1. This is an appeal filed by the head of the department of Orthopaedics and the Dean of MGMIS Kasturba Hospital, Wardha, and the secretary of Kasturba Health Society, Sewagram, Wardha against the order passed by District Consumer Disputes Redressal Forum, Wardha in consumer complaint 01 of 2003 on 3^rd December 2004, partly allowing the complaint, directing appellants to pay compensation to the complainant, Mr. Mahadeorao Rajeramji Rewatkar from Wardha. This complaint was an alleged case of medical negligence.
2.  Brief facts for deciding this appeal as follows,

The Kasturba Health Society is a trust who runs the MGMIS Hospital at Sewagram. The department of Orthopaedics treated the patient Mr. Mahadeorao Rewatkar, age 35 years, and was admitted on 1^st July 2002, MRD no. 85026 for the treatment of injury to his right knee. After an X-Ray examination, he was diagnosed to have an “Undisplaced Fracture of Lateral Proximal Tibial Condyle with intra-articular extension”. After initial immobilization in a long leg slab of plaster of Paris and elevation, the complainant patient was given a long leg cast of plaster of Paris on 4^th July 2002. While discharging the patient on 5^th July 2022, he was advised to use crutches and a discharge card was handed over with the necessary instructions to keep the plaster for 12 weeks. The patient complainant did not turn back for a follow-up to the hospital after the discharge and removed the plaster at some other hospital. After finding that there were restricted movements of his knee joint when the plaster was removed, the complainant filed a consumer complaint alleging medical negligence against the treating doctors as well as the health society who was running the hospital, before the District Consumer Disputes Redressal Forum at Wardha in the year 2003. The present appellants – original opposite parties defended the complaint, and filed relevant documents. Learned Consumer Forum at Wardha conducted a cross-examination of the treating doctor and after hearing both parties, allowed the complaint partly directing the appellants to pay compensation of Rs. 4, 25, 000/- to the complainant along with Rs. 50, 000/- as compensation for mental agony and harassment. Aggrieved by this order the original opposite parties approached this commission and filed this appeal.

3. We heard the rival submissions and arguments advanced by learned advocates of both parties and perused the record. Considering the oldness of this appeal and the scope of this appeal, we heard both the advocates and noted our findings.
4. Learned advocate for the appellant submitted that the patient had a fall from a stool on the 1^st of July 2002. He was brought to the appellants’ hospital, after investigations and diagnosis of a fracture in the knee joint right side, he was admitted and a long leg cast (Plaster) was given on 4th July 2002 as the definitive treatment. The respondent – the original complainant who was discharged along with a discharge card with instructions to follow up after 12 weeks, did not come back again for follow-up in the hospital. Rather the Plaster was removed at some other Hospital and the appellant doctors and hospital came to know only after they received Notice from the consumer forum. According to the submission of the learned advocate for the appellants, the treating doctor, Dr. Pramod Jain, MS in Orthopaedics, who was working as a lecturer in Mahatma Gandhi Institute of Medical Sciences, Sewagram, filed an affidavit giving details of the treatment as such. The appellants filed an expert opinion of Dr. K.K. Patond, who is an Orthopaedic surgeon and then head of the department of Orthopaedics of the appellant hospital - Institute, stating that the treatment received by the complainant was a usual practice that is followed in Orthopaedics specialty. The Advocate further submitted that Dr. Pramod Jain was summoned by the District forum of Wardha and he was cross-examined by the Consumer forum itself, after framing around 95 questions. Further, the doctor was asked to examine the complainant before the bench comprising of the president and the members, when none of the members or the President of the Forum was an Orthopaedic Surgeon-doctor. Dr. Jain was asked questions by the bench at the Consumer Forum. Out of the answers given by Dr. Pramod Jain, relying on 59 of the answers the forum passed order holding the negligence of appellants - treating doctors and the hospital and awarded compensation to the complainant. There was no basis for calculation of compensation. The Advocate further submitted that no other expert opinion or medical literature was placed on record by the respondent - original complainant. According to the learned advocate for the appellant, the consumer forum erred in collecting evidence on behalf of the complainant. Despite the fact that the respondent in this appeal, never turned back to the hospital for further follow-up after discharge, the appellant doctors and Hospital were made liable for negligence in the treatment. The advocate prayed for setting aside the order passed by the District Consumer Forum and passing the necessary order in the interest of justice.
5. In support of his arguments learned advocate for the appellants, referred to the following citations and filed copies of the same.

