Back
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member and Binoy Kumar, Member
Dr. Baliram Dhondiram Pareswar
and Anr. – Petitioners
versus
Sakuntala Devi Thevarkar Narayan – Respondent
Revision Petition No.38 of 2021
(Against the Order dated 19/08/2020 in Appeal No. 1153/2016 of the State Commission Maharashtra)
Decided on 27.1.2023
Counsel for the Parties:
For the Petitioners:Mr. Akash Kakade, Advocate
For the Respondent:Ms. Anubha Agrawal, Advocate
IMPORTANT POINT
Genuineness of the physiotherapist - The genuineness of the physiotherapist is also questionable on the point of how he posed as a ‘doctor’ and used letterheads of other doctor / clinic.
Headnote:
Consumer Protection Act, 2019 - Section 58(1)(a)(iii) -Revision – Services – Medical Negligence - “terrible triad injury” of the elbow – genuineness of the physiotherapist - Negligence attributed on OPS - post-operative care was not as per standard reasonable practice - In the instant case, the OP-2 operated the patient but the post-operative care was not as per standard reasonable practice. He called the patient to Sanjeevani hospital after 3 months - Therefore, the genuineness of the physiotherapist is also questionable on the point of how he posed as a ‘doctor’ and used letterheads of other doctor / clinic. Admittedly, the patient took physiotherapy from him for 12.10.2011 to 27.10.2011, and paid the charges also - Complainant was a working woman and no male member in the family became helpless and handicapped due to deformity of right hand. She, way back on 29.12.2011, filed a Complaint in Maharashtra Medical Council, Mumbai against Dr. B.D. Pareswar (OP-1). Surprisingly, for one year the MMC didn’t take any action, but after one year, sent a letter to the Complainant that the MMC has not taken any action as the Complainant has not fixed Court stamp of Rs.10/- on the affidavit. It was not expected from MMC, which is a Professional Regulatory body to delay on trivial technicality – petition dismissed. [Paras 13 to 15].
Result: Petition dismissed.
ORDER
Dr. S. M. Kantikar, Presiding Member—The “Terrible Triad Injuries” of the elbow needs careful assessment. The proper identification of these lesions is quite demanding and their early management is a favourable prognostic factor for final outcome.
This Revision Petition has been filed by the Petitioners/Opposite Parties under Section 58(1)(a)(iii) of the Consumer Protection Act, 2019 against the Order dated 19.08.2020 passed by the State Consumer Disputes Redressal Commission, Maharashtra (for short “the State Commission”) in First Appeal No. A/16/1153, wherein the Appeal filed by the Opposite Parties was dismissed.
2. Brief facts that, the Complainant/Respondent Smt. Sakuntala Devi Thevarkar Narayan (for short the ‘patient’) sustained injuries to right wrist and elbow due to accident on 29.07.2011. She approached the Om Sai Hospital and consulted an Orthopaedic surgeon Dr. Bharat Rathod (the OP-2). On 30.07.2011 OP-2 performed K -wire fixation surgery of lower end radius fracture and plaster was also applied. However, the pain persisted in the elbow joint. Thereafter, on 11.11.2011, the Complainant consulted another Orthopaedic Surgeon Dr. Parag Mhatre, who opined that it was a case of comminuted Colle’s fracture right hand and the previous Orthopaedic Surgeon as well as the Radiologist had missed the elbow injury (dislocation and fracture). Being aggrieved, the Complainant filed Complaint before the District Consumer Disputes Redressal Forum, Thane (for short, the ‘District Forum’).
3. The District Forum partly allowed the Complaint and directed the Opposite Parties to pay compensation of Rs.3 lakhs jointly and severally in addition to the cost of litigation Rs.20,000/-.
4. Being aggrieved by the Order of the District Forum, the Opposite Parties filed an Appeal with the State Commission. The State Commission modified the compensation and dismissed the Appeal with the following observations:—
“1. The Appeal is dismissed with costs of Rs.25,000/- (Rupees Twenty Five Thousand only) to be paid by the appellants jointly and severally to opponent, original complainant.
2. The order of District Consumer Forum is hereby modified that, the compensation Rs.3 Lakh to be paid by the appellant no.2 (original opposite party no.2) only within one month from the date of this order failing which the amount will carry interest @ 9% per annum till realization.
3. In addition to the above, compensation of Rs.4,80,000/- (Rs. Four Lakh Eighty Thousand only) towards loss of income of the original complainant, to be paid by both appellants jointly and severally within the period of one month from the date of this order, failing which it will carry interest @ 9% per annum till realization. Rest of the order is hereby confirmed.”
5. Being aggrieved, the Opposite Parties Nos.1 & 2 filed the instant Revision Petition.
6. We have heard the learned Counsel for both the sides. Perused the entire material on record inter-alia Orders of both the fora.
7. The learned counsel for OPs argued that the patient came with fracture of lower end of Radius. K-wire fixation and reduction required stable elbow. The minor dislocation of elbow was corrected under anaesthesia. Above elbow plaster of paris slab was given. After plaster removal, physiotherapy was advised and regained 0-95 degree movement at elbow joint. It was within acceptable range, which clearly indicates the elbow dislocation was treated successfully. Patient’s limb was saved and stiffness was reduced. The restricted movements and disability cannot be due to dislocation of elbow.
8. The learned Amicus Curiae, Ms. Anubha Agrawal, argued that OP-2 missed the right elbow injury, which was not treated in time, causing deformity to the patient. She became incapacitated and lost her job. Apart from Dr. Mhatre, she consulted few other doctors at Nair Hospital Mumbai and also at her native place Ernakulum. At present she is residing in Kerala.
9. We have carefully perused the medical record. The Dis
