NATIONAL CONSUMER DISPUTES REDRESSALCOMMISSION NEW DELHI

REVISIONPETITIONNO. 757OF2012

(Against order dated 25.11.2011 in First Appeal No. 725 of 2009 of the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur)

Manohar Lal S/o Sh. Madan Lal R/o Mehnat Nagar, Nai Basti, Madanganj, Kishangarh, District Alwar Rajasthan

Petitioner

Versus

1.Raj Motors, Authorised seller for Suraj Automobiles Ltd. At Ambabari, Jaipur, Rajasthan

2.M/s Suraj Automobiles Limited Through its Manager, Ambala Road, Saharanpur,

U.P.

Respondents

BEFORE:

HONBLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER

HONBLE DR. S. M. KANTIKAR, MEMBER

For the Petitioner:Mr. Rishi Prashar, Advocate

For the Respondent No. 1:Nemo

For the Respondent No. 2:Mr. S. K. Tiwari, Advocate, Mr. S. K. Sharma, Adv.

PRONOUNCED ON 01stJuly, 2014

ORDER

PER DR. S.M. KANTIKAR, MEMBER

1.The present Revision Petition has been filed under Section 21 (b) of the Consumer Protection Act, 1986 against the impugned order dated 25.11.2011 passed by the State Consumer Disputes Redressal Commission (in short, State Commission) in First Appeal No. 725/2009, wherein the State Commission dismissed the appeal and set aside the impugned order of the District Consumer Disputes Redressal Forum, (in short, District Forum).

2.The relevant facts in brief about this revision are these. On 7.6.1995 the Complainant Manohar Lal paid Rs.102973/- to Raj Motors, the OP-1 for purchase of a tempo. He took delivery of the vehicle on 08.08.1995, with the guarantee certificate for replacement of vehicle and a provision for free service till 3 months or 6,000 kms. As per complainant, the said vehicle had gone out of order within 7 days of purchase and it was informed to the OP-1, but no step was taken for its repair or replacing the vehicle. Therefore, the complainant compelled to pay interest on loan and suffered loss of Rs.6,000/- income per month. The complainant approached the District Forum and prayed for a relief of new vehicle in lieu of old one or refund of Rs.1,02,973/- plus award for damages so occurred due to loss of employment and legal expenses.

3.The District Forum, Camp Jaipur allowed the complaint and ordered the OPs to repay Rs.1,02,973/- along with the interest @ 6%, in lieu of vehicle due to manufacturing defect in tempo and Rs.5,000/- towards compensation and Rs.2,000/- towards the legal expenses.

4.The OP-2 filed the first appeal in the State Commission, being aggrieved by the order of District Forum.The State commission set aside the order of District Forum and dismissed the complaint.

5.Against the impugned order of state commission, the petitioner/complainant files this revision.

6.We have heard the counsel of the parties. The counsel for the complainant argued that, the vehicle was purchased from the authorized dealer of company at Jaipur but thereafter within 2 months it was closed, hence the company directed the complainant that he must get his tempo repaired by taking it to Bharatpur. The OP turned a deaf ear to the several letters of queries about who would bear the expenditure of taking vehicle to Bharatpur. Hence, the complainant could not take his vehicle to Bharatpur and his tempo could not be repaired. The vehicle sold to the Complainant was not of good quality. He further contended that the mechanic Chetan who has worked for last 25 years as a mechanic had given an affidavit that he checked the said Tempo sitara which showed different fittings like the tube of fiat car, axel of ambassador car, gear box of inter jeep, engine of auto riksha vikram tempo, clutch outer matador old model, master cylinder kit Marutis and backwardsPATAand kabana, of small autorikshaw. Therefore, his tempo could not run fast on road and could not take load. Thus, assembling various parts of different vehicles, the OP-2 prepared the said vehicle, it is like a fake one andthe OPs have sold it to the complainant by cheating. Thus, the vehicle has manufacturing defect for which M/s Sooraj automobiles Ltd. OP-2 is fully liable.

7.The counsel for the OPs submitted that, the complainant has not specifically stated about the problems in vehicle, there was no expert opinion; hence the complaint is not maintainable. OP-1 was a just dealer, not a manufacturer; hence OP-1 is not liable. While, the OP-2 took a stand that, he sold the vehicle to OP-1, the dealer on 30.6.1995 for Rs.74,993/-, thereafter, OP-1 sold the saidvehicle to Complainant on 8.8.1995 for Rs.1,02,973/-. As per OP-2 warranty of 3 months remains till 7.11.1995 only, thereafter, the question of warranty was a duty of OP-1 only. And also the OP-1 should responsible for providing service during warranty period.

8.We have perused the evidence on record. The District forum recorded the evidence that, the complainant presented several bills of items purchased for the repair of his vehicle, dated 20.8.95,22.8.95, 25.8.95,18.9.95, 2.11.95, 4.11.95,16.4.95 and 19.6.95. This allegation of complainant is also supported by the affidavit of Chetan mechanic. Also, OP-2 himself has admitted that on 07.04.1996 Satyapal was sent and he repaired gear box and differential, i.e. after the warranty period, which clearly signifies that the vehicle had inherent manufacturing defect.

9.The State Commission observed that the district forum has not given permission to take on record the affidavit of Chetan mechanic; hence it lost the evidentiary value. We are of considered view that, this case pertains to year 1995, already over two decades are lapsed, hence now it will be unjust to remand back this case to District Forum for further an expert opinion. Hence, we cannot ignore the affidavit of Chatan which carries crucial evidentiary value.

10.Therefore, we accept this revision and set aside the order passed by the State Commission. At this stage, we do not find any evidence that in whose possession the vehicle is now? Therefore, considering the depreciation and the peculiarity of this case which was dragged for more than two decades, we are of opinion that, lump sum compensation will be just and proper.

11.Therefore, we pass the following order that, if the vehicle is in possession of complainant, he should hand over the vehicle in question to the OP-1, thereafter, OP-1 and 2 directed to pay jointly and severally compensation of Rs.1,50,000/-, along with Rs.25000/- towards mental agony and Rs.20000/- as cost of litigation within 90 days, otherwise it will carry interest @ 9% per annum till its realization.

...

(J. M. MALIK, J.)

PRESIDING MEMBER

...

(DR. S. M. KANTIKAR)

MEMBER

Mss/12

NATIONAL CONSUMER DISPUTES REDRESSALCOMMISSION NEW DELHI

REVISIONPETITIONNO. 4728 OF 2013

(Against order dated 16.09.2013 in First Appeal No. 1841of 2009 Of the State Consumer Disputes Redressal Commission, Punjab)

M/s Procter and Gamble Home Products Ltd. Plot No. 1, Industrial Area, Katha, P.O. Baddi, District Solan (H.P.)

Petitioner

Versus

1.Ms. Taranjit kaur D/o Amarjit Singh, Ward No. 8, Guru Teg Bahadur Nagar,

Dhuri, District Sangrur, Punjab

2.M/s Raj Agency Bhatti Cold Storage Complex, Mithapur Road, Village Alipur, Outside Octroi, Jalandhar, Punjab

3.Sh. Dharam Pal C/o Bansal Karyana Store, Opp. Garg Palace, Dhuri, District Sangrur, Punjab

4.M/s Vandana Luthra Care Clinic,(VLCC) Ansal Plaza, Ferozpur Road, Ludhiana, Punjab

Respondents

BEFORE:

HONBLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER

HONBLE DR. S. M. KANTIKAR, MEMBER

For the Petitioner:Mr. Vijay Kumar Goyal, Advocate

PRONOUNCED ON 01stJuly, 2014

ORDER

PER DR. S.M. KANTIKAR, MEMBER

1.The present Revision Petition has been filed under Section 21 (b) of the Consumer Protection Act, 1986 against the impugned order dated 16.09.2013 passed by the State Consumer Disputes Redressal Commission (in short, State Commission) in First Appeal No. 1841/2009, wherein the State Commission allowed the appeal and set aside the impugned order of the District Consumer Disputes Redressal Forum, (in short, District Forum).

2.The brief facts relevant to decide this Revision Petition are; the complainant Ms. Taranjit Kaur used a Pantene Shampoo Pro-V, which was purchased by her father Sh. Amarjit Singh fromSh. Dharam Pal, Bansal Karyana Store the OP-3.Her hair got gamed after use and head washing. The complainants father took this matter to OP-3 and the distributorM/s Raj Agency, OP-1. Thereafter, the OP-1 discussed the matter officials ofM/s Procter and Gamble Home Products Ltd. andoffered to get the hair treated at OP-4 i.e.M/s Vandana Luthra Care Clinic(VLCC).It wasfurther alleged that even after treatment by OP-4, the complainants hair could not recover nor get at its original position, hence her hair got removed. The complainant filed a complaint against the OPs alleging unfair trade practice and deficiency in service by the OPs, and sought total compensation of Rs.10,000,00/-

3.The District Forum, Sangrur allowed the complaint and held the OP-1/ Petitioner and the OP3/Respondent No. 3 herein jointly and severally liable to pay the complainant a sum of Rs.25,000/- in lieu of consolidated amount of compensation.

4.That aggrieved by the order of District Forum, the OP-1/Petitioner filed a First Appeal No. 1841/2009 before the State Commission and the same has been dismissed on 16.09.2013 with cost of Rs. 2000/-.

5.Against the order of State Commission the OP-1 preferred this revision.

