getting his consent, operation was performed and a nail was inserted in his left arm on 11.3.1996 and he was operated upon in a hygienic, sterilized and best equipped operation theatre and there was no negligence or carelessness on his part. Every care was taken to use antiseptics and other measures to avoid any sort of infection. The nail was inserted inside the humerus bone of the arm which got jammed due to variation in the canal anatomy but Darshan Singh did not take care and further did not act upon his advice and ran away from the indoor patient room without taking complete treatment on 12.3.1996 late at night. He also did not pay nursing home charges and fee. If he had remained admitted in the nursing home, then he would have recovered from his illness. He denied other allegations and stated that the complaint should be dismissed Parties adduced their evidence by way of affidavits.

DISTRICT Consumer Forum, Mansa vide order dated 19.3.1997 accepted the complaint and granted compensation of Rs. 90,000/. Dr. Pawan Bansal and New India Assurance Co. Ltd. filed appeals against the order of DISTRICT Consumer Forum to the State Consumer Commission, Punjab which vide order dated 6.5.1998 set aside the above said order and remanded the case to DISTRICT Consumer Forum. The said order of State Commission was confirmed by the Hon''ble National Commission vide order dated 3.1.2000. However, National Commission stated that pending disposal of the proceedings before DISTRICT Forum, there would be stay of restitution as the amount which had been paid by the Insurance Company would not be returned to it. After hearing Counsel for the parties, both members of District Consumer Forum vide order dated 10.10.2000 accepted the complaint and granted compensation of Rs. 2,44,800 besides granting medical expenses to the tune of Rs. 10,000 and further directed that the balance amount be paid with interest @ 12% p.a. from the date of complaint till payment. However, President of the District Consumer Forum wrote a dissenting detailed judgment and dismissed the complaint for the reasons detailed therein. Aggrieved by the said order of both members i.e. majority view, both opposite parties namely Dr. Pawan Bansal and New India Assurance Co. limited have filed separate appeals. Since, both appeals have arisen out of same order dated 10.10.2000, so, same are disposed of vide common judgment.

WE have heard Sh. Mukand Gupta, Advocate for Dr. Pawan Bansal, Mr. Gaurav Bhardwaj, Advocate for New India Assurance Company Ltd. , Sh. M.S. Uppal, advocate for Darshan Singh, complainant (respondent) and carefully gone through the file.

DR. Pawan Bansal in his written reply stated that Darshan Singh did not get himself admitted in his nursing home on 5.3.1996 as alleged in the complaint but on the other hand, he first approached him as an outdoor patient on 8.3.1996 having fractured arm hand drop (Radial Nerve Palsy) and at that time his hand was functioning properly. He was told that his left arm had to be operated upon and a nail was to be inserted and for this purpose, he was to be admitted in the nursing home. Consequently, Darshan Singh got himself admitted in the nursing home on 10.3.1996 in the presence of his brother Jit Singh. His consent for performing operation along with his bother Jit Singh''s consent was obtained and operation was performed on 11.3.1996 in a highly hygienic, sterilized and best equipped operation theatre. He further submitted that he had exercised reasonable medical skill in administering antiseptic measures in order to avoid any type of infection. He next stated that a nail was inserted in the humerus bone of the arm which got jammed due to variation in the canal anatomy. On detecting this trouble, Darshan Singh was assured that the nail was detachable in about 3-4 weeks and then new nail would be inserted in place of previous nail and exactly the same method was adopted by the doctor at Civil Hospital, Mansa. He further stated that instead of taking further treatment, Darshan Singh ran away from the indoor ward late at night without telling anything to him and without getting discharge slip. He did not even pay clinical charges as well as fee. Had he adhered to the advice of doctor in taking medicines, he would have been fully recovered. Subsequently he got himself admitted in Civil Hospital, Mansa where Dr. Ashok Kansal, surgical expert performed operation and extracted the nail already inserted by Dr. Pawan Bansal and inserted a new nail in the arm on 6.4.1996. Statement of Dr. Ashok Kansal who had subsequently performed operation had been partly recorded 18.9.2000. He stated that Darshan Singh S/o Jagrup Singh was admitted in the Civil Hospital, Mansa on 14.3.1996 and was discharged on his request on 16.4.1996. He further stated that it was a case of left Fracture Humerus for which ''K'' nailing was done by private doctor with radial nerve palsy with nail outside the marrow and the nail was extracted on 16.4.1996 and further Darshan Singh was discharged on 16.4.1996 at his request. To a Court question, he stated that Darshan Singh was an operated case of left humerus with radial nerve palsy with nail outside the bone marrow and there was gangrene skin about 4 cm which was excised on 15.3.1996. He was unable to state that the gangrenous skin was due to infection. He further stated that size of the nail which was inserted into bone was judged by the surgeon roughly by measuring bone marrow cavity and not by roentography. He further stated that he had adopted the practice of measuring of size of the nail from X-ray of the patient. No suggestion was put to him that the operation of inserting K. nail by Dr. Pawan Bansal was negligently performed under unhygienic condition and due to that Darshan Singh developed infection and later on gangrene. He even stated that in order to avoid striking of nail it was not necessary to conduct operation under X-ray. Further statement of Dr. Ashok Kansal was recorded on 26.9.2000 and during his cross-examination he admitted that gangrene of skin and radial nerve palsy could occur due to injury but since he had not examined the case from the beginning, so, he could not say that radial nerve palsy and gangrene occurred due to injury on the person of Darshan Singh. Thus, he was not very positive that gangrene of skin and radial nerve palsy occurred due to injury but no suggestion was put to him in his examination-in-chief by Darshan Singh that in fact pus and subsequently gangrene developed due to negligence of Dr. Pawan Bansal in performing operation of K. nail in the left humerus.

The main contention of Dr. Pawan Bansal is that since, Darshan Singh did not take medicine as prescribed by him, so, he developed pus and further he did not take treatment from the clinic and ran away from the clinic. There is no medical expert evidence on file that Dr. Pawan Bansal had conducted operation of K. nailing in negligent manner which resulted into formation of pus and subsequently gangrene. The very fact that he escaped from the nursing home of Dr. Pawan Bansal on 12.3.1996 and subsequently got himself admitted in the civil hospital on 14.3.1996 shows that he might have developed gangrene during the said period because he may have not taken proper medicines or may have not observed instructions as advised by the operating doctor. Dr. Pawan Bansal has categorically stated that he had inserted K. nail in the humerus bone of the arm of complainant Darshan Singh in a highly hygienic, sterilized manner but it got jammed due to variation in the canal anatomy and possibility of such jamming was always there.

THE burden was upon complainant to prove in what manner Dr. Pawan Bansal had acted in a negligent manner which he had failed to prove. From the mere fact that he developed pus or gangrene subsequently does not show that operation was conducted in a negligent manner or nail was not sterilized. If he had not taken medicine for 2-3 days as advised by the doctor i.e. antibiotics then that could be the reason for developing pus and subsequently gangrene. There is no dispute about it that Darshan Singh is a consumer as defined under Section 2(d)(ii) of Consumer Protection Act.

THEREFORE, in view of the discussion above, both the appeals are accepted and the complaint of Darshan Singh is dismissed. The amount which had been paid by the New India Assurance Co. Ltd. to Darshan Singh earlier be refunded. Copies of this order be communicated to the parties, free of charge. Appeals allowed.