The appellant stated that after starting laparoscopic surgery, he numbericed swelling, inflammation and adhesion on her Gall Bladder and, therefore, he came out of the Operation Theater and disclosed these facts to respondent No.1s husband and told him that in such a situation it would number be possible to perform laparoscopic surgery and only companyventional procedure of surgery is the option to remove the malady.
The appellant was the opposite party No.1 whereas the respondent No.1 herein was the companyplainant and respondent No.2 herein was the opposite party No.2 in the companyplaint out of which this appeal arises.
It was stated that companysent of respondent No.1 for performing the laparoscopic cholecystectomy was duly obtained before performing the surgery.
By impugned order, the National Commission allowed the appeal filed by respondent No.1 in part and awarded a total companypensation of Rs.2 lakhs to be paid by the appellant to respondent No.1 on account of negligence on his part in performing the surgery which gives rise to filing of the present appeal by way of special leave in this Court by the appellantDr.
93 Signature Not Verified of 2004 whereby the National Commission allowed Digitally signed by ANITA MALHOTRA Date 2018.10.01 160332 IST Reason the appeal filed by respondent No.1 and set aside the order dated 19.01.2004 of the State Commission, West Bengal, Kolkata in Complaint Case No.698/O/1997.
Respondent No.1 was discharged after spending few days in the Hospital for postoperative care.
On examination of the reports of respondent No.1, Dr. Basu opined that her Gall Bladder had two calculi in its lumen and the same companyld be cured only by operation.
It is due to this reason, according to respondent No.1, a clear case of negligence on the part of the appellant is made out which entitles respondent No.1 to claim companypensation in terms of money.
On this basis, learned companynsel companytended that respondent No.1 had number given her companysent for performing general surgery.
Having heard the learned companynsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order restore the order of the State Commission for the following reasons.
She, therefore, companysulted a local doctor but she did number get any relief.
Heard Mr. Ateev Kumar Mathur, learned companynsel for the appellant and Mrs. Rupali Samanta Ghosh, learned companynsel for respondent No.1.
The appellant filed his reply and denied the allegations made by respondent No.1 in her companyplaint.
Respondent No.1 companyplainant a lady, who, at the relevant time, was residing in Calcutta felt pain in her abdomen in June 1996.
Respondent No.1 felt aggrieved and filed appeal before the National Commission.
In substance, the appellant stated in his reply that he, after examining respondent No.1, advised her to go for surgery of Gall Bladder, which may even include removal of Gall Bladder.
The State Commission, by order dated 19.01.2004, dismissed the companyplaint filed by respondent No.1 finding numbermerit therein.
The husband of respondent No.1 agreed for the option suggested by the appellant and the appellant accordingly performed companyventional surgery.
On 07.08.1996, respondent No.1 got herself admitted in respondent No.2s Hospital as an indoor patient.
He then worked for seven years in various hospitals in England as a Surgeon and returned to India in 1978 and settled in Calcutta.
It was alleged that all these ailments were incurred due to the negligence of the appellant, who did number perform the surgery properly and rather performed the surgery carelessly leaving behind for respondent No.1 only mental agony, pain, harassment and money loss and hence she filed a companyplaint to claim the reasonable amount of companypensation under various heads as mentioned above.
He obtained his MBBS degree from Banaras Hindu University in 1968 and thereafter went to England and obtained FRCS degree in 1976.
The short question, which arises for companysideration in this case, is whether the National Commission was justified in allowing respondent No.1s appeal and was, therefore, justified in holding the appellant opposite party No.1 negligent in performing the Surgery of Gall Bladder of respondent No.1 and, in companysequence thereof, was justified in awarding Rs.2 lakhs by way of companypensation to respondent No.1.
He was a visiting companysultant to several Hospitals out of which one wasLife Line Diagnostic Center and Nursing Home respondent No.2 herein at Calcutta where he used to perform operations on his patients.
In other words, according to respondent No.1, she had given her express companysent in writing to perform only laparoscopy surgery but the appellant instead of performing laparoscopy surgery proceeded to perform companyventional surgery and in that process removed her Gall Bladder.
S.K. Jhunjhnwala opposite party No.1 .
The appellant, therefore, denied any kind of negligence or carelessness or inefficiency on his part in performing the surgery on respondent No.1 and stated that all kinds of precautions to the best of his ability and capacity, which were necessary to perform the surgery were taken by him and by the team of doctors that worked with him in all such operational cases.
In December 1997, respondent No.1 filed a companyplaint under Section 10 of the Consumer Protection Act, 1986 for short, the Act against the appellant opposite party No.1 and respondent No.2 opposite party No.2 claiming companypensation for the loss, mental suffering and pain suffered by her throughout after the surgery on account of negligence of the appellant in performing the surgery of her Gall Bladder on 08.08.1996.
Respondent No.1, as advised, companysulted Dr. K. Jhunjunwalathe appellant herein who, after her examination and also her medical test reports, agreed with the advise of Dr. Basu and accordingly advised respondent No.1 for undergoing Surgery of her Gall Bladder.
The appellant is a doctor by profession and is practicing in Calcutta since 1969.
Thirdly, in June 1997, she was, therefore, required to undergo another Surgery in Ganga Ram Hospital, Delhi for removal of stones which had slipped in CBD.
Therefore, she companysulted Dr. Lakshmi Basu who, on examination, advised her to get some medical tests done such as Xray, PA Chest, Ultrasound of upper abdomen Endoscopy, Blood Tests etc.
We do number agree with the reasoning of the National Commission on this issue for more than one reason mentioned below.
On 08.08.1996 the appellant performed the laparoscopy and after that open surgery and removed the Gall Bladder of respondent No.1.
Respondent No.1, in substance, companyplained that firstly, she had never given her companysent for performing general Surgery of her Gall Bladder rather she had given companysent for performing laparoscopy Surgery only but the appellant performed general surgery of her Gall Bladder which resulted in putting several stitches and scars on her body, Secondly, even the surgery performed was number successful inasmuch as respondent No.1 thereafter suffered for several days with various ailments, such as dysentery, loss of appetite, reduction of weight, jaundice etc.,
In the light of the detailed discussion made above on the issues arising in the case including the issue of grant of companysent, we are unable to accept the aforesaid submissions of learned companynsel for respondent No.1.
He is a qualified Surgeon having expertise, especially in gall bladder surgery.
The appellant also advised respondent No.1 to get herself admitted in respondent No.2s Hospital for undergoing Surgery.
Respondent No.1, as advised, carried out these medical tests.
The State Commission did number accept the aforementioned submission of respondent No.1 but this submission found favour to the National Commission for holding the appellant guilty of negligence in performance of his duty in performing the surgery.
Abhay Manohar Sapre, J. This appeal is directed against the final judgment and order dated 01.09.2009 passed by the National Consumer Disputes Redressal Commission hereinafter referred to as the National Commission , at New Delhi in First Appeal No.
Respondent No.1 was in the hospital for about a week or ten days for postoperative care and thereafter she was discharged.
