Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. Inder Jit Singh, Presiding Member
Anil Kumar Singh – Petitioner
versus
Jitendra Kr. Singh – Respondent
Revision Petition No.3516 of 2016
(Against the Order dated 31/08/2016 in Appeal No. 1729/2013 of the State Commission Uttar Pradesh)
Decided on 20.9.2023

Advocates:
Counsel for the Parties:
For the Petitioner:Ms. Shweta, Advocate
For the Respondent:Mr. Nikhil Jain, Advocate

IMPORTANT POINT
Negligence - The mere fact that Complainant has again got his second operation done from the same OP does not absolve the OP from his negligence at the time of first operation.

Headnote:
Consumer Protection Act, 1986 – Section 21(b)[Consumer Protection Act, 2019 – Section 58(1)(b)] - Services – Medical Negligence – Attributable - State Commission has observed that OP provided best treatment to the best of his ability and no intentional negligence of OP is proved – On facts, agree with the findings of the District Forum that there was a clear negligence on the part of the OP. The mere fact that Complainant has again got his second operation done from the same OP does not absolve the OP from his negligence at the time of first operation – On facts, there was a negligence on the part of Respondent Doctor and State Commission went wrong in setting aside a well reasoned order of the District Forum – Petition allowed, impugned order set aside. [Paras 5 to 19].
Result: Petition allowed.

ORDER

The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under Section 21(b) of Consumer Protection Act, 1986, against two separate orders dated 31.08.2016 of the State Consumer Disputes Redressal Commission Uttar Pradesh (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.1729 of 2013 and 1922 of 2013 in which order dated 18.07.2013 of Balia District Consumer Disputes Redressal Forum (referred to as District Forum) in Consumer Complaint (CC) no. 151 of 2011 was challenged, inter alia praying for setting aside the orders dated 31.08.2016 of the State Commission.

2. Both the Petitioner and Respondent filed separate FA in the State Commission against the order of the District Forum, which was disposed vide two separate orders dated 31.08.2016. The Appeal No. 1922 of 2013 was filed by the Petitioner / complainant for enhancement of the compensation, while Appeal No. 1729 of 2013 was filed by the Respondent / Opposite Party for setting aside the order dated 18.07.2013 of the District Forum.

3. While the Revision Petitioner(s) (hereinafter also referred to as Complainant) was Appellant in FA No. 1922 of 2013 and Respondent in FA No. 1729 of 2013, Respondent (hereinafter also referred to as OP) was Appellant FA No. 1729 of 2013 and Respondent in FA No. 1922 of 2013 before the State Commission in the Appeals, the Revision Petitioner was Complainant and Respondent was Opposite Party before the District Forum in the CC no 151 of 2011.

4. Notice was issued to the Respondent(s) on 22.05.2017. Parties filed Written Arguments/Synopsis on 14.07.2017 and 16.08.2023 respectively.

5. Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that in the night of 07.08.2010, two bones of complainant’s wife, namely, Reena got fractured and in the morning of 08.08.2010 at about 4.00 a.m., complainant got admitted his wife in the nursing home of the opposite party on the same day. Dr. Jitender Kumar - OP operated left leg of his wife and installed steel rod in the fractured leg and she got discharged from the nursing home on 20.08.2010. The Opposite Party took Rs.12000/- towards operation and Rs.24,000/- towards other expenses but there was no relaxation in the pain of the leg of the wife of complainant. The opposite party told that it will be fine and when the pain did no subside, she got herself examined from Dr. Sujit Kumar on 09.11.2010 and after conducting X-ay and examination, she was told that due to installation of thick steel rod with negligence, it busted the bone and has damaged the knee due to long rod and opined for visiting the BHU. Even in BHU, it was suggested that rod will be removed and gave estimate of operation of Rs.2 lacs. On being informed, the opposite party told that since negligence has been committed due to his action during operation, opposite party will himself remove the rod and she will be fine. Due to financial constraint, the rod was got removed through Opposite Party on 11.03.2011. The opposite party charged Rs.15,000/- but even thereafter, there was no improvement in her pain. Due to negligence of the opposite party, the wife of complainant is not able to carry out her daily routine work without support and also not able to bring up the children. The left leg of his wife got thinner. The Complainant got examined his wife from various doctors at Banaras and the Apex Hospital gave an estimate of Rs.6 lacs for re-operation of the busted bone of left leg and damaged knee. The complainant has already spent Rs.4,00,000/- on the treatment of his wife. Being aggrieved of the said act of the Opposite Party, the Complainant filed a CC before the District Forum. The District Forum partly allowed the Complaint. Being aggrieved of the said order of the District Forum, both Petitioner and the Respondent appealed in the State Commission and State Commission vide two sep