Per Hon’ble DR. S.K. Kakade, Presiding Member. 

1)      This appeal is filed by Dr.Vikas Jain against the order passed by the District Consumer Commission Gondia in Consumer Complaint No.05/2012, in which the appellant Dr.Kotwal was not a party. Aggrieved by the order passed by the learned District Consumer Commission Gondia in which the Forum ordered to the present appellant to pay Rs.1,00,000/- as compensation for medical negligence, the present appellant who is surgeon approached to this Commission in this appeal.

2)   Brief facts for deciding this appeal are as follows :-

       Respondent/original complainant Ku.Tarranuum Parveer d/o Yousuf Ali approached to Dr.Vikas Jain, Director of B.J.Hospital and Research Institute the Laparoscopy Surgeon, for complaints of abdominal pain. Before consulting Dr.Jain, complainant was investigated for abdominal pain at Shukla Nursing Home of Balaghat. As per the abdominal sonography that was performed in Shukla Nursing Home, complainant was suffering from having Tubo Ovarion Mass, as cause of her abdominal pain. Dr.Vikas Jain performed laparoscopy operation on the complainant on 20/03/2010 and Dr.Nitin Kotwal was the Anesthesiologist who gave spinal anaesthesia to the patient. After discharge from the hospital on 23/03/2010 Ku.Tarranuum Parveer d/o Yousuf Ali  started getting severe pain in right lower limb as well as she was unable to walk due to weekness in lower extremity. She then original complainant consulted Dr.Fadnaik, Neuro Surgeon  from Government Medical Collage Nagpur,  M.R.I. was performed, that showed that patient was suffering from Syringo Myelia. Since the complainant came to know that she was suffering from Semi Paralytic condition that was the outcome of this spinal anaesthesia which was given to her during the laparoscopy surgery performed by Dr.Vikas Jain, she filed complaint before the District Consumer Commission Gondia against the B.J.Hospital and Reserch Institute in Gondia and its Director Dr.Vikas Jain. O.Ps. opposed this complaint by filing written statement and affidavit of Dr.Nitin Kotwal who was the Anaesthesiologist. After going through the documents submitted by both the parties and hearing the complaint finally, learned District Consumer Commission Gondia pleased to allow the complaint and directed O.Ps. to pay compensation of Rs.1,00,000/- by each of them, the O.P.No.2 Vikas Jain and the Anaesthesiologist of Dr.Nitin Kotwal. Both these Doctors preferred separate appeals against the same order passed by the learned District Consumer Commission Gondia. Since both these appeals are arising out of one and same order, the appeals were heard together and common order is being passed in both appeals.

3)      Learned advocate for the appellant in appeal No.174/2015 invited the attention of the Commission to the expert Government Committee Report that was filed on record issued by Government Medical Collage Nagpur (reference page No.129). According to this report there was no negligence by the treating doctors. This report was dated 28/07/2012. Learned advocate for the appellant further submitted that the learned District Consumer Commission Gondia has wrongly in interpreted this report though actually this report is infavour of the treating doctors. There was no case which was made out by the original complainant that there was any fault in surgery/operation performed. According to learned advocate, the learned District Consumer Commission Gondia erred in concluding that instead of spinal anaesthesia, general anaesthesia should have been given for avoiding complications during operation. Learned advocate further submitted that (with reference to page No.123) the report of M.R.I. was consistent with Syrinx (Syringo-Myelia) and hence the complainant/patient was originally suffering from this rare condition of spinal cord which Anaesthesiologist Dr.Kotwal was not aware. It was only detected after the M.R.I. investigation. Further referring (page No.112) the anesthesia notes written by Anaesthesiologist  Dr.Kotwal, learned advocate invited the attention of the Commission that the appellant/Dr.Kotwal while taking history of the patient already noted that the patient had a history of back pains for which she was receiving treatment from various doctors.

