Avtar Singh son of Shri Harnek Singh, resident of VPO Goindwal, Tehsil Raikot, Distt. Ludhiana since deceased now represented through his L.Rs.

(1) Amarjit Kaur, widow,

(2) Kuldeep Kaur,

(3) Sandeep Kaur,

(4) Manpreet Kaur, daughters

(5) Manpreet Kaur, minor son

Of late Avtar Singh (Complainant no.5 through his mother and natural guardian Smt. Amarjit Kaur who has no adverse interest to that of minor) all residents of VPO Goindwal, Tehsil Raikot, Distt. Ludhiana.

(Complainants)

Vs.



1. Sheela Jain Hospital, near Police Station, Raikot, Tehsil Raikot, Distt. Ludhiana through Dr. Vishal Jain.



2. Dr. Vishal Jain, Sheela Jain Hospital, near Police Station Raikot, Tehsil Raikot, Distt. Ludhiana.



3. Dr. Satish Jain, Sheela Jain Hospital, near Police Station, Raikot, Tehsil Raikot, Distt. Ludhiana.

(Opposite parties)

O R D E R


1. This complaint under section 12 of the Consumer Protection Act, 1986, filed by Sh. Avtar Singh, who died during pendency of the complaint and was substituted by his legal heirs, who have maintained the complaint.



2. Late complainant Sh.Avtar Singh was working as a conductor in Punjab Roadways, met with an accident while on duty on 7.4.2003. In the accident his right tibial condyl was fractured. For its treatment got admission on 7.4.2003 in the hospital of opposite party no.1. As advised in that hospital, underwent operation of right leg below the knee. A metallic plate was fixed by giving cut of 11” on his leg and remained admitted there upto 19.4.2003. He was advised not to squat or sit cross-legs and not to bear weight on right leg and continue physiotherapy. He spent Rs. 21,002/- on his treatment . At the time of discharge was assured that he would be normal after three months.
But such assurances proved to be false. Because after expiry of three months his right leg was unable to bear weight. He was unable to walk without help of crutches, so, remained continuously visiting hospital of opposite party as an outdoor patient for about one year for examination and physiotherapy.

Despite such repeated visits, his condition never improved. Thereafter, when his employer forced to join duty, he got himself examined in P.G.I. Chandigarh on 16.3.2004 and after clinical examination, it was opined in PGI that there was mal union of bones, wrong fixing of metallic plate, deformity in right knee, limb length shortened by 2.5 cm. He was advised 2nd operation which was done on 28.4.04 and he remained as an indoor patient from 24.4.04 to 4.5.04 in P.G.I. and spent Rs.14,716/- on treatment. In addition had to spend an amount of Rs. 20000/-on diet, medicines and attendant’s food and stay etc. and also to spent Rs.18,000/- as transportation charges. So, claimed that the opposite parties were negligent in performing his operation, causing him mental, physical pain and agony and sufferance due to negligent services by opposite party no.2 & 3. Amount of compensation and damages were demanded by serving a legal notice dated 18.2.2006 which remained unreplied. Hence, claimed payment of Rs. 73,768/- from opposite party being amount spent on his treatment, Rs.60,000/- as financial loss suffered by him and Rs.5,00,000/- as compensation for mental and physical pain and agony.


3. Opposite parties in their reply averred that the complainant is not a consumer; he is guilty of his own act and conduct, because failed to abide by sincere advice and medical instructions conveyed to him, complainant has wrongly invoked the jurisdiction of this Forum and for seeking huge amount should have gone to Civil Court. They denied any negligence or deficiency in service towards the complainant.

It has been alleged that the complainant is playing in the hands of some vested interest inimical towards the opposite party. It is in these circumstances admitted that the complainant came with fracture problem of right leg, for which he was operated and metallic plate was inserted. Had claimed that he was treated nicely, properly and there was no negligence in providing him treatment. Fracture was of serious complications and operation was conducted with consent of the complainant and his relations. At the time of discharge, he was given specific guidelines and directions, which he disobeyed.
He put weight on his right leg by disobeying medical advice and also against their advice squatted crossed legs. He put to winds all cannons of caution and disobeyed the advise. Risks of surgery were brought to the notice of the complainant and made clear that there was no guarantee as no one can prevent risk involved in the surgery. There is no evidence or material that opposite parties were negligent in conducting the surgery. No loss due to this was suffered by the complainant and he is not entitled to any compensation.


4. Both the parties led their evidence by way of affidavits and documents in support of their respective contentions.


5. We have heard the arguments addressed by the ld. counsel for the parties and have gone through the file and scanned the documents and other material on record.



6. We may make it clear outrightly that during pendency of the complaint, complainant Sh. Avtar Singh died unconnected with surgery of his right leg by the opposite party. In other words, there was no nexus between death and the operation.


7. Consequently, question is whether operation of right leg of the complainant by opposite parties, inserting metallic plate was wrong, contrary to norms and while performing operation opposite parties were negligent, due to which gap remained between bone joints.



8 In medical case like this, where negligence is attributed to the doctor , it is required of the complainant to prove such negligence on the part of the doctor from the record or by examining some other expert. In this behalf, we would prefer to refer two land mark judgments.

The latest authority on the point is Martin F. D’Souza Vs. Mohd. Ishfaq 1 (2009) CPJ 32 (Supreme Court). Hon’ble Apex court in that case has led general principles of medical negligence. In the words of their Lordships “A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgement in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & Others Vs, State of Maharashtra & Others, AIR 1996 SC 2377, or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.”



