SHAILESH A SHAH Vs. KHODABHAI GANESHDAS PATEL

JUDGEMENT

(1.) This appeal is directed against the order dated 5.10.2007 of Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad whereby appellant/opposite party was directed to pay compensation of Rs. 5.00 lakh with interest @ 9% p.a. and cost to the respondent/complainant.

(2.) Facts giving rise to this appeal lie in a narrow compass. Respondent who had stone in kidney, was admitted in the clinic of the appellant on 16.7.1995. On 17.7.1995, operation for removal of stone as also prostate was performed by the appellant. Respondent alleged that he was discharged on 23.7.1995 from the clinic by the appellant with instruction to visit clinic on 25.7.1995 for removal of stitches. Respondent again visited the clinic on 25.7.1995. He was kept there and was discharged on 28.7.1995. Relatives of the respondent informed the appellant on telephone that the respondent has been passing stool in urine. Appellant, therefore, called the respondent at the clinic and he removed the catheter. Soon thereafter the respondent developed temperature which rose upto 1040F. Problem of the respondent of passing the urine mixed with stool continued. On being contacted, the appellant advised the respondent to get admitted in clinic. Respondent was re-admitted in clinic where he was kept for 5 days. During this period, the appellant gave high dose injections but there was no improvement. As advised by the appellant, the respondent was got admitted on 8.8.1995 in Civil Hospital to which the appellant was attached as a Professor in Kidney Diseases. On 10.8.1995, operation of Colostomy was conducted by the appellant. Since the condition of the respondent was deteriorating, he was shifted to Sir Harkishandas Narottomdas Hospital at Bombay. Dr. Nayan Sanghvi working in the hospital told the respondent that while performing first operation on 17.7.1995 his bladder was damaged and a false passage between bladder and intestine was created where Fistula had developed. Thus, alleging deficiency in service on the part of appellant, a total amount of Rs. 18,16,000 was claimed towards compensation, etc. Appellant contested the complaint by filing written version. It was alleged that the complaint was barred by limitation as having been filed beyond two years of 28.7.1995 when the appellant was lastly treated by the respondent. Appellant is a highly qualified doctor and used his skilful knowledge and experience which was required in this case. It was not disputed that operation was performed on 17.7.1995 as alleged. However, it was pleaded that the respondent was discharged on 20.7.1995 with the advise to come for removal of stitches. Respondent came to the appellant on 27.7.1995 for removal of stitches and catheter. Certain medicines were prescribed. Sonography of the respondent was done on 28.7.1995 and 1.8.1995 which showed that the bladder of the respondent was normal. Respondent got admission in Civil Hospital on 8.8.1995 and operation of Colostomy was performed on 10.8.1995 by the appellant. The appellant visited respondent every day in the hospital. It was denied that during first operation any damage was caused to the bladder of the respondent or that the appellant was negligent in treating him. We heard the parties learned Counsel and were taken through the record.

(3.) Conducting of respondent s operation for prostate and lt. Ureteric Stone and for Colostomy are admitted by the appellant. Respondent alleges that during operation on 17.7.1995, the appellant negligently damaged the bladder, created false passage between intestine and bladder where fistula had developed. According to the respondent, it was because of this reason that the urine and stool used to mix up. Thrust of argument advanced on behalf of the appellant was that the two sonography reports dated 28.7.1995 and 1.8.1995 would show that the bladder was normal. These reports belie respondent s case in regard to the bladder being damaged in the operation on 17.7.1995. Appellant was not responsible if as a result of severe urinary track infection, the respondent later on had developed fistula. It was pointed out that in support of the alleged damage to the bladder, the respondent had not examined any expert witness. Reliance was placed on the decision in Martin F. D Souza v. Mohd. Ishfaq, 2009 1 CPJ 32. In order to appreciate the said submission, reference need be made to the said two sonography reports, admission made in cross-examination by the appellant, Cystoscopy report dated 9.10.1995 (copy at page 289 and 290), Cystoscopy report dated 14.7.1995 (copy at page 220) and the operation/procedure sheet dated 13.10.1995 (copy at page 311 and 312) done at Sir Harkishandas Narottomdas Hospital, Bombay. Omitting immaterial portion, the sonography report dated 28.7.1995 (copy at page 56) reads thus: