ROHINI PRITAM KABADI vs R.T.KULKARNI

IN this complaint, under Section 17 r/w Section 12 of the Consumer Protection Act, 1986, the complainant has sought compensation in a sum of Rs. 8 lakhs from the opposite party.

THE opposite party is a surgeon having his Nursing Home at Gadag. THE complainant- a house-wife, consulted him for her second delivery in the months of March, May and June, 1991. THE opposite party admitted the complainant in his nursing home on 10.6.91 for her second delivery. THE opposite party performed a second Caesarian operation on 11.6.91 on the complainant and a male child was born. After the said delivery of the child, the complainant suffered urine trouble and severe pain in the abdomen. The opposite party diagonised it as an urine infection and prescribed certain medicines. The complainant also suffered severe fever. The opposite party took an X-ray photo on 14.10.91. Even though the complainant was still suffering pain in the abdomen and urine trouble and temperature she was discharged from the nursing home on 23.6.91. The opposite party informed the complainant as the delivery was a caesarian delivery, it will taken some time to abate the troubles.

It is the further case of the complainant that even after the discharge, the complainant continued to experience the pain in the abdomen and also the pain at the time of passing urine.

THE complainant returned to her husband''s place at Bangalore on 10.9.91 from her parent''s place at Gadag. Her husband being a doctor, administered certain medicines to the complainant to relieve the complainant of her pain and trouble; but the troubles did not subside. THE complainant suffered untold misery with these problems till the month of October 1992. When her husband took her to a Gynocologist for better consultation in the first week of October, 1992. THE doctor advised ultransonograph of uterus which was taken on 9.10.92 as per Ex. C-2(b). THE said report, Ex. C2(b), showed mass adherent to the bladder. Dr. S. Saroj, who had advised her to take ultrasonograph of uterus, asked the complainant to undergo an operation for removal of the said mass. The husband of the complainant thought to have a second opinion in the matter and consulted Dr. A.R. Lalithamma who advised to undergo ultrasonography test which was taken as per Ex. C-2 (a). The said report confirmed the earlier findings, as per Ex. C-2(b). Thereafter the complainant decided to undergo an operation. The complainant was admitted at Zinka Nursing Home, Rajajinagar, Bangalore, on 14.10.92 and Dr. A.R. Lalithamma performed the operation on 15.10.92 on the complainant. A mass, as observed in the reports, was removed, in the said operation, by Dr. A.R. Lalithamma. The mass was opened and a foreign body, that is, a metallic tip of the suction tube was found in the cavity of the mass. After the said operation and the removal of the said mass out of it - the said metallic tip of the suction tube, the complainant was relieved of all the pains and the problems.

ON getting the information that a metallic tip of suction tube was found in the abdomen of the complainant, the parents of the complainant approached the opposite party on 17.10.92 at Gadag in his Nursing Home. The opposite party gave a letter, as per Ex. C-1, apologising for his negligent operation conducted by him on the complainant on 11.6.92, leaving a metallic tip of the suction tube in the abdomen. The complainant/for this long period of about 16 months from the month of June 1991 till October 1992, suffered untold misery which was the result of the negligent act on the part of the opposite party in performing the ceasarian operation on the complainant on 11.6.91 negligently leaving a metallic tip of suction tube in the abdomen of the complainant. The complainant, on the basis of these averments, sought compensation in a sum of Rs. 8 lakhs from the opposite party for the sufferings undergone by her. The opposite party filed the version, admitted the fact that he had performed the ceasarian operation on the complainant for her second delivery on 11.6.91 at his nursing home, at Gadag. The opposite party averred that as he had not charged any fees for the services rendered by him, as the complainant''s husband happened to be a Doctor, so the complainant cannot be classified as a consumer as the services rendered by him were free from any consideration.

THE opposite party admitted the fact of ceasarian operation conducted by him on 11.6.91 on the complainant and also the fact of taking X ray photo on 14.6.91. He averred that the X-ray photo did not reveal anything and the pain was only a post-operation pain.

THE opposite party further averred that the complainant was discharged on 23.6.91 and at that time she was free from any trouble and the complainant thereafter did not visit the opposite party for any service. THE opposite party denied the fact that any foreign body, that is, metalic tip of suction tube was left in the abdomen of the complainant while performing the ceasarian operation on 11.6.91. The opposite party admitted the fact that he had given a letter, as per Ex. C-1, on 17.10.92 to the parents of the complainant, but it was given under coercion and duress by the parents of the complainant. The opposite party denied his liability to pay compensation as claimed by the complainant.

During enquiry, the complainant examined herself as CW1, her husband as CW 3 and Dr. A.R. Lalithamma as CW 2. She got Ex. C-1 to C-3 and M.O. 1 a metallic tip of suction tube, marked in evidence. The opposite party got himself examined as RW 1 and no documents came to be marked in evidence.

WE have heard the learned Counsel for the parties, perused the pleadings and the material placed on record by the parties. The learned Counsel for the opposite party submitted that as the complainant had not paid any consideration to the opposite party for the services rendered by him and so the complainant cannot be classified as a ''consumer'' under the provisions of the Act.

THE complainant has asserted in her evidence that her husband had paid a sum of Rs. 1,000/- to the opposite party for the ceasarian operation conducted by the opposite party on her. But she stated that the opposite party did not give any receipt for the same. Ex. C-2, admittedly, is the bill given by the opposite party for the amounts received by him from the complainant. THE said Ex. C-2 is dated 11.6.91, it shows a sum of Rs. 170/- was towards medicine charges, Rs. 200/- towards LSCS. It also shows a sum of Rs. 1,000/- as advance but it has been subsequently struck off. The opposite party, in his evidence with regard to the payment made by the complainant, has stated thus: "I charged only for the medicines. I did not charge anything for my service because the complainant happened to be the wife of an ENT surgeon."

The opposite party has further stated thus: "The parents of the complainant had given me a sum of Rs. 1,000/- towards supply of medicines and operation theatre charges and room rent. The parents of the complainant paid fees for Anaesthesist."

The above evidence of the opposite party would go to show that he had received a sum of Rs. 1,000/- from the parents of the complainant but he says that it was towards supply of medicines, operation theatre charges and room rent. These facts would go to show that the services rendered by the opposite party to the complainant were for consideration. The Hon''ble Supreme Court in Indian Medical Association v. R.V.P. Shantha and Others, reported in III (1995) CPJ 1 (SC), while considering such an aspect of the matter, at paras 43 and 44, observed thus : "43. The other part of exclusionary clause relates to services rendered ''free of charge''. The Medical Practitioners, Government hospitals/nursing homes and private hospitals/nursing homes (hereinafter called ''Doctors and Hospitals'') broadly fall in three categories- (i) where services are rendered free of charge to everybody availing the said services; (ii) where charges are required to be paid by everybody availing the services; and (iii) where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay are rendered service free of charges. There is no difficulty in respect of first two categories. Doctor and hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of ''service'' under Section 2(1)(o) of the Act. The payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals. So far as the second category is concerned, since the service is rendered on payment basis to all the persons they would clearly fall within the ambit of Section 2(1)(o) of the Act. The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2 (1)(o) of the Act. 44. The question for our consideration is whether the service rendered to patients free of charge by the doctors and hospitals in category (iii) is excluded by virtue of the exclusionary clause in Section 2(1)(o) of the Act. In our opinion the question has to be answered in the negative. In this context, it is necessary to bear in mind that the Act has been enacted ''to provide for the protection of the interests of "consumers" in the background of the guidelines contained in the Consumer Protection Resolution passed by the U.N. General Assembly on April 9,1985. These guidelines refer to achieving or maintaining adequate protection for their population as consumers" and "encouraging high levels of etihical conduct for those engaged in the protection and distribution of goods and services to the consumers''. The protection that in envisaged by the Act is, therefore, protection for consumers as a class. The word ''users'' (in plural), in the phrase ''potential users'' in Section 2(1)(o) of the Act also gives an indication that consumers as a class are contemplated. The definition of ''complainant'' contained in Section 2(b) of the Act which includes, under Clause (ii), any voluntary consumer association, and Clauses (b) and (c) of Section 12 which enable a complaint to be filed by any recognised consumer association or one or more consumers where there are numerous consumers, having the same interest, on behalf of or for the benefit of all consumers so interested, also lend support to the view that the Act seeks to protect the interests of consumers as a class. To hold otherwise would mean that the protection of the Act would be available to only those who can afford to pay and such protection would be denied to those who cannot so afford, though they are, the people who need the protection more. It is difficult to conceive that the Legislature intended to achieve such a result. Another consequence of adopting a construction, which would restrict the protection of the Act to persons who can afford to pay for the services availed by them and deny such protection to those who are not in a position to pay for such services, would be that the standard and quality of service rendered at an establishment would cease to be uniform. It would be of a higher standard and of better quality for persons who are in a position to pay for such service while the standard and quality of such service would be inferior for person who cannot afford to pay for such service and who avail the service without payment. Such a consequence would defeat the object of the Act. All persons who avail the services by doctors and hospitals in category (iii), are required to be treated on the same footing irrespective of the fact that some of them pay for the service and others avail the same free of charge. Most of the doctors and hospitals work on commercial lines and the expenses incurred for providing services free of charge to patients who are not in a position to bear the charges are met out of the income earned by such doctors and hospitals from services rendered to paying patients. The Government hospitals may not be commercial in that sense but on the overall consideration of the objectives and the scheme of the Act it would not be possible to treat the Government hospitals differently. We are of the view that in such a situation the persons belonging to ''poor class'' who are provided services free of charge are the beneficiaries of the service which is hired or availed of by the ''paying class''. We are, therefore, of opinion that service rendered by the doctors and hospitals falling in category (iii); irrespective of the fact that of the service is rendered free of charge, would nevertheless fall within the ambit of the expression ''service'' as defined in Section 2(1)(o) of the Act. We are further of the view that persons who are rendered free service are the ''beneficiaries'' and as such come within the definition of ''consumer'' under Section 2(1)(d) of the Act."

