ROSHAN LAL GARG Vs. N D AGGARWAL

JUDGEMENT

(1.) THIS is an appeal filed by Roshan Lal Garg (in short the appellant ) against the order dated 19.5.2003 of the District Consumer Disputes Redressal Forum, Patiala (in short the District Forum ) by which the complaint of the appellant was dismissed by the District Forum.

(2.) BRIEF facts of the case are that the appellant met with an accident at Cheeka on 11.12.1999. He was taken to M/s. Aggarwal Orthopaedic Clinic, opposite party No. 3 (in short respondent No. 3 ) so as to obtain the services of Dr. N.D. Aggarwal, opposite party No. 1 (since deceased) (in short respondent No. 1 ) in order to get the appellant s left leg femur XXX operated upon by him on payment of consideration. The appellant was admitted in the said clinic on 11.12.1999 and was discharged on 23.12.1999. Allegedly the operation was performed not by Dr. N.D. Aggarwal but by Dr. Rajeev Aggarwal, opposite party No. 2 (in short respondent No. 2 ), who had no right nor consent of the appellant or his relations to do the operation was taken. Dr. Rajeev Aggarwal was also a State Govt. employee working as Assistant Professor in the Department of Orthopaedics, Govt. Rajindra Hospital, Patiala. For the operation, the appellant was taken to the operation theatre on 14.12.1999 at 5.30 a.m. The appellant, his relations and well wishers were kept under the impression by the staff member of respondent No. 3 that the operation shall be done by Dr. N.D. Aggarwal himself but Dr. N.D. Aggarwal remained sitting in his office while the operation was done by Dr. Rajeev Aggarwal. During the operation, one attendant who was inside the operation theatre came out the theatre and approached the relations of the appellant to bring an injection from the chemist shop. When the relation of the appellant reached in the operation theatre as to pass the injection inside the operation theatre he was shocked and stunned to see that operation was being done by Dr. Rajeev Aggarwal. The relations of the appellant approached Dr. N.D. Aggarwal who told that during those days he himself performed operations rarely due to his old age and major operative work was being done by his son Dr. Rajeev Aggarwal, though this fact was not disclosed to the appellant/his relations earlier. While performing the operation a rod was put inside the leg of the appellant. The leg was plastered for a period of 4 weeks but a severe pain continued in the operated leg and he had suffered physically as well as mentally due to the above said severe pain and he was put on medicines including pain killers and injections. He was discharged on 23.12.1999 despite the fact that the said pain continued to exist. A sum of Rs. 29,200 was paid to the respondent M/s. Aggarwal Orthopaedic Clinic by the relation of the appellant. However, a receipt for a sum of Rs. 9,200 only was issued by respondent No. 3. The appellant claimed to have spent about Rs. 60,000 on his treatment in the said Clinic. The appellant, however, continued visiting the clinic as he had been feeling severe pain. At the time of operation he was assured that the operation was successful. On 1.5.2000, the appellant went to the Department of Orthopaedics C.M.C., Ludhiana for a thorough check up and was told that the rod had been inserted with great negligence without requisite care and caution and a piece of effected bone had fallen somewhere and for this reason the fracture had not joined/cured. He was admitted in the C.M.C. on 5.5.2000 for treatment and remained there upto 13.5.2000. Thereafter too he had visited C.M.C. for regular thorough check up treatment so as to avoid further operation. He spent Rs. 30,000 on this. The appellant and his relations took up the matter with the respondents who showed their willingness to pay expenses and fresh fee for operation but claimed that as the appellant had not turned up quite for a long time so they were not in a position to advice qua further treatment. The appellant then went to Orthopaedic Department of P.G.I., Chandigarh for his treatment on 22.9.2000 and was told that the operation had not been done properly by M/s. Aggarwal Orthopaedic Clinic. The appellant spent Rs. 5,000 for his treatment in the P.G.I., Chandigarh. On 13.11.2000 the appellant went to the Department of Orthopaedics at P.G.I., Rohtak for check up and was told that the operation had not been properly done. He was admitted in the PGI, Rohtak for the treatment of the effected leg. He remained admitted upto 28.11.2000 during which period the appellant underwent another operation of his effected leg. The appellant had also been visiting P.G.I., Rohtak, subsequently, for follow up treatment. At PGI, Rohtak he claimed to have spent on travelling to Rohtak from Cheeka. On these facts the appellant pleaded negligence and deficiency on the part of the respondents and had demanded a sum of Rs. 4,85,000 as per the details given under heading prayer.

(3.) RESPONDENTS contested the complaint and filed joint written reply on 8.3.2002 by which date Dr. N.D. Aggarwal had died. It was admitted that Dr. N.D. Aggarwal impleaded as respondent No. 1 was the proprietor of M/s. Aggarwal Orthopaedics Clinics, respondent No. 3 and respondent No. 2 Dr. Rajeev Aggarwal, was then a professor at Rajindra Hospital, Patiala and son of respondent No. 1. It was, however, pleaded that the operation of the appellant was satisfactorily performed. When he brought to the hospital, he was accompanying with his wife Daropti Rani who attended him during admission in the hospital. It was denied if the operation was not done by Dr. N.D. Aggarwal as Dr. Rajeev Aggarwal was not doing any private practice nor was employee of respondent No. 3. He was a Govt. employee in Rajindra Hospital, Patiala. It was denied if during the operation Dr. N.D. Aggarwal remained sitting in office or that any injection was asked for and was handed over in the operation theatre by any relation of the appellant or that said relation had seen Dr. Rajeev Aggarwal conducting the operation. It was also denied if Dr. N.D. Aggarwal was unable to carry out any operation. Rather Dr. N.D. Aggarwal conducted the operation himself along with his team of other doctors including Dr. O.P.S. Kande, Anaesthesiologist. By operation, K -nailing (wrongly referred as rod in the complaint) was done considering it the best accepted treatment in case of fracture of femur. The plaster was given above the ankle and below the knee. A derotation bar (wooden plant of about 1/2' in width and about 8" in length) was embedded in the plaster of the ankle itself to avoid the movement of the affected foot to and fro so that the said movement may not affect the process of union in the femur. The plaster was given for four weeks initially which could be continued on reviewing at the time of follow -up. It was denied if the appellant complained of any severe pain any time after the plastering or was put on sleeping pills. In fact pain, in the normal course of disease, differs from patient to patient and also depends on his habits of drinking and eating. The appellant was discharged in satisfactory condition on 23.12.1999. The appellant did not pay Rs. 29,200 as alleged. It was further pleaded that wife of the appellant sent false complaint against Dr. Rajeev Aggarwal to different quarters with a view to extort money from him on the threat that he performed the operation in the clinic despite being the Government employee and that he was negligent in performing the operation. It was also stated that the period taken for the complete union of the bone for a particular patient depends upon his compliance with the instructions given by the doctor and proper follow up. It was denied if the appellant had come to know that the rod or the K -nailing which was put in the femur was inserted with any negligence or lack of requisite care or caution or that at the time of fixing/insertion of K -nailing any piece of affected bone was removed or there remained any gap due to which ends of the fracture/part of the bone had not joined/cured and caused lot of pain, agony and mental torture to the appellant. The allegations made in the complaint about the appellant visiting the CMC, PGI, etc., had been denied. The expenses incurred by the appellant in these hospitals had also been refuted. Thus, the respondents had denied the various allegations of negligence and deficiency on the part of the respondents and the appellant having put to mental torture, inconvenience and agony and financial loss. The complaint was pleaded to be false, frivolous with mala fide intention to extract money.