ORDER

Appeared at the time of arguments

For the Petitioners                  :          Mr. Akash Kakade, Advocate

For the Respondent                 :          Ms. Anubha Agrawal, Advocate

                                                          Amicus Curiae

Pronounced on:   27^th January, 2022

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. 

1.       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