P.P. ISMAIL Vs. K.K. RADHA

JUDGEMENT

(1.) This appeal is directed against the order dated 13.4.94 of the Kerala State Consumer Disputed Redressal Commission, Thiruvananthapuram. The facts giving rise to this appeal are summarised below.

(2.) The complaint was admitted to B.K.M. Hospital, Payyannur on 21st May, 1990 on account of a fracture sustained on the lower part of her left leg above the ankle. The complaint was examined by Dr. Sekhar at the Hospital. The complainant's left leg was operated upon by Dr. Sekhar on 31.5.90 and was put under plaster. She was discharged on 10.6.90 with the advise to take bed rest for another 50 days. The plaster was removed on 30.7.90 and it was found that the portion where the operation was conducted, an abscess had developed. The complainant was told by the Doctor that abscess would disappear in the due course of time and no further treatment was necessary. But on examination by an X-ray photo, it revealed that there was foreign substance left inside the leg. Drill bits were found hanging from a twisted wire. With a view to take a second opinion the complainant consulted Dr. Usman, an Orthopaedician. Dr. Usman on examination found that an emergency operation, to remove the foreign bodies inside the leg was necessary to save her leg from further damage. The complainant agreed to the advise given by Dr. Usman and her leg was operated upon again on 1st Aug., 1990 by Dr. Usman. The leg was put in plaster and she had prolonged hospitalisation. The complainant filed complaint before the State Commission. It was alleged that Dr. Sekhar had done the operation in negligent manner. The care and skill was grossly wanting. The complainant remained under the treatment of Dr. Sekhar from 31st July, 1990 to 20th Aug., 1990, She had been advised to come after six weeks as a follow up. From the treatment it further revealed that the operation conducted by the opposite party was ill-advised and unnecessary. Strong doses of antibiotics injection were administered to the complainant for about 25 days and it had completely shattered her health. The complainant's leg remained under plaster for a considerable time. She had suffered severe pain and discomfort due to the negligent treatment at the hospital of the opposite party. She claimed Rs. 50,000.00 for the pain and suffering and mental shock and Rs. 1.00 lakh for the continuing disability.

(3.) The notice of the complaint was issued to Dr. Sekhar as well as Sri P.P. Ismail, Managing Director, B.K.M. Hospital. Despite service none appeared on behalf of Dr. Sekhar. However, the complaint was contested on behalf of the second opposite party. In the written version filed on behalf of the second opposite party it was contended that the complainant was not consumer. There was no hiring of service for consideration by the complainant. The complainant was admitted in the hospital on 21st May, 1990 and the first opposite party. Dr. Sekhar treated the complainant. It was averred that second opposite party was not aware of other allegations though it was admitted that the complainant was operated upon 31st May, 1990 at his hospital and her left leg was put in plaster and she was discharged on 10th June, 1990. The complainant came for review on 30.7.90 when she was examined by Dr. V. Kochukrishnan on that day since the first opposite party was not available and Dr. Kockukrislinan referred the case to Professor P.K. Usman. It was further stated that the first opposite party had not been employed by the second opposite party and there was no employer-employee relationship. The first opposite party was a free lance doctor having independent practice. On the pleadings of the party and material placed on record, the State Commission formulated the following questions for determination: