HON’BLE MR. TARAPADA GANGOPADHYAY, MEMBER
This Complaint u/s 17(1)(a)(i) of the Consumer Protection Act, 1986 has been filed by the Complainant whose ‘both lower limb and right upper limb’ were affected by polio, with allegation of medical negligence on the part of the OPs and with prayer for compensation of Rs. 26.00 lacs and cost as well.
The brief facts of the case, as appearing from the materials on records, are that the Complainant, whose physical disability was declared to the extent of 80%, approached the OP No. 1 on 10.11.2014 for proper examination and fixation of Hip Knee Ankle Foot Orthosis (HKAFO) to facilitate easy and comfortable walking. Upon advice by the OP No. 1 on the said day the Complainant got admitted on 15.12.2014 to OP No. 1 under OP No. 4-Doctor for fixation of HKAFO, but instead of taking any step for fixation of HKAFO, the Complainant on 17.12.2014 was referred to indoor physiotherapy and MPO Department for necessary rehabilitation. Thereafter, although on 24.12.2014 measurement of HKAFO was taken, the same was provided on 23.1.2014, i.e. almost after a month, in semi-furnished condition for trial, but the right side of the HKAFO was not comfortable. On 12.2.2015 when the Complainant was under indoor physiotherapy, the physiotherapist concerned left the Complainant without providing any support as alleged, as a result of which the Complainant fell down and suffered severe injury and trauma in her polio affected leg, but the OP No. 4-Doctor, under the treatment of whom the Complainant was admitted, did not attend to the Complainant. After such injury the OP No. 5-Doctor plastered the injured leg of the Complainant on 19.2.2015 and the Complainant was released on ’27.3.2015’ after a long treatment period of about 102 days as averred in the Petition of Complaint. After such release the severe pain having continued the Complainant visited SSKM Hospital on 27.3.2015 and SSKM Hospital being at a long distance from the place of the Complainant the Complainant visited Uluberia S.D.Hospital on 3.4.2015 where the injured leg was plastered further and the Complainant was referred to R.G.Kar Medical College & Hospital. It is alleged in the Petition of Complaint that due to medical negligence and deficiency in service on behalf of the OPs the easy and comfortable walking was not restored to the Complainant.
The Ld. Advocate for the Complainant, filing BNA, submits that the OP No. 4-Doctor did not take appropriate step for fitting HKAFO immediately after admission on 10.11.2014 under the OP No. 4, but the same was fitted on 23.1.2014, i.e. more than a month after admission for the same on 15.12.2014.
The Ld. Advocate continues that instead of taking any step for fitting of HKAFO the Complainant was referred to indoor physiotherapy where in course of physiotherapy the concerned physiotherapist left the Complainant without providing any support to the Complainant, as a result of which the Complainant fell down and suffered from injury and trauma in the polio affected right leg.
The Ld. Advocate concludes that the aforesaid submission clearly establishes medical negligence and deficiency in service on behalf of the OPs and hence, the instant Complaint should be allowed and the compensation be awarded considering the permanent disability and great difficulties in walking of the Complainant.
None appeared on behalf of the OPs to rebut the allegation of the Complainant despite due service of Notices in respect of the OP Nos. 1,2,3 & 4 as revealed from the orders dated 9.11.2016 and 9.2.2017 and in respect of the OP No. 5 as revealed from Order dated 18.8.2017 of this Commission. Consequently, the case is proceeding ex parte against the OPs.
Despite due service of Notices the OPs have not rebutted the allegations of the Complainant in the instant Complaint Case and such non-rebuttal on behalf of the OPs despite getting opportunity to advance their defence, leaves the allegations of the Complainant uncontroverted.
The prescription dated 10.4.2014 of the OP No. 1-Institute, as available on records, reveals that on 10.4.2014 the concerned doctor advised for “B/L HKAFO + AXILLARY CRUTCH 1 PAIR”, but HKAFO was fitted on 23.1.2014, i.e. more than a month after such advice.
The materials on records also reveal that in the interim period the Complainant was referred to indoor physiotherapy where the Complainant having fallen suffered injury and trauma in the polio affected right leg for which the repeated plaster was done, because of leaving by the physiotherapist of the Complainant in course of physiotherapy without providing a support to the Complainant when even the treating doctor, i.e. the OP No. 4, did not attend to, which clearly indicates deficiency in service on behalf of the OPs.
The foregoing facts and evidence on records clearly indicate the presence of three essential components of medical negligence, i.e. ‘duty’, ‘breach’ and ‘resultant damage’, on behalf of the OP Nos. 4 & 5-Doctors as observed by the Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr., reported in (2005) 6 SCC 1, are present in the case on hand.
The OP Nos. 1,2 & 3 are also vicariously liable for their failure to ensure proper care and diligent treatment on behalf of the treating doctors who are engaged with it for providing reasonable care and proper treatment. In this connection, reliance is placed on the decision of the Hon’ble Supreme Court in Smt. Savita Garg Vs. National Heart Institute, reported in 2014 (4) 258 (SC).
Consequently, the Complaint Case is allowed and the OP Nos. 4&5-Doctors are directed to pay, within 45 days from the date of the order, to the Complainant Rs. 4,00,000/- each as compensation which appears to be just and proper considering the permanent disability and extent of difficulties in walking of the Complainant.
The OP Nos. 1,2 & 3 being vicariously liable are also directed to pay, within the aforesaid period, to the Complainant Rs. 2,00,000/- each as compensation.
It is also directed that if the awarded amount is not paid within the time prescribed, the entire awarded amount shall attract interest @ 9% per annum to be paid by the OPs to the Complainant for the entire period of default, and action including issuance of Warrant of Arrest as provided u/s 27 of the Consumer Protection Act, 1986, may be taken.
The instant Complaint is disposed of in the aforesaid manner.