10. In another case titled as State of Punjab Vs. Shiv Ram & Ors. 2005 (3) Apex Criminal 268 (Supreme Court), their Lordships have held that “A professional may be held liable for negligence on one of the two findings: (i) either he was not possessed of the requisite skill which he professed to have possessed, (2) or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. Further their Lordships concluded that unless negligence is established, primary liability can not be fastened on the medical practitioner.



9. In the instant case, treatment record of the complainant in the opposite party hospital shows that opposite party no.2 Dr. Vishal Jain is MBBS and M.S. ortho. and Dr. Satish Jain-opposite party no.3 is MBBS, DCH . Their such qualification is mentioned in Ex.C.1 and Ex.C.2 record of treatment of Sh. Avtar Singh. In Ex.C.1, at the time of discharge on 19.4.03 advise given was (i) not to squat or sit cross legs; (ii) not to bear weight on right leg ;(iii) continue physiotherapy as explained.



10 Complainant’s allegation is that the bone joint was not fixed properly due to negligence of the opposite parties and suffered for a year despite repeated visits to opposite parties, qua which have filed affidavit Ex.CA of Sh. Avtar Singh. Thereafter, when there was no improvement in his condition, took treatment in PGI, Chandigarh, where was operated again. Doctors after clinical examination opined in P.G.I. that (1) mal union of bone; (ii) wrong fixation of metallic plates; (iii) deformity in right knee; (iv) shortening limb length by 2.5 c.ms.



11. Ex.C.13 is the OPD ticket of Sh. Avtar Singh at PGI dated 16.3.2004. It is recorded that he complaint of pain in right knee and was operated one year back for fracture of right knee. There was deformity in right knee and limb length shortened 2.5 cms. Consequently, was advised operation and took admission in PGI on 24.4.04 and discharged from there on 4.5.04 after operation as is recorded in discharge card Ex.C.14. Consequently, matter for our consideration is whether deformity occurred on account of negligent operation of right knee of the complainant or wrong fixation of plates in opposite party no.1-hospital by opposite parties no.2 & 3. For such purpose, examination of an expert would have been of much help or consequence to decide the matter. But unfortunately, no any expert on such allegations was examined by the complainant. Neither the doctor who treated him in PGI, Chandigarh is examined. We are unable to lay our hands from treatment record of PGI Ex.C.13 and C14 of Sh. Avtar Singh that at the time of operation of Sh. Avtar Singh, by the opposite parties no.2 & 3, metallic plate was wrongly fixed and non union of joint properly was due to negligence of the opposite party. Neither in support therein any other expert has been produced.



12. Before us, in such scenario, contended at the behest of the opposite parties that non union of the joint properly was on account of putting weight on right leg and sit cross legs despite medico advise and due to such reason the defect if any occurred, none of the opposite party can be blamed. As iron cuts iron, this allegation of the complainant that opposite parties were negligent in treating Sh. Avtar Singh could have been fortifide by examining an expert witness. But sorry to say, no one was examined to prove the point. We have nothing to sustain the allegations/claim of the complainant.



13. On behalf of the complainant, our attention was drawn to a case Sri Mohan (Dr.) Vs. Sukhpal Singh, reported in1 (2008) CPJ 458 (NC). In that case also bone united with wrong angle and leg had shortened by one inch. Defence of opposite party was that bone united at right place but bent subsequently was not accepted and opposite party was held deficient in service. With due respect, we venture to record that this authority being on different lines and facts, would have no bearing to the case in hand. Because, it is not pleaded by the opposite parties that the bone had united at right place now the defence is that the defect occurred due to non compliance of the medical instructions by the opposite party.



14. Opposite party-doctors are not alleged not competent to deal with bone surgery or not having experience of Ortho or that were not Orthopedic surgeon. Treatment record of opposite parties produced by the complainant goes to show that one of the treating doctors is M.S. in Ortho surgery. Hence, can not be stated that OP-doctors wrongly undertook the case of the complainant and had no expertise to treat him. In view of these aspects, ratio of the case reported as Dr. Ali Mohammad Shahi and another Vs. Harbans Lal alias Bansi 2000 (1) CLT 183 (Punjab State Consumer Disputes Redressal Commission, Chandigarh is relied by the complainant dealing with due care in deciding to undertook by the doctor would not be applicable. Because OP-doctors had an expertise to treat Sh. Avtar Singh.



15. On behalf of the opposite party, it was argued that this complaint after death of Sh. Avtar Singh is not maintainable and in support referred us to case reported in III (1998) CPJ 533 titled as Mrs. Hemalatha Saptharishi & Ors. Vs. Indian Oil Corporation Ltd. & Ors. (Hon’ble Tamilnadu State Consumer Disputes Redressal Commission, Chennai). In that case, it was held that L.Rs. of deceased consumer can not maintain the complaint under the Consumer Protection Act, 1986.



16. But we feel that authority does not lay correct law. For coming to such conclusion, we are confronted with decision of the Hon’ble Supreme Court in case Mukesh Kumari (minor & Dead ) by LR's. Vs. M Lal Oswal Cancer Treatment and Research Foundation & another reported in 2006 (2) CPC page 667 (SC). Their Lordships held that in case of death of victim due to medical negligence right to sue would survive in the legal heirs and they can claim compensation. Therefore, we hold and conclude that complainants have right to succeed Sh. Avtar Singh and continue with the complainant.



17. Sequel to the above discussions, negligence as alleged on the part of opposite parties is not made out while treating Sh. Avtar Singh. Hence, finding no merit the complaint is dismissed.