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CASE NO.:

Appeal (civil) 6930 of 1999

PETITIONER:

Tara Chand Jain

RESPONDENT:

Sir Ganga Ram Hospital and Anr.

DATE OF JUDGMENT: 15/12/2005

BENCH:

Arijit Pasayat & Tarun Chatterjee

JUDGMENT:

JUDGMENT

ARIJIT PASAYAT, J.

Challenge in this appeal is to the order dated 25th August, 1999 passed by

the National Consumer Disputes Redressal Commission, New Delhi (in short

’the Commission’). The appellant made a claim for compensation alleging

that on the ground of medical negligence on the part of the respondents, he

had suffered untold miseries and had spent a huge amount of money to get

cured without any avail.

The background facts disclosed in the complaint were to the effect that the

appellant visited the respondent No. 1 - hospital as he was having urinary

trouble. The respondent No. 2 with his team examined the complainant and

advised him to undergo prostate operation. The complainant was admitted in

the hospital on 10.01.1990 and was operated by respondent No. 2 on

11.01.1990. He was discharged from the hospital on 15.01.1990. At the time

of discharge, he was advised to take some medicines and was told that he

would be perfectly normal within one or two months. The complainant

returned to his native place, i.e. Muzaffarnagar and duly followed the

advise given and the treatments prescribed. Instead of getting relief, he

started feeling acute pain in the thigh muscles and backbone. The tendency

of continuous and regular flow of urine which had started immediately after

the operation continued. He suffered high fever and increase in blood urea

and as a result, his condition become very serious. He was again

hospitalized in respondent No. 1’s hospital on 17.11.1990 in the Nephrology

department and was discharged on 13.12.1990. Despite the medicines

prescribed the problem of continuous urine flow was not cured. The

respondents had advised that he should take the injection "Teflon", which

was not available in India and was available in America. The complainant

wrote to a relative who lived in America for sending the injection. But the

relative who happened to be a Doctor, advised the complainant not to take

the injection as it had bad side effects and also not of much use in such

cases. The complainant visited the hospital on a number of occasions but

his problem continued. Same was due to the negligent acts on the part of

respondent No. 2. Though the appellant was advised to use clamp all the

time so that the urine may not flow but it was so painful to use the clamp

that even after the use of clamp, there was no further development.

Reference was made to the Text book of Bailey and Love’s Short Practice of

Surgery, 16th Edition, pages 1196 and 1197 to contend that the negligence

of the respondents was established. Under these circumstances, the

complainant claimed compensation of Rs. 40,00,000 (Rupees Forty Lakhs only)

on account of deficiency in service on the part of the respondents.

The complaint was resisted by the respondents. They contested the claim

that the urine flow was continuous on account of any negligence while the

operation was conducted. On the contrary, with reference to certain

documents which were prepared at the time of discharge, it was submitted

that there was no grievance of the nature, as indicated in the complainant

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petition. Long after about three years, the complainant was filed and never

before that on any occasion any grievance was made by the appellant about

the difficulties pointed out. It was highlighted that instead of making the

grievance, as was made in the complaint, the complainant requested the

hospital authorities to change the period for which he had treated, from

four years, as recorded in the medical records, to four months, so that it

would facilitate settlement of the insurance claims. Taking into account

the materials on record, the Commission came to hold that the inferenc