G.D. SINGH vs Parminder Singh

THESE two appeals bearing Nos. 328 and 329 both of 2003 are directed against order dated 4.12.2002 passed by District Consumer Disputes Redressal Forum-II (for short hereinafter referred to as the District Forum) vide which Complaint Case No. 161 of 1999 filed by the respondent Sh. Parminder Singh has been allowed and a sum of Rs. 30,000/- has been awarded as compensation for medical negligence alleged against the appellant/O.P. No. 2 Dr. G.D. Singh of the Department of Orthopaedics, General Hospital, Sector 16, Chandigarh, appellant/O.P. No. 1.

THE respondent in both the appeals namely Shri Parminder Singh filed the aforesaid complaint seeking compensation against the O.Ps. now appeals in the two appeals for medical negligence committed during the surgery of his fractured leg. THE respondent Shri Parminder Singh is an employee of the Government of Punjab and was entitled for free treatment at the General Hospital, Sector 16, Chandigarh. He was admitted as an indoor patient registered at Serial No. 1213 dated 30.10.1997 and was operated upon on 1.11.1997 by Dr. G.D. Singh, Orthopaedic Surgeon (O.P. No. 2) and appellant of Appeal No. 329 of 2003. It was alleged by the complainant that before performing the surgery, Dr. G.D. Singh took Rs. 5,000/- for the operation and Rs. 3,500/- as cost of the rod to be inserted in the fractured leg. Despite the fact that the amounts mentioned above were paid but no receipt was issued regarding the same. After the surgery, the respondent/complainant felt severe pain in his right leg which was operated upon and it became numb. THE respondent/complainant informed about his suffering to Dr. G.D. Singh who told him that the pain would subside after a few days. THE respondent/complainant was discharged from the hospital on 7.11.1997 and during this period the pain did not subside though he took painkillers as per the advice and prescription of Dr. G.D. Singh. The respondent remained confined to bed for about six weeks as advised by Dr. G.D. Singh and thereafter he was brought to the General Hospital- O.P. No. 1/appellant for being examined by Dr. G.D. Singh and X-ray examination was done which showed that the operation had not been performed properly and the fractured bone could not be placed in proper alignment and hence the union did not take place. The rod inserted during surgery was of a bigger size than the required one. A piece of bone (butterfly) had been removed by Dr. G.D. Singh by mistake during surgery. The fractured leg was to be plastered once again. In case it did not remove the plaster, plates would have to be inserted. It was thereafter contended that the respondent/complainant consulted several other doctors namely Dr. Aggarwal, Dr. Tahil of Chandigarh, Dr. Grewal of Malerkotla, Dr. N.D. Aggarwal and Dr. Sohal of Patiala and about 80 X-rays were taken of his leg. The X-rays were, however, lost by the complainant. Thereafter, he consulted Dr. Parminder Singh Chawla of the Bone and Joint Centre, Mohali who operated his aforesaid fractured leg on 9.1.1999 and removed the rod which had been inserted by Dr. G.D. Singh and in its place, fixed plates with steel screws. Thereafter, the pain in his left subsided and the rear portion of his right foot started to revive though the front portion is still numb. It was Dr. Parminder Singh who had told the respondent/complainant that the rod which had been inserted by Dr. G.D. Singh was bigger in size than required and that the bone of his leg had been shortened by one inch because it was worn out due to the rubbing of the aforesaid rod. A sum of Rs. 15,000/- was charged by Dr. Parminder Singh for performing the operation.

Describing the treatment provided by Dr. G.D. Singh while operating his fractured leg and inserting the rod as deficiency in service and medical negligence and inefficiency on the part of Dr. G.D. Singh, the complaint was filed claiming compensation to the tune of Rs. 5 lakhs.

