IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 17/09 DATED 25.03.2009<br /> <br /> ORDER<br /> <br /> Complainant Smt.Jayashree Gururaj, W/o S.V.Gururaj, No.592, West 1st Cross, Viswamanava Double Road, Kuvempunagar, Mysore.<br /> (By Sri.B.R.Jagadish., Advocate)<br /> <br /> Vs. <br /> Opposite Party Naveen Subramanyam, Director, Mrs. Ananthi Home Nursing Care, No.120, MIG-I, Group-1, Mrs. Ananthi Corner, KHB Colony, Hootagalli, Mysore-570018.<br /> (EXPARTE)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 16.01.2009<br /> Date of appearance of O.P. : -<br /> Date of order : 25.03.2009<br /> Duration of Proceeding : -<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The grievance of the complainant in brief against the opposite party is, that her father who was aged, on the offer of the opposite party vide his letter dated 29.09.2008 agreed to render physiotherapy service to her father for a period of one month commencing from 01.10.2008 by receiving a sum of Rs.4,500/-. Accordingly, the opposite party commenced treatment from 06.10.2008 till 25.10.2008, while the opposite party was giving treatment to the father of the complainant, her sun heard a sound and when he questioned an employee of the opposite party who was doing physiotherapy, that staff told him that was the sound of knuckling and it was not any fracture. But, on the other hand, it was a fracture and that happened due to the service of unqualified and untrained physiotherapist and that service has resulted in fracture of right thigh of her father. Then her father was rushed to Kamakshi Hospital, Mysore two days later and an Orthopedic surgeon attending the patient diagnosed fracture of thigh bone that was bandaged and was discharged after four days after surgery. Thereafter her father died after nine days and stated that the fracture and death of her father is due to negligence of the opposite party, as such she got issued a legal notice on 04.12.2008 to pay a sum of Rs.1,00,000/- and to refund therapy charges of Rs.4,500/- and thereby has prayed for a direction to the opposite party to pay her a sum of Rs.1,10,000/- with interest at 18% p.a.<br /> 2. Notice sent to the opposite party to his given address through RPAD was returned with postal shara as addressee was absent during delivery time. Whereas the notice sent through COP did not return. Therefore finding that notice addressed to the opposite party to his undisputed address did not return deemed have been served and when then opposite party was called out remained absent, is set exparte.<br /> 3. In the course of enquiry into the complaint, the complainant has filed her affidavit evidence, and produced an advertisement issued by the opposite party offering physiotherapy treatment and letter of opposite party with a receipt admitting receipt of physiotherapy charges, copies of bills of expenditure incurred by the deceased in Kamakshi Hospital, hospital discharge memo, death certificate, copy of the legal notice and a medical certificate of a doctor of the complainant. The counsel for the complainant has filed written argument. Heard and perused the records including the written argument. <br /> 4. On perusal of the grievance of the complainant, her affidavit evidence, paper advertisement, the letter of opposite party and fee receipt clearly disclose that the father of the complainant agreed to undergo physiotherapy from opposite party for a period of one month starting from 01.10.2008 on payment of Rs.4,500/- as a remuneration and there can be no doubt with regard to these facts as narrated by the complainant. The complainant in her complaint and also in the affidavit evidence stated that the physiotherapy was started from 06.10.2008 till 25.10.2008. It is further contended as if when physiotherapist was administering treatment compainant’s son heard sound and on questioning the staff of the opposite party, he had told him it was a sound of knuckling and not amounting to fracture. On the contrary, it was a fracture. It is to be noted here, the complainant is not clear and specific as to when this incident of her son hearing knuckling sound when an employee of the opposite party giving physiotherapy, date of that incident has not been stated anywhere. Therefore, it is not possible to find out when exactly and on what date physiotherapy treatment of the opposite party resulted in fracture of right femur bone. However, the complainant has produced a discharge memo issued by the Kamakshi Hospital, Mysore, which disclose as if the father of the complainant was admitted to their hospital on 27.10.2008 with a diagnosis of fracture of lower 1/3rd of right femur and was discharged on 31.10.2008 after operation and plastering. The complainant has not produced any history she had given at the time of admission of her father to the hospital and any opinion regarding the cause for the fracture of femur bone. If fracture had occurred in the course of physiotherapy, the injured should have been taken to the hospital simultaneously on the same day. The complainant has not come forward to tell on which date her father suffered fracture, Thus, it cannot be assessed whether the injured was taken to hospital on the same day with history of fracture while giving physiotherapy. Nothing is forthcoming in this regard. Even the complainant has admitted that physiotherapy was given till 25.10.2008, it is not her case that on 25.10.2008 her father suffered fracture. Admittedly, the injured was taken to Kamakshi Hospital on 27.10.2008 even there has been delay in taking injured to the hospital assuming that the father of the complainant suffered fracture on 25.10.2008. The complainant has not offered any explanation as to this delay and not giving history or cause for the fracture when she admitted her father to the Kamakshi hospital. The complainant has produced certificate of a doctor which do not bear any date, in which the doctor has said that the father of the complainant was under his treatment for past 15 years who died on 09.11.2008 and his death was due to cardiac arrest may be coupled by unbearable pain suffered due to fracture of his right thigh bone. This doctor has not indicated in he having had examined the patient after the bone was fractured till his death. This certificate found to be an imaginary one. Besides that as already stated by us, the complainant has not produced any certificate of a doctor or opinion of a doctor to speak that the fracture that the father of the complainant suffered was due to improper physiotherapy or that there was possibility of the injured suffering such a fracture in the course of therapy. <br /> 5. As seen from the discharge summary of the Kamakshi Hospital, the injured suffered fracture in lower 1/3rd of right femur possibility of fracture of right femur during physiotherapy in our view is very remote. Physiotherapist would give therapy by making the patient to fold the legs, waist, arms and connecting to the flexibility of the body and there is no chance of any such therapy to the femur bone except may be massaging the thigh muscle, therefore the sun of the complainant heard a sound during the course of therapy cannot be believed and the complainant has not examined her son as a witness. The complainant being not an eye-witness to the sound her son heard and in the absence of any opinion of an expert that the fracture had happened in the course of physiotherapy, the claim of the complainant cannot be believed and we hold that the complainant has failed to prove that her father suffered fracture in the hands of the opposite party. The father of the complainant according to her own certificate died due to cardiac arrest, the doctor who has issued that imaginary certificate, has also said that cardiac arrest may be because of sever pain when surgery was done and plaster was put, the chances of injured suffering unbearable pain leading to cardiac arrest is very feeble. Therefore, we find that in the absence of convincing evidence pointing to the negligence or deficiency in the service of the opposite party, the opposite party cannot be fashioned on the liability and we find that the complainant has filed her complaint on imaginary grounds, which find no place in the legal scrutiny. As the result, the complaint is liable to be dismissed and we pass the following order:-<br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. Parties to bear their own costs.<br /> 3. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 25th March 2009)<br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br />