4)      In support of his contentions learned advocate referred to certain rulings as follows :-

1)   M.C.Katare…..V/s…….Bombay Hospital and Medical Research Centre and Ors, delivered in original petitioner No.167 of 1995 on 18/12/2009 by Hon’ble National Commission.

2)    Martian F.D’souza…….V/s……Mohd.Ishfaq, reported in (2009) 3 SCC, Supreme Court Cases 1.

3)    Kusum Sharma and Ors……V/s….Batra Hospital and Medical Research Centre and Ors,  Decided by Hon’ble Supreme Court of India, in Civil Appeal No.1385 of 2001 on 10/02/2010.

4)   Jacob Mathew…….V/s…….State of Punjab and Another, reported in (2005) 6 SCC.

5)   C.P.Sreekumar (Dr.)MS(Ortho)…….V/s……S.Ramanujam, reported in (2009) 7 Supreme Court Cases 130.

          Learned advocate also referred to the certificate given by Dr.Dinesh Kabra who is Neurologist from SIMS Hospital Nagpur, Dt.17/03/2012 in which the expert doctor has opined on the clinical condition of the original complainant after the laparoscopic operation in relation with the M.R.I. findings. The expert Dr. opined that the condition from which the original complainant/patient is suffering is consistent with syrinx, the patient developed this known and rare complication after spinal anesthesia. In view of the submissions and references the learned advocate prayed for setting aside the judgment and order passed by learned District Consumer Commission Gondia.

5)      The original complainant and respondent in this appeal was absent and nobody was available to represent her. Learned advocate for respondent No.2 represented the hospital as well as the surgeon. Further learned advocate for appellant/Dr.Kotwal submitted that Dr.Kotwal was not a party to the original complaint. Subsequently the order was passed against him and hence he has filed separate appeal.

6)      On perusal of the order passed by the learned District Consumer Commission Gondia he specifically mentioned that Dr.Kotwal is not party to the complainant but when O.P./surgeon Dr.Vikas Jain in his written statement gave this information that the Dr.Kotwal was Anaesthesiologist who gave anaesthesia to the patient, the Commission gave him opportunity to defend. Accordingly Dr.Kotwal had submitted documents and necessary interrogatories.

7)      After perusal of the order passed by the learned District Consumer Commission Gondia it is noted that the Commission has passed the order against the person who is not formal party to the complaint i.e. Dr.Nitin Kotwal was never formal party and though  opportunity was given to Dr.Nitin Kotwal, learned District Consumer Commission Gondia did not ask the complainant to add Dr. Nitin Kotwal as formal and necessary party. Thus in our view, the judgment and order suffers from the legal error. According to Order 1 Rule 3 of the Civil Procedure Code 1908 the Court has authority to add any person who may be necessary to the suit/complaint. Hence this Commission is of the opinion that Dr.Nitin Kotwal need to be added as a formal and necessary party to the complaint who should be given all opportunities to defend himself. Though the appellants have not specifically prayed for remanding the matter back, the Commission thinks it proper that the legal error caused while passing the judgment and order by learned District Consumer Commission Gondia need to be corrected and hence it is proper to remand back this matter with directions to add necessary party and then to decide expeditiously this complaint afresh in accordance with law. We pass the following order.

// ORDER //

i)       Appeal is partly allowed.

ii)    The Order passed by the learned District Consumer Commission Gondia is hereby set aside.

iii) Complaint No.05/2012 is remanded back to the learned District Consumer Commission, Gondia with the directions that Dr.Nitin Korwal to be added as necessary party to the complaint and the complaint to be heard afresh by giving complete opportunity to him to defend himself.

iv)   The learned District Consumer Commission, Gondia to hear this complaint expeditiously in time bound manner within a period of three months from the date of this order.

v)    Parties to appear before learned District Consumer Commission, Gondia on 04/04/2022 at 10.30 am.

vi)     Parties to bear their own costs.

vi)  Copy of the order be furnished to both parties free of                    cost.