NEW INDIA ASSURANCE CO LTD Vs. VIRENDER SINGH

JUDGEMENT

(1.) These two revision petitions have been filed by New India Assurance Co. Ltd. (R.P. No. 2702/2007) and Dr. K.K. Mittal (R.P. No. 2703/2007) being aggrieved by the common order of the State Consumer Disputes Redressal Commission, Uttar Pradesh (hereinafter referred to as the "State Commission") in Appeal Nos. 957/2004 and 993 of 2004 wherein Shri Virendra Singh and Others were Respondents.

(2.) Since the parties involved and the facts pertain to the same incident, both R.Ps. are being disposed of by a common order by taking the facts from R.P. No. 2703 of 2007.

(3.) In his complaint before the District Forum, Respondent/Complainant had contended that on 21.10.1996 he fell in the bathroom of his house at KaviNagar, Ghaziabad and took the entire burden of fall on the right side after which he felt acute pain in his right arm from the shoulder to the wrist and found that he was not in a position to move or straighten his arm. Therefore, suspecting fracture, he went to the Medical Centre of the Petitioner/doctor and explained regarding his fall and the pain in his right arm. Petitioner after getting the X-ray done of the upper arm above the elbow diagnosed a fracture in the upper arm above the elbow i.e. in the shaft of the humerus bone and after setting the bone and getting another X-ray done, put a plaster on the right arm from below the shoulder till the wrist. He charged Rs. 830 from the Respondent. Respondent was prescribed medicines and asked to come to the Petitioner's clinic for follow-up visits which he did on 7 occasions. The plaster was finally removed on 20th February, 1997 and Petitioner informed him that the fracture had clinically united. However, since the arm continued to be stiff and there was pain in the elbow, Petitioner prescribed painkillers and advised the Respondent to undergo physiotherapy at Yashoda Hospital, Ghaziabad. Despite the painkillers and physiotherapy the pain and stiffness persisted so the Respondent consulted doctors at Shriram Jaipuria Medical Centre on 20.4.1997 where the radiologist conducted another X-ray of the upper arm and the elbow and found that the bones in the upper arm had not united and there was a fracture in the elbow which in medical terms was described as 'fracture of the Olecranon'. Since, Respondent has been under the treatment of the Petitioner for over 5 months, he immediately contacted and confronted him with the findings of the doctors at Shriram Jaipuria Medical Centre. Petitioner again took an X-ray and admitted his mistake and offered to undertake corrective surgery for Rs. 40,000. Respondent refused this offer having lost faith in the Petitioner and got himself admitted at Mool Chand Khairati Ram Hospital, New Delhi where a surgery was conducted on 5.5.1997 and both fractures were properly set. However, because of the medical negligence of the Petitioner and despite the delayed corrective surgery, even today Respondent is unable to straighten his right arm and, therefore, has been deprived of its full movement throughout his life. Respondent, therefore, sent a legal notice to the Petitioner claiming compensation amounting to Rs. 5 lakh on grounds of medical negligence and after not having received proper response from the Petitioner, he filed a complaint before the District forum on grounds of medical negligence and requested that Petitioner be directed to pay Rs.5 lakh as compensation along with a sum of Rs.1,40,000 towards actual pecuniary loss and Rs.3,60,000 towards mental agony, tension, pain and anxiety along with interest @ 18% per annum from the date of filing of the complaint till realization and such other and further orders as may be deemed fit and proper in the facts and circumstances of the case.