Y MEENZAKSHI Vs. H NANDEESH

JUDGEMENT

(1.) The complainant Mrs. Y. Meenakshi Alias Rani was admitted to the Deepak Nursing Home (Respondent No.2) of which Dr. H. Nandeesh (Respondent No.1) is the Proprietor, on 1.8.1980 at about 6.50p. m. for her second delivery. She had also delivered her first child in the same Nursing Home during 1978. Her first delivery was a normal one. Her family doctor, her brother-in-law and her grand mother had accompanied her to the Nursing Home on 1.8.1980. After assuring her family doctor and brother-in-law that the complainant would have a normal delivery in about half an hour and after their departure, Respondent No.1 suddenly changed his decision and decided to perform Caesarian operation taking thumb impression of her grand-mother. According to the complainant, Respondent No.1 performed the Caesarian operation in grossly negligent and utterly careless manner which lead to complication and re-admission to the Nursing Home in September 1980. Although she was treated by Respondent No.1, she could not get any relief. She had to consult other Specialists and obtained temporary relief. She developed acute shooting pain in the abdominal region and back and suffered agony. She underwent treatment in Victoria Hospital, Kidwai Memorial Hospital and X-ray Centre (Ultra Sound Scan) which revealed hydronephrosis of left kidney and its non-function. Dr. H. S. Bhat, Urologist, advised removal of her left kidney and during operation time at St. Philomina's Hospital in 1987, he discovered gross enlargement of left kidney and left ureter which was found ligated at its lower 3rd due to previous operation by Respondent No.1, revealing the gross negligence and utter carelessness of Respondent No.1 in preforming the Caesarian operation on 1.8.1980. While performing Caesarian operation on 1.8.1980, Respondent No.1 ligated the left ureter of the complainant at its lower 3rd which lead to complications like inflammation of the left kidney leading to hydronephrosis, inflammation of the left ureter, compensatory work by the right kidney and acute pain and agony as a result. As these deficiencies were not cured by medication, complainant had to undergo corrective operation in 1987 which revealed the extent of deficiency of service by Respondent No.1. Even after the corrective operation, the affected kidney is not functioning and the complainant has developed hypertension and psychosomatic disorders for which she is still undergoing treatment and is expected to undergo major operation for removal of left kidney and subseqent transplantation after finding suitable donor. These are most likely to cause secondary effects on hypertension, heart and eyesight and consequent shortening of life and lifetime suffering to Respondent No.1. Hence she has filed this complaint claiming compensation of Rs.9,61,511.00, the breakup of which has been given in Page No.7, Column No.7 and 8 of the complaint.

(2.) The complaint is resisted by the respondents 1 and 2 by contending inter alia, that the Commission has no jurisdiction to entertain the complaint which relates to the operation performed by Respondent No.1 prior to the coming into force of the Consumer Protection Act, 1986 (hereinafter referred to as the 'act'); that the complaint is barred by limitation; that there was no deficiency in service rendered by Respondent No.1; that Respondent No.1 did not ligate the left ureter of the complainant, as its lower 3rd while performing the Caesarian operation on 1.8.1980 as there was no necessity of reaching ureter while performing the Caesarian operation; that the complainant did not suffer any post operative complications as alleged by her in her complaint; that there was no insufficiency of post operative care; that the warning issued by the Karnataka Medical Council is without jurisdiction and there was no proper enquiry and the said decision has been challenged by Respondent No.1 in Writ Petition No.10014/1991 on the file of the High Court of Karnataka; that the claim made by the complainant is imaginery and she is not entitled to claim any compensation from Respondent No.1; that Respondent No.1 is an experienced Surgeon and he performed the operation with utmost care and he was not at all negligent; that Dr. Bhat in his statement before the Medical Council has admitted that the stricture could be due to Ischema, clamping or even legature; that non-absorbable legature was not there and that whether they are or not, it is difficult to say at this length of time and that the most of the symptoms may be due to hydronephrosis and infection; that Respondent No.1 performed the operation on the complainant under a contract of personal service and so the complaint is not maintainable as the service under a contract of personal service is excluded from the definition of the expression "service" found in Sec.2 (o) of the Act.

(3.) The complaint was heard on the two preliminary points, namely : - (1) whether the complaint is barred by limitation, (2) whether the complaint is not maintainable as Respondent No.1 served the complainant under the contract of personal service which is exempted from the definition of the expression 'service' found in Sec.2 (o) of the Act.