6.We have heard the counsel for the both the parties. The counsel for complaint argued that, there was no material left in the pouch for testing, but the OP-1 could have sent similar pouches in their business establishment to prove that these are not spurious. The counsel for the Petitioner/OP-1 argued that, the complaint is not maintainable, complainant is not a consumer, and also it has no territorial jurisdiction. He also denied the allegations in the complaint that father of the complainant had purchased the pouch of the Pantene Shampoo from shop of OP No. 3 or he refused to issue the bill. He submitted that, the damage to hair may be due to rough water, dandruff in hair. The complainant failed to handover the sachet of shampoo used by her so that same could be tested. No test was carried out as per section 13 (1) (C) of C.P. Act. It was a goodwill gesture and on humanitarian grounds the OP-1 agreed to bear one time treatment expenses at VLCC.

7.We have requisitioned the file from District Forum and perused the evidence on record, the tuft of hair, the empty pouch of shampoo. After our thoughtful consideration we are of considered view that, that mere non-issue of bill is not sufficient to deny the liability of OPs. The sachet has already been produced by the complainant as evidence; therefore, the complainant is a consumer. Again, the complaint is within territorial jurisdiction, since the Shampoo was purchased from Dhuri and it was used by the complaint at Dhuri, which is Sub Division of Sangrur and falls within the territorial jurisdiction of Sangrur, a part of cause of action had accrued at Dhuri which is within the territorial jurisdiction.

8.The next point is the laboratory test was not performed as per Section 13 (1) (C) of C. P. Act., that the sachet contains only 9 ml shampoo in the pouch, which was used and nothing was left in the Shampoo, hence no material could be sent for test. We are unable to understand that, astheO.P.-1 was in possession of similar pouches in his business establishment and the same could also be sent for test to prove that these are not spurious , but OP failed to do so. The Counsel for the petitioner further argued that, the sachet contains traces of shampoo material and still at this stage laboratory testing is possible. We do not find any basis for such vague argument, because the sachet of shampoo was purchased, it is beyond expiry , i.e. the expiry of which has already lapsed, 5 years ago, hence how it is not possible for correct laboratory analysis. We have perused the tuft of hair, which clearly goes to show totally damaged, discolored hair. Thus, removal ofthose haircertainly caused cosmetic embarrassment to the complainant who is a girl. Therefore, we are of considered view that, the OP failed to provethat why there was such extensive damage to the hair of complainant and also OP did not prove that their product was of good quality. No doubt we appreciate the goodwill gesture of the OP who was kind enough and borne the cost of one time treatment at VLCC, but this wont absolve the petitioner from its deficiency in service. Moreover, this factor also goes to show that the OP had clandestinely admitted its liability and therefore, the question of showing goodwill gesture had cropped up in order to save its own skin. Also, in our view, it is unjust and unfair to drag the consumer up to National Commission for more than 5 years, for a meager amount of compensation of Rs.25,000/- awarded by District Forum, similar view dovetails from the Judgment of Honble Supreme Court in:-

Gurgaon Gramin Bank vs. Smt. Khazani & ANR.[Civil Appeal No. 6261 of 2012 @ Special Leave Petition (C) No. 8875/2010].

9.Therefore, with entirety of our discussion, we dismiss this revision petition and confirm the order of fora below. However, No order as to costs.

...

(J. M. MALIK, J.)

PRESIDING MEMBER

...

(DR. S. M. KANTIKAR)

MEMBER

Mss/14

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO.2157 OF 2014

(Against order dated 27.03.2014 in First Appeal No. 96/2014ofthe State Consumer Disputes Redressal Commission, Chandigarh)

New India Assurance Company Limited Throughitsduly Constituted Attorney, Manager New India Assurance Co. Ltd. R.O. I, Level 5, Tower II, Jeevan Bharti, 124, Connaught Circus, Delhi-110001

Petitioner

Versus

Rakesh Kumar S/o Sh. Raj Kumar R/o H.No.1387/3PipliBazar, Ambala City (Haryana)

Respondent

BEFORE:

HONBLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER

HONBLE DR. S.M. KANTIKAR, MEMBER

For the Petitioner:Mr.AbhishekKumar, Advocate

PRONOUNCED ON 01stJULY, 2014

ORDER

PER DR. S.M. KANTIKAR, MEMBER

1.The present Revision Petition has been filed before this Commission under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 27.03.2014 in Appeal No. 96 of 2014passed by the State Consumer Disputes Redressal Commission (in short, State Commission). The State Commission dismissed the appeal which was filed against the orders passed by the District Consumer Disputes Redressal Forum, (in short, District Forum) in Complaint No. 210/2013, whereby the complaint was allowed.

2.The facts in brief are that the complainant took Mediclaim Policy 2007 (Hospital Benefit Policy) from New India Assurance Company Limited, the OP/Petitioner for total cover of Rs.11 lacs. It was in force from 31.05.2011 to 30.05.2012, thereafter renewed again, which was effective from 31.05.2012 to 30.05.2013. During subsistence of policytheComplainant suffered severe chest pain on 19.10.2012 and got admitted in Mukat Hospital, Chandigarh. On the same day an angiography was performed in the same hospital, thereafter, he took further treatment at Delhi Heart & Lung Institute, New Delhi where he was operated as Coronary Artery Bypass Graft/surgery on 23.10.2012 and discharged on 31.10.2012. The Complainant filed the claim form along with Raksha TPA on 15.11.2012. After scrutiny the Petitioner/OP repudiated the claim on the basis of exclusion clause 4.3 of the terms and conditions of the policy, stating that Complainant was suffering from pre-existing disease Hypertension, Diabetes Mellitus, which are the known risk factors of Coronary Artery Disease. Thus the compliant filed a complaint before the District Forum alleging the deficiency in service by OP in repudiating his genuine claim and prayed for total compensation of Rs.3,34,929/-.

3.The District Forum allowed the complaint with the directions to the OP to reimburse the medi-claim amount of the Complainant to a tune of Rs.2,24,929/- and to pay Rs.50,000/- as compensation for mental agony and harassment and Rs.7,000/- as cost litigation charge with interest @ 18% p.a.

4.The OP/Petitioner Company being aggrieved with the order of the District Forum preferred the First Appeal No. 96 of 2014 before the State Commission, Chandigarh, which was again dismissed.

5.Aggrieved by the order of State Commission this revision petition has been filed.

6.We have heard the Counsel for the petitioner at admission stage. He stressed upon the fact that the complainant concealed his preexisting disease; he was suffering from Diabetes and Hypertension. He brought our attention to the hospital records like Lama Summery of Mukat Hospital, Chandigarh and Discharge Summery of Delhi Heart & Lung Institute, Delhi. On perusal of both records we find there is a mention of Essential Hypertension andDiabetes Mellitus. But, it is quite surprising that, no where it was stated that, the duration of diabetes/hypertension that how long the complaint was suffering. Therefore, it appears to be a justvague ,which did not carry any evidentiary value.Even also, the OP did not produce any evidence to prove that which medication and for how long the complainant was taking for diabetes/hypertension. The counsel vehemently argued that, diabetes and hypertension are chronic diseases, having long duration, but as per the complainant it was diagnosed after 19 months of taking the policy. It is known that, many times the healthy persons are unaware of such silent aliments of diabetes and hypertension, which come to their knowledge first time during health checkup camps or in any emergent situation. Thus, OPcan notapply a hard and fast rule to presume that, the complainant was suffering for long duration i.e. before taking the policy. Therefore, we are not convinced with this argument. No doubt the medical literature states that, the Hypertension and Diabetes are risk factors for Coronary Artery Disease, but the OP failed to prove that those diseases were pre-existing in this case. It was just a hypothetical presumption of OP to repudiate the claim of complainant. Such argument is bereft of any merit and has no medical basis. The Counsel for OP put reliance upon:

a)Oriental Insurance vs. SonyCheriyan(1999) 6 SCC 451.

b)National Insurance CompanyVs. Laxmi NarainDhut(2007) 258 (SC).

But, the facts in those cases are different from the facts of this case.

7.We have referred medical literature on the subject of diabetes and noted that,insome cases of diabetes, there are no symptoms. People can live for months, even years, without knowing they have the disease and it's often discovered accidentally after routine medical check-ups or following screening tests for other conditions.Hence, there are more chances that the complainant might have developed diabetes and hypertension during a span of 17 months after taking the policy. Thus, we do not find any concealment made by the complainant. The OPs failed to prove their contention; accordingly the repudiation of claim by OP is unjustified, its a deficiency in service.

8.Therefore, on the basis of forgoing discussions we do not find any infirmity in the order of State Commission which needs our interference. Therefore, we dismiss, this Revision Petition. No order as to costs.

...

(J. M. MALIK, J.)

PRESIDING MEMBER

..

(DR. S. M. KANTIKAR)

MEMBER

Mss/3

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

ORIGINAL PETITION NO.68OF2005

Smt. Afsana Bano alias Baby W/o Sh. Rais Ahmad R/o Mohalla Aliganj, Post Office Tanda, District Ambedkar Nagar

...Complainant

Versus

1.Dr. Manju Verma, Associated Professor, R/o 29, C. B. Chintamani Road, Dharbhanga Colony, District Allahabad

2.Dr. U. K. Ghose, Lecturer, SRN Hospital, Allahabad

...Opposite Parties

BEFORE:

HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER

HONBLE DR. S.M. KANTIKAR, MEMBER

For the Complainant:Mr. Saquib Arbab, Advocate

For the OP-1:Mr. Assem Chandra, Advocate

For the OP-2:In-Person

PRONOUNCED ON 01stJULY, 2014

ORDER

PER DR. S.M. KANTIKAR, MEMBER

1.The Complainant Smt. Afsana Bano consulted Dr. Manju Sharma (OP-1) as her family doctor on 03.02.1997 for her pregnancy and she was under regular follow up. As per advice by OP-1, an ultrasound (USG) was done in Narayan Ultrasound Clinical on 03.06.1997, and reported as 17-18 weeks of live pregnancy (Annexure-1). The OP-1 informed the Complainant about the expected date of delivery (EDD) as 10.11.1997. During regular check up, the USG study was performed by Dr. Mukti Bhatnagar on 23.06.1997, 26.06.1997 and 23.08.1997. Also laboratory checkups at Dr. Ramesh Mitra Pathological Clinic and Dr. Anup Tripathi Pathological Lab were performed. The Complainant paid Rs.25,000/- on03.11.1997 and the OP-1 did not issue any receipt. On the instructions of OP-1, the Complainant was admitted in a Medical College on 10.11.1997 for immediate delivery by caesarian operation (LSCS) in the private ward. On 11.11.1997, the OP-1 visited the patient and further advised for ultrasound, blood test and urine test. The report was sent to the house of OP-1. The OP-1 did not disclose anything to the complainant about the reports. Thereafter, the OP-1 regularly visited the Complainant till 16.11.1997, thereafter the OP-1 went on leave without any information to the complainant or any alternate arrangement for the patient.

