Chandra vs Mahesh

THIS appeal is directed against the order dated 10th day of December, 1996 in O.P. No. 106/96 on the file of the District Consumer Disputes Redressal Forum, Madras-South. The appellant is the complainant while the Respondents are the opposite parties.

THE complainant is one Mrs. Chandra. Her husband by name one Palanivelu, it is said, was working in a private firm viz., M/s. Baliga Lighting Equipment Pvt. Ltd. as a fitter. He, it is said, was drawing a sum of Rs. 2,500/- per month. It is also claimed that he was getting over-time salary of nearly Rs. 1,000/- per month. He was alleged to have regularly contributed for his medical treatment to the ESI Hospital of the opposite parties every month. THErefore, it is claimed that her husband must be construed to have hired the services of the opposite parties for consideration under the system of deferred payment. While so, he was having a swelling on the abdomen over and above the hip portion. He went to the ESI Hospital, Saidapet which referred him to the ESI Hospital, K.K. Nagar. He consulted the 1st opposite party. The 1st opposite party, without having any laboratory or pathology report, was alleged to be negligent in hurriedly assuming the lump as lymphoma and removing the swelling by way of an operation on 20.3.1993. He was treated as an out-patient and he was allowed to go for his employment after 10 days.

The complainant's husband again noticed a swelling on the same part in the abdomen and hence he consulted the 1st opposite party on 10.11.1993. The 1st opposite party again, without calling for any laboratory test or pathology report, opined that it might be due to suspected residual mass remaining and that it should be removed and referred him to the 2nd opposite party. He was admitted in the hospital on 17.11.1993. As per the medical reports available it was suspected to be Fibroma Malignancy. The 2nd opposite party, without considering the above report and instead of providing treatment for such an ailment, on 18.11.1993 negligently performed the second operation and removed the suspected residual marks under local anaesthesia.

AS per the pathology report of the removed mass it was diagnosed that he was suffering from malignant neuro fibroma-neuro sarcoma. He was advised to take treatment in the General Hospital and he in fact had taken the radio therapy treatment in 33 sittings. On 22.1.1994 again he noticed swelling on the same spot. One Dr. Rajaram, Chief Surgeon, Oncology Department examined him. During that time it was learnt that it was wrongly diagnosed as lypoma and instead of providing radio therapy treatment the 1st and the 2nd opposite parties wrongly and negligently had performed the two operations and removed the swelling portion which paved the way for the spreading of the disease.

HE was again admitted in Wart No. 30 of the General Hospital on 4.7.1994. On 5.7.1994 an operation was done on the same spot in the abdomen portion and also in the arm pit. HE was discharged on 9.8.1994 and was administered Chemotherapy injection and after some time severe back pain developed and again he was admitted in the ESI Hospital, K.K. Nagar. When scanned, it was noticed that a cyst was formed in the spinal column on the middle of the back. HE, it is said, consulted the Cancer Institute, Adyar, Tamil Nadu Hospital and CMC Hospital, Vellore. HE was told that the chances of recovery was remote mainly because of the inadvertant, improper and negligent first two operations conducted by the 1st and 2nd opposite parties. Finally he was immobilised due to paralysis and died on 20.8.1995. The 1st and 2nd opposite parties exhibited gross negligence, deficiency in service and hurriedly did the two operations without proper and reasonable apprehension and without proper radio therapy treatment. He died at the age of 34 years leaving behind the complainant and his two minor sons. He was the only source of income for the family. Therefore the complainant's family suffered pecuniary loss to the extent of Rs. 3,60,000/- at the rate of Rs. 1, 200/- per month for 25 years.

THE complainant and her husband were driven from pillar to post for getting treatment in various hospitals. THE opposite parties have to compensate the pain and sufferings undergone by the complainant and her husband. THE complainant estimates at Rs. 1,00,000/- for such sufferings.

THE complainant, therefore, has come forward with the complaint to direct the opposite parties to pay a sum of Rs. 3,60,000/- for pecuniary loss arising out of the death of the complainant's husband due to the gross negligence and deficiency in service on the part of the opposite parties and also to pay a sum of Rs. 1,00,000/- as compensation for mental agony, torture and sufferings undergone by the complainant. THE opposite parties are also liable to pay the cost of the complaint. The opposite parties filed written version reflecting as below : The allegation of the complainant is that the 1st opposite party performed the first operation on 20.3.1993 in a hurly burly manner without the laboratory test or pathology report under the assumption that the swelling in question was lymphoma. On the contrary, the case was seen on 8.3.1993 and operated on 20.3.1993 in a well-planned manner after a clinical diagnosis of lymphoma was made. The surgery which is both curative and diagnostic was done and the biopsy was reported as neuro fibroma. The further allegation of the complainant that her husband was again operated without investigation of the pathology report is false. When the complainant's husband reported for the second time in November, 1993, clinical examination was done as he was suspected as having a recurrence of the lump which would be malignant. This is again clinical suspicion only. The suspicion cannot be confirmed without doing further excision biopsy. So the question of providing of treatment for malignancy (radio therapy) does not arise unless malignancy is confirmed.

