Landmark judgements

MRINMOY DUTTA—Appellant versus DR. ANUPAM GOLASH & ANR.—Respondent

IV (2016) CPJ 74 (NC)

NATIONAL CONSUMER DISPUTES

REDRESSAL COMMISSION, NEW DELHI

Hon’ble Mr. Justice D.K. Jain, President & Mrs. M. Shreesha, Member

MRINMOY DUTTA—Appellant

versus

DR. ANUPAM GOLASH & ANR.—Respondents

First Appeal No. 380 of 2013 against Order dated 12.3.2013 in SC Case No. SC/5/O/2006 of West Bengal State Consumer Disputes Redressal Commission—Decided on 11.5.2016

Consumer Protection Act, 1986 — Sections 2(1)(g), 14(1)(d), 21(a)(ii) — Medical Negligence — Accidental injury — Septoplasty operation performed — Structural weakness in nose — Breathing problem — Tremendous pain in nose — Mental agony and financial loss — Deficiency in service — State Commission dismissed complaint — Hence appeal — Medical literature clearly stipulates that correction surgeries is best done by L-shaped grafting, which procedure, is not indicated in discharge summary issued by treating doctor — Complainant had undergone open rhinoplasty and reduction rhinoplasty subsequent to rhinoplasty in which treating doctor had not done the ‘L’ shaped grafting as per standards of medical parlance — Complainant had suffered structural and cosmetic complications namely deep scar and alignment of nose, functional complications like breathing problems, sleeping disorder, causing pain, tension and mental agony — No evidence that complainant requires any specific kind of treatment to be done abroad — