S.S. KODIMANI vs SHAKILA SADANANDAM

THIS appeal is filed against the order of State Consumer Disputes Redressal Commission, Chennai dated 31.3.2005 directing the opposite party No. 1 Dr. (Mrs.) S.S. Kodimani to pay a sum of Rs. 2.5 lakh as compensation to the complainant towards pain and suffering, deficiency in service and reimbursement of expenses on medication and treatment along with the cost of Rs. 2,000. The complaint against the opposite parties Dr. Mehta''s Nursing Home Pvt. Ltd., opposite party No. 2 and Dr. Mrs. Usha Shukla, opposite party No. 3 was dismissed without costs.

THE case of the complainant before the State Commission in short was as there was postponement of her menstrual period the complainant had approached opposite party (hereinafter referred to as O.P.) No. 1 and the urine test confirmed the pregnancy. Her husband and herself approached O.P. No. 1 for medical termination of pregnancy (hereinafter referred to as MTP). THE O.P. prescribed "Cylenov-E" and requested the patient to wait till 29.10.1998. Subsequently, she prescribed "Dependal-M". She was admitted on 30.10.1998 and on 31.10.1998 MTP was performed. THE patient was reviewed on 6.11.1998 in the meanwhile she was having bleeding off-and-on. THE bleeding did not stop even after taking medicine prescribed by the O.P. 1. On 21.11.1998 the complainant appeared for re-checkup before the OP 1 and was diagnosed as DUB (Dysfunctional Uterine Bleeding) and prescribed "Kerutine-C" and 40 tablets of "Regstrone", the latter results in clotting of blood in the uterus. THE first opposite party came and saw the complainant 10 hrs. after admission, and again diagnosed the condition as DUB and advised her to get discharged on the next day. But on 27.11.1998 there was again bleeding. THE complainant developed chest pain, stomach pain and a reeling sensation in the head. Her pulse went down. THE condition became bad and she was taken to Padma Clinic and Nursing Home, where a scan was taken, which showed that it was an incomplete abortion and the doctor there performed surgery to remove the remnants and she was discharged next day. THErefore, according to the complainant, O.P. 1 was negligent in prescribing wrong medicines for 39 days and wrongly diagnosed the cause as DUB and hence she claimed a compensation of Rs. 7 lakh. We heard learned Senior Counsel Mr. Ketan Sharma for the appellant and Mr. Santosh Paul for the respondent.

This case was decided by the State Commission on the basis of the complaint filed by the complainant, whereas the complainant has not filed any affidavit to support her contentions. She has also not filed any affidavit supporting various documents filed by her. The written version of the opposite party Dr. Kodimani, who is appellant before us was not taken on record for the reasons recorded in detail by the State Commission in the first paragraph of its order. Sections 13(2)(a) and 13(2)(b) of the Consumer Protection Act, 1986 read as follows: (2) The District Forum shall, if the (complaints admitted) by it under Section 12 relates to goods in respect of which the procedure specified in Sub-section (1) cannot be followed, or if the complaint relates to any services- (a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum. (b) where the opposite party, on receipt of a copy of the complaint, referred to him under Clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dipsute,- (i) on the basis of evidene brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or (ii) (ex parte on the basis of evidence) brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum.

THE above provision applies mutatis mutandis to the State Commission. As the complaint was decided without any affidavit to support the allegations of medical negligence, we deem it fit to remand the case back to the State Commission for fresh disposal, according to law, by giving opportunity to both the parties to lead evidence to maintain equity.

ACCORDING the appeal is accepted and the impugned order is set aside and case remanded to the State Commission and complaint being decided afresh on merit in the light of the observation made in the preceding paragraph. Written version filed by O.P. No. 1 will be considered by the State Commission. It was brought to our notice on 9th September, 2005 by the learned Counsel for the appellant that 50% of the amount has already been deposited with the State Commission. Disbursement of this amount will be subject to the final decision of the State Commission. The parties are directed to appear before the State Commission on 4.10.2007 for directions. Appeal allowed.