Decided on August 06,2013



C.C. Pant, Member - (1.) THESE two appeals arise out of the order dated 17.03.2012 passed by the District Forum, Udhamsingh Nagar, allowing the consumer complaint No. 13 of 2011 and directing the opposite party No. 2 to pay to the complainant a sum of Rs. 30,000/ - as compensation and Rs. 3,000/ - towards cost of litigation within a month from the date of the order.
(2.) THE facts of the case, in brief, are that the complainant - Sh. Naresh Kumar, a labourer, had some pain in his stomach and he went to the Government Hospital, Tanakpur on 27.01.2009 for check -up. The doctor of the Government Hospital advised him to consult a surgeon. The complainant thereafter approached Dr. A.M. Raturi, Surgeon, Khatima, District Udhamsingh Nagar - opposite party No. 2, who advised him to get himself admitted in Sanjivni Hospital, Khatima. After conducting certain tests, the opposite party No. 2 operated upon the complainant for Hernia of right side and implanted a mesh for support. The complainant has alleged that the wound did not heal up even after one year of the operation and his condition deteriorated, though he had been visiting the treating doctor regularly for post operative treatment and care. On
(3.) 03.2010, the complainant complained of the unhealed wound to the opposite party No. 2, the operating surgeon, who advised him to get himself admitted in Nanakmatta Hospital. The complainant took an advice from the doctor of the Government Hospital, Tanakpur, who advised him to consult a surgeon. On 18.03.2010, the complainant went to Dr. Prem Singh, Surgeon, Saurabh Hospital, Khatima, who operated upon the complainant and removed the mesh, implanted by the opposite party No. 2. After the second operation, the complainant has admitted that he was cured. The complainant sent a notice through his counsel to the opposite party No. 2 on 04.10.2010 regarding the negligence made by him in his treatment and to compensate for the same, but the opposite party No. 2 did not reply to it. This led the complainant to file a consumer complaint before the District Forum, Udhamsingh Nagar. The District Forum, after an appreciation of the facts of the case, allowed the consumer complaint vide its order dated 17.03.2012 in the above manner. Aggrieved by the said order, the opposite party No. 2 has filed the First Appeal No. 63 of 2012, while being dissatisfied with the quantum of compensation awarded by the District Forum, the complainant has filed the First Appeal No. 138 of 2012 for enhancement. Dr. Nishant Agarwal, Pediatrician & Manager, Sanjivani Hospital, Khatima has been impleaded in both the appeals as respondent No. 2 and respondent No. 1 respectively. Since, both the appeals arise out of the same order, hence, these are being disposed of by this common order. 3. We have heard the learned counsel for the parties in both the appeals and perused the material placed on record. Learned counsel for the opposite party No. 2 (appellant in First Appeal No. 63 of 2012) argued that the Expert Committee constituted by the Chief Medical Officer, Udhamsingh Nagar has given its finding that the opposite party No. 2 has not committed the medical negligence in the treatment of the complainant. The learned counsel submitted that the complainant was suffering from various ailments such as tuberculosis, hernia, blockade of urinary track etc. and, therefore, the opposite party No. 2 had to perform the operation in accordance with the methods prescribed in medical science in such emergency cases. Whatever complications surfaced up after the operation, these were due to the reason that the complainant was also suffering from tuberculosis and anaemia. The learned counsel emphasized on the word "Shayad" (or probably) used by the Expert Medical Committee in its report and argued that even the Committee has not given a conclusive finding whether the mesh was properly implanted or not during the operation performed by the opposite party No. 2. Therefore, in absence of any conclusive evidence, the District Forum has made a gross factual error by holding that the opposite party No. 2 has committed medical negligence in the said operation. He also referred to the medical prescription dated 03.03.2010, wherein it is stated that - " - Discharging pus from operated area from 5 days - Insomnia from 5 days - Loss of appetite from 12 days";

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