Citations:

1. S.K.Jhunjhunwala........V/s.......Dhanwanti Kaur and others, in Civil   

Appeal No.3971 of 2011, decided on October 1, 2018, reported in (2009) 2 Supreme Court Cases 282.

2. Bombay Hospital and Medical Research Centre........V/s.......Asha Jaiswal and others, in Civil Appeal No.1650 of 2010 with Civil Appeal No.2322 of 2010, decided on 30/11/2011, reported in I(2022) CPJ 3 (SC).
3. Des Raj Singla & Ors.......V/s......Dayanand Medical College & Hospital & Ors, in First Appeal  No.244 of 2010 against order dated 04/06/2010 in Complaint No.41 of 2007 of Punjab State Consumer Disputes Redressal Commission, decided on 22/11/2021. Reported in I(2022) CPJ 16 (NC).
4. K.Dasharatham & 2 Ors........V/s.....Dr.Hema Raghu Chitneni & 2 Ors. In First Appeal No.117 of 2014 against order dated 30/12/2013 in complaint No.64 of 2011 of Andhra Pradesh State Consumer Disputes Redressal Commission, decided on 17/11/2021. Reported in I(2022) CPJ 26 (NC).

     6)  According to the learned advocate for the respondent,  

         the respondent had paid charges of around Rs. 255/- for the same treatment and hence he is a consumer. The Advocate further supported the District Forum’s action of examination of Dr. Jain as an expert. According to him the questionnaire and the examination that was conducted by the District Consumer Forum was well within the jurisdiction of the forum. He invited our attention to page 76 para 4 reply of the appellants in which, no anaesthesia was used for the treatment. On putting a question to the learned advocate for the respondent, he informed that, further, some corrective surgery was performed on the respondent by another doctor but the documents of the said surgery as well as the opinion and expert evidence of the said doctor have not been placed on record. Learned Advocate prayed for dismissal of the appeal and to confirm the just order which was passed by the District Consumer Forum of Wardha.

7. We have perused the impugned order passed by the learned District Consumer Forum of Wardha. Collecting the evidence for the complainant by framing questions and cross-examination of the expert, and treating doctor, was definitely not within the jurisdiction of the Forum. Also, the Consumer Courts are not there for deciding the correctness of the treatment given by the doctor. One who alleges the deficiency and unfair trade practice needs to prove the complaint by providing documentary evidence. The burden was on the complainant to prove that, there was negligence on the part of treating doctors. The respondent - the original complainant has not filed any evidence or expert opinion on record. It was definitely not just and legal on the part of the learned forum, to cross-examine the expert in open court and also ask the doctor to examine the patient in open court.
8. As per the medical report filed by appellants, the respondent was treated by appellant hospital doctors for 4 days of indoor treatment, after which he was discharged. He never came back to the hospital to seek further treatment. He has also not filed any documents about further treatment if he has received any treatment for the alleged disability. Also, no expert opinion of any other doctor, who is a specialist in Orthopaedics was filed. It appears that he is interested in compensation only without fulfilling his own part of the responsibility. The respondent has not filed any document supporting his allegations and depends on the forum to collect the evidence for him. Obviously, we think that it is a frivolous complaint, unfortunately, supported by the District Consumer Forum. In view of this discussion, we do not hesitate to declare that, this was a frivolous complaint in which the District Forum of Wardha exceeded its jurisdiction by collecting evidence and passing the order which is not just and legal. Hence we pass the following order.

ORDER

1. The appeal is partly allowed with costs quantified to Rs.25, 000/- (Rs. Twenty Five Thousand only) to be paid by the respondent to the appellants within two months from the date of receipt of the copy of this order.
2. The order passed by the District Consumer Disputes Redressal Forum of Wardha in consumer complaint no. 01 of 2003 is hereby set aside and the consumer complaint is hereby dismissed.
3. The respondent-original complainant is hereby directed to pay Rs.10,000 /- (Rs. Ten Thousand only) to the appellants on account of a frivolous complaint filed by him, within 2 months of the date of receipt of the order.
4. Failure to comply with the order will attract a 9 % rate of interest per annum from the date of this order till realization.

Copy of this order to be given to all the parties free of cost.