2.On the next day the OP-2 examined the patient (Annx-3B). All of a sudden, on 17.11.1997 at 04:00 a.m. the Complainant became serious prior to delivery, there was bleeding, nobody attended the patient till 11:00 a.m. The Complainant was taken to labour room with the help of a Safai wali and available family doctor, but no doctor was available to attend her till 05:30 p.m. Thereafter, at 06:00 p.m. with the help of OP-2 LSCS was performed. It was performed after 14 hours and with carelessness. The child after delivery developed serious complications and the child was admitted in S.R.N. Children Hospital, Allahabad, on 19.11.1997. The concerned Dr. P. C. Mishra stated that the condition of the baby was serious due to damage in the lungs, stomach; also there can be a possibility of damage to the heart and brain of the child. The child was treated up to 25.11.1997 under the supervision of Dr. P. C. Mishra and Dr. Rajiv Saran. Due to this episode the relatives of the Complainant have to stay for one month in the hospital, the child suffered pneumonia (Annx. 4). Thereafter the child did not improve much; and showing abnormal activities day to day. Therefore, on 12.07.2002, the child was checked by Dr. A. K. Srivastava at Viklanga Kendra, Allahabad (Annx-5). Thereafter, on 01.04.2004, further consulted with Dr. R. K. Singh who informed about the impossibility of cure of the child and issued a certificate of permanent disability (Annx-6 and 7).

3.Finally, on 10.06.2005 the Complainant met the OP-1 and discussed her childs problem but the OP-1 turned a deaf ear and defended that it was not her case, and asked the Complainant to contact Dr. Tandon, a Mental Specialist. The OP-1 sent her without issuing any reference letter, butOP-1 directed her ward boy to write a letter to Dr. Tandon. Aggrieved by those events, the Complainant served two notices to the OP-1 & 2 on 12.03.2005 and on 12.05.2005 and asked to refund the amount of the treatment and operation which she did not perform. The OP-1 did not respond to those notices. The Complainantfiled a FIR and also filed a Consumer Complaint before this commission on 31/08/ 2005 alleging that, OP-1 and 2 for spoiling the life of her child and negligent in their duties and prayed for compensation from OP-1 and 2 of sum of Rs.1,32,12,921/- under different headings, which are as:

(a)Delivery deposit money paid toOP-1Rs.25,000.00

(b)Interest for 8 years of Rs.25,000/-Rs.37,921.00

(c)Medicines Expenditure up to 8 yearsRs.5,50,000.00

(d)Average study up to 22 yearsRs.2,10,000.00

(e)Permanent disabled average age

60 to 75 years 100% disability and

Mental agony to the Complainant and

his family membersRs.1,22,24,000.00

(f)Farefrom Tanda to Allahabad and

From Allahabad to Tanda by Taxi

And Hotel expenses, etc. from

03.02.1997 to 18.06.2005Rs.1,50,000.00(g) Notices expensesRs.16,000.00

-----------------------------------

Rs.1,32,12,921.00

-----------------------------------

4.Defense:

The OPs 1 & 2 resisted the allegations of the Complainant as those are based on totally frivolous nature. Further, submitted in their version that the complainant is not maintainable because they are Government doctors, not doing any private work and they have not charged any money from the Complainant. They were carrying on the work assigned by the Government of Uttar Pradesh in the MLN Medical College. The Govt. of UP should be one of the OPs. Also, the OPs raised an objection about exaggerated claim for want of jurisdiction. In support of contention of OPs, produced medical literature marked as Annexure CA-1,CA-2 and CA-3). The OPs took objections as a time barred complaint , whichwas filed after 6 years from the delivery.

5.Arguments:

We have heard the counsel for both the parties. The Counsel for complainant vehemently argued about the negligence of OP-1, who intentionally advised the complainant for LSCS and there was enormous delay of 14 hours for delivery of baby, which resulted in to cerebral hypoxia and further damage to the baby. There was no improvement and condition of child was deteriorating for long period and the complainant noticed the cerebral palsy after five years i.e. on 12.07.2002. Thereafter,Dr. R. K. Singh who informed the complainant on 01.04.2004, about no chances of cure for the child and issued a certificate of permanent disability. Hence, the complaint was filed on 31/08/2005, which was not time barred.

6.The counsel for OPs argued on the point of maintainability of complainant which was filed after 6 years. He has further argued that, the complainant was a Primi-gravida (first pregnancy), and the normal duration of labour takes between 12-16 hours. In absence of OP-1, the patient was attended by OP-2 and performed the LSCS with proper care. After delivery, the child was healthy; the APGAR score was 10/10, which was not sign of birth asphyxia. The counsel brought our attention to the Discharge Ticket of Complainant from Deptt. of Obstetrics. & Gynecology, Annx-3, the summary of operation notes which mentions the indication for caesarian section was non-progress of labour. It was further denied that the OP-1 took Rs.25,000/- from the complainant for operation.The counsel produced several medical literatures on Cerebral Palsy, APGAR Score.

Reasons:

7.After thoughtful consideration we would like to discuss this case on following points;

i)Whether the services of OP-1 and OP-2 areContract of Service or Contract for Service ?

ii)Applicability of Bolams Test.

iii)Maintainability of this complaint.

i)Contract of Service or Contract for Service

The OP-1 and 2 being Government doctors were discharging duties in the Department of Obstetrics and Gynecology, Motilal Nehru Medical College, Allahabad. The services to the patients are without any consideration. Both are employed under the State Govt, of Uttar Pradesh. The treatment in Govt hospital is being done free of cost, hence, it will not fall under the C.P.Act.1986. We are very suspicious about the allegation of complainantthat the OP-1 had taken Rs.25,000/-from her for treatment. As there is no proof of payment, even otherwise it is unimaginable that in year 1997 any doctors charge such huge amount. Thus, the OP-1 and OP-2 were rendering their services as a Govt doctors, it is a Contract of Service and not a Contract for Service, which is not under preview of C. P. Act.

8.ii)Applicability of Bolams Tests:

We have perused the medical records on file, and the annexure 3, which clearly mentioned about the indication for LSCS was Non Progress of labour with leaking. There was no mention of any fetal distress. It was a full term normal baby was extracted by Vx (vetex) at 6 pm on 17/11/1997 with A/S 10/10 i.e. APGAR score 10/10 Therefore, it is clear that the healthy child was born, and after 3 days, on 19/11/1997 the child was referred to Sarojini Naidu Children Hospital (pediatrics wing of MLN Medical College) for mild jaundice.At the time of admission, the clinical notes documented as normal child with icterus (jaundice). In this context, we have referred the literature on APGAR score in Text Book of Obstetrics; the Wikipedia, which gave interpretation of APGAR scores as:-

The test is generally done at on and five minutes after birth, and may be repeated later if the score is and remains low. Scores 7 and above are generally normal, 4 to 6 fairly low and 3 and below are generally regarded as critically low

9.The Cerebral Palsy and the Birth asphyxia:

We have also referred several medical texts from Nelsons Text Book of Pediatricians, and few books in Pathology and Immunohematology on the subject of Cerebral Palsy, the Birth asphyxia and Neonatal Jaundice.

According to the Author Freeman Miller, the Cerebral Palsycausescan either be prenatal (from conception to onset of labour) natal (from onset of labour to delivery of the baby), on post natal (period after delivery).

Some prenatal causes include congenital malformations like schizencephaly (cleft in brain) chromosomal defects like Downs syndrome, storage or metabolic disorders, maternal toxaemia and infectious during pregnancy (fever, measles).

Natal causes include maternal and fetal distress. Fetal distress can be caused by hypoxia (asphyxia/hypoxia neonatorum) or by intracranial haemorrhage and inhalation of amniotic fluid. These causes can be anticipated and prevented by a treating doctor with proper monitoring during labour. However, all these conditions will be reflected in the general condition of the child immediately after delivery.

Post natal causes include post natal trauma, infectious, encephalopathy, hyperpyrexia with convulsions.

In this case on hand, the APGAR score of 10/10 after birth indicates a normal healthy child, which neither require any resuscitation nor have lung/brain hypoxia.

10.Therefore, we are of considered view that, the delayed mile stones or cerebral palsy of the child in this case is not due to any negligence of the OP-1 orOP-2. The text book on Essentials of Obstetrics clearly mentionthat, during the course of normal labour a caesarian section is contemplated if maternal or foetal distress occurs (decreased heart-rate) or if labour progress stops.

11.Regarding jaundice to the baby:

The Neonatal jaundice, though normal and common in neonates (physiological jaundice) may be very high in some cases (pathological jaundice). When the citrus (Jaundice), reflected by serum bilirubin estimation becomes high it can cross the blood brain barrier and may produce cerebral palsy (Kernicterus). In fact, Kernicterus is a very common cause of cerebral palsy in children.