Therefore, it is clear that the services rendered by the doctors in the hospital falling under category (iii), irrespective of the fact that the part of the service is free of charge, would nevertheless fall within the ambit of the expression ''service'' as defined under Section 2(1)(o) of the Act. Having regard to these principles as laid down by the Hon''ble Supreme Court, the services rendered by the opposite party were for consideration and so the complainant is a ''consumer'' under the provisions of the Act.

THE next question to be considered is whether the opposite party had left inside the abdomen of the complainant a metallic tip of the suction tube at the time of ceasarian operation conducted by him on the complainant on 11.6.91. THE complainant has averred in the complaint that Dr. Lalithamma, CW 2, performed the operation after considering the reports, Ex. C 2(a) and ultrasonography report, Ex. C 2(b) on 15.10.92 and found mass in the abdomen and on opening the said mass a metallic tip of the suction tube was found in the cavity of the mass. That is the evidence given by the complainant. C.W.2 Dr. Lalithamma, in this regard, has stated, thus : "From the scan report I found that there was an abscess in between the uterus and bladder. So, I called the urologist to assist me in the operation. I fixed the operation on 15.10.92. We gave general anaesthesia. I have brought the case sheets today. I looked into the case sheet-under general anaesthesia I opened the abdomen. I found plenty of adhesion were present in the abdomen between the abdomenal wall and omentum. ''THE adhesions were released. I found thick walled abscess was present in between the bladder and uterus. Pus was present in the abscess. I found while clearing the said abscess a tip of the sucker tube present in the abscess cavity. I removed the same. Pus was drained out. Unhealthy tissues were removed from the bladder. THE bladder was trimmed, it was stitchered by urplogist, was present, who stitchered the bladder. I removed the said tip of the . sucker tube from the abscess cavity and preserved. It is a metallic piece. I produced the tip of the sucker tube removed from the abscess cavity of the complainant. THE witness produced the said tip of sucker tube which is marked as MO 1. THE sucker tube is normally used to suck the blood or any fluid coming out at the time of the operation. In my opinion that sucker tube was left in the abscess cavity in the earlier operation."

