VINCENT C.K. Vs. JESSY JAYAPAL

JUDGEMENT

(1.) THIS revision petition has been filed by the petitioner/opposite party against the order dated 7.7.2011 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, 'the State Commission') in Jessy Jayapal v. The Administrator, San Joe Hospital, Perumbavoor and others, Appeal No. 214 of 2004, by which, while allowing appeal, order of District Forum dismissing complaint was set aside and OPs were held liable for negligence and matter was remanded back to District Forum for determining compensation. Brief facts of the case are that complainant/respondent No. 1 filed complaint alleging negligence and deficiency in service on the part of the opposite parties 1 to 3 in treating the complainant at the first opposite party's hospital. The complainant alleged that there occurred medical negligence on the part of 3rd opposite party Dr. Vincent C.K. in conducting surgery on the complainant at the first opposite party Sanjo Hospital, Perumbavoor and there occurred negligence in fixing the implant for the fracture midshaft right humerus along with same - sided comminuted Supra Condylar fracture with inter condylar extension. It is also alleged that the complainant sustained permanent disability on account of the medical negligence in fixing the implant for the fracture and that as a result of the disability, the complainant suffered mental agony, inconvenience and financial loss. Thereby the complainant claimed compensation at Rs. 3 lakhs from the opposite parties 1 to 3.

(2.) OPS . 1 and 2 denied negligence on their part, but admitted that surgery was performed by OP3/petitioner. OP3 filed written statement before District Forum denying negligence on his part. It was further contended by him that first surgery was done by Mr. Dr. M.C. John attached to Sanjo Hospital, Perumbavoor and there occurred implant failure which was corrected by a second surgery by replacing the failed implants. It was further submitted that after the second surgery, complainant was not having any difficulty and prayed for dismissal of complaint Learned District Forum after hearing both the parties dismissed complaint against which, appeal field by the complainant was allowed by learned State Commission vide impugned order against which, this revision petition has been filed.

(3.) LEARNED Counsel for the petitioner No. 1 submitted that, as per hospital record, first surgery was not performed by the petitioner and learned State Commission has committed error in holding negligence on the part of petitioner, hence, revision petition be allowed and impugned order be set aside. Learned Counsel for the respondent No. 1 admitted that first surgery was not done by the petitioner, but as he was seen there, complainant attributed that surgery was done by the petitioner and in such circumstances, he has no objection if revision petition is allowed. Learned Counsel for the respondent Nos. 2 and 3 also admitted that first surgery was not done by the petitioner, but it was done by Dr. M.C. John and he has no objection if revision petition is allowed to the petitioner's extent.