Discharge Ticket of the new born (Annx 4) shows that 2 units of blood transfusion was given, its a standard of practice to treat certain cases of the neonatal jaundice (Exchange transfusion).

Therefore, these causes are often not preventable and the treatment is not in the domain of the obstetrician.

12.Thus, it is worthwhile to mention here theBolams case(Bolam Vs. Frien Hospital Management Committee(1957) 1 WLR 582,it washeld that a doctor is not negligent if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view. The Constituents of Medical Negligence is now well established by a plethora of Rulings of the Honble Supreme Court of IndiainJacob Mathew vs. State of Punjab[(2005) 6 SSC 1] andin Indian Medical Association vs. V.P.Shantha[(1995) 6SSC 651had concluded that,

a professional may be held liable on one of two findings : either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise reasonable competence in given case, the skill which he did possess.

13.In this case both the doctors Dr. Manju Verma and Dr. U. K. Ghosh are faculty member in Department of OBG of Govt Medical College. They are qualified and possess requisite skill and experience of more than a decade to operate LSCS. They have taken adequate care of the patient. The OP-1 made proper alternate arrangement with Dr. U. K. Ghosh (OP-2) and thereafter proceeded on Casual Leave w.e.f. 17thNov.1997 till 21stNov. 1997. Hence, we do not find any deviation or negligence committed by the OPs.

14.iii)Maintainability of this complaint

The complainant herself alleged that, the cause of action firstly arose on 17/11/1997, when she was neglected while awaiting delivery. Thereafter as per Annexure 7/12 she came to know on 26/08/1999 about the delayed mile stones of her child, thus the accrued cause of action may be 26/08/1999. She filed a complaint on 31/08/2005, which is more than 2 years of the cause of action.As per section 24-A Limitation Period - of the C.P. Act, 1986 the complaint filed before this commission is hopelessly time barred. Also, we do not find any application submitted by the complainant for condoning the delay in filing the complaint.

15.It is also pertinent to note that, the complainants prayer is for total compensation of Rs.1,32,12,921/-, which is unrealistic one. She claimed the expenditure incurred on treatment at the tune of Rs.7.31 lacs. There is neither any cogent evidence of expenses nor declaration of economic status of income of the Complainant. It is a vague and evasive attempt of the complainant.

16.Therefore, with the forgoing discussion, we do not find any evidence of cerebral hypoxia or fetal distress after the delivery of child by LSCS. Thus, it was not the cause of Cerebral Palsy or delayed mile stones. The doctors OP-1 & 2 performed their duty as per standard of medical practice; we do not find any negligence in delivery of child by the LSCS method. The treatment was done in Govt Hospital, at free of cost, hence, this case is not under preview of the C.P. Act.Accordingly, we dismiss the complaint as a time barred and which has no merits.

..

(J. M. MALIK, J.)

PRESIDING MEMBER

..

(S. M. KANTIKAR)

MEMBER

Mss/30

NATIONAL CONSUMERDISPUTES REDRESSAL COMMISSION NEW DELHI

FIRST APPEAL No.110OF2005

Against the order dated 28.2.2005 in Complaint Case No.39 of 2003 of the Consumer DisputesRedressalCommission, U.T. Chandigarh)

1.MasterAbhishekAhluwalia S/oShriAnil Kumar, Aged about 17 years, Thru Natural Guardian ShriAnil Kumar, R/o House No.156,ShiwalikEnclave, Chandigarh (U.T.)

2.Smt.AnuradhaAhluwalia W/oShriAnil Kumar, Mother of MasterAbhishekAhluwalia, R/o House No.156,ShiwalikEnclave, Chandigarh (U.T.)

3.ShriAnil Kumar Father of MasterAbhishekAhluwalia, R/o House No.156,ShiwalikEnclave,

Chandigarh (U.T.)

Appellants

Versus

1.Dr. SanjaySaluja, MS Ortho, Orthopedics & Physiotherapy Clinic, SCO No.183-184-185,

Sector-8-C, MadhyaMarg, Chandigarh (U.T.)

2.INSCOL Hospital Located in SCO No.18-19, Sector -34-A, Chandigarh (U.T.) Through its Director

3.Dr.Caplash DSS No. 401, Sector-8 Panchkula(Haryana)

4.Government Medical College andHospital (GMCH), Sector-32, Chandigarh (U.T.),

Through its Director/Principal

.Respondents

BEFORE:

HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

HON'BLE MR. VINAY KUMAR, MEMBER

For the Appellants:Mr.SukumarPattjoshi, Sr. Advocate withMr.SanjoyKumarGhosh,

Ms.Rupali S.Ghoshand Mr.SomeshDubey,Advocates

For Respondent no.1:Mr.SudeepMahajan, Advocate with Mr. DineshMahajan, Advocate

For Respondent no.2:Mr.RakeshBhatia, Advocate

For Respondent no.3:Ms.KiranSingh, Advocate with Mr. A.Vardhan, Advocate

For Respondent no.4:Mr. J.K. Bhatia, Advocate with Mr. K.P.Dubey, Advocate

Pronounced on: 1stJuly, 2014

ORDER

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

Present appeal has been filed by the Appellants/Complainants, against judgment dated 28.2.2005 passed by Consumer DisputesRedressalCommission, Union Territory, Chandigarh (for short, State Commission) in Complaint Case No.39 of 2003, vide which the State Commission dismissed the complaint of the appellants.

2.Brief facts as emerge from the complaintare,that Appellant No.1 is the only son of Appellant no.2 (Mother) and Appellant no.3 (Father). All hopes of the family were pinned on appellant no.1whohad not only brilliant academic record, but was also an upcoming sportsman.His father was employed as a Chief Engineer in Merchant Navy and was earning about Rs.1.50 lakhs per month at the relevant time.

3.On 11thJuly, 2003, appellant no.1 was at his School and while playing, he sustained fractureupper end tibia and displaced epiphysis oftibialtuberosity(as diagnosed by Respondent No.1/Opposite Party No.1.) Accordingly, appellant no.2 was informed by the School authorities about the incident at 12.00 noon. She immediately rushed to School and found that appellant no.1 was hale and hearty except for slight pain in his left knee. The School authorities helped appellant no.2 in contacting Respondent no.1-Dr. SanjaySaluja( whowas known to the School authorities). Respondent no.1 asked appellant no.2 to bring the child to his Clinic in Sector-8, Chandigarh. Accordingly, she took appellant no.1 there at about 12.45 p.m. In the absence of respondent no.1, his staff conducted X-Ray of the left knee of appellant no.1.Meanwhile, respondent no.1 also reached at about 1.15 p.m. and after examining the patient, he informed her that it was a simple fracture.Respondent no.1 assuredherthatit was a minor reduction procedure involving no complication and she wasmade to repose her full faith in respondent no.1.

4.On the advice of respondent no.1, appellant no.2 got the patient admitted at the INSCOL Hospital, Chandigarh (Respondent No.2) where the fractured leg after reducing it under General Anesthesia in the Operation Theatre was to be plastered.The patient was taken to the Operation Theatre, where respondent no.1 applied importeddynacastplaster costing Rs.9,404/-. After operation, respondent no.1 informed that he had done the reduction and applied thedynacastplaster.It is alleged that appellant no.1 while in unconscious state, was shifted from the operation theatre without the supervision of respondent no.1. Being a medical practitioner, respondent no.1 ought to have realized the importance of proper angulation and posture of the fractured leg after reduction in respect of the patient who was in the unconscious state. Thus, respondent no.1 culpably neglected all these aspects which were so importantinthesuccessful management of a fracture reduction procedure.

5.As soon as appellant no.1 regained consciousness, he started complaining of severe and unbearable pain in his left leg which had been operated upon. On this, appellants no.1 and 2 complained to the resident doctor on dutyregarding this development, since prior to the application of the plaster there was only a mild pain at the site of the fracture which had increased unbearably after the application of the plaster and spread over to the whole of the leg. This clearly indicated that the said acute pain was due to the tight application of the plaster which obstructed the flow of blood in the veins and arteries of the leg, which was definitely an ominous sign calling for immediate recognition, diagnosis and correction by the staff doctor of the respondent no.2 hospital and the attending and treatingOrthopaedicSurgeon i.e. respondent no.1

6.On account of the acute pain in his left leg after the plaster, appellant no.1 had been crying and this was brought to the notice of respondent no.1 immediately,whoignored such complaint on the plea that such pains are normal in such kind of operations and will subside in 2-3days time. Under such circumstances, respondent no.1 should have realized that there was something amiss somewhere and he should have immediately taken remedial/correctional steps in this direction.On the contrary, respondent no.1 without going into the genesis of such acute pain, prescribed pain killer medicines and injections for appellant no.1 on the telephone.He also refrained from visiting the hospital to examine the patient. Respondent no.1 had behaved callously and simply directed the resident doctor to discharge appellant no.1 once he is fully awake after giving pain killing medicines. Thereafter, appellant no.1 was discharged from INSCOL Hospital at about 9.30 p.m.

7.It is further stated that obstruction to blood flow in the veins and arteries of the leg consequent to the tight plastering was evident from the following symptoms:-

a)Numbness of foot fingers,

b)Pain in leg and swelling of foot fingers

c)Pallor or paleness of the foot fingers

d)Bluishtingeof the skin of the foot

fingersand nails

8. It is also alleged that the pain-killers repeatedly given by respondent no.1 and 2, in the presence of such symptoms of obstruction of blood flow, were dangerous as they were masking the sign and symptom of vascular obstruction. Every competent professionalOrthopaedicSurgeon is expected to look for the aforesaid symptom of vascular compromise after performing a close reduction of a fracture and before discharging a patient. Thus, respondent no.1 has committed manifest dereliction to his medical duty in regard to examining the patient after the operation, for the aforesaid symptoms of vascular compromise. Similarly, the medical staff of respondent no.2 also failed equally in examining the patient and detecting the aforesaid symptoms or advising appellant no.2 about the onset of any such symptom or abnormality.

