RAJ KUMAR AGRAWAL Vs. B MUKHUPADHYAY

JUDGEMENT

(1.) The has filed this case against the an eminent Orthopaedic Surgeon, alleging negligence in diagnosis and treatment by him and claiming compensation for the alleged loss and injury caused to him on that account.

(2.) The case as alleged by the Complainant in his complaint petition may be briefly stated. On 8.4.93 the Complainant sustained fracture injury on his left hand elbow region and after X-ray done on advise of local Pharmasist who was given first aid treatment and bandaging at Muzaffarpur. The Complainant came to Patna on 9.4.93 and contacted the Opposite Party in his clinic at Saidpur, Patna, and deposited his consultation fee. On examination of the Complainant's injury and X-ray report the Opposite Party directed the Complainant to report in Popular Nursing Home, Patna at 2.00 p. m. on the same day after getting some pathological tests done in Shanker Micro Pathological Laboratory, Patna. The Complainant accordingly got the pathological tests done and reported at Popular Nursing Home at the appointed time where the Opposite Party examined his injury after removing the bandage and on his direction the Complainant was admitted in the Popular Nursing Home and his treatment started Although the Complainant paid the fees of the Opposite Party, to his utter surprise some other doctors of Opposite Party were attending him? On 13.4.93 the Opposite Party again examined the Complainant and suggested for surgical operation, the fees and other charges regarding which were deposited by the Complainant. On 13.4.93 and on 16.4.93 the Complainant was operated after administering Anaesthesia each time but the Complainant learnt that both the operation were conducted by some other doctors of the O. P: and not by the O. P. himself. On 22.4.93, 23.4.93 and 24.4.93 the Complainant was examined in the dressing room of the Nursing Home bythe Assistant Doctor of the O. P. and every time he was told that the operation is completely O. K. On 26.4.93 the O. P. examined the Complainant and told him that the final surgical operation of the bone of the complainant's wounded hand would be performed for which some imported materials would be used and fixed in the bone and the opposite party fixed 27.4.93 for that operation and directed the Complainant to meet Das Babu Accountant. On 27.4.93 the pre-operation formalities were done with the Complainant and "operation treatment was started". On 28.4.93 the Assistant Doctor of the O. P. directed the Complainant to attend the clinic at 8.00 to meet the Chief. On 28.4.93 the Complainant was told by the O. P. that the operation fee deposited will be refunded, that injection will be injected in the bone at 2.00 p. m. , that Physiothrophy would be started from that date under the supervision of Nand Kishore Ji and some medicines were also advised. On enquiry the Opposite Party informed the complainant that "the wound has started "heeling up and that he should carry on the advise". The complainant started to follow up the advise from the same day. His physiothrophy started on 28.4.93 for a week under the supervision of Nand Kishore Ji. On 29.4.93 the complainant was discharged from the Popular Nursing Home and he was directed to attend the clinic of the Opposite Party after a week. On 5.5.93 the complainant met the O. P. who told him to come after two months. On 6.5.93 the complainant returned to Muzaffarpur where on 8.5.93 the complainant consulted one Dr. Ratan Ranjan, Orthopaedic Surgeon of Muzaffarpur with all papers of treatment and he advised him for immediate operation. On 17.5.93 the complainant went to Patna alongwith Dr. Ratan Ranjan's prescription and met the Opposite Party who referred the complainant to Dr. N. M. Sinha, a Plastic Surgeon, whom the complainant met and he was advised for Skin Grafting for which the complainant was asked to get himself admitted in the Korji Hospital for two months and the complainant was informed that the operation will be in three stages and the treatment expenses would be about Rs.20,000.00. On 20.5.93 the complainant consulted Dr. R. N. Singh an Orthopaedic Surgeon who told him that there was no need of operation because the operation may make the elbow non-functional and non-rotational and there was no need of skin grafting. The complainant rushed to Delhi and got himself examined by a team of Orthopaedic Doctors in Sir Ganga Ram Hospital and the doctors advised him not to have surgical operation. After some days the complainant started feeling pain in his wounded hand and fingers. Then he again met the Opposite Party on 9.7.93 and after getting some pathological tests done on 14.7.93 the Opposite Party advised him for surgical operation to remove puss and dead bone and 16.7.93 was fixed for that operation. But in the mean time the complainant consulted Dr. Shatrughan Ram another Orthopaedic Surgeon on 9.7.93 and Dr. R. N. Sinha on 12.7.93. Both of them also advised an "early operation of pus". Under the direction of the Opposite Party the complainant met Das Babu Opposite Party's Accountant and before depositing fee the complainant asked him as to why the Opposite Party did not perform operation earlier when he had deposited fee for the same. But Das Babu could not give satisfactory reply and therefore the complainant grew suspicious and apprehensive and decided to be operated by said Dr. Shatrughan Ram who has performed the operation of the complainant's left hand and he is still under his treatment with no hope of permanent cure since Dr. Shatrughan Ram has clearly told the complainant that no treatment of his bone fracture was possible due to much delay and negligence and he may suffer infection in wound in future after some interval and amputation of his left hand in that case may become necessary to save his life. Under these circumstances the complainant has every reason to believe that the present situation of his injury has arisen only due to negligence in diagnosis and treatment as well as deficiency in service on the part of the Opposite Party due to which the complainant has suffered loss of left hand, expenses and mental agony and he is entitled to compensation of Rs.9,15,422.00 from the Opposite Party with interest @ 18% per annum on the said amount with effect from the date of loss i. e. , 9.4.93 till the date of payment.

(3.) The Opposite Party appeared and filed written version supported by an affida-vit stoutly controverting the allegations of negligence and deficiency of service made by the complainant and has challenged the maintainability of the case at its very thresh hold under the Consumer Protection Act (hereinafter called the Act) and refuted the claim of the complainant for. compensation stating interalia as follows.