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CHANDIGARH CONSUMER DISPUTES REDRESSAL COMMISSION
K.C. Gupta, President, Maj. Gen. S.P. Kapoor and Devinderjit Dhatt, Members
PAWAN BANSAL (DR.) - Appellant
Versus
DARSHAN SINGH AND ANR. - Respondents
Appeal Case Nos. 454/2001(Pb)/154 of 2007, 485/2001(Pb)/456 of 2007
Decided on : 16-07-2007
Mr. Mukand Gupta, Advocate, for the Appellant; Mr. M.S. Uppal, Advocate, Mr. Gaurav Bhardwaj, proxy for Ms. Shagun Kathuria, Advocate, for the Respondent
The burden of proof in cases of alleged medical malpractice lies with the complainant, and the status of the complainant as a consumer under the Consumer Protection Act is a crucial factor in determining liability.
Headnote:
Negligence - Medical Malpractice - Consumer Protection Act - Section 2(d)(ii), Section 2(1)(g), Section 2(1)(o), Section 2(1)(r), Section 2(1)(o) - The court discussed the provisions of the Consumer Protection Act, particularly the definition of a consumer and the liability of service providers. The court analyzed the evidence presented to determine whether the medical practitioner was negligent in providing treatment and whether the complainant's rights as a consumer were violated. The court's decision was influenced by the interpretation of the legal provisions and the assessment of the evidence regarding the alleged medical malpractice.
Fact of the Case:
The complainant, an agriculturist, suffered a fracture in his left arm due to a tractor accident. He alleged negligence on the part of the doctor who treated him, leading to further complications and disability.
Finding of the Court:
The court found that the complainant failed to prove that the doctor had acted negligently in the treatment. It was noted that the complainant's failure to follow medical advice and take prescribed medication could have contributed to the complications.
Issues: The main issue was whether the medical practitioner was negligent in providing treatment and whether the complainant's rights as a consumer were violated under the Consumer Protection Act.
Ratio Decidendi: The court held that the burden of proof was on the complainant to establish negligence, which was not satisfactorily demonstrated. The court also emphasized the complainant's status as a consumer under the Consumer Protection Act.
Final Decision: The court dismissed the complaint and ordered the refund of the amount previously paid by the insurance company to the complainant.
ORDER
K.C. Gupta, President - Both these appeals one by opposite party No. 1 Dr. Pawan Bansal and other by opposite party No. 2-New India Assurance Company Ltd. have been directed against order dated 10.10.2000 passed by Consumer Disputes Redressal Forum, Mansa (hereinafter to be referred as District Consumer Forum) in complaint case No. 209/9.7.1996 whereby complaint of Darshan Singh was accepted and he was awarded compensation of Rs. 2,44,800 and Rs. 10,000 as legal expenses. Since, he had received Rs. 45,000 as compensation, so, Dr. Pawan Bansal as well as New India Assurance Co. Ltd. were directed to pay balance amount along with interest @ 12% p.a. from the date of complaint till payment. Both OPs were held liable to make payment jointly and severally.
2. Briefly stated the facts are that Darshan Singh, respondent (complainant) is an agriculturist by profession. On 5.3.1996 he was cultivating fields with his tractor at village Barnala and all of sudden, the tractor turned turtle and he suffered fracture in his left arm. He was got admitted by his brothers in Barnala Nursing Home of Dr. Pawan Bansal who performed operation upon his left arm and a nail was inserted in it. However, due to his negligence pus developed in the arm and then severe pain occurred. He remained admitted there till 14.3.1996 but could not get any relief and there was every possibility about the development of gangrene and thereby necessitating amputation of left arm. He was discharged by Dr. Pawan Bansal on his request and he got admitted in Civil Hospital, Mansa where Dr. Ashok Kansal, surgical specialist told that pus had developed in his arm due to negligence of operating doctor. He removed the affected old nail by operation and inserted a new nail on 15.4.1996 and was discharged on 16.4.1996.
3. It was next averred that although strenuous efforts were put by the Surgeon, Civil Hospital, Mansa, yet his left arm became totally unfit for doing any work and this happened due to negligence of Dr. Pawan Bansal.
4. Alleging deficiency in service, he claimed Rs. 3.00 lacs as compensation including costs of litigation and expenses on medicines.
5. Dr. Pawan Bansal contested the complaint and stated that the complaint filed by Darshan Singh was frivolous and same should be dismissed with special costs of Rs. 50,000. He further stated that Darshan Singh came to him for treatment of left arm on 8.3.1996 and after getting his consent, operation was performed and a nail was inserted in his left arm on 11.3.1996 and he was operated upon in a hygienic, sterilized and best equipped operation theatre and there was no negligence or carelessness on his part. Every care was taken to use antiseptics and other measures to avoid any sort of infection. The nail was inserted inside the humerus bone of the arm which got jammed due to variation in the canal anatomy but Darshan Singh did not take care and further did not act upon his advice and ran away from the indoor patient room without taking complete treatment on 12.3.1996 late at night. He also did not pay nursing home charges and fee. If he had remained admitted in the nursing home, then he would have recovered from his illness. He denied other allegations and stated that the complaint should be dismissed
6. Parties adduced their evidence by way of affidavits.
7. District Consumer Forum, Mansa vide order dated 19.3.1997 accepted the complaint and granted compensation of Rs. 90,000/. Dr. Pawan Bansal and New India Assurance Co. Ltd. filed appeals against the order of District Consumer Forum to the State Consumer Commission, Punjab which vide order dated 6.5.1998 set aside the above said order and remanded the case to District Consumer Forum. The said order of State Commission was confirmed by the Hon'ble National Commission vide order dated 3.1.2000. However, National Commission stated that pending disposal of the proceedings before District Forum, there would be stay of restitution as the amount which had been paid by