9.Even after discharge from the hospital, respondent no.1 did not bother to examine the patient despite the presence of the aforesaid visible symptoms of vascular compromise for the whole night and prescribed time and again pain killer medicines. Such attitude of neglect and inattention was clearly indicative of gross negligence on his part, as the attending and treating doctor he was duty bound and responsible to ensure that there was no post-operative complication.

10.It is further alleged that on repeated requests made by appellant no.2 after the plaster on 11th& 12thJuly, 2003, respondent no.1 reluctantly attended the patient at his residence on 12.7.2003 at 8.00 p.m.After examining the patient, he found that the plaster was tight (i.e. tightly applied). Thereafter, respondent no.1 gave a slit on the upper part of the plaster which was apparently inadequate in view of the serious condition of the leg of the patient. Even at that stage, the patient had severe pain and was unable to move left foot fingers, which were clearly indicative of the fact that the blood vessels had been obstructed and muscles of the left leg of the patient were in the process of dying and impending gangrene.Such condition called as Compartment Syndrome (CS) in medical terms, had thus already set in. Even at that stage, respondentno.1didnot take the aforesaid ominous symptoms seriously and advised appellant no.2 to show the patient after two days. The respondentno.1,thus left the patient still crying in pain.

11.It is further alleged that appellant no.1 remained in agonizing and excruciating pain during whole night of 12.7.2003 and condition of his left leg was continuously deteriorating. The apparently bad condition of appellant no.1 ought to have aroused apprehension and suspicion in the mind of respondent no.1 (who is a highly qualified expert in the field having a large experience). However, respondent no.1 displayed a high degree of negligence and allowed the condition of appellant no.1 to deteriorate by default, neglect and inattention. The condition of appellant no.1 showed no improvement even after partial slitting of the plaster by respondent no.1.

12.On the morning of 13.7.2003, appellant no.2 telephoned respondent no.1 apprising him of the serious condition of appellant no.1. In spite of all this, respondent no.1 failed to act immediately like in an emergency. He casually advised the appellant to bring the child at 2.15 p.m. to his clinic approx. 3.5 hours after the emergency call was made by appellant no.2. Appellant no.1wastakento the Clinic of respondent no.1 at 2.15 p.m. on 13.7.2003, where respondent no.1 finally removed the plaster completely. Surprisingly, there was swelling in the whole of the affected leg withblackistbrown blisters on the skin of the entire leg. Respondent No.1 applied the ointment on the blisters and asked appellant no.2 totakepatientback home and advised her to bring the patient after seven days when he would re-plaster the leg again. Respondent no.1 also told appellant no.2 not to worry about the blisters and swelling etc. as such things do happen. Even then the patient was not kept on BB Splint by either respondent no.1 or respondent no.2. However, appellant no.2 informed respondent no.1 that she was alone at home as her husband (appellant no.3) was sailing on high seas near Taiwan and as such it would not be possible for her to ensure proper care of the leg of the patient at home single handedly. On this, respondent no.1 advised her to readmit the patient in the INSCOL Hospital. Accordingly, patient was re-admitted on 13thJuly, 2003. However, pain in the leg did not subside. It is further alleged that respondent no.1 came only in the evening of 13thJuly in respondent no.2 hospital and after examining the patient,heinformedthat there was no cause of worry and patient would be alright.

13.However, respondent no.1 developed fever and his leg lost sensation and swelling started increasing during the night between 13th& 14thJuly, 2003. At about 2 a.m. condition of the patient further deteriorated and on being contacted, the resident doctor on duty examined the patient and also contacted respondent no.1 on phone and informed him about the condition of the patient. At about 3.00 a.m., respondent no.1 reached the hospital and informed appellant no.2, that a minor surgical procedure of cutting the muscle to reduce pressure on theleg,had to be performed. (The procedure in medical terms is called Fasciotomy). That Fasciotomy was performed at 5 a.m. on the 14thJuly.

14.After theFasciotomy, wound in the leg was kept with a loose bandage and respondent no.1 informed appellant no.2 that the wound will bleed but nothing to worry because in such cases it happens so. However, towards the evening of 14thJuly, 2003, the blood coming out from thelegs,started emitting foul smell.

15.Thereafter, respondent no.1 came to INSCOL Hospital on 15thJuly, 2003 at about 1.30 p.m.alongwithone Dr.Caplash(Respondent no.3) who physically inspected the wound, dressed up the same and informed appellant no.2 that he would close the wound after two days by grafting. The appellant no.2 informed the doctors that the wound was emitting foul smell and appeared to be infected. However, respondents no.2 and 3choosetoneglect the complaint of appellant no.2.

16.The grafting procedure was performed by respondent no.3 on 16thJuly, 2003 itself,withoutwaiting for the expiry of a period of two days.

17.On 17thJuly, 2003 after grafting, appellant no.1 started complaining of abdomen and back pain coupled with suffocation and breathlessness. The appellant no.2 being novice to the medical science and procedure, became apprehensive and scared, complained about abdominal painandbreathlessnessbutneither respondent no.1 nor doctors attending at respondent no.2 hospital, took it seriously. The patient spent extremely restless and uncomfortable night.

18.On 18.7.2003,Dr.J.P.Singhvi, Neurologist was called to check the Neurological side of the patient. As per his opinion, there was nothing wrong with the child in so far as Neurological side was concerned. As regard abdominal pain and shallow respiration, Dr.JayantBanerjee was called. He checked appellant no.1 and advised some investigations. He left without giving detailed information regarding the condition of the patient.

19.It is further stated that at about 1 p.m.,respondentsno.1 and no.3 came to change and check the dressing of the wound and informed appellant no.2 that they were not happy with the chest condition of the patient. All of a sudden they asked her to arrange for a ventilator and take away the patient wherever she liked. This attitude of respondents no.1 and 3, horrified appellant no.2, as they had all along been telling that there was nothing to be alarmed.As the ventilator was not immediately available in any other hospital including PGI,the patient was put on ventilator in respondent no.2-hospital itself. Since, respondent no.1 andmanagementofrespondent no.2-hospital wanted to somehow get rid of the patient, they themselves started contacting various hospital in Chandigarh and ultimately were able to find that a ventilator was available in Sector-32, Govt. Medical College Hospital i.e. respondent no.4. They accordingly suggested that the patient should be shifted to the said hospital immediately.

20.Thus, under such compelling circumstance, appellant no.2 and her other members of family took the risk and decided to shift the patient to the ICU of Respondent No.4-Hospital.

21.On arrival at respondents no.4-Hospital on 18.7.2003, the doctors diagnosed the condition of the patient as under;-

a.It was a fracture proximal (means beginning) of Tibia (L) with compartment syndrome which was on account ofincrease of pressure in the compartmentdue to swelling on account of tight plaster.

b.Blood vessels passing through this space were obstructed and were causing irreparable damage to muscles.

c.The patient had Multi organ Dysfunction.

d.Fasciotomydone was insufficient and inadequate.

e.Main arteries had been obstructed causing irreparable damage to the leg muscles leading to let amputation.

f.Muscles below the knee were dead or dying.

g.Left leg was in serious condition with dead muscles and blocked arteries, because of increase in pressure in the compartment and on account of that an urgentFasciotomywas done. When the wound was opened, it was found that anterior fascia of the leg was intact which was immediately incised hoping some miracle to happen and blocked arteries may open, but it was only hope and it never became a reality.

22.Appellant no.1 fought for his life at respondent no.4-hospital for several days as all his vital organs like heart, lungs and lever had become non-functional and was in coma. The doctorsatrespondentno.4 hospital told that only miracle could save the patient and the first priority for them was not the leg, but the life of the patient and they promised to do their best.

23. It is further stated that unbelievably, 55 units of blood and plasma were administered to the patient to save his life, as he was 100 per cent on ventilator for his failed lungs and on dopamine for the very weak and failing heart. He remained unconscious for about eight to nine days.

24.However, with the great efforts of doctors of respondent no.4 hospital after a periodof14days, the left leg of the patient was to be amputated to save his life as the same wasalready damaged by respondents no.1 to 3.

25.Thus, on 1.8.2003 left leg appellant no.1 was amputated above the knee to save his life.

26.The appellants had to purchase various medicines during the period when patient remained admitted at respondent no.4 hospital and had spent more than Rs.1,10,659/-.

27.It is further alleged that the prescription as well as history of the patient was not given by respondents no.1 to 3 to the appellants and when they insisted upon them to supply Discharge Summary and detailed historyofthepatient, it was onlythereafter that undated and unsigned Discharge Summary was supplied by respondent no.2 to the appellant. It is worth mentioning here that the said Discharge Summary was manipulated by respondents no.1 to 3 in such a manner by withholding certain material records and copy of undated and unsigned Discharge Summary was supplied by respondent no.2 to the appellants.

28.It is also stated that since therewascriminalnegligence on the part of respondents no.1 to 3 for notgiving propertreatment to the patient, therefore, appellant no.2 lodged an F.I.R. No.302 on 26.8.2003 in the Police Station, Sector-34, Chandigarh u/s 338 of I.P.C. against respondents no.1 to 3 for their criminal negligence.

29.It is further stated that the doctors of respondentno.4renderedexemplary professional expertise and with their untiring efforts for a period of about one month, the left leg of appellant no.1 had to be amputated to save his life, as the damage done to him at the hands of respondents no.1 to 3 was irreversible and life threatening for the following reasons;-

i.In putting a very tight plaster in the first instance;

ii.thereafterneglecting all complaints of the patient regarding severe pain and numbness in leg;

iii.failingto diagnose that signs and symptoms of Vascular Compromise had set in;

iv.performingdelayed and insufficientFasciotomy;

v.thereafter doing grafting on infected wound with the sole purpose of making money.

