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Judgment
The present revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 whereby the petitioner herein seeks to challenge the order dated 19.7.2011 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (hereinafter referred to as "the State Commission") in First Appeal No. 244 of 2006. By way of the impugned order, the order dated 1.12.2005 passed by the Consumer Dispute Redressal Forum, Ferozepur (hereinafter referred to as "District Forum") dismissing the C.C. No. 496 of 2005 has been set aside. 2. The brief facts of the case are that the complainant No. 2 and his wife, complainant No. 1, approached the opposite parties for undergoing tubectomy operation on 2.6.2005. OP No. 2 performed the surgery by way of laparoscopy. Despite assurance from the opposite parties that there would be no pain/problem after the surgery, the complainant No. 1 started to feel pain in her abdomen. OP No. 2 assured complainant No. 1 that there would be relief from pain after some days and he also prescribed some medicines and suggested follow-up on 12.6.2005 and 22.6.2005. It is the case of the complainant that although the complainant No. 1 visited the opposite parties on 12.6.2005 and 18.6.2005, there was no relief in pain and fever. Consequently, on 19.6.2005, the complainant No. 1 was forced to approach Ashirwad Hospital, Sri. Ganganagar. After undergoing series of tests and examinations, the complainant No. 1 was diagnosed to be having peritoneal fluid on account of negligent surgery conducted by opposite party No. 2. Hence, the complainant No. 1 underwent another surgery on 21.6.2005. The complainant also remained in the said hospital under observation from 19.6.2005 to 6.7.2005. Aggrieved by the deficient service rendered by the opposite parties, the complainants approached the District Forum and filed the complaint. 3. The District Forum vide order dated 1.12.2005 dismissed the complaint on the ground that the complainants failed to produce any evidence to prove that the complications that developed subsequently were on account of the tubectomy surgery performed by the opposite party No. 2 on 2.6.20005. The District Forum also dismissed the allegation of the complainants that the opposite parties were not competent to perform the said surgery and held that the opposite party No. 2, being MS in Surgery,was qualified to perform such surgeries. 4. Aggrieved by the said order of the District Forum, the complainants preferred an appeal before the State Commission. The State Commission wide order dated 19.7.2011 allowing the appeal, ordered as follows: "21. Accordingly, the appeal filed by the appellants is accepted and the order dated 1.12.2005 under appeal passed by the majority view of the District Forum dated 1.12.2005, being illegal, is set aside. Consequently, the complaint filed by the appellants/complainants is accepted against respondents Nos. 1 and 2 only and respondent Nos. 1 and 2 are directed to pay Rs. 1,00,000 (Rupees one lac) as compensation for medical negligence on the part of respondent No. 2 and Rs. 1,00,000 (Rupees one lac) as medical expenses, attending charges and other misc. expenses including the cost of litigation, to the appellants/complainants within two months from the receipt of copy of the order". 5. Hence, the present Revision Petition. 6. Heard the parties and perused the records. 7. The learned Counsel for the petitioner/opposite party Nos. 1 & 2 stated that there is no conclusive proof to prove that the complications that developed subsequently were on account of the tubectomy surgery performed on the respondent No. 1 by the opposite party No. 2. The Counsel also argued that the respondent No. 1 was directed to come for the follow-up scheduled for 12.6.2005 and 22.6.2005 and was advised medicines including antibiotics, but respondent No. 1 failed to adhere to these mandatory directions of the petitioners. 8. The Counsel submitted that the District Forum has rightly taken note of the medical literature, "A.P.I. Text Book of medicine published by Association of Physicians of India, Bombay, Fifth Edition", which reads as follows : "Secondary complications occur whenever the inflammatory process of the diverticular perforation cannot be controlled locally. The complications include intra-abdominal abscess, fistula, bowl obstructions and generalized peritonitis. Intra-abdominal abscess can develop adjacent to the bowel in the pelvis, under the diaphragm or else to direct extension and rapture of an abscess into surrounding structures. Mild large bowel obstructions may occur because of muscular thickening in the sigmoid colon. This lumen may be reduced as a result of per diverticulitis. Performation and generalized peritonitis is an infrequent but very serious complication". 9. The learned Counsel for the petitioner further submitted that if there is any liability that has to be borne by them on account of deficient service rendered to the respondents, it must be borne by the respondent No. 3, New India Assurance Company Limited, Ferozepur, as the petitioners were duly insured by the respondent No. 3 vide cover note dated 10.5.2005. The Counsel submitted that the State Commission wrongly exonerated respondent No. 3 and imposed the entire liability on the petitioners. 10. The learned Counsel for the respondent Nos. 1 and 2 submitted that after undergoing the tubectomy surgery, respondent No. 1 developed severe pain in tho abdomen region and though she approached the petitioners on 12.6.2005 and 18.6.2005, they assured that the pain would subside after few days and prescribed some medicines, but the respondent No. 1 failed to find relief. The Counsel stated that the respondent No. 1 was forced to approach another hospital, Ashirwad Hospital, Sri. Ganganagar where she was admitted on 19.6.2005 and it was found that there was fluid in the peritoneal on account of negligent conduct of the tubectomy by the petitioners on 2.6.2005. The Counsel for the respondents submitted that the respondent No. 1 was compelled to undergo another surgery under the auspices of Ashirwad Hospital on 21.6.2005, thereby causing the respondent Nos. 1 and 2 financial loss, harassment and physical pain apart from jeopardizing the life of respondent No. 1. It was also argued by the learned Counsel that no prescription/card was given to the complainants even when the tubectomy operation was performed or afterwards. Only a certificate of operation has been given by the OPs on demand by the complainants. The visit of complainants on 12.6.2005 has been denied by the OPs, whereas it is a fact that complainants visited on 12th and 18th June, 2005. Had they given the prescription/card, all these aspects and the medicines prescribed etc. would have been recorded on that prescription/card. Thus, the OPs indulged in unfair trade practise so that they could not be caught for their wrong doings. 11. The Counsel for respondent No. 3 submitted that the State Commission critically examined the records and rightly exonerated respondent No. 3 from all liabilities in connection with the said case. The Counsel further submitted that a dispute between two opposite parties cannot be settled in a consumer complaint filed by the complainant under the provisions of the Consumer Protection Act, 1986. 12. We have carefully considered the arguments advanced by the parties and have examined he record. It is an admitted fact that tubectomy operation of complainant No. 1 was performed on 2.6.2005 by the OP-2 in the OP-1 hospital. The complainants in their complaint have clearly stated that no prescription was issued to them by the OPs and that they visited the OPs for follow-up on 12.6.2005 and 18.6.2005. Paras 4 and 5 of the complaint in this regard are , reproduced below: "4. That before conducting the surgery Dr. D.S. Kinra had told the complainants that there would be no pain/problem after the surgery. But complainant No. 1 was feeling pain in her abdomen and feel fever, so she made a complaint to Dr. Kinra but he had assured that there would be relief after some days. However, Dr. Kinra had provided some medicines at his own and suggested to follow up for further check up on 12th June, 2005 and 22nd June, 2005. Even the respondents have not issued any prescription slips for medicines on that day by saying that this is the record of hospital and can''t be provided. However, at the request of complainant No. 2 the respondent No. 2 issued a certificate. 5. That the complainant No. 1 was taking the medicines as advised but there was no relief in pain. Rather, it was becoming more severe by passage of time. Even the complainant No. 1 has visited the respondent on 12th June, 2005 and 18th June, 2005. But the respondent No. 2 couldn''t provide any relief in pain and fever." 13. We have also examined the written statement filed by the OPs. The reply of OPs of para No. 4 and 5 of the complaint are as under : "4. That para No. 4 is incorrect and hence denied. The opposite parties have gave never assurance as alleged in this para, however, a normal course, such like operations are successful. In fact, after the operation was performed successfully the complainant No. 1 was asked to come for check up on 12.6.2005 and 22.6.2005 and further she was advised for complete rest for 10 days and to take anti-biotics strictly so as to prevent occurrence of any infection. Surprisingly, the complainant No. 1 did not come for .check up as advised nor she contacted tire opposite parties at any time thereafter. It is wrong that the complainant having pain in abdomen or that she was having fever or that she made any complaint to the opposite party. Since, the operation was successful, the complainant went away happily and never returned thereafter. The writing as alleged in this para was given by the opposite party. 5. That para No. 5 is wrong. It is wrong that the complainant was taking medicine as advised or that there was no relief in pain or that it become severe by passage of time. It is wrong that the complainant visited the hospital of the opposite party on 12.6.2005 or 18.6.2005. The opposite parties unaware as to what happened after 2.6.2005 because the complainant No. 1 never came for check up or with any kind of problem or complaint with regard to the operation." 14. From the above, it is clear that the OPs have not denied that no prescription was issued to the complainants. This is an issue which is very important from the point of view of the medical ethics as well as from the point of view of the patient. Further, patient has a right to know what treatment has been advised/given to the patient and what medicines have been prescribed for further treatment or follow-up. Clearly, the OPs have been deficient in this regard. This is also supported by the fact that in the written reply, it has only been said that the patient was asked to come on 12.6.2005 and 22.6.2005 and medicines were prescribed. Surprisingly, to support their assertion the OPs have also not filed any medical record for the operation/treatment of the complainant No. 1. 15. From the above analysis of the complaint and the written statement, it is also brought out that the complainants are claiming to have visited the hospital on 12.6.2005 and 18.6.2005 whereas the OPs have clearly denied it. This is one fact which could have been verified from the record of the hospital or from the prescription/card, had it had been provided to the complainants. Neither the complainants have filed my proof of visit to the hospital on 12th and 18th June, 2005 nor the OPs have produced my evidence that the complainants have not visited them for any follow up. Normally, after a surgery, patients do visit the concerned hospital/surgeon for further follow-up. It seems natural that the complainants may have visited the OPs on 12th and 18th June, 2005 but with no relief. From the angle of evidence, this fact remains inconclusive, but, this is also because no prescription/card was issued to the complainants by the OPs. 16. We also note that OP-1/petitioner No. 1 herein/respondent No. 1 in State Commission, was proceeded ex parte before the State Commission. The State Commission also observed in the impugned order that neither respondent No. 2 (OP-2/Petitioner No. 2 herein) nor anybody else on his behalf appeared at the time of arguments and only the learned Counsel for respondent No. 3/Insurance Company was heard. Thus, OP-land OP-2 deliberately avoided the proceedings before the State Commission. However, they were heard before the District Forum. So they do not have any claim for their inaction before the State Commission. It was vehemently argued by the learned Counsel for the petitioners that there was no medical negligence and tubectomy operation was performed successfully. The subsequent trouble might have arisen due to many other reasons and there was no proof to suggest that it developed due to any negligence during the tubectomy operation. The District Forum has relied upon the literature "A.P.I. Text Book of medicine published by Association of Physicians of India, Bombay, Fifth Edition". In this regard, the District Forum have also recorded the following : "9. The complainant has neither produced any medical expert evidence nor any literature so as to show that the above said fluid was due to faulty tubectomy operation. He was however pleaded in his complaint that Dr. Harshvardhan and Dr. (Mrs.) Inderjeet Sandhu of Ashirwad Hospital Sri Ganganagar had found with the help of ultrasound and lab tests that fluid in the peritoneal was because of previous operation negligently conducted by the opposite party No. 2. None of the Doctors of Ashirwad Hospital Sri Gangangar has filed any affidavit in support of the above said allegations of the complainant. Therefore the above said allegations of the complainant are imaginary. Thus the complainant has not produced any evidence at all in support of above said allegations". 17. So far as the question of negligence in tubectomy operation is concerned, no expert opinion seems to have been filed by the complainants. Though the complainant has averred in his complaint that doctor in Ashirwad hospital found fluid in peritoneal because of previous negligent surgery conducted by respondent No. 2. Record of treatment at Ashirwad hospital filed by the complainant do not show any such recording by the doctors of Ashirwad hospital. It only mentions the presence of fluid in the peritoneal. There is no affidavit filed by any doctor of the Ashirwad hospital to confirm that the subsequent trouble was due to the negligence in tubectomy operation done by the OP-2. Moreover, the follow-up by the complainants with the OPs could also not be confirmed as no proof of evidence has been filed by the complainant and the OPs have not issued any card so that visits could have been recorded on that card. In this light, medical negligence in the tubectomy operation is not directly proved. However, negligence in not issuing proper prescription/card showing the date of admission, operation details, future medicines to be taken in future and guidance for follow up etc. is clearly proved on the part of the OPs. Thus, OPs are found deficient in service in this regard for which complainant is entitled to compensation. 18. On the basis of above analysis, we are of the opinion that the compensation of Rs. 1 lakh awarded for medical negligence and Rs. 1 lakh for expenditure of subsequent treatment and medicine etc. allowed by the State Commission is on the higher side. For the deficiency in not issuing the proper prescription slip/card and for not facilitating proper follow up, a compensation of Rs. 75,000 would be reasonable and sufficient as the same has been claimed as the expenses for subsequent treatment and medicines in the complaint. Apart from this, an amount of Rs. 10,000 is awarded as cost of litigation. 19. Based on the above discussion, the revision petition is partly allowed and Petitioners/OPs are directed to pay compensation of Rs. 75,000 (Rupees seventy five thousand only) along with interest @ 7% p.a. from the date of the order of the State Commission i.e. 19.7.2011. The OPs are also directed to pay Rs. 10,000 (Ten Thousand only) to the complainant as cost of litigation. This order be complied within 45 days. The order of the State Commission stands modified accordingly. So far as the question of insurance claim by the OPs from respondent No. 3 is concerned, the same cannot be decided in these proceedings and the OPs may separately approach the respondent No. 3 for the same and file complaint later separately if Ops so desire. Revision Petition partly allowed.