George Varghese vs Binu S. & Anr.

This revision petition has been filed by the petitioner George Varhese against the order dated 27.09.2011 of the State Consumer Disputes Redressal Commission, Kerala, (in short 'the State Commission') passed in Appeal No.321 of 2009.

Brief facts of the case are that the respondent No.1 is a miner aged 17 years and he is represented by his father the second respondent. The respondent No.1 sustained cut injury on the Achilles tendon of his right leg on 14.07.1997 and was immediately taken to the petitioner/opposite party hospital for treatment. Dr. Ganesh Babu, MS operated upon his injured portion and the son of opposite party who is a medical student assisted Dr. Ganesh Babu in conducting the operation. On 19.07.1997 the patient was discharged from the hospital. The patient continued out-patient treatment and on 04.8.1997 Dr. Ganesh Babu asked the patient to walk. The patient collapsed in the presence of the doctor and his condition became critical. On 05.08.1997 the patient was taken to the Govt. Hospital, Pathanamthitta for treatment. The complainant alleged that the treatment of Dr. Ganesh Babu was improper. The respondent No.1 has become lame in his right leg and is permanently disabled. The opposite party is liable to pay a compensation of Rs.3 lakhs to the petitioner. The complainants filed a consumer complaint before the District Consumer Disputes Redressal Forum Papthanamthitta, (in short the 'District Forum'). The District Forum passed the following order on 08.04.2009:-

"21. In the circumstances and in the light of the direction of the Hon'ble CDRC, Ext.P7 is the only evidence available at this stage for the disposal of this complaint. From the facts and circumstances of this case, we find no reason to discard Ext.P7. On the basis of the above discussion we are constrained to accept Ext.P7 in which it is clearly stated that the disability of the complainant is not due to the surgery at opposite parties and hence point No.1 is found against the complainant.

Point No.2: This point is not considered in the light of the findings in point No.1.

In the result, this O.P. is dismissed No cost."

Aggrieved by the order of the District Forum the complainant preferred an appeal being 321 of 2009 before the State Commission and the State Commission accepted the appeal vide its order dated 27.09.2011 and directed the petitioner/opposite party No.2 to pay Rs.1,00,000/- as compensation to the complainant along with Rs.10,000/- as cost.

Aggrieved by the order of the State Commission, the present revision petition has been filed.

Heard the learned counsel for the both the parties and perused record. The learned counsel for the petitioner stated that the District Forum ordered examination of complainant by the District Medical Board and the Medical Board submitted its report dated 23.12.2003 before the District Forum. As this report was silent on the issue whether the disability of 4% was due to original injury or due to the treatment given by the petitioner hospital. The Medical Board was asked to give clear opinion whether the disability of the complainant was due to the original injury or was due to the operation done at the petitioner's hospital. Consequently, Medical Board again submitted its report dated 06.03.2007 and it has been opined by the Medical Board that the disability of 4% was due to original injury and not due to surgery performed on the complainant by the petitioner hospital. It was stated by the learned counsel that the District Forum accepted the report of the Medical Board and the complaint was accordingly dismissed. However, the State Commission considered the report given by Dr. G.C.S. Unnithan of the General Hospital of the District who actually examined the complainant and issued a certificate dated 04.08.1998 wherein it has been stated that the proper treatment was not given by the petitioner's hospital. The Chairman of the Medical Board had also given evidence before the State Commission and has stated that the disability is due to the original injury and not due to any shortcoming in the operation of the complainant. State Commission has not accepted this evidence as expert report on the ground that it has not been supported by any reasoning. This objection of the State Commission is not valid as the expert report has to be accepted once the expert was appointed by the consumer forum itself. There has to be some cogent reason to dismiss the report of the expert. As compared to the report of one doctor, the report of the Medical Board has to be given importance. Thus, the order of the State Commission is not based on the correct appreciation of the reports available on record and therefore the same is liable to be set aside.

On the other hand, the learned counsel for the respondent /complainant stated that the doctor who has treated the respondent No.1 in the Government General Hospital would be the correct expert to give the opinion on the operation done in the petitioner's hospital as he had seen the condition of the patient at that time. This doctor has given a categorical certificate dated 04.08.1998 that the surgery was not performed properly. The report of the Medical Board has been obtained after 5 years and 10 years respectively and therefore, the members of the Medical Board did not have the advantage of seeing the patient at the time of operation or further treatment and therefore the report of the treating doctor has to be given importance as compared to the report of the Medical Board.

I have given a thoughtful consideration to the arguments advanced by both the learned counsel for the parties and have examined the material on record. It is true that the Medical Board has given its finding that the disability of 4% is due to original injury suffered by the complainant and not due to the surgery performed by the petitioner. Clearly, the report of the Medical Board cannot be ignored as the same has been given by the Medical Board consisting of three doctors who are all experts. The Chairman of the Medical Board has also deposed before the State Commission and has confirmed the report. General rule is that when the report of a single doctor becomes disputed then a Medical Board is constituted whose findings are supposed to be final. The certificate of the doctor dated 04.08.1998 was not solicited by the District Forum and the same was obtained by the complainant himself whereas the report of the Medical Board has been submitted under the directions of the District Forum. Clearly, the report of the Medical Board has to be given importance as compared to the report of a single doctor. The Medical Board has come out with a clear finding that the disability of 4% is due to the original injury and not due to the surgery performed at the opposite party hospital.

Therefore, this finding has to be accepted as there is no other expert report of a larger Medical Board.

From the above examination, it becomes clear that disability of 4% is not due to the treatment given by the opposite party hospital. There is no finding of the Medical Board about the negligence of the treating doctor at the opposite party hospital. Even if the disability is not caused by the treatment given by the doctor in the opposite party hospital, fact remains that there was negligence in the treatment of the complainant. Not only the certificate given by doctor G.C.S. Unnithan is sufficient to prove the same but the fact that the complainant had to undergo operation again at the Government General Hospital and also to continue further treatment there, speaks about the incomplete and improper treatment given at the petitioner hospital. In fact, this certificate dated 04.08.1998 given by doctor G.C.S. Unnithan does not clearly indicate whether the disability of 4% has been caused by the original injury or by the treatment given by the opposite party hospital, but it clearly states that had the proper treatment been given at the opposite party hospital, further treatment and sufferings of the complainant may have been prevented. Thus, the deficiency in service on the part of the hospital in giving the treatment to the complainant is proved. Clearly, the petitioner as proprietor of the hospital is liable to compensate the complainant for his sufferings and additional treatment that he had to take at the Government General Hospital and had to undergo operation again. As the disability has not been found to be due to the treatment given by the opposite party hospital, therefore, the compensation of Rs.1,00,000/- awarded by the State Commission on this ground needs to be modified. The complainant is entitled to get compensation for the negligence in treatment given by the doctor Ganesh Babu in the petitioner hospital. In the facts and circumstances of the case, in my view, a compensation of Rs.50,000/- would be reasonable and sufficient.

Based on the above discussion, the revision petition No.705 of 2012 is partly allowed and the order of the State Commission is modified to the extent that the compensation of Rs.50,000/- will be payable to the complainant instead of Rs.1,00,000/- as ordered by the State Commission. This amount will be paid along with 9% p.a. interest from the date of order of the State Commission i.e. from 27.9.2011 till actual realisation. This order will be complied with by the petitioner No.1 as proprietor of the hospital. The cost of Rs.10,000/- as awarded by the State Commission is maintained.