Santosh Kumar Das vs P.C. Dey

THIS revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 28.11.2007, passed by the Orissa State Consumer Disputes Redressal Commission (for short ''the State Commission '') in FA No. 116/2004, ''''Dr. P.C. Dey versus Santosh Kumar Das '''', vide which while allowing appeal, the order dated 03.02.2004, passed by the District Consumer Disputes Redressal Forum, Balasore in c.d. case no. 126/2002 was set aside.

BRIEF facts of the case are that the petitioner/complainant Santosh Kumar Das met with an accident, as a result of which, the femur bone of his right leg was fractured. He was admitted in Government Hospital, Balasore, Orissa, where various tests and x -rays were done and it was stated that a surgical operation would be required. The petitioner got discharged from the Government Hospital on 22.10.99 and approached the respondent / OP, Dr. P.C. Dey and on his advice, he got himself admitted at a nursing home called ''Health Point '', situated at Gopalgaon, Balasore. The petitioner was operated upon by the OP/respondent on 25.10.99 and was discharged from the Hospital on 06.11.99. It has been alleged that the petitioner suffered serious pain in the leg, despite taking various medicines. The petitioner then consulted another doctor, Dr. N.K. Aggarwal, retired Professor and Head of the Department of Orthopaedic Surgery, SCB Medical College, Cuttack. Dr. Aggarwal, advised that due to some defect in earlier surgical operation, the fractured portion of the bone had not joined properly and he advised for second operation. The petitioner then consulted Dr. C.P. Das, Consultant Orthopaedic and Trauma Surgeon, Sun Apollo Diagnostic, which was attached with Kalinga Hospital, Bhubaneswar. The said doctor after his examination, suggested immediate operation, otherwise, the affected portion of his leg may lead to amputation of the leg. The petitioner was operated for the second time on 22.3.2001 at Kalinga Hospital by Dr. C.P. Das. He had to spend a sum of Rs.40,000/ - for the purpose. After the second operation, the union of bones took place, but his leg was shortened by 1 1/2 inches and as alleged, he became physically handicapped by 55%. The petitioner filed the consumer complaint in question before the District Forum for alleged negligence and deficiency in service on the part of the respondent and claimed a total sum of Rs.3 lakh as compensation including Rs.40,000/ - for expenses incurred for his treatment and the rest for mental agony, harassment etc. The District Forum, by a majority judgement on 3.02.2004, passed by two Members of the Forum allowed the complaint and directed the OP/respondent to pay a sum of Rs.40,000/ - spent by the petitioner at the time of second operation and Rs.50,000/ - as compensation for suffering, mental agony, etc. and physical handicap. The President of the District Forum, however, recorded a dissenting order, dismissing the complaint in question. An appeal was filed against this majority judgement of the District Forum before the State Commission and vide impugned order, the appeal was allowed and the order passed by the District Forum was set aside and the consumer complaint was ordered to be dismissed. It is against this order that the present petition has been made. After filing the revision petition, the learned counsel for the petitioner appeared on some of the hearings. On 22.04.2009, it was ordered that the case should be listed as per its turn in due course. However, when the case was listed on 14.03.2013, the learned counsel for the petitioner did not appear. A notice was again sent to the petitioner, but despite service, he did not choose to appear before us. The respondent was, however, represented by his counsel and his arguments were heard. Learned counsel for the respondent stated that the State Commission had passed a well -reasoned order and carried out a correct appreciation of the facts on record. The order passed by the State Commission was mainly based on the testimony of Dr. N.K. Aggarwal, retired Professor and Head of the Department of Orthopaedic Surgery, SCB Medical College, Cuttack. Dr. Aggarwal has categorically stated that the earlier operation done by the respondent was absolutely correct. The present petition should, therefore, be ordered to be dismissed.

WE have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

THERE is a delay of 34 days in filing the present revision petition. An application for condonation of delay has been filed, saying that the delay occurred because the petitioner underwent certain medical problems. The application is accompanied by an affidavit. In view of the position explained in the said application, the delay in filing the revision petition is condoned. It has been contended in the revision petition that there was negligence on the part of the respondent because the fractured part of the bones did not join after the first operation, whereas the union of bones took place after the second operation. It was, therefore, not correct to say that it was simply a physiological process that the union did not take place after the first operation. In fact, the first operation was defective due to which the petitioner had to undergo the agony of going through the second operation.

A close examination of the order passed by the State Commission reveals that this order is based on the statement of Dr. N.K. Aggarwal, retired Head of Department of Orthopaedics in S.C.B. Medical College Cuttack, before the State Commission in support of his affidavit filed earlier. In the said affidavit, Dr. Aggarwal had clearly stated that he examined the petitioner on 07.06.2000 and found that the earlier operation done by Dr. P.C. Dey, upon the respondent/OP was absolutely correct. The said operation was done by K ''nailing, but the non -union of the bone happened due to the lack of formation of callus, which is totally a physiological process and happens in many cases. Dr. Aggarwal has also stated in his affidavit that the respondent no. 1 had done the bone grafting operation which was to enhance the physiological union and which was an extra pre -caution taken by him. Further, Dr. C.P. Das who conducted the second operation has opined that the non -union of such fractures required a more aggressive approach and hence, he adopted interlocking nailing after removal of k ''nail at Kalinga Hospital. The State Commission have quoted extensively from the medical literature bringing out clearly that there were various causes for non -union or delayed union of the fractures, and came out with the conclusion that the respondent no. 4 cannot be blamed for the non -union, after the first operation.

BASED on the material on record, it is made out that the allegations of medical negligence against the respondent doctor is not established from record. He may have adopted a different approach for the treatment of the fracture, but as borne out from the statements of experts in the field, there is no reason to believe that the respondent indulged in medical negligence of any kind. We, therefore, do not find any reason to disagree with the well -reasoned order passed by the State Commission. We observe, therefore, that there is no illegality, irregularity or jurisdictional error in the said order and the same is hereby affirmed. The revision petition is ordered to be dismissed. There shall be no order as to costs.