Without knowing the above facts the complainant has come forward with the complaint attributing negligence and deficiency of service on the part of the opposite parties. The allegation of the complainant that surgery was done under local anaesthesia is false because that was done under general anaesthesia well planned. Biopsy reported as neuro fibro sarcoma. The complainant's husband developed another swelling in the left arm pit and abdomen and the surgery was done in the Government General Hospital and the complainant received chemotherapy. He finally developed a cyst in the middle of the back near the spinal column.

THE complainant was again admitted lastly on 30.1.1995 in the ESI Hospital, K.K. Nagar for back ache after six months after receiving Chemotherapy in the General Hospital. THE Oncologist in the Government General Hospital opined for a radio therapy to the swelling which the complainant's husband refused for his own reasons. The allegation of the complainant that she came to know after consulting the Doctors at the Cancer Institute, Adyar, Tamil Nadu Hospital, and CMC Hospital, Vellore that the first two surgeries done at the ESI Hospital, K.K. Nagar were improperly done, is false. In fact the two operations were done in accordance with the standard surgical practice throughout the world. If the pathology test was called for the diagnosis for cancer would have been done earlier. Once the diagnosis of cancer was confirmed, no time was wasted in treating the patient. The present complaint is barred by limitation. On that ground also this complaint is not maintainable. The complainant is not entitled to the reliefs prayed for and consequently the complaint is liable to be dismissed.

THE Forum below, after taking into consideration the relevant materials placed on record in the shape of documents and of course after hearing the projections of hues of views by the respective parties through their Counsel, ultimately dismissed the complaint directing the parties to bear their respective costs, giving rise to the present action by the complainant. Learned Counsel Mr. Eswaradhas appearing for the complainant/appellant would strenuously urge before us that the Forum below committed grievous error in stating that the case on hand involves complicated questions for decision and therefore it would be but proper for the parties to agitate the matter in a competent Civil Forum. The said learned Counsel would further urge that the Forum below committed gross violation of audi alteram partem rule in the sense of not providing any adequacy of opportunity to the complainant in examining the witnesses before the Forum. Learned Counsel would also urge that the Forum below committed grave error in not recording any finding that the complainant's husband died as a result of the callous negligence on the part of the opposite parties in performing the two operations. Learned Counsel appearing for the opposite parties/respondents would however repel such a submission and he would also submit that there is shorn of materials on record to point out that the complainant in fact requested the Forum below for the examination of witness on her side and such request emanated was rejected without any reason whatever. He would also submit that the complaint as filed is not maintainable in the Forum below on the face of the salient and sanguine provisions adumberated in the Employees'' State Insurance Act, 1948.

WE now proceed to consider the rival submissions of learned Counsel for the respective parties in the light of the materials placed on record. There is no pale of controversy at all that the complainant's husband took treatment for some sort of a swelling on his body, from the opposite parties 1 and 2. It is also not in dispute that there were two operations done by the opposite parties 1 and 2 for removal of the lump he was having. It is not as if, as contended by learned Counsel for the complainant/appellant, the surgery was done in all hurry and haste the moment the swelling was seen by them on the days of two operations. It appears that proper clinical examination has been done and thereafter only the operations were done. The clinical examination, according to them, was conducted much earlier before the first operation, as we have stated in the summation of the facts, and the operation was done only subsequent to the clinical diagnosis as lymphoma. Only during the course of treatment they suspected some sort of a neuro fibroma and for that they have done excision biopsy and the biopsy report revealed that the lump is some sort of a cancer. The opposite parties are the competent persons - Doctors attached to ESI Hospital, K.K. Nagar, Madras. In their clinical wisdom they thought it better to operate on the victim and remove the swelling on a clinical finding that the swelling is after all lymphoma. When the biopsy report revealed that there was some malignancy pointing out cancerous ailment, they also advised necessary, treatment of radio therapy and chemotherapy. Without confirming the swelling being a cancerous one, straightaway treatment for cancer cannot at all be given, in the sense of giving radio therapy treatment. When they came to a firm conclusion, the Doctors opposite parties 1 and 2 appear to have give the proper treatment. In such state of affairs, it cannot be stated that there was any negligence on their part in treating the patient. The hyperbole statement of the complainant that she contacted the Doctors at the Cancer Institute, Adyar, Tamil Nadu Hospital and CMC Hospital, Vellore and they opined that the two operations done earlier by the opposite parties 1 and 2 were done negligently and that perhaps was the reason for the death of the patient due to cancer spreading very fast, was not at all proved by the complainant either by production of a certificate or by examination of any one of them to prove such a tall claim.

