UNITED INDIA INSURANCE COMPANY LTD. Vs. GHISARAM

JUDGEMENT

(1.) THIS appeal has been filed by the appellant Insurance Company which was opposite party No. 2 in the original complaint against order dated 25.10.2005 passed by the District Forum, Sikar in complaint No. 87/05 by which the complaint of the complainant respondent No. l was allowed against the appellant as well as respondent No. 2 in the manner that both were held liable jointly and severely and were directed to pay a sum of Rs. 1 lac as amount of compensation to the complainant respondent No. l within two months failing which they would further pay interest @ 9% p.a. on the above amount and further to pay a sum of Rs. 500 as cost of litigation.

(2.) IT arises in the following circumstances: That the complainant -respondent No. l had filed a complaint against respondent No. 2 before the District Forum, Sikar on 24.2.2005 and thereafter an application was moved by the complainant respondent No. l on 9.5.2005 with a prayer that United India Insurance Company be also added as one of the opposite parties and that application was allowed by the District Forum on 9.5.2005 and amended cause title was also filed. It was stated in the complaint that the complainant respondent No. 1 had suffered fracture on his left hand of his humerus bone on 3.9.2002 and for treating that fracture, he consulted the hospital of respondent No. 2 known as Nihit Hospital where Dr. B.L.Khandelwal was orthopaedic surgeon and operation was done on 4.9.2002 and he was discharged from the hospital on 12.9.2002 and for operation, the complainant had paid a sum of Rs. 50,000. It was further stated in the complaint that in place of steel rod, the opposite party No. l (respondent No. 2) had fixed the plate and bolt were not fixed properly as a result of which the complainant respondent No. l had to face pain and thereafter he had consulted the hospital of respondent No. 2 on 29.9.2002 and 11.10.2009 and finally on 20.10.2002 the plaster was removed but even then the complainant respondent No. l did not feel any relief. It was further stated in the complaint that thereafter he consulted Dr. Jagdish Chand Sharma, retd. orthaepedic surgeon on 14.2.2003 and Dr. Sharma had found " Implant loosing, angulation osteporosis, gap and nonunion " and he had advised surgery and further x -ray was advised and the x -ray report dated 14.2.2003 is quoted here for convenience in the following manner: " Left Humerus: A.P. and Lateral Views. Old fracture of the middle third of the shaft OS left humerus, for which internal fixation was done, now showing non -union and angulation of the fractured fragments, in position, as shown in skiagrams." Thus, Dr. Sharma had found that non -union of the bones and angulation of the fractured fragments. The further case of the complainant respondent No. 1 was that since the bones were not united, therefore, he consulted the doctor of SMS Hospital, Jaipur and he was got admitted in Dr. Bhargava's unit on 16.6.2003 and operation was done on 9.7.2003 and he was discharged from the hospital on 11.7.2003 and following things were done by Dr. Bhargava's unit: (i) Removed the plate which was affixed by opposite party No. l ( respondent No. 2) on 4.9.2002 while conducting the operation of complainant respondent No. 1. (ii) Bone grafting was done and shoulder spica applied. The further case of the complainant respondent No. l was that thereafter he had consulted Dr. Bhargava on 20.8.2003, 10.10.2003 and 21.11.2003 and he did not find any relief even after bone grafting. The further case of the complainant respondent No. l was that thereafter he again consulted Dr. Bhargava's unit and he was again admitted in SMS Hospital, Jaipur on 9.7.2004 and operation was done on 31.7.2004 and he was discharged from the hospital on 2.8.2004 and at the time of admission the following diagnosis was made: "Non -union of fracture of shaft humerus bone" and the treatment which was given by Dr. Bhargava's unit at the time of second admission on 9.7.2004 was as follows - "Interlocking nail ( rod ) was affixed" Thus, the case of the complainant -respondent No. l against the respondent No. 2 could be summarised in the following manner: That operation which was done by respondent No. 2 on 4.9.2002 was not done properly as rod should have been affixed in place of plate and further the bolts which were tighted by respondent No. 2 at the time of operation on 4.9.2002 were found loose and further if the operation would have been done properly by respondent No. 2, no question of formation of pus could have arisen and thus, the present complaint was filed with a prayer that a sum of Rs. 10 lacs be ordered to be paid to the complainant respondent No. l by respondent No. 2 as well as by the appellant Insurance Company with whom the hospital of respondent No. 2 was insured. A reply was filed by respondent No. 2 before the District Forum, Sikar on 27.7.2005 admitting the fact that operation was done by him on 4.9.2002 and steel plate was fixed and that was according to the need of that time and it was wrong to say that bolts were not affixed properly and they were left loose. It was further stated in the reply that whether there was any medical negligence and deficiency in service on the part of the doctor, that could only be proved by expert evidence and in absence of that it could not be found established and if the complainant respondent No. l had to further go for another two operations, for that respondent No. 2 could not be held liable and it was prayed that complaint be dismissed. A reply was also filed by the appellant Insurance Company before the District Forum, Sikar on 23.8.2005 and the appellant had taken the same stand as taken by respondent No. 2 and in the reply it was admitted by the appellant that hospital of respondent No. 2 was got insured with the appellant for the period from 23.8.2002 to 22.8.2003 for a sum of Rs. 5 lacs and it was prayed that complaint be dismissed. After hearing the parties the District Forum, Sikar through impugned order dated 25.10.2005 had allowed the complaint of the complainant respondent No. l inter alia holding that - (i) That even in absence of the expert evidence if from the papers medical negligence is found to be proved, that could be taken into consideration. (ii) That after operation on 4.9.2002 the complainant respondent No. l was not found cured and the bones were not united and further there was pus and he had consulted respondent No. 2 again on 29.9.2002 and 20.10.2002 but even then his bones were not united for which operation was done and. thereafter he had to consult Dr. Sharma and had to go for operation twice in SMS Hospital, Jaipur and the District Forum had come to the conclusion that since in SMS Hospital, Jaipur in place of plate, steel rod was affixed, therefore, case of medical negligence and deficiency in service on the part of respondent No. 2 Dr. B.L. Khandelwal was found established. (iii) That the complaint filed by the complainant was within limitation. Aggrieved from the said order dated 25.10.2005 passed by the District Forum, Sikar, this appeal has been filed by the appellant.

(3.) IN this appeal the main contentions of the learned Counsel for the appellant are as follows: (i) That the findings of the District Forum by which it was held that bones would not be united because of fixing steel plate are erroneous one and further the findings recorded by the District Forum that there was medical negligence on the part of respondent No. 2 in conducting the operation on 4.9.2002 are also erroneous one as the respondent No. 2 was a qualified orthopaedic surgeon and what he had acted and done, he had done with reasonable skill and care and there was no medical negligence on the part of respondent No. 2. (ii) That the complaint filed by complainant respondent No. 1 was time barred and the District Forum had committed serious error and illegality in allowing the complaint of the complainant and the findings recorded by the District Forum by which complaint was allowed suffer from basic infirmity, illegality and perversity and liable to be quashed and set aside and appeal be allowed.