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2024 Supreme(Online)(NCDRC) 1244
IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MADURAI Present: THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER Date of appeal filed: 30.03.2011(F.A.No.141/2012) Date of appeal filed: 14.01.2015(F.A.No.39/2015)
F.A.No.141/2012 (F.A.No.514/2011 on the file of Principal Bench of the Tamil Nadu State Consumer Disputes Redressal Commission, at Chennai).
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F.A.No.39/2015 TUESDAY, THE 02ndDAY OF JANUARY 2024.
Apollo Orient Hospitals, Through its Managing Director, Lake View Road, Madurai. Appellant/Opposite Party in F.A.No.141/2012 Respondent/Opposite Party in F.A.No.39/2015 -Vs-
K.RameshBabu, S/o Kesavan, 1, E.S.I.Quarters, Madurai.
Now residing at:
23, West Street, Appellant Complainant in F.A.No.39/2015 Andalpuram, Madurai – 625 003. Respondent/Complainant in F.A.No.141/2012 Counsel for Appellant/Respondent/Opposite Party :Mr.Shadrach Paul, Advocate.
Counsel for Respondent/Appellant/Complainant :Mr.D.Balasubramnainan, Advocate.
These two appeals filed by both complainant and opposite party against the order passed by the District Consumer Disputes Redressal Commission, Madurai made in C.C.No.310/2002, dated 11.02.2011, the above two appeals taken up by this Commission jointly heard as it involves common questions and issues to be decided for brevity of the Judgment. Both parties are referred as per their rank in the complaint and disposed of by this Common Order. The two appeals coming before me for final hearing on 08.11.2023 and upon perusing the material records, this Commission made the following:
For the Petitioner: Mr.D.Balasubramanian-App.
For the Respondent: Mr.Shadrach Paul-Resp.
Common ORDER
THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER (OPEN COURT).
1. The complainant’s case :
The case of the complainant is that he is an engineer and his wife is a doctor.
While he travelled in his car along with his wife and family members on 16.12.2001 the car met with an accident and all were sustained injuries. They have taken to Government Hospital, Virudhunagar immediately and later the complainant admitted in the opposite party/hospital for better management. After preliminary investigation was done by the opposite party/hospital doctors, the complainant suffered from (i) Post traumatic fracture right acromion.
(ii) Fracture right humerus shaft.
(iii) Fracture right femur and multiple soft tissue injury.
One Dr.V.Ramakrishnan who worked in the opposite party’s hospital had performed surgery for the above fracture. In the above operation an intramedullary nail was fixed but without locking screws. Though the wound was opened and reduction was made, the circumferential wiring was also not done. The surgeons who performed the surgery without ascertaining what type of nail is suitable for the particular fracture had used only 6 inches nail which later made 4.5 c.m. shortening of limb. Due to the negligence and omissions committed by the opposite party/doctor the above shortening of limb and mal-alignment was caused. Hence the complainant consulted one Dr.R.Venkatakrishnan and a second surgery was done on
08.03.2002. In the above operation the right femuer bone exposed and non-union femuer was drilled, packed with bone sleeves taking from illacacrest and wound closed with drain, after the loose bit of bone implanted in soft tissue was removed. The above second operation was done just to correct the first surgery which was done on 16.12.2001. Subsequently, the complainant admitted in Chenthil Nursing Home on 17.08.2002 and the third surgery was performed and the initial A.O.nail was removed and I.M.I.L.G.K. nail was inserted and bone grafting was done. Subsequently he was discharged on 30.08.2002. So the complainant alleged due to poor care and negligence in performing the surgery the complainant suffered with financial loss, pain and suffering had to undergo two further surgeries for correction and hence he filed the complaint seeking to direct the opposite party to pay Rs.2,00,000/- with interest towards medical expenses incurred by the complainant and Rs.2,95,000/- with interest towards damages for mental agony, torture and permanent disablement, loss of earning power and also cost of the proceedings.
2. The opposite party filed their written version contending that the complaint is not maintainable and without adding the doctors who performed the surgery as a party to the proceedings the complaint is not maintainable. Further it is an admitted fact that the complainant was admitted in the hospital and surgery was performed upon him. The opposite party further contended that the course and treatment adopted by them is according to the medical literature and there is no deficiency committed by them. Even otherwise the second and third surgery were performed which is also disproved any negligence on the part of the complainant. Further it is contended that two subsequent surgery was may cause the deformity as alleged by the complainant and there is no medical negligence on the part of the opposite party. Hence they prayed to dismiss the complaint.
3. Before the District Commission the complainant was examined as PW1 , and the opposite party were examined as RW1 & RW2. After perusal of both sides pleadings, documents, Exhibits-A1 to A17, and Exhibits-B1 to B12, the District commission finally, allowed the complaint, directing the opposite party to pay Rs.2,00,000/- as compensation for medical negligence and to pay Rs.10,000/- as costs to the complainant.
4. Aggrieved with the above order the opposite party preferred the appeal in F.A.No.141/2012, stating that the finding of the District Commission as if they are committed medi
