C P SREEKUMAR Vs. S RAMANUJAM

JUDGEMENT

(1.) 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 facts are being taken from C.A. No. 6168 of 2008.

(2.) 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 along with interest on a part of the aforesaid amount and costs of Rs. 25,000/- has been awarded to the complainant - respondent. The facts leading to this appeal are as under :

(3.) The respondent, who was then employed in the Indian Overseas Bank, Chennai was going on his bicycle at about 8:20 a.m. on 31st December, 1991 when he was hit by a motorcycle leading to an injury to his leg. 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 appellant, as the attending doctor, chose a conservative line of treatment and put the respondent's leg in a plaster of paris bandage known as 'derotation boots' in order to immobilize the leg. 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 appellant thereupon decided that an operation be performed on the injured leg. Pre-operative evaluations were made on 9th January, 1992 and the appellant, on considering the various options available, decided to perform a hemiarthroplasty instead of going in for the internal fixation procedure. The respondent consented to the choice of the surgery after the various options had been explained to him. The surgery was performed on the next day. 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. The sutures were actually removed on 21 st January, 1992. The respondent was thereafter made to undergo physiotherapy and was finally discharged on 5th February, 1992. On 6th March, 1992, the respondent appeared in the hospital and his condition 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. It is the case of the respondent that on account of lingering pain, he had consulted various doctors, including Dr. Mohandas of Tamil Nadu hospital on 27th May, 1992 who gave his opinion on the matter. The appellant has however pleaded that the respondent, in the meanwhile, continued 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. It appears however, that notwithstanding the aforesaid payment the respondent sent an Advocate's notice on 19th November, 1992 alleging negligence and deficiency in service as the simple fracture had got displaced to a more complicated one, on account of mishandling by the hospital staff as also in the choice and the manner of the surgery and calling for compensation of Rs. 3 Lac of which Rs. 50,000/- had (statedly) already been paid as an advance. 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 come 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 consented to the hemiarthroplasty. Dissatisfied with the reply given by the appellant, the respondent in May, 1993 filed a complaint before the State Commission alleging that his consent had not been taken for the hemiarthroplasty and that this procedure was not justified as the bone was in good condition. The appellant in his reply denied the allegations and prayed for the dismissal of the complaint. It appears that while the complaint 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 complaint whereby the claim was increased from Rs. 3 to Rs. 12 Lac. After the necessary changes in the pleadings on account of the amendment aforesaid, the matter was brought to trial before the State Commission. The appellant appeared as a witness and was examined and cross-examined over several days. Several documents were also filed by the respective parties. By its order dated 29th January, 1999, the State Commission dismissed the complaint holding that there had been no negligence or deficiency in service on the part of the appellant and that the respondent had not been able to prove mishandling by the hospital staff. The State Commission, inter alia, noted that the complainant had not appeared as a witness and further that no witness had been examined by him in support of his case.