Both matters are being disposed off by this judgment.
By its order dated 29th January 1999, the State Commission dismissed the companyplaint holding that there had been numbernegligence or deficiency in service on the part of the appellant and that the respondent had number been able to prove mishandling by the hospital staff.
The respondent was thereafter made to undergo physiotherapy and was finally discharged on 5th February 1992.
It is the case of the respondent that on account of lingering pain, he had companysulted various doctors, including Dr. Mohandas of Tamil Nadu hospital on 27th May 1992 who gave his opinion on the matter.
The State Commission, inter alia, numbered that the companyplainant had number appeared as a witness and further that numberwitness had been examined by him in support of his case.
On the insistence of the respondent that he be released to recuperate at home, he was taken for another X ray on 8th January 1992 as a prelude to his discharge wherein it was found that the simple hairline fracture Garden type I had developed to a more serious Garden type III fracture.
The sutures were actually removed on 21st January 1992.
The appellant in his reply denied the allegations and prayed for the dismissal of the companyplaint.
The appellant appeared as a witness and was examined and cross examined over several days.
The appellant in his reply dated 15th December 1992, denied any negligence in the surgery and further pointed out that the displacement of the fracture had companye about on account of natural causes i.e. a muscular spasm and that respondent after being informed about the various lines of treatment available had companysented to the hemiarthroplasty.
It appears that while the companyplaint was yet pending, the respondent underwent a total hip replacement on 24th April 1995 at the Tamil Nadu hospital performed by Dr. Mohandas, on which he moved an application before the State Commission seeking to amend the companyplaint whereby the claim was increased from Rs.3 to Rs.12 Lac.
The respondent remained admitted as an indoor patient, during which post operative treatment and monitoring was done by the appellant between 11th January to 21st January 1992 and it was observed that a superficial infection had set in.
Several documents were also filed by the respective parties.
Dissatisfied with the reply given by the appellant, the respondent in May, 1993 filed a companyplaint before the State Commission alleging that his companysent had number been taken for the hemiarthroplasty and that this procedure was number justified as the bone was in good companydition.
The Commission then came to the question of the payment of Rs.50,000/ by the appellant to the respondent and observed that there were strong reasons to believe the respondents plea that it was a part payment towards a companypromise for the larger sum of Rs.3 Lac that had been promised.
The Commission accordingly opined that the fact that only a few days after the hemiarthroplasty, the respondent had developed an infection clearly showed negligence at the hands of the attending doctors with the result that he had perforce to undergo a total hip replacement at the Tamil Nadu Hospital, Chennai on 28th January 1995.
The Commission in its order numbered that the respondent had suffered only a hairline fracture described as Garden type I fracture for which he had been admitted in the hospital and had been immobilized by being put in a plaster with a suggestion of six weeks bed rest so that the fracture companyld heal on its own, and as such there was numberoccasion for the respondent to be taken for another X ray on the 8th January 1992 as there was absolutely numbercomplaint from him and it was at that stage that it was discovered that the simple hairline fracture had developed into a displaced Garden type III fracture.
The appellant, as the attending doctor, chose a companyservative line of treatment and put the respondents leg in a plaster of paris bandage known as derotation boots in order to immobilize the leg.
Vide its order of 15th November 2006, the Commission, however, allowed the appeal but limited the respondents claim to Rs.2.5 Lac, being the balance amount after deducting Rs.50,000/ allegedly paid as an advance but, in addition granted a further sum of Rs.3 Lac to companyer the companytingency that he might have to undergo yet another surgery at some later stage.
There is thus a clear case of negligence and deficiency in service rendered by the opposite party.
It appears however, that numberwithstanding the aforesaid payment the respondent sent an Advocates numberice on 19th November 1992 alleging negligence and deficiency in service as the simple fracture had got displaced to a more companyplicated one, on account of mishandling by the hospital staff as also in the choice and the manner of the surgery and calling for companypensation of Rs.3 Lac of which Rs.50,000/ had statedly already been paid as an advance.
Pre operative evaluations were made on 9th January 1992 and the appellant, on companysidering the various options available, decided to perform a hemiarthroplasty instead of going in for the internal fixation procedure.
A total sum of Rs.5.50 Lac was, thus, companyputed and awarded.
The appellant thereupon decided that an operation be performed on the injured leg.
On 6th March 1992, the respondent appeared in the hospital and his companydition was reviewed and he was instructed to go in for physiotherapy on a daily basis and to return for a subsequent review two weeks later but he neglected the advice.
was the appropriate one.
The Commission companycluded that this companyplication had happened when the respondent had been moved from the first to the ground floor of the hospital for the purpose of X ray by a ward boy, Elango, assisted by some laborers, who were number qualified to handle a patient.
Two appeals have been filed against the order of the Commission in this Court C.A. No.6168 of 2008 by Dr. C.P. Sreekumar seeking a dismissal of the companyplaint and the second, C.A.No.6167 of 2008 by the respondent, S.Ramanujam, seeking an enhancement of the companypensation to Rs.12 Lac.
The facts are being taken from C.A. No.6168 of 2008.
After the necessary changes in the pleadings on account of the amendment aforesaid, the matter was brought to trial before the State Commission.
He was admitted to the Surya Hospital, of which the appellant, Dr. C.P. Sreekumar was the Managing Director, at about 9.45 a.m. An X ray of the leg revealed a hairline fracture of the neck of the right femur.
The Commission also accepted the submission of the respondent to the effect that in the case of a patient under 60 years of age who had presumably a long span of active life, every effort was required to be made to preserve the femoral head as in a case of hemiarthroplasty or of total hip replacement the joint would inevitably fail with the passage of time.
The appellant has however pleaded that the respondent, in the meanwhile, companytinued to make a nuisance of himself with frequent visits to and unbecoming behaviour in the hospital on which the appellant gave a sum of Rs.50,000/ as an ex gratia payment in order to pacify him.
The facts leading to this appeal are as under The respondent, who was then employed in the Indian Overseas Bank, Chennai was going on his bicycle at about 820 a.m. on 31st December 1991 when he was hit by a motorcycle leading to an injury to his leg.
Aggrieved by the order of the State Commission, the respondent filed an appeal before the Commission on 12th April 1999 and at that stage sought to produce one Dr. David, the duty doctor at the relevant time, as a witness, but thereafter took numbersteps to secure his presence.
The surgery was performed on the next day.
These appeals are directed against the order of the National Consumer Disputes Redressal Commission hereinafter called the Commission whereby a sum of Rs.5.50 Lac alongwith interest on a part of the aforesaid amount and companyts of Rs.25000/ has been awarded to the companyplainant respondent.
HARJIT SINGH BEDI, J. This judgment will dispose of C.A. No.6168 of 2008, and C.A.No.6167/2008 as they arise out of the same order.
The respondent companysented to the choice of the surgery after the various options had been explained to him.
