SAU MADHURI vs RAJENDRA

SAU Madhuri, wife of Nitin Atharkar, the appellant, was operated on by Dr. Rajendra and Dr. SAU. Kalpana of Shriram Clinic, Thaternity and Nursing Home, Warud, District Amravati, respondents Nos. 1 and 2 herein for the delivery of a cessarian child on 13.2.1992 under general anaesthesia. After the operation she felt uncomfortable and was having pain in the abdomen. She complained about it, but nothing was done by the Doctors to alleviate her sufferings. She was discharged from the clinic on 20th February, 1992, but she continued to have pain and nausea. She was re-admitted to the said clinic. Her condition started deteriorating and on 27.3.1992 her parents removed her to Nagpur and admitted her in the clinic of Dr. P.K. Tamaskar. Dr. Tamaskar took an X-ray of her abdomen and found a pair of scissors, medically known as "Artery Forceps" inside the abdomen. She was, therefore, operated by him on 27th March, 1992 and the pair of scissors was removed from her abdomen. She remained in the hospital of Dr. Tamaskar at Nagpur till 7th April, 1992.

IN his notes of operation Dr. Tamaskar, respondent No 3 has stated as follows : "The incision was extended upward and the abdomen opened widely. Lot of blood stained peritoneal fluid swelled out and was sucked with the machine and the gangrenous small intestine was clearly seen. At this stage, the complainant''s brother was called in and shown the Black "Jamun" coloured intestine. The brother was informed that about three feet of dead intestine was to be respected. The dissection was difficult because of the swelling of the intestine and oedematous tissues. The artery forceps came out with the intestine. Somehow the intestine had entwined itself around the artery forceps and the blood supply of the intestine was cut off, so it became gangrenous. The abdominal cavity was flushed out with plenty of antiseptic fluids."

The appellant, Sau. Madhuri, filed a complaint before the State Commission, Maharashtra, claiming a compensation for Rs. 8,79,175/- on the following counts : Expenditure incurred for operation, hospitalisation, medicine etc. Rs. 29,175.00 Compensation Rs. 8,50,000.00 Total Rs. 8,79,175.00 The details of expenditure are shown in the summary of three schedules attached with the complaint. She alleged that respondent Nos. 1 and 2 were negligent and careless while performing the cessarian operation on her, left a pair of scissors inside her abdomen and did not take due care in finding out the cause of her discomfort and nausea even thereafter. All this, according to her, caused agony and discomfort not only to her but even the child was deprived of due care of the mother. The State Commission, Maharashtra after hearing the Advocates for the complainant and the opposite parties considered the following points : (i) Whether the complainant is a consumer and the complaint is maintainable; (ii) Whether there has been any negligence in the service of opposite parties while performing the cessarian operation; and (iii) Whether the complainant is entitled for compensation. After going through the record, the State Commission, Maharashtra, in a well reasoned order, concluded that the appellant is a consumer and respondents Nos. 1 and 2 have been negligent while performing the operation on her as is evident from the report of Dr. P.K. Tamaskar, respondent No 3, that artery forceps were found in her stomach. Further, these artery forceps could not be pulled out easily, because a small intestine had entwined itself around them and therefore a part of the intestine had also to be removed. On the basis of this finding the Maharashtra State Commission awarded a sum of Rs. 2,000/- as compensation and also an amount of Rs. 29,175/- towards expenditure which the appellant had incurred for her treatment.

This appeal filed by the complainant is on the ground that the compensation awarded by the Maharashtra State Commission at Rs. 2,000/- is a pittance considering the agony and discomfort suffered by her. The Maharashtra State Commission has argued that apart from Rs. 29,175 / -, the expenses incurred by the appellant, the respondent Nos. 1 and 2 also paid Rs. 15,000/- to respondent No. 3 for performing an operation at Nagpur as the parents of the appellant did not have enough money to pay for the operation at Nagpur. This fact has also been admitted by Dr. Tamaskar in his observation, as he issued a chit in token of receipt of this amount, which has been brought on record. Taking into account that her agony started on 13.2.1992 when she was first operated for the delivery of a child and continued till 27th March, 1992 when she was operated for the removal of artery forceps at Nagpur - a period of one and a half month and further that the respondent Nos. 1 and 2 paid Rs. 15,000/- to respondent No. 3 for her operation at Nagpur, the State Commission quantified the amount of compensation at Rs. 2,000/- as reasonable, in addition to the expenses of Rs. 29,175/- incurred by her.

WE have carefully considered the material on record, and heard the appellant who was represented by Mr. Ashok Trivedi, the Authorised Representative and Mr. Raju Ramachandran and Mr. Manoj Wad, learned Counsel for the respondent Nos. 1 and 2. WE are of the opinion that no standard criteria can be prescribed for determining the amount of compensation in such like cases. Each case has to be judged by taking into account the attending circumstances and also the attenuating circumstances, if any. In this case, the factors like the period of discomfort and agony, the fact that Rs. 15,000/- were paid by respondent No. 1 for her operation to remove the artery forceps left by him in the abdomen, the award of Rs : 29,175/- which is the total expenditure incurred by her on operation, medical treatment, medicine, X-ray etc., (excluding Rs. 15,000/- paid by respondent No. 1 to respondent No. 3) and claimed by her, are to be taken into consideration while determining the amount of compensation. One has also to see the financial status of the Doctor as well as the patient in these cases apart from the factors of age, the earning status of the patient and any other relevant circumstance having a bearing on the case. After taking all the attending circumstances into account, we are of the view that the compensation of Rs. 2,000/-determined by the Maharashtra State Commission is on the lower side and, therefore, we enhance this amount to Rs. 10,000/-. This appeal is allowed to this extent and the enhanced amount at Rs. 10,000/- shall be paid by the respondent Nos.1 and 2 within a period of one month from the date of receipt of this Order. In addition, the respondent Nos.1 and 2 shall also pay a sum of Rs. 2,000/- by way of costs to the appellant within the same period. If the amount of Rs. 29,175/-, on account of expenditure, has not been paid so far, the same shall also be paid within a month from the date of receipt of this Order. In case there is any delay in the payments of these amounts, the respondent Nos.1 and 2 shall pay interest on the total amount of Rs. 39,175/- minus whatever has already been paid at the rate of IS per cent till the date of payment. Appeal allowed with costs.