NO steps had been taken by the complainant for examining any one of them before the Forum below. It is not as if the complainant wanted to take summons for the examination in the Forum below and the Forum below turned down such a request. NO material is traceable to the records that such a step had been taken by the complainant before the Forum below. In such state of affairs, to say that audi alteram partem rule has been grossly violated by the Forum below, cannot at all be countenanced. No doubt the Forum below based upon a judgment of the Supreme Court reported in Indian Medical Association v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC), expressed the view that the case on hand involved complicated questions and it would be better that such a dispute be decided by approaching the Civil Court.

The Forum below did not simply dismiss the complaint by making such a solitary observation. It has also gone into the merits of the case and recorded a finding that since no material worth the name are available to prove that there was gross negligence on the part of the opposite parties.

ONE more question raised by learned Counsel for the respondents/opposite parties remains to be considered viz., as earlier we have noted, as he would urge, that the Consumer Forum is not having the necessary and requisite jurisdiction to entertain the complaint of this nature as has been filed by the complainant before the Forum below inasmuch as a specific provision in the shape of Section 75(3) of the Employees'' State Insurance Act, 1948, serving as an embargo for such a complaint to be entertained. He would also rely upon a judgment of the National Commission in Revision Petition No. 543/96 dated 26.3.1996, Arun Kumar Gupta v. Employees'' State Insurance Corporation. We have perused the decision of the National Commission. On perusal, we are able to understand that the Employees'' State Insurance Act, 1948 is a complete Code by itself and any dispute relatable to the matter covered under the said Act will fall only before the Insurance Court constituted under the Act. It is not at all in dispute as seen from the averments in the complaint that the complainant's husband regularly contributed for his medical treatment to the ESI Hospital of the opposite parties from his salary every month and therefore he must be construed to have availed of the services of the opposite parties for consideration under the system of deferred payment. We may also point out here that the Consumer Protection Act, 1986 adumberates a provision in the shape of Section 3 prescribing. "The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."

On the basis of such a provision, the Consumer Protection Act, 1986 must be construed as a general law and the Employees'' State Insurance Act, 1948 must be construed as a special enactment and such an enactment containing any provisions in derogation of the provisions of the Consumer Protection Act, 1986, must be construed to be given effect to. Therefore, the remedy of the complainant lies definitely not before the Forum constituted under the Consumer Protection Act, 1986 but elsewhere. At the fag end of the dictation, the learned Member Mr. V.S. Kandasamy, drew my attention to a decision of the National Commission reported in Dr. N.T. Subramanyam & Anr. v. Dr. B. Krishna Rao & Anr., II (1996) CPJ 233 (NC)= 1986-96 Consumer page 2350 (NS), wherein the National Commission has categorically expressed its view in para 9 as below : "9. The principles regarding medical negligence are well settled. A doctor can be held guilty of medical negligence only when he falls short of the standard of responsible medical care. A doctor cannot be found negligent merely because in a matter of opinion he made an error of judgment. It is also well settled that when there are genuinely two reasonable schools of thought about management of a clinical situation the Court could do no greater disservice to the community or the advancement of medical science than to place the hallmark of legality upon one form or treatment. Justice Mc Nair in Bolam v. Friern Hospital Management Committee, 1957 (2) All ER 118, observed as follows : ''Counsel for the plaintiffs put it in this way. That in the case of a medical man, negligence means failure to act in accordance with the standards of reasonable competent medical men at the time. That is a perfectly accurate statement as long as it is remembered that there may be one or more perfectly proper standards and if a medical man confirms with one of those proper standards then he is not negligent''."

The statement as above, is squarely applicable to the facts of the case on hand. When especially the opposite parties 1 and 2 Doctors had given proper treatment as we have noticed above, by way of reiteration we may say, the opposite parties 1 and 2 Doctors did not perform the first two operations in a hurried and hasty manner. They have done only a clinical finding and on the basis of medical standard surgical practice prevalent throughout the world then. Looked from any angle, we are of the view that the complainant cannot at all have redress before the Forum constituted under the Consumer Protection Act, 1986. For the reasons above, the appeal deserves to be dismissed.

IN fine, the appeal is dismissed, but in the circumstances, we make no order as to costs. Appeal dismissed.