T.R. Madaan vs Mohit

-THIS appeal has been directed by opposite parties against order dated 15.3.2001 passed by Consumer Disputes Redressal Forum, Panipat (hereinafter to be referred as District Consumer Forum), vide which complaint of respondent Mohit minor (complainant) was accepted with costs of Rs. 3,300 and appellants were directed to pay a sum of Rs. 20,000 which Rakesh Kumar spent as operation fee and further Rs.10,000 spent on medicines besides Rs. 20,000 for pain and sufferings of Master Mohit and negligent services rendered by appellants.

BRIEFLY stated the facts are that Master Mohit aged about 4 years is son of Rakesh Kumar and he was suffering from disease of polio on both legs. The father of Mohit minor Sh. Rakesh Kumar contacted Dr.T.R.Madaan who had assured him that an operation was to be performed on the legs of Mohit minor and after two months of operation, he would start walking. On this assurance, Rakesh Kumar got his son admitted in the clinic of Dr. T.R. Madaan and both the appellants jointly operated him. He had spent Rs. 55,000 on treatment. However, operation was not successful. After operation, Mohit minor started getting more problems. His right leg became short and further his both legs became week and general health deteriorated. Alleging deficiency in service, complaint was filed and claimed compensation of Rs. two lacs along with interest @ 24% p.a.

Appellants contested the complaint and stated that there was no negligence on their part. They next stated that no assurance whatsoever was given to Rakesh Kumar father of Mohit minor that after operation, Mohit would get strength in both legs. They next stated that operation was conducted with a view to improve the position of legs and it was never assured that Mohit Minor would stand up on his legs or he would walk with his legs after full recovery. It was also stated that appellants were not keen to perform operation on the legs of Mohit minor but at the insistence of Rakesh Kumar, father of Mohit minor, operation was performed. They were aware of the fact that person suffering from polio never regained power except some improvement on account of surgical intervention. They denied that Rakesh Kumar had spent Rs. 55,000 or any amount at their hospital, rather a very small amount was spent by him. They also stated that appellant No. 2 was a known orthopaedician of northern India and the purpose of operation was only to reduce the effect of polio on both legs and there was no negligence on their part and complaint should be dismissed.

PARTIES adduced their evidence by way of affidavits. After hearing Counsel for the parties, District Consumer Forum vide order dated 15.3.2001 accepted the complaint with costs of Rs. 3,300 as stated in the earlier part of the judgment.

AGGRIEVED by the said order, opposite parties have filed the present appeal. We have heard Counsel for appellants Mr. Rakesh Manuja, Counsel for respondent Mr. Sandeep Ghangas and carefully gone through the file. Discharge summary Ex.C.1 which is at page 13 of the file shows that Mohit aged 3 years was admitted in the clinic on 24.10.1997 and was discharged on 27.10.1997. The history shows that he was a case of post polio both legs and treatment was given in the clinic for soft tissue repair and lengthening of the tendon. Again in document Ex. R-2 it is mentioned that it was old case of polio. Annexure R-2 which is photocopy contains consent of Sh. Rakesh Kumar. In this consent which is signed by Rakesh Kumar shows that Dr. Harbhajan Singh told him that after conducting operation, only legs of Mohit minor would be straightened and there would be no gain in power of his legs. Therefore, it does not appeal to reason that appellants had given assurance/guarantee that after the operation, Mohit minor would get strength in his legs and he would be able to walk after sometime of the operation.

DR. T.R. Madaan also stated in his affidavit Ex. R.1 that operation in question was carried out after father of Mohit minor had given consent and it was further made clear to him that after operation there could or could not be improvement in the legs of Mohit minor and further it was made clear that only the legs would be straightened and there would be no improvement in the power of legs. He further stated that after operation, there was no deterioration in the condition of boy or in his legs and there was no negligence in performing the operation.

AT the instance of District Consumer Forum, Medical Board of doctors of Pt. B.D.S. PGIMS, Rohtak was constituted and they examined Mohit minor. They stated that Mohit minor was not able to walk for quite a long time. There was flexion deformity in both knee and ankle joints. All the surgical scar marks were of well described operations for polio mylitis for correction of deformities etc. They next stated that it was not possible to assess any increase in disability after these operations i.e. they were unable to pinpoint whether the patient was really harmed with the operations or not. They further stated that no report pertaining to patient''s disability/handicapped before surgical operation was available. Therefore, Board of doctors which was constituted by the Director of Pt. B.D.S. PGIMS, Rohtak at the instance of District Consumer Forum has categorically stated that they were unable to assess any increase in the disability after the operation. They further stated that surgical scar marks on legs of Mohit minor were of well described operations for polio mylitis for correction of deformities. Thus, there was no fault with the act of appellants in performing operation for Polio mylitis for correction of deformities etc. In view of this report, appellants have not committed any negligence. There is no evidence that after the operation, legs of Mohit minor had been shortened. No expert evidence to this effect has been placed on file. Medical Board does not state so in their report which has been placed on file as Ex. C. 18.

There is nothing to conclude from the conduct of appellants that they had butchered the handicapped child by not operating carefully and rather had slaughtered him. These remarks by the District Consumer Forum are uncalled for. Appellant No. 1 is well known surgeon of the northern India while appellant No. 2 is also well known orthopaedician. It has not been proved that there was any negligence in performing the operation on the legs of Mohit minor for straightening the same or they had not followed the standard treatment.

HENCE, in view of the discussion above, the appeal is accepted and the order of the District Consumer Forum which is perverse is set aside and the complaint is dismissed. Copies of this order be communicated to the parties, free of charge. Appeal allowed.