30.It is also alleged that culmination of a simple fracture into amputation can be linked wholly due to gross negligence of the respondents no.1 and 2 and the young blooming life of appellant no.1 was cut short and reduced into a crippled life by the utter callousness, carelessness and negligence on their part, who could have saved appellant no.1 from the life-long nightmare in which he had been landed consequent to failure in taking due care and caution in the treatment of an ordinary fracture. Thus, appellant no.1 has to live with fitful fever throughout his life. He would have been an asset to his family but by the present condition in which he has been rendered into by amputation of his left leg above knee with two important joints knee and ankle missing, he will be a liability on his family throughout the remaining life. As a consequence of the present physical condition of appellant no.1, he has obviously been deprived of all prospects of matrimonial life.

31.Appellants no.2 and 3 have suffered acute mental agony and will continue to suffer the same so long as they remain alive and this agony perhaps cannot be compensated in terms of money. The appellants no.2 and 3 will havetodevotetheir life long care and attention to the appellant no.1 and equally with the child, his parents will have to bear the brunt of the tragedy throughout their lives. Theappellantsno.2 and 3 are, therefore, entitled to suitable amount of compensation for the mental agony and ordeal which will die only with their death.

32.Respondent no.1 failed to diagnose the compartment syndrome nor he used the WickCathetrefor measuring the pressure to ensure development of compartment syndrome in the leg of the patient.Not only this even when there was complaint of extremity pain, respondent no.1 ought to have providedMannitolfor compartment syndrome which could cure it. Not only this even respondent no.1 failed to provide HyperBarricOxygen(HBO) thereby to the patient. This shows clear medical negligence on the part of respondent no.1.

33.Even the respondent no.2 hospital was negligent in not regulating the working pattern of Dr.Salujawho is a regular Consultant/Doctor of their hospital. Even the attending staff and Doctors of INSCOL Hospital exhibited utterly casual and negligent approach for the treatment and care of the patient and are responsible for the resultant serious condition and amputation of his leg.

34.It is also stated that at the time of incident, appellant no.3, was on contractual agreement withWallemShipmanagementLtd., Hong Kong for six months with effect from 16.5.2003. But due to medical negligence and critical condition of the patient on the part of respondents no.1 to 3, he had to break the contract with his employer in between and suffered a loss of Rs.7,00,000/- and had to rush to Chandigarh from Sydney, Australia. Appellant no.3 was earning a sum of Rs.US$4046 per month (i.e. approximately Rs.1.80 lac per month) and had to leave the contract and due to urgency of his son had borne air travel expenses to the tune of Rs.7,00,000/-.

35.It is further alleged that after discharge of the patient, appellants had to arrange a temporary limb ofProsphesiswithEndoliteMultiflexFoot costing Rs.19,500/-. Since appellant no.1 is in the growing age of 15 years, his parents had purchased a beginners limb with knee joint which had cost the appellants more than Rs.1.30lacs.

36.It is also stated that patient being a young boy wanted to become a merchant navy officer like his father.Now since his left leg has been amputated that too above knee, it causes great humiliation to him.Therefore, in order to provide adequate facility to appellant no.1, his parents are trying to get best available artificial leg so that he may not go in depression. The appellants have received three quotations one ofEndoliteAKProthesis, another of Otto Bock and third one of Titanium Implant. No artificial limb can compensate for Gods given leg,butasparents they would like to give him the best available limb which can help him to move with confidence in this society. The above mentioned Titanium Implant will have minimum two operations involved to grow Titanium screw in the bone of thigh and then attach the artificial leg to that screw. This will help the patient to have better balance and control. The cost of operation for putting screw only is US$ 38,000/-, (which is approximately Rs.17 lakhs) and that too in Australia or Sweden only. Still the cost of artificial leg will be extra. In this way the appellants have to bear expenses of Rs.30.00 lakhs. All artificial limbs are of two years warranty only and maximum life of the same is 7-8 years, that too with extra cost every year. Hence patient will need minimum 8 limbs for his life.

37. Accordingly, appellants claimed the following compensations for the medical negligence caused byrespondentsno.1 to 3 to the patient as well as to them;

a)Present burden of medical expenses Rs.3,98,192/- (Exp. AtInscolHospital Rs.82,487/- + cost of blood procured from Fortes Hospital Rs.6.350/-+ cost of medicines at GHMCH Rs.1,10,659/- + charges of Hospital, ICU, Private room, medical tests, X-ray and surgery etc. Rs.49,196/- + cost of temporary limb Rs.19,500/- + cost of beginners limb with knee joint for growing age of the child Rs.1,30,000/-).

b)Perspective burden of expenses for providing artificial leg (minimum possible compensation is 30 lakhs to the childuptothe age of 70 i.e. for 55 years as the present age of appellant no.1 is 15 years for providing minimum 8 Nos. limb in his life. No artificial limb can compensate for Gods given leg, but as parents of only son appellant no.2 and 3 would like to give him the best available limb which can help him to move with confidence in this society. There are various types of limbs available. One type of limb which will have minimum two operations involved to grow Titanium screw in the bone of thigh and then attach the artificial leg to that screw. This type will help the child to have better balance and control. The cost of operation for putting screw only is US$38000, which is approximately 17 lakhs that too in Australia or Sweden only. We can well imagine travelling and staying cost. Still the cost of artificial leg will be extra. Present available limbs with knew joints having chip control and fitted with C or Mercury foot having some control for uneven surface and fitted to amputee with socket are costing Rs.11,25,000/- and Rs.4,75,000/- per limb with a warranty of two years only by two well-known companies Otto Bock andEndolite. Maintenance and socket changing charges at Rs.5,000/- per year. Considering is about Rs.30 lakhs, including Rs.25,000/- per year as extended warranty for more than two years.

c) Loss of future earning of the child minimum possible around Rs.30.5 lakhs. As the appellant no.2 wanted to become a Merchant navy Officer like his father Complainant no.3 and would have reached highest rank of Captain of Chief Engineer by the age of 30 years.Minimum service period till the age of 50 years.Minimum service period till the age of 50 years i.e. 20 years at highest rank, considering present wages of the appellant no.3 of Rs.14,04,000/- per annum appellant no.1 would have earned incrores(Approximately minimum 2.8crores). Whereas above compensation of R.30.5lacsasked is minimum possible which a person can earn in a clerical job.

d) Loss of enjoyment of future married life of the child No amount can compensate min. one lac.

e) Pains/sufferings, loss of amenities, enjoyment of life and shortening of life expectancy Rs.one lakh.

f) Humiliation and condemnation of the child on account of being disabled person. Only the child who is going through that can understand Rs.one lakh minimum possible.

g) Damage/compensation toparentsappellants no.2 and 3 on account of trauma suffered during treatment and in future. No compensation can compensate their trauma. They only want justice and proper compensation to the child.

h) Loss of earning of father who has terminated his contact with Merchant Navy pre-maturallyand came by air in order to attend the child Rs.7,00,000/- including Rs.70,000/- as the charges for the air fare paid by the father. Contract period signed for six months at US dollar 446 per month i.e. around Rs.1,80,000/-. Complainant no.3 came back to attend the child after two months and eleven days).

i)Future loss of earning by the father till the child is re-settled. Rs.5,04,000/- (minimum 3 months wages).

j)Damages on account of present mental agony of the parents of the child. No compensation can compensate for mental agony of parents. Only full compensation to the child for his life long suffering, and your justice in this will act as heeling medicine to parents.

k)Permanent attendant/driver at the rate of Rs.36,000/- (min.) per ear, minimum for 50 years more i.e. Rs.18lacs.

Thus, appellants have prayedthatrespondentno.1 to 3 may be directed to pay a compensation to the tune of Rs.97,88,192/-alongwithlitigation expense in the interest of justice.

38.Initially, the complaint came up for hearing on 2.12.2003, before the State Commission whichheld, that the sum total of the reliefs which could be considered by the State Commission amounted to Rs.15,23,192/-, which was less than Rs.20lacs. Accordingly, the complaint was ordered to be returned to the appellants for being filed before the District Forum.

39.Appellants filed Revision Petition (No.3427 of 2003) against the order of the State Commission, before this Commission.

40.Vide order dated 19.5.2004, this Commission set aside the above order of the State Commission and remanded the case for being decided on merits.

41.After remand, the State Commission issued notices to the respondents who filed separate written statements.

42.Respondent no.1-Dr. SanjaySalujain its written statement strongly denied that there was any medical negligence on his part in providing treatment to the appellant no.1. As a matter of fact, prompt, adequate and correct treatment, as per the clinical conditions, was provided to the patient throughout the period he remained under his care, regardless of the time and hour of the day. It was also denied that the patient had suffered from a simple fracture in his left leg. It was a case of fracture of major long bone of the leg i.e. Tibia including its growth plate with separate of epiphysis from the metaphysic and it was certainly not a case of simple fracture. Respondent no.1 regretted for unfortunate amputation of leg of appellant no.1 at respondent no.4-hospital, but reiterated that the amputation was not the result of any wrong treatment in any manner provided by him. He further denied that he told the attendants of the patient, that it was a minor reduction procedure. The patient could be not in a hale and hearty position in view of the fracture suffered by him and has to be in severe pain and discomfiture.

