Binita Singh vs Administrator, Kurjee Holy Family Hospital

Dr. S.M. Kantikar, Presiding Member

The Revision Petition has been filed under section 21 of the Consumer Protection Act, 1986 by the Petitioner Binita Singh (hereinafter referred to as the “Complainant”) against the impugned Order dated 10.05.2011 passed by State Consumer Dispute Redressal Commission, Bihar (for short “the State Commission”) in First Appeal No. 413/2107 for enhancement of compensation, wherein the State Commission modified the Impugned Order dated 31.05.2007 passed by District Consumer Dispute Redressal Forum, Patna(for short ‘District Forum’) in Consumer Complaint No. 359/2005.

The facts in brief are that the Complainant delivered a male baby through Caesarean Operation on 24.08.2005. After the discharge on 01.09.2005, she was complaining about pain in swelling in abdomen, it was alleged due to a foreign body left in the abdomen after the Caesarean operation.  Ultrasound was done on 23.09.2005, wherein some foreign body (i.e. Tetra Sponge) was found and she  was operated  again at Shayog Hospital. Being aggrieved the Complainant filed the Consumer Complaint before the District Forum,Patna

The District Forum partly allowed the Complaint with following observation:

Perused the records and heard both the parties. From the perusal of the record it transpires that the foreign body had really been lost inside the operating area by the operating surgeon of the opposite party which caused distinction and formation of lump. This has been admitted by the opposite party. The subsequent operation done at Sahyog hospital by Dr S.K Banerjee, consultant surgeon has clearly has clearly revealed the extraction of this foreign body which was a Tetra Sponge and which was also show in the Ultrasonography report of P.K Imagine before operation. Though the Ultrasonography report simply mentioned the presence of the foreign body which could be diagnosed and extracted after the second operation. This doctor Banerjee has given a certificate in this regard and has also explained that Tetra Sponge is a large size sponge, made of multilayer gauze and used to soak blood and pack the loops of intestine during operation of the abdomen. The Hon'ble National Commission in the case law referred to above has clearly found such non removal of gauze left behind under surgery evident from C.T Scan report was a clear cut case of medical negligence. The opposite party in this case is definitely guilty of serious deficiency as well as medical negligence as the Tetra Gauge was actually left behind after the first operation which was removed after the second operation by another surgeon. The averment of the opposite party that this Tetra Gauge was not histopathological tested does not and cannot give any relief to this opposite. So this is a clear cut case covered under the principle of Res IPSA Loquitor and no opinion of the expert is required in the instant case and the medical negligence on the part of the opposite party is proved beyond doubt.

Under the fact and circumstances of this case we direct this opposite party to refund Rs 16,43 7=00,which was taken for operation of the complainant at the time of operation. This opposite party is further ordered to pay Rs 18,050=00 which was paid by the complainant for her second operation at Shayog Hospital. The opposite party is further ordered to pay compensation of Rs 50,000=00 for causing unnecessary physical, financial and mental agony to this complainant addition to the cost of two operation mentioned above. All these payments along with cost of Rs 5,000=00 must be paid within a period of two months from the date of receipt of this Order failing which the same shall be realized through due process of law.

Being aggrieved by the quantum of compensation, the Complainant filed an Appeal before the State Commission. The Appeal was partly allowed and the Order of District Forum was modified with the following observation:-

“6. Here, the admitted position is that the learned District Forum has overlooked the incurred expensed regarding purchase of medicine form the outside of the hospital, pathological test and ultrasound, which are not included in the bill of Kurju Hospital for Rs.22,000/- and expenses incurred in proper nutrients during the period of treatment and recovery of the patient and infant baby and other expenses at Rs.20,000/- . The learned counsel for the Respondent has referred to decision in their written notes of arguments but we are not going to decide the case on merit in view of the fact that the Respondent Kurji Hospital has accepted the verdict and has not challenged. So, only thing, which is to be considered here as to the adequacy of the compensation awarded to the Complainant”.

Thus, the State Commission enhanced the compensation amount to Rs.22,000/- + Rs.20,000/- and affirmed the other relief awarded by the District Forum.

Dissatisfied by the Order of the State Commission, for further enhancement of Compensation the Complainant again filed the instant revision petition.

Heard the learned Counsel for both the sides and perused the material on record. The Original record from District Forum was requisitioned.

The medical record of Sahyog Hospital revealed that the Complainant and her husband approached Dr S.K Banerjee of Sahyog Hospital Patna for her abdominal pain after the Caesarean operation. The Ultrasound performed at P.K. Imagine Ultrasound Centre revealed a foreign body with mild reaction around adhered omental and bowel loop. Dr S. K. Banerjee performed the operation and removed large size "Tetra Sponge" from the petitioner's abdomen.

It is pertinent to note that admittedly the Complainant was operated again. After the removal of the alleged foreign body (tetra sponge) by Dr. S. K. Banejee, it was not sent for Histopathology examination for final diagnosis. However, on careful perusal of the operative notes, the operating Surgeon recorded about the multiple adhesions of intestinal loops and purulent material. Thus, in my view it was the foreign body reaction, which cannot rule out possibility of tetra sponge as revealed by the Surgeon.

The State Commission was justified while awarding the enhanced compensation to the Complainant, which, in my view, does not deserve for further enhancement. The award was just and proper to the sufferings of the Complainant. The two fora below have given concurrent findings of facts. I do not find prima facie any jurisdictional, error illegality or material irregularity in the Orders passed by the fora below warranting any interference in the revisional jurisdiction under Section 21(b) of the Consumer Protection Act, 1986. I would like to rely upon the precedents of the Hon’ble Supreme Court in the cases viz ‘Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd.[ 2011 11 SCC 269] and ‘Sunil Kumar Maity vs. State Bank of India & Anr.’[Civil Appeal No. 432 / 2022 Order dated 21.01.2022]

Based on the afore discussion, I do not find any merit in the present Revision Petition and the same is dismissed. The parties shall bear their own costs.