THE cross-examination of this witness has not produced any material to show the reasons for which this evidence has not to be acted upon. This ''witness, CW 2, in the crossexamination has further stated, thus: "In any operation whenever a sucktion tube is used, if the tip of the tube is loose, and if it is handled carelessly there is a possibility of the tip of the tube remaining in the abdomen." Ex. C-2(c) is the discharge summary issued by Jinka Nursing Home when the complainant was discharged after the operation by CW-2. The operation part of the report reads, thus: "Operation: Explanation-Midlin Suprapubic inciser excising old scar peritonea was opened. There was a firm mass adherent to bladder and uterus and also anterior abdominal wall. Accidental mass opened at scenic point and pus came out. All pus was drained. There was a foreign body in the cavity which was removed (metallic tip of the suction tube). Mass lesia was separated from the bladder wall and uterus and wound closed with DT in that spacer. FB. Granoluma-Abscess in the central cavity." This also would go to show that a foreign body, that is, tip of the suction tube was found in the cavity of the mass. Ex. C-3 is the case sheet maintained in Jinka Nursing Home regarding the operation conducted by CW 2 on the complainant on 15.10.92. The operation part of the said report, reads, thus : "15.10.92 : Under G.A. abdomen opened. Plenty of adhesion was present between abdominal wall and same were released. Thick walled abscess was present between the bladder and uterus. Pus was present in the abscess. Tip of the sucker piece metallic piece was present same removed. Pus drained abscess wall was excised, after separating from the bladder. The bladder was unhealthy little was trimmed. Bladder was stitchered infladed. No leak was found. Complete haematosis was maintained. Both ovaries were normal. Anterior wall of tne uterus was released. Drain kept. Abdominal wall closed incaujetse catgal and prolyne."

This also would go to show clearly that a metallic piece of tip of suction tube was found in the cavity of the mass that was found in the abdomen of the complainant at the time of the operation on 15.10.92 by CW 2 on the complainant. The opposite party has on 17.l0.92, given a letter, as per Ex. C-1, to the parents of the complainant wherein he has apologised for such a negligent act on his part and had even assured the parents of the complainant to meet all the expenses that they would incur. The said letter Ex. C-1, reads as under : "Dear Dr. Kabadi, Ref: - Mrs. Rohini Pritam Kabadi. I am shocked to hear that your wife had to be reoperated because a foreign body was left in the abdomen. In more than 30 years of my surgical career this is the first time that such a thing has happened and that too to the wife of a doctor. I understand that you had also to spend a lot of money for bar. I take it that she is under good hands. Please note that all the proper precautions were taken and the instruments checked after the operation. But unfortunately we did not found anything. Please note that I will look after her here and I will bear all the expenses. She needs a prolonged rest and she can be admitted here. I completely sympathise with you and am prepared to look after her here at my own expense. You need not worry. With regards,"

THE opposite party has stated that this letter, Ex. C1 was obtained by the parents of the complainant under threat and correction. Except such a statement, he has not placed any material on record to accept this say that he had given the said letter, Ex. C1 under any threat. THE opposite party - R.W. 1, has in this regard, stated thus : "It is not true to suggest that I gave this letter, Ex. C-1 voluntarily. THE witness volunteers that this was given under a threat. I do not know the names of those all 8 persons who had rushed into my nursing home, but the complainant''s parents and brothers were there. I did not make any complaint to the police station that such a letter, Ex C-1 was taken from me under threat. This letter, Ex C-1 is in my handwriting. I did not send any letter to the complainant or her parents regarding this letter, Ex. C1, taken from me under a threat. I have not recorded the fact of letter, Ex. C1, being taken from me under a threat in a register relating to the complainant. I have not retained copy of this letter, Ex. C1, with me. I have not taken any steps subsequently to dis-own Ex. C1."

