KAPILDEO SINGH Vs. SAGINA KHATOON

JUDGEMENT

(1.) This revision petition has been filed by the petitioner to challenge the order dated 30.04.2008 passed by the State Consumer Disputes Redressal Commission Bihar, Patna ('State Commission' for short) by which the State Commission dismissed the appeal filed by the petitioner challenging the order dated 26.07.2002 passed by the District Forum in consumer complaint no. 300 of 1998. By its order, the District Forum directed the petitioner, who was OP before the District Forum, to pay to the complainant, respondent herein, compensation of a sum of Rs. 2 lakhs as well as litigation cost of Rs. 5,000/- for negligence and deficiency in service on his part in administering treatment to the late husband of the complainant.

(2.) The factual matrix of this case are that the husband of the complainant, namely, Md. Alam aged about 40 years met with an accident while going on a motorcycle as a pillion rider at about 10.30 a. m. on 09.10.1998. He sustained some inner injuries on lower portion of his right leg. On returning home, as the pain and swelling in the leg aggravated, he was taken to the clinic of the petitioner at Motihari at about 2.00 p. m. on the same day. On his advice, X-ray was done and after looking at the X-ray, the petitioner diagnosed fracture in the lower side of his right leg. The petitioner told that a small operation will have to be performed for traction and in the process anesthesia would be administered to Md. Alam. He took a sum of Rs. 750/- for operation and another sum of Rs. 300/- for ether, cotton, medicine, etc. from the complainant. Operation was performed at about 5.30 p. m. on 09.10.1998 itself. It appears that Md. Alam except for the inner injury part, was in good health prior to his operation. After half an hour', the petitioner came out of the operation theatre and told the complainant and others that he had performed the operation and the petitioner would regain consciousness after about half an hour. Patient was shifted to a room in the petitioner's nursing home but it was noticed that he was unconscious and in quite an abnormal condition. Even after lapse of more than half an hour's time, the patient did not regain consciousness and he was not at all normal. According to the complainant, the attendants learnt from the compounder that high dose of anesthesia appeared to have been administered to the patient at the time of operation and hence they rushed to the petitioner who came and examined the patient and told the complainant that the patient required oxygen and asked them to take him to Patna. The father of the patient got ready to have an ambulance to take his son to Patna but just about then at about 8.30 p. m. , the patient died. Alleging negligence on the part of the petitioner, the complainant preferred a consumer complaint before the District Forum seeking relief of making a direction to the petitioner doctor to pay her a total sum of Rs. 4,95,000/- towards loss caused by death of her husband, maintenance of her two daughters who were 4 years and 1_1/2 years old and a child in her womb, mental agony and physical harassment she was subjected to owing to negligence and deficiency in service on the part of the doctor, expenses incurred by her on treatment, performance of last ritual rites and the litigation cost. The petitioner doctor resisted the complaint but on appraisal of the issues and taking into consideration the evidence adduced and the facts and circumstances of the case, the District Forum held the petitioner doctor negligent and deficient in providing service to the deceased husband of the complainant and accordingly awarded a compensation of Rs. 2 lakhs and litigation cost of Rs. 5,000/- to the complainant to be paid by the OP doctor to her. The appeal filed by the OP before the State Commission came to be dismissed by the State Commission vide its order dated 30.04.2008 which is now under challenge through the present revision petition.

(3.) We have heard counsel for the petitioner and the respondent. It is not under dispute that the deceased husband of the complainant was in good and sound health before he was taken to the operation theatre except injury which he had suffered on account of the accident. No doubt, the petitioner is an orthopedic surgeon with long practice in his field to his credit. It is also not under dispute that the petitioner performed the operation upon the deceased person under general anesthesia and he was removed from the operation theatre and shifted to the room no. 6 in the state of unconsciousness although the petitioner told that he would regain consciousness within half an hour. It is also not under dispute that the petitioner himself administered ether as Anaesthetician for making the patient unconscious. The fora below through their concurrent finding have found this action on the part of the petitioner who is simply an orthopedic surgeon as an act of negligence keeping in view the testimony of the witnesses to the effect that the deceased person died without regaining consciousness. In the circumstances, there was high degree of probability that the petitioner administered excess dose of ether as means of anesthesia which caused various complications damaging certain organs of the body of the deceased. While concluding negligence on the part of the petitioner, the State Commission in its impugned order has made the following observations:-