Gurmukh Singh vs RAJIV GUPTA

THIS complaint was initially instituted in the Punjab State Consumer Disputes Redressal Commission, Chandigarh and subsequently it was transferred to this Commission vide order of the Hon''ble National Commission.

BRIEFLY stated the facts are that Sh. Sarwan Kumar son of the complainant, aged about 12 years and student of 5th class was injured when a wood fell on his hand while playing on 27.1.2002. In fact he received scratches on three fingers of his right hand. It was next averred that Sarwan Kumar was taken to the clinic of respondent No. 1 at about 6.00 p.m. on 27.1.2002 and he was handed over to him by respondent No. 1 at about 9.00 p.m., after he made payment of Rs. 4,300. However, bleeding was oozing from the fingers of Sarwan Kumar and on inquiry, the doctor told that Sarwan Kumar had been operated upon and his two fingers from the top of first joint and third index finger had been cut above the 2nd joint . It had been done by respondent No. 1 negligently as there was no occasion to cut and remove the fingers as stated above especially when there were minor scratches.

It was further averred that the complainant protested to respondent No. 1 and on it, respondent No. 1 got annoyed and asked him to leave the nursing home and then took his son to the clinic of respondent No. 2 on the next day who also did not give any satisfactory reply and thereafter his son got treatment from Civil Government Dispensary, Dholbaha.

ALLEGING deficiency in service, complainant has claimed Rs. 10.00 lacs as compensation from both the respondents as both of them had connived together. With these allegations, the complaint was filed on 8.5.2002.

RESPONDENT Nos. 1 and 2 contested the complaint and filed separate written replies. RESPONDENT No.1 in its reply stated that he is a qualified doctor possessing the degree of M.S. (Surgical Specialist) and had been running a well established clinic since 1986. He next stated that the cause of injury on right hand of Sarwan Kumar was due to fall of heavy wood due to which he received crush injury on three fingers and in fact three fingers of right hand were badly crushed i.e. index, middle and ring finger and after examination of fingers, he was of the opinion that debridement of the bone was required as 1/3rd part of index finger and middle finger and more than 1/3rd part of ring finger were totally crushed and after obtaining consent of the complainant in order to save the life of his son, the treatment was given and the fingers were cut. He next stated that the complainant had made only part payment of Rs. 350 and the balance of Rs. 2,000 remained due which he promised to pay later on. Respondent No. 2 also filed reply and denied the allegations. He stated that he was running clinic in the village Janauri and he had not given treatment to the son of complainant. He further stated that in fact he had given first aid to the son of complainant and referred him to the nearest Government Hospital i.e. Town Hariana" which is 9 kms. distance from village Janauri. He further stated that complainant had not suffered any loss; rather due to his immediate treatment, life of the son of complainant was saved, therefore, he prayed that the complaint should be dismissed. Parties adduced their evidence by way of affidavits.

THE allegation of complainant is that due to fall of wood on the right hand of his son Sarwan Kumar, aged about 12 years, he had suffered scratches and respondent No. 1 Dr. Rajiv Gupta had negligently removed the tips of three fingers. A perusal of copy of plaint filed by Dr. Rajiv Gupta against Sarwan Kumar and Sh. Gurmukh Singh shows that he had filed a suit for recovery of Rs. 2,110 i.e. Rs. 2,000 as principal amount and Rs. 110 as interest regarding the balance of his fee. He mentioned that on 27.1.2002,Gurmukh Singh brought his son to his clinic with serious injury to three fingers of right hand of his son Sarwan Kumar and the fingers were badly crushed and the injury was the result of fall of heavy log of wood on the hand of Sarwan Kumar. He next stated that Gurmukh Singh and Sarwan Kumar reached in his clinic at about 6.00 p.m. and immediately treatment was given after obtaining consent of Gurmukh Singh and he paid only Rs. 350 and had promised to pay Rs. 2000 on 29.1.2002 which he did not pay. A perusal of photocopy of the written reply filed by Gurmukh Singh on behalf of both defendants shows that he had admitted para-2 of the plaint on merits as correct . In para-2, Dr. Rajiv Gupta had stated that on 27.1.2002, Gurmukh Singh had brought his son to the nursing home with serious injury to three fingers of his right hand and in fact fingers were badly crushed and further the injury was the result of fall of heavy log of wood on the hand of Sarwan Kumar. THErefore, Gurmukh Singh had made a false version in the complaint that due to fall of wood on the right hand of Sarwan Kumar he had received only scratches to three fingers of his right hand.

THE statement of Gurmukh Singh was also recorded as DW-1, where he admitted that he was running a flour mill and saw mill and the injury was caused in the premises of saw mill and with the wooden log of saw mill as his son was playing with other children in those premises. He had also admitted in his statement that nails of all the three fingers were badly damaged and almost detached and one middle finger had a crush injury, the injury was of the nature that only skin was detached. He also admitted that Dr. Rajiv Gupta had obtained his consent before starting treatment of his son. Dr. Rajiv Gupta is MBBS, MS(Surgical specialist). He had been running his clinic since, 1986.The injury statement prepared by the doctor at the time of examination, reads as under: (i) Crush injury of all tissues (skin and soft tissue) leading on to devitalisation of said tissue above the level of distal inter phalangeal joint of right index finger and losses bony fragments of the same. (ii) Crush injury of all tissues (skin and soft tissue)leading on to devitalisation of said tissue above the level of distal inter phalangeal joint of right middle finger and loose bony fragment of distal phalanx and the head of the middle phalanx was exposed. (iii) Crush injury of all tissues (skin and soft tissue) leading on to devitalisation of said tissue upto the distal 1/3 of middle phalanx right hand ring finger along with loose bony fragments.

Therefore, a perusal of the injury statement shows that all three fingers were badly crushed and there was no alternative for the doctor except to cut the same as the same could not have been saved. The distal phalanx of right index and middle finger and distal phalanx of right ring finger upto the level of distal 1/3 of middle phalanx finger had to be cut. There is no evidence that the doctor has not taken due care and caution. The complainant has not produced any expert evidence to prove that respondent No.1 had cut fingers negligently with a view to earn money. The complainant has not come forward with any evidence to show that the fingers of his son could have been saved. Respondent No.1 after examining the injury with due care and caution to the best of his judgment, came to the conclusion that debridement of bones was required and thereafter, explaining to complainant, he cut the fingers as stated above, in order to save the right hand of his son and also to save his life. Even the complainant had not made full payment and respondent had to file suit for recovery which was decreed.

THEREFORE, in view of the discussion above, we hold that it is not proved on file that respondent No. 1 had not acted with due care and caution and cut three fingers of the son of complainant negligently. Respondent No. 2 was not at all negligent as he gave only first aid to the son of complainant and referred him to the Government Hospital. Accordingly the complaint is dismissed but the parties are left to bear their own costs. Copies of this order be communicated to the parties, free of charge. Complaint dismissed.