KAMTA PRASAD SINGH Vs. NAGINA PRASAD

JUDGEMENT

(1.) The present appeal by opposite party appellant is directed against the order dated 4.7.1997 passed by the District Forum, East Champaran, Metihari in Complaint Case No.70/96 directing the appellant to pay a sum of Rs.75,000/- as compensation and Rs.500/- as cost to the respondent-complainant.

(2.) The brief facts of the complaint case are that the complainant sustained a severe fracture of bone in left thigh in a bus accident on 6.2.1996. He was brought to the clinic of Dr. Tabrej Aziz where he was kept on traction for ten days. Dr. Aziz referred the complainant to the opposite party on 16.2.1996, who had examined the complainant on 10.2.1996 in the clinic of Dr. Aziz. The complainant was admitted to the clinic of the opposite party on 17.2.1996 when the opposite party after thorough examination prescribed several medicines, X-ray, needles etc. for proposed operation. The opposite party performed the operation on the point of fracture in the left thigh and put a nail joining the two parts of the fractured thigh bone and bandaged the same thereafter. The opposite party realised Rs.4,000/- towards his operation fee. The complainant remained in one of the room of the opposite parties clinic on charge of Rs.40/- per day. But the opposite party left for Patna the next day leaving the complainant to fend for himself. He had advised his compounder for dressing of the wound. The opposite party examined the patient on 2.3.1996, 9.3.1996, 20.3.1996, 6.4.1996, 21.4.1996, 1.5.1996 and 8.6.1996 and so on. The opposite party asked the uncle of the complainant to take him to his home if he so liked and advised him to consult him (the opposite party) in case of any trouble. But unfortunately pus started oozing out of the wound on account of abscess formation in the cavity of fractured bones. The complainant rushed back to Motihari to consult the opposite party who again examined him on 9.3.1996 and advised him to stay in his clinic where he stayed till 8.6.1996. But coming out of pus did not stop inspite of abundant number of medicines prescribed and administered by the opposite party. The complainant was always assured by the opposite party that the ailment would be cured and there was no need for any alarm. In this period only dressing was done. The complainant had strong suspicion that something wrong had gone with the operation. The complainant alleged that operation was done haphazardly without professional skill and care in the treatment of the ailment. The complainant had to part with Rs.33,000/- during that period for treatment. He was taken to Patna for treatment when his condition kept on deteriorating. He consulted Dr. B. Mukhopadhyay who on 17.7.1996 referred him to Dr. John Mukhopadhyay. Dr. John Mukhopadhyay told him verbally, according to the complainant, that the previous operation was not proper to achieve the desired result. Dr. John Mukhopadhyay after necessary investigation operated the complainant second time on 17.7.1996. The nail was removed, the fractured side was exposed and the ends of bones were freshened. The wound was thoroughly washed and external fixator was applied. He remained in Popular Nursing Home for 18 days and had to spend huge amount. He paid a sum of Rs.4,000/- to Dr. John Mukhopadhyay and was granted a receipt for only Rs.2,000/-. Dr. John Mukhopadhyay according to the complainant, had found that there was no union of fractured bone ends which were drying up. Infection and pus formation were caused on account of wrong nailing. He was released from Popular Nursing Home on 3.8.1996 with the advice to consult the doctor after six weeks. He averred that he started improving after the second operation. But he was concerned that as per the Surgeon even after complete cure and re-union of the ends of the bones in the affected leg, it would be shorter by few inches acquiring a permanent disability for him all his life. This was caused due to the negligence/deficiency in service and lack of professional skill on the part of the opposite party. The complainant, therefore, prayed that the opposite party may be directed to pay a sum of Rs.3,00,000/- to him as compensation for mental agony, disability, harassment and expenditure incurred in his treatment. The content of the complaint petition is supported by an affidavit.

(3.) The opposite party in his reply denied the allegations saying that the complaint case is frivolous and vexatious and has been brought about to harass and blackmail him. He accepted that he, as a teacher in Nalanda Medical College resides at Patna and occasionally goes to his home town, Motihari on holidays. The opposite party on being contacted by the family members of the complainant for treatment, claimed to have advised them to consult some local Orthopaedic Surgeons or shift the patient to Patna. On their repeated requests he agreed to treat the patient for which operation fee was deposited on 16.2.1996 with his men in the clinic at Motihari and risk bond was signed on the same day. On information, the opposite party came to Motihari from Patna on 17.2.1996 and operated upon the complainant under general anaesthesia with all aseptic and antiseptic procedures which include anti-microbial U. V. lamp, formaline fumigator, adequately autoclaved instruments, nail, gauge, cotton, linen etc. Nail had been inserted in the shaft of the femur. Drain was then applied and wound was closed after irrigation with betadin lotion. All necessary drug and fluid transfusion was given. Drain was removed on 18.2.1996 and dressing was changed. X-ray film after surgery showed bone fragments in position and the nail had suitably been placed in position. The patient was put on physiotherapy under P. N. Singh. The opposite party alleged that the family members of the complainant approached him to prepare injury report in such a way that they are able to extract heavy compensation from the bus-owner which was not acceded to by him. He examined the complainant on 19.2.1996 and found him well. He requested Dr. S. K. Singh to take care of the patient as he was leaving Motihari. Dr. Singh visited the complainant every day on 20th, 21st and 22nd February, 1996. The opposite party was at Motihari on 23nd February, 1996 and he found the patient well on examining him. The stitches were removed on 25.2.1996. The wound was found to be dry and there was no sign of infection. But anti-biotic was continued as extra precautionary measure. On 2.3.1996 the complainant complained to the opposite party that he had fever on 29.2.1996 and 1.3.1996. But the opposite party found the complainant having normal temperature on 2.3.1996 and there was no local feature of infection.