THE O.Ps. were served with the notices and put in appearance before the District Forum. THE written statement was filed by the O.P. No. 1 - General Hospital through its Director and Dr. G.D. Singh made a statement before the District Forum on 3.8.2000 that he relied upon the evidence and reply given by O.P. No. 1 and he did not want to lead any other evidence. THE complainant as well as O.P. No. 1 filed evidence in the shape of affidavit and other documents relating to the treatment of the respondent/complainant. The District Forum allowed the complaint and held that Dr. G.D. Singh- O.P. No. 2 was negligent in performing the surgery and inserting a rod of a bigger size than required and since O.P. No. 2 was an employee of O.P. No. 1- General Hospital, Sector 16, Chandigarh, the liability was fastened on O.P. No. 1 - General Hospital vicariously. A sum of Rs. 30,000/- was directed to be paid as compensation. The O.Ps. were also directed to refund a sum of Rs. 5,000/- and Rs. 1,632/- received as fees and hospital charges with interest at the rate of 9 per cent per annum from the date of the discharge i.e., 7.11.1997 till payment. A sum of Rs. 1,000/- as cost of litigation was awarded to the complainant.

THE O.Ps., as mentioned above, felt aggrieved against the impugned order and filed separate appeals challenging the impugned order of the District Forum. THE respondent/complainant appeared through Shri Anuj Raura, Advocate, Shri K.C. Sahu, Government Pleader appeared for the appellant-General Hospital, Sector 16, Chandigarh through its Director while Mr. S.K. Sood, Advocate appeared for the appellant/O.P. No. 1 Dr. G.D. Singh. THE record of the complaint case was summoned. We have heard the arguments advanced by the learned Counsel for the appellants and the arguments of Mr. Anuj Raura, Advocate for the respondent/complainant. We have carefully perused the impugned order and the record of the case. Mr. S.K. Sood, Advocate appearing for Dr. G.D. Singh, appellant drew our attention to the impugned order and submitted that the District Forum totally lost site of the fact that on 3.8.2000, Dr. G.D. Singh had put in appearance before the District Forum and made a statement about his relying upon the evidence and reply filed by the O.P. No. 1 - General Hospital through its Director and he did not want to lead any other evidence. The District Forum drew strong presumption and inference against him that this did not help Dr. G.D. Singh because specific allegations were made by the complainant in his complaint and filed affidavit against him (Dr. G.D. Singh). It was pointed out that according to the complainant, it was Dr. G.D. Singh who had received Rs. 5,000/- as consideration for operation and Rs. 3,500/- for insertion of rod. The District Forum further observed that Dr. G.D. Singh has not cared to file his affidavit specifically denying all these allegations of the complainant and no reason is given for not filing the affidavit and specifically denying these allegations against him. Therefore, a very strong presumption must be drawn against him. In the latter part of the order, at internal page 7, in Para 11 towards the end, the District Forum made the following observations : "....... Sadly in this case O.P. No. 2 has elected not to file his own version, supported by his own affidavit though all material allegations have been made against him. Therefore, we are justified in drawing a very strong presumption that O.P. No. 2 lacks moral courage to deny the version of the complainant and hence it may be justly inferred that he admits the version of the complainant to be correct. The O.P. No. 2 has not suggested any other cause as to why and how there was non-union, bending of K-nail, shortening of leg of the complainant and numbness of his right foot. So, the cause suggested by the complainant that it was all the result of the O.P. No. 2 incompetently handling this case must be accepted, which lends corroboration to the conclusion record above."

It will thus appear that the District Forum instead of looking to the reply and affidavit of the Director, which was filed on the basis of the official record maintained regarding the treatment of the respondent/complainant, which had been adopted by Dr. G.D. Singh (O.P. No. 2) who relied on that evidence and who did not want to lead any other evidence, the District Forum attached great significance to the non-filing of the affidavit by Dr. G.D. Singh and the District Forum went even to the extent of describing this conduct of Dr. G.D. Singh as lacking in moral courage to deny the version of the complainant. According to us, this harsh and hard hitting language should be avoided in the judgment criticising the conduct of the party. In case the District Forum feels justified under the law to raise a presumption, the presumption may be raised but no adverse comments should normally be passed and particularly without giving any opportunity to the person against whom such comments are being made which should be avoided. This has been the accepted judicial norm to be observed while writing out the judgment.