43.Respondent no.1 has also pleaded that he had informed appellantno.2, thatthis injury required a closed manipulation of the fractured bone under C-arm image intensifier, the facilities for which were available at Respondent no.2- Hospital and she agreed to shift her son to be said Hospital. Since, anesthesia was to be administered for the procedure to be undertaken, the procedure had to be delayed by three hours as it required a certain period of fastening before the patient could be taken up for general anesthesia. The permission of the mother was taken regarding the type of plaster to be used as the costs differed from routine Plaster of Paris and lightweight imported cast. The imported plaster was chosen keeping in mind the best interest of the patient. The claim of the appellants thatDynacastplastercostedthem a sum of Rs.9,404/- was not correct.

44.The allegation that respondent no.1 left thepremises ofInscolHospital early and without caring for the patient was denied and it waspleaded that respondent no.1 had left the Hospital only when he was certain that the patient was comfortable. The limb was elevated on pillows in the ward and no other special posture was required to be adopted. The allegation that patient was unconscious was strongly denied and it was reiterated that the patient regained consciousness in the Operation Theatre itself. It was also denied that respondent no.1 neglected any aspect of the fracture reduction procedure and its aftercare follow ups. The allegation regarding appellant no.1 on regaining consciousness started complaining of severe and unbearable pain was denied. The pain, that appellant no.1 might have experienced at this stage, is the pain that any patient experiences as a result of the fracture and thereafter its corrective treatment involving the putting of the bone back into its proper position. By this time the effect of the anesthesia had almost completely worn off. It was denied that the pain was because of tight plaster or any obstruction to the blood flow. The plaster, it was alleged, is always applied with adequate amount of cotton padding underneath to give sufficient room for any swelling, which may occur following any fracture injury.

45.It was further denied that there was anything amiss with the leg of the patient or with the plaster itself. The line of treatment administered by him was correct and as per standard text books on the subject and there was no question of there being anything amiss either with the patient or with the line of treatment given to him.It was denied that respondent no.1 prescribed any strong painkillers and injections to the patient either on telephone or otherwise. He only prescribed mild pain killers such asLyser-D at the time of discharge of the patient after acquainting himself to the existing condition of the patient and as per the requirement. Respondent no.1 pleaded further that after receiving communication from the resident doctor regarding the satisfactory condition of the patient, he recommended that the patient be discharged.

46.Respondent no.1 strongly denied that at the time of discharge of the patient, there were any symptomssuggesting :- (a) Numbness of foot fingers (b) pain in leg and swelling of foot fingers, (c) Pallor or paleness of foot fingers and Bluishtingeof the skin of the foot fingers and nails and had such conditions existed, the mother of the patient ought not to have taken him to home.

47.It is further averred that there is no need to prescribe strong pain killers with a view to mask the Signs and Symptoms of vascular obstruction. The allegations of dereliction of duties on his part regarding the treatment were denied. Further, respondentno.1didnot receive any call or intimation to the effect that there was any kind of deterioration in the injured leg of the patient and as such he had no occasion to visit the Hospital.

48.On 12.7.2003, respondent no.1 cautioned appellant no.2 as to the importance of keeping him informed with respect to the condition of the patient at all the times. The appellant no.2hadcalledhim on his mobile phone at about 7.30 p.m. wherein she had informed him that the medicine that was prescribed by him earlier in the day had proved effective but now again the appellant no.1 was complaining about pain. Respondent no.1 toldappellant no.2, that he would like to have another look at the patient, to which appellant no.2 replied, that it wasdifficult for her to bring appellant no.1 over to his clinic, as she was alone at home. Respondent no.1 then volunteered to make a house call that very evening to examine appellant no.1 first hand. It was denied that there was any reluctance on his part to examine the appellant no.1 at his house. The respondent no.1 visited the house of the appellant within half an hour of receiving the call on his mobile phone and had taken care to carry withhimtheelectric plaster cutting saw, plaster shears and a plaster-spreader as it was felt that the continuing complaint of discomfiture by the patient might require cutting open of the plaster.

49.On examining and after closely questioning the patient, he felt that though the plaster was sufficiently loose when initially applied, the possibility of some swelling taking place within the plaster cast, could not be ruled out. Then respondent no.1 thought that best course in the circumstances of the condition of the patient would be to slit open the plaster cast right from the base of toe to themid thighthrough all its layers including the underlying cotton padding. The plaster was cut open and spread in a manner, which completely revealed the skin of the injured leg of the patient. The respondent no.1 did not find any abnormal swelling. The skin was warm to touch and its color was normal. He also found the absence of pain and hardening of muscles, which were soft and of a normal condition. The pulse on the top of the foot was felt by himwhichwas running normally. The patient was able to move the toes of his left foot without any severe pain. The patient did not feel any pain on passive stretching of the toes of the left foot.

50.It was denied by respondent no.1 that there existed any condition in the patient at that point of time which even remotely suggested obstruction of blood vessels or that the muscles of the left leg of the patient were in the process of dying or that the gangrene was setting in.

51.It was denied that Compartment Syndrome was setting in nor was there any indication of the same corrective steps.He prescribed a medicine calledPhogenzymewith a view to ameliorate the swelling on the affected leg. The respondent no.1 left the house of the patient at about 9.15 p.m. after spending more than an hour at her house. It was explained to appellant no.2 that he would be at call all through the night and she must not hesitate to call him even at the most odd hours of the night if she noticed any deterioration in the condition of the patient. However, he did not receive any call from appellant no.2 about any deterioration in the condition of the patient.

52.Respondent no.1 denied that appellant no.2 made any call to him on the morning of 13.7.2003appraisinghim of any serious condition of the patient.On 13.7.2003, it was alleged that appellant no.2 called respondent no.1 at 1.30 p.m. stating that though appellant no.1 had a restful night but he now seems to be experiencing heightened pain. Respondent no.1 advised her to bring the patient to his clinic immediately and the patient was brought to his clinic at 2.15 p.m. He had cut open the plaster cast right through it the previous evening and he took it completely off the leg of the patient with a view to make a thorough and all round examination of the affected leg. It is stated that he found that there was some swelling in the calf region only and not in the entire leg and also noticed a few blisters on the front side of the upper part of the leg only but not on the entire leg. He elevated the leg on a BB Splint and cleaned the skin around the blisters withBetadinesolution and then appliedBetadineover the blister as an antiseptic measure. Respondent no.1 categorically told appellant no.2 that appellant no.1 had to be admitted so that he could be constantly monitored by him. At first, appellant no.2 showed reluctance regarding the admission of her child in the Hospital but later on at the insistence of respondent no.1, she agreed to admit appellant no.1 in respondent no.2 Hospital.Respondentno.1had arranged for the ambulance fromInscolHospital with a view to ensure safe and comfortable transportation of the patient as his leg was already on a BB splint. Respondent no.1 also followed the ambulance to theInscolHospital and to issue necessary instructions to ensure proper care of the patient during the time he remainedadmittedthere. At theInscolHospital, he gave necessary instructions to the doctor present on duty and advised for continuance of the medicines already prescribed for reduction of swelling and pain and also to encourage active and passive movements of the toes and ankle with a view to activate the muscles and help to reduce the swelling further.

53.Regarding the allegation that respondent no.1 failed to recognize the setting in of Compartment Syndrome in time, it is stated that the Progress Chart prepared atInscolHospital contained his note about a suspicion of evolving Compartment Syndrome. He visited theInscolHospital at about 9 p.m. the same evening to check the condition of the patient and to monitor that the treatment suggested by him earlier in the evening was being closely followed. Respondent no.1 already suspected the onset of Compartment Syndrome and he specifically examined the patient and his affected leg for further signs of onset of Compartment Syndrome but found absence of any alarming temperature of the patient was normal and generally he did not seem to be in particular discomfort. The respondent no.1 left the Hospital after examining the patient at about 9.30 p.m. after giving necessary instruction to the Hospital staff.

54.At about 3.10 a.m. on 14.7.2003, respondent no.1 was woken up by a call from the resident doctor of respondent no.2-Hospital, who said that he was summoned by appellant no.1 at about 2.45 a.m. with complaint of severe pain in the affected leg and on examination he found that there was diminished sensation in the toes of the left foot and the pulses were feeble on palpation. The respondent no.1 reached theInscolHospital at about 3.10 a.m. and found that the appellant no.1 was in severe pain and on examination, the sensations were absent and the pulses in the foot were palpable through feeble. The condition of the patient had compounded and it required taking certain measures involving surgical intervention (Fasciotomy) for relieving the excessive pressure, which had built up in the muscle compartments of the leg. Explaining the procedure ofFasciotomy, respondent no.1 has pleaded that it involved two long incisions on both sides of the leg from the level of the knee to just above the ankle cutting through the skin, underlying layer of fat, the deep fascia which is a layer of tissue enveloping the muscles with a view to relieve the pressure already built inside the muscle compartments and to allow the swollen muscles to bulge out of the wound. The leg has four such muscle compartments and each one had to be decompressed in the fashion as stated above.

55.It is alleged that the line of treatment adopted by respondent no.1 is also supported by the authoritative publication titled Skeletal Trauma (Vol.I) and authorized by Bruce D. Browner,AlenM. Levine and Peter G.Trafton.TheFasciotomywas performed at about 5 a.m. on 17.7.2003. After the surgical intervention, the condition of appellant no.1 started improving and the circulation to the affected limb was restored to its normal level as a result of which the normal color of the exposes muscles was also restored. The appellant no.2 was told that the wound was expected to bleed after the kind of surgery performed. The foul smell is peculiar but normal, emanating from any dressing soaked with blood and tissue fluids and it occurred despite the frequent change of dressing.

