NCDRC

NCDRC

FA/144/2008

DR. ASHOK KUMAR VERMA - Complainant(s)

Versus

SRI RAM NURSING HOME & ORS. - Opp.Party(s)

M/S. S.K. JHA & ASSOCIATES

25 Jul 2013

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

APPEAL NO. 144 OF 2008

(Against the Order dated 14/12/2007 in Complaint No. 26/2002 of the State Commission Bihar)

1. DR. ASHOK KUMAR VERMA VILLAGE - SHERPUR, GHEGHAGHAT CHAPRA BIHAR	...........Appellant(s)
Versus
1. SRI RAM NURSING HOME & ORS. NC-1C, LOHIYA NAGAR, WEST OF RAJENDER NAGAR OVER BRIDGE, PATNA - 800 020 2. DR. H.D. DIWAKAR RESIDENT AT F-203, P.C. COLONY, KANKARBAGH, PATNA - 20	...........Respondent(s)

BEFORE:
	HON'BLE MRS. VINEETA RAI, PRESIDING MEMBER
	HON'BLE MR. VINAY KUMAR, MEMBER

For the Appellant :

Mr. Shankar Kumar Jha, Advocate

For the Respondent :

Mr. Prakash Kumar, Advocate Mr. Sanjeev Kumar Varma, Advocate

Dated : 25 Jul 2013

ORDER

The case is fixed for final hearing today. Counsel for the appellant  challenged  the  order of  the  State Commission on the ground that Opposite parties, who were exparte up to 24.7.2007 was permitted by the State Commission to lead evidence after the case had been reserved for orders. In this connection counsel for the appellant brought to our notice para no.3 of impugned order, which reads as follows:- “The Opposite Party No.2 did not appear and therefore complaint was heard ex-parte against the O.P.2 but on 7.11.07 i.e; after argument heard on 6.11.07, written notes of argument has been filed. According to this written notes of argument opposite party no.2 was highly qualified Orthopadic Surgeon; that after successful surgery by O.P.No.2 on 31.3.00 the complainant who was a lliterate person practicing as Homeopathic doctor was advised to keep the limb elevated and active exercises to prevent post-operative stiffness; he was also advised other necessary antibiotics which were evident from the prescriptions annexed with the complaint petition; that the complainant was discharged on 2.4.2000 on the pressure of the complainant on the plea that he being himself a doctor will take care without any further assistance and he was discharged by the Nursing Home; that when complainant appeared before O.P. No.1 and 2 who examined him and found the plaster loose, the K-wires were found to be loose which was due to delay and latches on the part of the complainant. However, O.P.No.2 removed the three wires easily, one wire which was well buried in the bone was left as such a new plaster was applied on 20.5.2000; that after about two months, the complainant at a very belated stage appeared before O.P.No.2 on 19.7.2000 and after examination it was found that would was healed and fracture was united clinically; that x-ray was advised and that the fracture was united with one wire in the bone; that the complainant was further advised to get removed the wire under anesthesia and also advised for manipulation under anesthesia (MUA followed by Physiotherapy) which  was  in  accordance  with  the  medical jurisprudence of Orthopedics because in such surgery there is chance of stiffness of elbow if the procedure explained above is not carried out; that the complainant ignored all the proper medical advise and physiotherapy given in writing on 19.7.2000; that all of a sudden after two months when the complainant having some problem came to the nursing home but unfortunately the image intensifier was not available at Sri Ram Nursing Home and O.P. No.1 with consent of complainant got the surgery performed by O.PNo.2 at different clinic namely Dubey’s Clinic, Kankarbagh where x-ray facility was available which has been suppressed by complainant; that complainant ignored the advise and instructions given on 26.5.2000 when the wires were removed on 19.7.2000 and was himself grossly negligent; that prescription dated 15.9.2000 annexed with the complaint will show that on the prescription of O.P.No.2, the complainant very cleverly got some written advise noted on the same prescription by another doctor; that on 29.6.01 O.P.D. slip of AIIMS (New Delhi) emphasized exercise for the movement of elbow and second O.P.D. Slip dated 18.7.2001 of AIIMS gave information that the plaster was prolonged which was uncalled for; that seeking advises at various places simply shows that complainant was endevering to make out a case of harassment extortion at his will and re-plaster was necessitated simply because the complainant came on 26.6.2000 with loose plaster and loose wire which was replastered simply for the union of bone; that there was no expert evidence in support of the complainant’s case. From the above, it is clear that the Opposite Parties, who did not appear and were proceeded ex-parte, were permitted to lead evidence after the matter had been heard and the case reserved for orders. No opportunity was given to appellant to counter the arguments/evidence led by the Opposite Parties. On the other hand, the State Commission after considering this evidence dismissed the appellant’s/complaint. Counsel for the respondent also  fairly  concedes  that  in the interest of justice,  the case be remitted back to the State Commission. We remit the case back to the State Commission to hear it afresh after according both parties opportunities to lead their evidence and dispose of the case in accordance with law. Parties are directed to appear before the State Commission on 02.09.2013.

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VINEETA RAI

PRESIDING MEMBER

......................

VINAY KUMAR

MEMBER