BE that as it may, Mr. S.K. Sood, Advocate appearing for Dr. G.D. Singh stated that there was no material on record from which such observations could be made by the District Forum and particularly in view of the statement made by Dr. G.D. Singh on 3.8.2000. Such a presumption and denouncement of the conduct of Dr. G.D. Singh should not have been raised and made. Mr. S.K. Sood, Advocate went on to refer to the evidence on record to show that there was no credible evidence led about the payment of Rs. 5,000/- allegedly charged by Dr. G.D. Singh who operated upon the patient i.e., the respondent/complainant on 1.11.2000 while he was admitted only on 30.10.2000. Apart from this, it was contended that the complainant did not disclose specifically the fact whether the said amount of Rs. 5,000/- is charged as illegal gratificiation or as a charge for the service to be rendered by him for surgery.

IT may be pointed out that the appellant-Dr. G.D. Singh is a Government employee in the General Hospital. The respondent/complainant is an employee of Punjab Government and is entitled to free treatment and no fees can be charged from him and at least there is no receipt filed nor any other reliable evidence led as to who made the payment or not. So far as all these aspects are concerned, as submitted by Mr. S.K. Sood, Advocate for the appellant-Dr. G.D. Singh who also pointed out that in appeal by way of abundant caution Dr. G.D. Singh has filed his affidavit regarding defence version in which he has denied the averments made by the complainant against him, we find that Dr. G.D. Singh should have filed his reply and his evidence particularly when the District Forum was of the view that the non-filing of the same by Dr. G.D. Singh would go against him. It may also be pointed out that the cases of medical negligence are to be handled with due care and caution as any finding of medical negligence against a medical practitioner even though he may be a Government employee adversely affects its reputation and carrier and, therefore, such matters cannot be left to be decided only on the basis of presumptions howsoever they may be. The presumptions are rebuttable and as such the strongness of the presumption does not take away the right of the effected party to lead evidence to rebut the same.

The learned Counsel for the appellant-Dr. G.D. Singh as well as Mr. K.C. Sahu, Govt. Pleader pointed out that the District Forum raised presumption against Dr. G.D. Singh on one hand from the fact that he did not file his affidavit but the District Forum placed reliance on the certificate of Dr. Parminder Singh dated 2.2.1999 despite the fact that the complainant/respondent did not file the affidavit of Dr. Parminder Singh nor he was available to the appellants for cross-examination. The Hon'ble National Commission has held in the case of Con Decor v. Smt. Smritikana Ghose, 2002 CTJ 692 (CP) that when reputation of a person like a medical practitioner in the case of alleged medical negligence is involved, he will have a right to cross-examine any person alleging professional negligence against him. Even the Hon'ble Apex Court in the case of Dr. J.J. Merchant v. Shrinath Chaturvedi, III (2002) CPJ 8 (SC)=IV (2002) SLT 714=2002 CTJ 757, while dealing with the case of medical negligence laid down the law that cross-examination is to be permitted.

THE trial of the case has not been in accordance with the settled principle of law. THE impugned order is based more on presumptions and inferences than on substantial evidence and on the basis of presumptions, the case of the complainant has been believed and the complaint has been allowed. We are thus of the considered view that the impugned order should be set aside. THE complaint should be remanded to the District Forum with the direction that it shall allow the appellant/O.P. No. 2 - Dr. G.D. Singh to file his own reply to the complaint case and to lead such evidence, he wants to lead in support of his defence version. THE complainant will also be permitted to lead evidence of an expert and particularly Dr. Parminder Singh so that he is available to the appellants/O.Ps. for cross-examination. Accordingly, we allow the appeals and set aside the impugned order of the District Forum and remand the case for decision in the light of the observations made above and to decide the complaint case within the time frame as provided under the Consumer Protection Act, 1986 as amended by Amendment No. 62 of 2002, and in the light of observations made in the case of Dr. J.J. Merchant (supra). THE parties are directed to appear before the District Forum-II, U.T., Chandigarh on 11.8. 2003. As both the appeals have been allowed and the order of the District Forum has been set aside in toto, the demand draft bearing No. 792464 dated 19.6.2003 drawn on State Bank of India amounting to Rs. 25,000/- deposited by the Chandigarh Administration/appellant of Appeal No. 328 of 2003 be returned to Mr. K.C. Sahu, Govt. Pleader for the appellant. Appeals allowed.