T.R. sRINIVASA MURTHY vs RUDRARADHYA

FOR the sake of convenience, the parties in this Order are referred to according to their position in the Complaint filed before the District FORum.

THIS appeal is by the opposite party (for short, "OP") No. 1 challenging the Order of the District Forum allowing the complaint of the complainant in part. The facts in this case are as follows: The complainant was got admitted to OP-2 Hospital on the complaint of back-pain on the advice of OP-1 for treatment. OP-1 after examining the C.T. Scan advised the complainant to undergo an operation of "L.S. Spine Disc". Thereafter, OP-1 conducted the operation on 21.12.2001. The grievance of the complainant is that after the operation he lost control over both his limbs and he was not having any sensation below his waist. Thereafter, OP-1 referred the complainant to Bhagwan Mahaveer Jain Hospital and in the said Hospital, he underwent a second operation. After discharge from the Bhagwan Mahaveer Jain Hospital, the complainant had taken treatment in Bangalore Kidney Foundation from 20.2.2002 to 26.2.2002. According to the complainant, since there was negligence on the part of OP-1 while conducting the first operation, he was made to suffer physical injuries. For this, the complainant filed the complaint before the District Forum claiming compensation from the OPs.

Ops 1, 2 and 4 appeared before the District Forum and contested the case. In the version they have denied any negligence on their part. According to the Ops, on the basis of the C.T. Scan, they advised the complainant to undergo operation and, accordingly, the operation was conducted. It is further stated that before conducting the operation, OP-1 informed the ''pros and cons'' of the operation to the complainant and thereafter after obtaining the consent of the complainant the operation was conducted. Hence, according to the Ops, the complaint was liable to be dismissed.

THE District Forum considering the evidence adduced before it has allowed the complaint with a direction to OP-1 to pay a compensation of Rs. 75,000 to the Complainant with interest at 6% per annum from the date of the Complaint till payment. This Order is under challenge by OP-1 in this appeal. It is not in dispute that OP-1 advised the complainant to go for surgery and, accordingly, he conducted the operation on 21.12.2001. The case of the complainant is that because of the negligence on the part of OP-1 he was made to suffer physical injury and this has ultimately made him to go for second surgery in Bhagwan Mahaveer Jain Hospital. The District Forum has held that what happened inside the operation theatre has not been explained and, therefore, there is negligence on the part of OP-1 while conducting the surgery. It is not in dispute that OP-1 himself having noticed little complication referred the complainant to the Bhagwan Mahaveer Jain Hospital. The only question that arises for consideration is whether the complication that developed was due to the operation conducted by OP-1. The complainant has filed an Affidavit in support of his case. In addition, the complainant has also examined the doctor who conducted the second surgery in the Bhagwan Mahaveer Jain Hospital as CW-2 as his witness. CW-2 is a Neuro Surgeon working in the Bhagwan Mahaveer Jain Hospital. In the course of examination, he has stated that in Exhibits ''C-4'' and ''C-5'' he has not stated that the complication that developed was due to the negligence on the part of the doctor who conducted the first operation, He has further stated that he conducted the second operation because it was required. It is in his deposition that from the M.R.I. Scanning many more things could be known for giving treatment. Exhibits ''C-15'' and ''C-17'' are the documents relating to the treatment given to the complainant in the OP Hospital. According to this witness, on examination of Exhibits ''C-15'' and ''C-17'' he found that there was no negligence on the part of the doctor in conducting the first surgery. From this it is seen that the witness of the complainant himself speaks to the fact that there was no negligence on the part of OP-1 who conducted the operation. When the witness of the complainant speaks that there was no negligence on the part of OP-1, there was no reason for the District Forum to hold that there was negligence on the part of OP-1 while conducting the operation. Mere failure of an operation does not mean that the said failure is due to the negligence on the part of the doctor. The complainant also has not produced any other acceptable evidence to show that OP-1 failed to take due care while conducting the operation as expected from any other doctor. Therefore, in our considered view, the District Forum has committed an error in allowing the complaint.

IN the result, we pass the following Order: (1) The Appeal is allowed. The impugned Order is set aside. (2) The Complaint filed by the complainant before the District Forum is dismissed. (3) Parties to bear their own costs. Appeal allowed