Orissa

Kendujhar

CC/15/39

Jangyadatta Panda - Complainant(s)

Versus

1. Debasis Sarangi - Opp.Party(s)

Sri R.N. Mishra, H.S. Mohanty & G.N. Jena

26 Jul 2016

ORDER

IN THE COURT OF THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KENDUJHAR

CONSUMER COMPLAINT CASE NO. 39 OF 2015

     Jangyadatta Panda, aged about 25 years,

    S/o- Late Narayan Panda,

    At/P.O- Sailong, P.S- Ghasipura,

    Dist- Keonjhar……………………………….……………………….Complainant

                       Vrs.

1. Debasis Sarangi,

    S/o- Kasinath Sarangi,

    Owner of Kasinath Health Care,

    Regd. No. 1587/2013,

    At/P.O- Sailing, P.S- Ghasipura,

    Dist- Keonjhar, Pin- 758015

2. Dr. Mruntunjay Pattnaik,

    S/O- Hadibandhu Pattnaik,

    At/P.O- Barakpur, P.S- Soro,

    Pin- 756045, Dist- Balesore

3. Arete Care, A unit of Arete Care Pvt. Ltd.

    At- Girls High School Road, Amalapada,

    Angul, Regd. No. 1599/2013……………………..………………Op. Parties

 

PRESENT- SRI AKSHAYA KUMAR PUROHIT, PRESIDENT

                     SRI S.C. SAHOO, MEMBER

Advocate for Complainant- Sri R.N. Mishra, H.S. Mohanty & G.N. Jena

Advocate for OP1 & OP2- Sri S.K. Bhuyan & Associates

_________________________________________________________________________________________

Date of Hearing - 01.06.2016                                                                                        Date of Order - 26.07.2016

Sri A.K. Purohit, President:                                            

1.   The complainant has filed this case alleging medical negligence. The case of the complainant is that, for the pain in the lower part of his body the complainant consulted the O.P.No.1 who is having a health care center, wherein on examination both the O.P.No.1 &2 opined that the pain is due to Hernia and advised the complainant for a hernia operation. According to the said advice the complainant admitted in the O.P’s health care center and paid Rs.12,500/- towards operation charges on dated 16.8.2014 and on the same date hernia operation was performed by the O.P.No.2.  After few days of discharge from the health care center the complainant felt pain in the testicle for which he again consulted the treating physician who assured him that the pain will be automatically stopped after healing of operation sour. But the pain is continued and finding no other ways the complainant consulted the O.P.No.3, who after examination and on the basis of ultra sonography report of abdomen/pelvis opined that, his left side testis was removed in the earlier operation and some fibrosis were seen in the left side for which another operation is required to save his life. Accordingly the complainant treated with the O.P.No.3 and hence sustain a financial loss of Rs.50,000/-. The complainant alleges that, due to the negligent act of the O.P.No.1 & 2 he has lost a vital part of his body and suffered entire life. Hence the complaint.

2.   The O.P.No.1 & 2 have contested the case by filing their written version jointly. Although notice has been served on the O.P.No.3, he did not choose to appear before the Forum and hence he was set ex-parte vide order dated 11.3.2016.

3.    According to the O.P.No.1 & 2, the complainant being a co-worker of the Health care center was treated free of cost. The O.P.No.2 being a retired, expert and experienced surgery specialist have performed the operation by using his skill and there is no negligence in the hernia operation of the complainant. Further the O.P.No.1 & 2 have averred that, if there is any removal of testis then immediately the problem will occur and complain after 8 months of hernia operation cannot be said to be the faulty operation of the O.P.No.2. Even if there is any loss of testis of the complainant, then it is due to other reasons and not due to the hernia operation. The O.Ps. claims for dismissal of the case.

4.   Heard both the parties. Perused the documentary evidence filed by the complainant. The O.Ps. have not produce any evidence in support of their case. The learned advocate for the complainant submitted that, due to the faulty operation of the O.P.No.2 the complainant lost a vital organ of his body, which is evident from the report of the O.P.No.3 and hence the complainant is entitled to compensation. On the other hand the learned advocate for the O.P.No.1 & 2 submitted that, the loss of testis of the complainant is not due to the hernia operation and the O.P.No.2 being a skilled and experienced surgeon has acted fairly by adopting standard procedure, and hence there is no negligence on his part.

5.      It is an admitted fact that, the complainant was treated in the health care center of O.P.No.1 wherein the O.P.No.2 has performed the hernia operation. It is also evident from the discharge summary of O.P.No.3 that the complain of pain of the complainant is continuing for which again he was treated with the O.P.No.3. Perused the discharge certificate issued by the health care center of O.P.No.1 & 2. These O.Ps. have treated the complainant with herniorraphy and vericotomy which shows that the O.P.No.2 has done the surgical repair of hernia and surgical removal of varicose veins. It is evident from the report of the O.P.No.3 that, after this surgical act the complainant was complaining of pain for which he was admitted in the Arete Care center of O.P.No.3, wherein the O.P.No3 has done orchiectomy which is a surgical procedure for testis. It is seen from the Doctor’s progress record of O.P.No.3 that, on examination the O.P.No.3 found that no cord structure or testis seen with the complainant. Therefore it is believed that the complainant has lost his testis due to the surgical act done by the O.P.No.2 for hernia repair.

6.  The O.Ps. have not produce the details of surgical procedure to show that, the O.P. No. 2 has adopted the standard procedure of surgery as approved by the Medical Text. Due to the negligent act of the O.P.No2 the complainant lost a vital organ of his body. In this context it is relevant to quote para 49(1) of the decision of the Hon’ble Supreme Court reported in 2005 CPR 70 (SC), Jacob Mathew Vrs. State of Punjab & another, “Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three; ‘duty’, ‘breach’ and resulting damage.”

7.    With the aforesaid discussion and applying the ratio of the aforesaid decision of the Hon’ble Supreme Court it is concluded that, the O.P.No.1 & 2 have acted negligently in performing the hernia operation for which the complainant lost his testis. Hence the complainant is entitled to compensation.

Hence order:-

         The O.P.No.1 & 2 are directed to pay Rs.1,00,000/-(one lakh) jointly and severally to the complainant towards compensation and to pay Rs.5,000/-(five thousands) towards cost to the complainant within one month from the date of receipt of this order, failing which the entire amount shall carry an interest @ 9% P.A till final realization.

           Accordingly the case of the complainant is allowed against O.P.No.1 & 2 and dismissed against O.P.No.3.   

    

            I agree                                 

    (Sri S.C. Sahoo)                                                                                                               (Sri A.K. Purohit)

           Member                                                                                                                            President                                    

DCDRF, KEONJHAR                                                                                                    DCDRF, KEONJHAR

 

                                                                                      Dictated & Corrected by me

                                                                                             (Sri A.K. Purohit)                                                                                                           

                                                                               PRESIDENT, DCDRF KEONJHAR