56.It is also stated that earlier, respondent no.1 contacted respondent no.3 who was awell knownPlastic and Reconstructive Surgeon with special training in micro-vascular surgery with 14 years of experience behind him for the appropriate management of theFasciotomywounds andconsequentialtreatment. The respondent no.3 had reached the Hospitalatabout10.30 a.m. on 14.7.2003 itself and examined the appellant no.1alongwithhim and expressed satisfaction at the condition of the affected leg of the patient after theFasciotomyprocedure. The respondent no.3 advised a Color Doppler Study on the affected limb to assess the status of the blood flow in the arteries of the leg and also advised to start the patient onPlasmex, which is a fluid, which when administered intravenously helps in restoring the micro circulation of the limb, TabTrentalwas prescribed, which helps in opening up of the blood vessels in a limb. The respondent no.1 also inspected the wounds and found that the objective of the surgery was being achieved in the sense that the fractured leg appeared to be slowly gaining in health. It was denied that the wound was infected.

57.On 15.7.2003, appellant no.2 and other relatives requested the respondent no.1 to permit them to seek a second opinion on the course of treatment being adopted by him. It was readily agreed to. The appellant no.2 and other relatives called Dr.KuldipSingh, an eminentandreputedSeniorOrthopaedicSurgeon of the city to have a look at the fractured leg of appellant no.1. Dr.KuldipSinghexaminedthepatient the same evening and also went through the records and expressed complete satisfaction with the line of treatment adopted by respondent no.1 and recommended unreservedly to continue with the same line of treatmentIt was denied that appellant no.1 experienced any abdominal or back pain or that he suffered from suffocation or breathlessness on 17.7.003. The grafting was done on the affected leg of appellant no.1 by respondent no.3 on 16.7.2003 and he did not suffer from any adverse effects from the same on the said day. The said grafting had absolutely nothing to do with the abdominal and back pain and grafting could not possibly have triggered either of the pains nor could it have caused suffocation or breathlessness.

58.It was clarified that abdominal pain and breathlessness, which was referred to by the appellants saying about same occurring on 17.7.2003, in fact had occurred on the morning of 18.7.2003 and respondent no.1 out of his concern for the appellant no.1, called Dr.JayantBanerjito look at the patient and redress the said complaints. Dr.Banerjithoroughly examined the patient and as per the clinical condition of the patient ordered some investigations. Dr.Banerjicalled respondent no.1 on mobile phone at 12.45 p.m. and expressed his concern about the general condition of the child and said that he would like to discuss the results of the investigations already prescribed with respondent no.1. Dr.Banerjialso called respondent no.3 as well Dr.Banerjiin the light of the findings of his investigations and on discussing the matter threadbare amongst themselves, it was decided that in view of the shallow breathing of the appellant no.1 and the findings of the investigations showing falling Oxygen levels in the blood stream of appellant no.1, it would be appropriate to shift the appellant no.1 to Intensive Care Unit of theInscolHospital. Respondents no.1, 3 and Dr.Banjerjidiscussed the findings of investigations, which hadrevealed that appellant no.1 had developed a complication called Adult Respiratory Distress Syndrome (ARDS), which is a clinical syndromein which there is a disturbed function of the oxygen exchange system of the lungs leadingtoafall in the oxygen levels of the blood and consequent breathing problem for the patient so affected. This was explained by respondent no.1, respondent no.3 and Dr.Banerjito appellant no.2 and her relatives/friends present at that time and they were told that the complication had suddenly developed in appellant no.1 and consequent remedial actions, which needed to be taken immediately. The appellant no.2 wanted that the patient be shifted to Intensive Care Unit and put on aVentiator, which facilities were available atInscolHospital. It was explained that the option of shifting appellant no.1 to some other Hospital like PGIMER or GMCH, Chandigarh was also open to them.The complications developed by the patient were not on account of any line of treatment adopted by therespondentno.1and his fellow doctors, which could have triggered the symptoms for which the appellant no.1 came to suffer from.The appellant no.1, it was alleged, developed the said complications for reasons beyond the control of a doctor and in spite of the best care exercised by the respondent no.1 and the fellow doctors.

59.It is also alleged that appellant no.2 was insistent that her child should be shifted to some other hospital. Appellant no.2 was made aware of the risks involved in shifting the patientinthestate in which he was at that time. However, appellant no.2 decided to shift her child out of theInscolHospital. Respondent no.1 and doctors namely respondent no.3 and Dr.JayantBanerjiinorder to ensure smooth and safe shifting of appellant no.1 first carried out a trial run of the process of shifting, and for that purposean ambulance from respondent no.2- Hospital was prepared with all necessary monitoring and support system equipment like PulseOximeter, Oxygen cylinders, Defibrillator, Suction apparatus, BP monitoring equipment and a crash cart with all emergency drugs and the same were checked by the consultant anesthetist Dr.RashmiSalujaprior to the actual shifting process. Dr.Banerjihad already processed to the GMCH to oversee the arrangements for receiving appellant no.1 in the ICU there. The consultant of Anesthesia, in charge of the ICU at GMCH had already been consulted and requested to be personally available to receive appellant no.1 on arrival at the emergency of the GMCH. Once a go ahead was received from Dr.Banerji, the shifting process was started and the patient was shifted by the staff ofInscolHospital to the waiting ambulance. Dr.RashmiSalujaand the ICU technician accompanied the patient in the ambulance while closely monitoring his parameters. Respondent no.1 and 3 followed the ambulance in their respective cars. On arriving at the emergency gate, Dr.Banerjiand ConsultantAnaesthetistof GMCH, Dr.SanjeevPaltawerepresent physically to receive the patient. All admission formalities were deferred on the request of respondent no.1 till such time the patient was safely on to the ventilator at ICU of GMCH. It was past midnight when respondent no.1, respondent no.3, Dr.JayantBanerjiand Dr.RashmiSalujaleft the premises of the GMCH after ensuring that the appellant no.1 was well ensconced on his new ventilator at GMCH.

60.The treatment of appellant no.1 provided at GMCH was referred to by respondent no.1whodenied any medical negligence on his part in prescribing the treatment atrespondent no.2 Hospital and asserted that the complication arosebecause of the condition beyond his control.

61.It was strongly denied that any damage much less irreversible and life threatening was caused to the affected leg of the patient by virtue of the treatment given to him by respondents no.1 and 3. The various averments regarding negligence on his part were categorically denied.

62.The quantum of compensation claimed was also denied and it was alleged that the claim has been made of a highly inflated amount.

63.Respondent no.2 InscolHospital, in its written statement took a preliminary objection that the allegations made in the complaint against it are vague,non specificand general in nature regarding negligence, rudeness on the part of Hospital staff. The other preliminary objection raised is that appellants havemadespecificallegation of manipulation of record against the Hospital and this matter cannot be adjudicated upon in a summary procedure under the provisions of Consumer Protection Act, 1986. It has also been alleged that incasetherewas any negligence on the part of resident doctor, he should have been impleaded as party for proper adjudication of the matter.

64.On facts, the pleas raised by the respondent no.1 were affirmed and it was contended that respondent no.2 had no role toplayregardingthe treatment of the patient i.e. appellant no.1. It was further pleaded that the staff of respondent no.2 Hospital had taken proper care of the patient and handled the patient faithfully as per the instructions of Specialist/Respondent No.1 who had been constantly monitoring the condition of the patient and consulting other Specifications whenever necessary. The allegations made in the complaint about shifting of the patient to some other Hospital were denied. It was, however, mentioned that the appellant no.2 was told that she had the option to shift her son i.e. appellant no.1

65.Respondent no.2 further pleaded that since the SpecialistConsultantreviewedthe whole case regarding the condition of appellant no.1, it was decided to shift him to the Intensive Care Unit and put him on Ventilator, which was done by the staff of theInscolHospital. The patient was put on Ventilator at 3 p.m. on 18.7.2003. It was mentioned that the appellant no.2 insisted upon shifting appellant no.1 to some other Hospital. The allegations that the delay was caused on account of non-settlement ofHospitaldueswere denied. It was alleged that in fact the concern staff of respondent no.2 and Specialist Consultants was aboutwell beingof the patient who was being shifted. It was submitted that the patient was on regular Ventilator so long he was in respondent no.2 Hospital and was on Manual Ventilator as soon as he was shifted to Ambulance. All the instructions issued by respondent no.1 were implemented with due diligence by the staff of respondent no.2-Inscol Hospital.

66.The allegations of deficiency in service on the part of respondent no.2 were specifically denied. The respondent no.2 had duly qualified senior doctors and other staff to assist the Specialist Consultant, respondent no.1. The Hospital has been maintaining a very high standard of sterilized environment for the patients and also duly sterilized operation theatre and sterilized and autoclaved instruments. The staff of respondent no.2 Hospital has been providing full medical and other help as per the instructions of Specialist Consult ant. The respondent no.2 alleged that it did not commit any deficiency in rendering service and no compensation is recoverable from it. Even otherwise the claim has been highly exaggerated and the alleged loss is remote.

67.Respondent no.3-Dr. Y.Caplashin its written statement took the plea that appellants have not been able to state or prove that there has been any deviation from the standard medical procedure on the part of respondent no.3 In fact, respondent no.3 has treated the patient with due diligence and according to the standard health care management. The respondent no.3 has described himself as a Plastic Surgeon of great repute and has been practicing as such for the past 14 years and has performed variouskindof surgeries and always followed the standard protocol. The respondent no.3 is a conscientious doctor andhastreatedthe patient with due care and diligence. The allegations of medical negligence on his part were denied.

68.It is further stated that visited the Hospital at about 10.30 a.m. on 14..7.2003. The patient was physically examined.The foul smell referred to by the complainants is nothing other than a peculiar smell on account of bandages, which had been applied on the wounds. After inspecting the wound, respondent no.3 advised acolouredDoppler study on the affected limb so as to be able to correctly assess the status of the blood flowinthearteries of the affected limb.The report showed that there was adequate blood flow in the affected leg. The respondent no.3 put the patient on Plasmex, which is a fluid, which when