This would clearly go to show that the opposite party left the tip of the suction tube in the abdomen of the complainant at the time of ceasarian operation on the complainant on 11.6.91 negligently. The Hon''ble Supreme Court, considered such an aspect of the matter in Indian Medical Association''s case, referred to above, and at para 37 of its order observed thus : "37. As regards the procedure to be followed by these agencies in the matter of determination of the issues coming up for consideration it may be stated that under Section 13(2)(b), it is provided that the District Forum shall proceed to settle the consumer disputes, (i) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or (ii) on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum. In Section 13(4) of the Act it is further provided that the District Forum shall have the same powers as are vested in the Civil Court under the Code of Civil Procedure while trying a suit in respect of the following matters : "(i) the summoning and enforcing attendance of any defendant or witness and examining the witness on oath; (ii) the discovery and production of any document or other material object producible as evidence; (iii) the reception of evidence on affidavits; (iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source; (v) issuing of any commission for the examination of any witness; and (vi) any other matter which may be prescribed." The same provisions apply to proceedings before the State Commission and the National Commission. It has been urged that proceedings involving negligence in the matter of rendering services by a medical practitioner would raise complicated questions requiring evidence of experts to be recorded and that the procedure which is followed for determination of consumer disputes under the Act is summary in nature involving trial on the basis of affidavits and is not suitable for determination of complicated questions. It is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning (as in Chinkeow v. Government of Malaysia, (1967) I WLR 831 P.C.) or use of wrong gas during the course of an anesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the Civil Court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the consumer to approach the Civil Court for necessary relief. We are, therefore, unable to hold that on the ground of composition of the Consumer Disputes Redressal Agencies or on the ground of the procedure which is followed by the said Agencies for determining the issues arising before them, the service rendered by the medical practitioners are not intended to be included in the expression ''service'' as defined in Section 2(1)(o) of the Act."

IN the present case, as it is evident, that the metallic piece, that is, a tip of suction tube, was found in the abdomen of the complainant while CW 2 performed the operation on the complainant on 15.10.92. The earlier ceasarian operation was performed by RW 1 - the opposite party, on 11.6.91. This operation by CW 2 on the complainant on 15.10.92 was only thereafter. Therefore, it is established by the complainant that the metallic tip of suction tube was left in the abdomen of the complainant negligently by RW 1 the opposite party, while he performed the operation on the complainant on 11.6.91. The complainant has claimed compensation in a sum of Rs. 8 lakhs from the opposite party for the suffering undergone by her from 11.6.91 till 15.10.92. It is material on record and it has been amply proved by the complainant that the complainant suffered serious mental distress from the date of operation on 11.6.91 till the second operation on 15-10.92. The complainant has averred and stated that from 11.6.91 onwards after the operation on her by RW 1, she began to suffer intense abdominal pain, urinary pain and back pain. She continued to suffer with these pains till she was operated by CW 2 on the complainant for the second time. That is the evidence given by her husband, CW 3. Cw 2, has further stated thus : "when the complainant was examined by me on 14.10.92 I found her in a severe lower abdominal pain. She was also running temperature." The complainant''s life was in great danger if the operation were not to be done and that tip of sucker tube was not be removed. Even her marital life was in danger."

THESE circumstances would clearly go to show that the complainant suffered an untold misery and serious mental distress, as a result of negligent act on the part of the opposite party in performing the operation in leaving the metallic tip of suction tube in the abdomen of the complainant while operating on her on 11.6.91. The serious mental distress is a killer ailment and can cause varieties of deadly ailments in human beings which can lead to death.

WE have found that the complainant suffered mental distress and physical suffering due to the negligence on the part of the opposite party which would have been sufficient to cause death in ordinary course of nature but for the medical assistance she could receive from other sources. These circumstances would clearly go to show that the complainant deserves compensation. The mental agony suffered by the complainant cannot be measured in terms of money. The complainant has claimed a sum of Rs. 8 lakhs as compensation. In our opinion, the complainant deserves, in all, compensation in a sum of Rs. 2 lakhs from the opposite party. ORDER In the result, therefore, this complaint is allowed. The opposite party is directed to pay to the complainant a sum of Rs.2 lakhs (Rupees two lakhs only) as compensation. The opposite party shall also pay a sum of Rs. 2,500/- (Rupees two thousand and five hundred only) to the complainant towards the costs of this proceeding. The opposite party shall pay the sums so awarded to the complainant within a period of 60 (sixty) days from this day and non-payment of the aforesaid sums within the given time to the complainant shall carry interest at the rate of 18% p.a. till its payment to the complainant. Complaint allowed.