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T. Stella v/s Employees State Insurance Corporation & Others


    F.A. No. 547 of 2012

    Decided On, 12 March 2018

    At, Tamil Nadu State Consumer Disputes Redressal Commission Chennai

    By, THE HONOURABLE MR. THIRU K. BASKARAN
    By, PRESIDING JUDICIAL MEMBER & THE HONOURABLE MR. S.M. MURUGESSHAN
    By, MEMBER

    For the Petitioner: M/s. E. Venkatesan, Advocate. For the Respondents: R1, M/s. K.C. Ramalingam, R2, M/s. T. Ravikumar, R3, M/s. G. Thangavel, Advocates.



Judgment Text

K. Baskaran, Presiding Judicial MemberThis appeal has been filed by the appellant/complainant under section 15 read with Section 17(1)(a)(ii) of the Consumer Protection Act, 1986 against the order of the learned District Consumer Disputes Redresssal Forum Chennai (North) passed in C.C. No. 30/2008 dated 8.4.2011 seeking enhancement of relief.For the sake of convenience and brevity the parties are referred to here as they stood arrayed in the District Forum.The factual background culminating in this appeal is as follows:1. That the appellant/complainant had filed a complainant against the three respondents/opposite parties claiming Rs.15,00,000 as compensation on the ground of alleged deficiency in service and for a sum of Rs. 10,000 towards costs alleging inter alia that the complainant was covered under the Employees State Insurance Scheme and on 2.6.2006 she was admitted to the 2nd opposite party hospital for incisional hernia and the 3rd opposite party Doctor Kannapiran performed surgery for the same on 8.6.2006 and after surgery the complainant developed nauseating feeling but nobody in the said hospital attended her and hence the complainant started vomiting and suffered severe headache and she could not pass urine motion and flatus and she felt very thirsty and also was suffering from fever; that she was referred to the Government General Hospital on 13.6.2006 for further management and at the Government General Hospital Chennai various tests were done on her and it was found that the blood urea went up to 64% and creatinine level shut up to 2.8% and the complainant was operated upon on the night of 13.6.2006 itself in which 30 c.m. length of intestine was removed as gangrene had developed and thereafter the complainant suffered loss of weight and was unable to do her day to day work which was due to negligence on the part of the 3rd opposite party doctor in stitching the intestine also while performing incisional hernia surgery at the 2nd opposite party hospital; that because of the negligence exhibited by the 2nd opposite party doctor the complainant had to undergo two surgeries within a short span of 5 days and had lost her weight and she had suffered mental agony pain and stress and hence she had filed this complaint.2. The opposite parties had resisted the claim of the complainant by setting out a defence that the complainant was not at all covered under ESI scheme and that the company in which the complainant claimed to have worked during the relevant period was closed much earlier and hence the complainant wrongly took the treatment in the 2nd opposite party hospital by using her old identity card and hence there was no consumer and service provider relationship between the parties; That in any event surgery was performed by the 3rd opposite party doctor properly after necessary preparations and the proper post-operative care was also taken and the complainant suffered some inconvenience due to post-operative paralytic illeus and it was routine and normal after such abdominal surgery and that the complainant did not follow up the surgery medical advice; that the complainant had already suffered from jaundice and chickenpox and she had undergone LSCS and as her immune power was poor she suffered from viral fever on the 3rd and 4th operative days; that when the complainant was shifted to Government Hospital Chennai her condition was stable and it is false to allege that during hernia surgery a portion of the complainants intestine was also stitched and as there was no negligence on the part of the 3rd opposite party doctor the complainant is not entitled to any relief.3. On considering the pleadings and other materials available on records the learned District Forum had held that the complaint was maintainable and that the opposite parties were guilty of negligence amounting to deficiency in service and partly allowed the complaint directing the opposite parties to pay Rs. 50,000 as compensation for pain and suffering and Rs. 5,000 as costs to the complainant. The complainant having aggrieved over the inadequacy in the relief granted has come forward with this appeal before this Commission.4. Though the opposite parties have suffered this order at the hands of the learned District Forum they have not preferred any separate appeal challenging the said order. Hence as far as the opposite parties are concerned the order passed by the learned District Forum has attained finality.5. The point for consideration in this appeal is whether the appellant/complainant is entitledto enhanced relief than the one awarded?6. Point : It is contended by the appellant/complainant that the learned District Forum had erred in not considering the enormous physical pain and mental agony suffered by the complainant because of the medical negligence exhibited by the third opposite party doctor in not properly performing the surgery on the complainant and as a result of which the complainant had to undergo the major abdominal surgery within a span of 5 days and ultimately a portion of intestine measuring 30 cm in length had to be cut and removed resulting in heavy loss of weight to the complainant and the complainant also had to spend a lot of money towards post operative care.7. Per contra the learned Counsel appearing for the 3rd opposite party started arguing that the findings of the learned District Forum to the effect that there was medical negligence giving rise to deficiency in service on the part of the opposite parties is not correct and the same cannot be sustained and as such the complaint has to be dismissed. But we are of the view that without preferring any separate appeal against the order of the learned District Forum by and under which these opposite parties were directed to pay Rs. 55,000 to the complainant they cannot be permitted to argue on the correctness of the finding recorded by the learned District Forum and they at their best argue in this appeal seeking dismissal of the same but only on the ground of whether the quantum of relief granted by the learned District Forum is just and reasonable not warranting any interference.8. The complainant had claimed a compensation of Rs. 15,00,000 and cost of Rs. 10,000 but the learned District Forum had granted Rs. 50,000 towards compensation and Rs. 5,000 as costs.9. The learned District Forum had in para 8 of its order dealt with the point and held that though the complainant had claimed a hefty sum of Rs. 15,00,000 as compensation she had not produced any documents to show as to how she had quantified the amount of compensation and that the complainant had not produced any medical bill to show that she had incurred heavy medical expenses after surgery. It had also observed that the complainant had undergone free medical treatment only in the Government General Hospital in Chennai and at ESI Hospital/2nd opposite party. The learned District Forum had also further observed that the complainant had also failed to establish that due to negligence on the part of the opposite parties she was not able to do her duty as before by producing any medical certificate or disability certificate and finally the learned District Forum had held that the complainant had undergone treatment for 17 days and 2 surgeries had to be performed and hence she might have suffered severe pain and after observing so the learned District Forum held that it would be proper to direct the opposite parties to pay Rs. 50,000 jointly and severally as compensation for mental agony pain and suffering undergone by the complainant besides cost of Rs. 5,000.10. We do not find any defect and infirmity in the findings recorded by the learned District Forum as stated supra. It is a well settled proposition of law that mere establishment of negligence on the part of the opposite parties itself would not entitle the complainant to seek compensation and for getting compensation the complainant has to further establish that as a result of negligence the complainant had suffered monetary loss or other loss whic

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h had to be recompensed. As rightly observed by the learned District Forum the complainant had not let in any evidence to show that she had suffered monetary loss because of the medical negligence exhibited by the opposite parties. She had only suffered physical pain due to 2nd surgery performed upon her and prolonged treatment as in-patient in 2 hospitals which might have resulted in mental agony to the complainant. For these physical pain and mental agony the learned District Forum had awarded compensation of Rs. 50,000 besides costs of Rs. 10,000 which in our opinion is just reasonable and adequate.11. In the light of the discussion held above we hold that the appellant/ complainant is notentitled to enhanced relief than the one awarded and this point is answered in the negative.12. In the result the appeal fails and the same is dismissed. No order as to costs.Ordered accordingly.
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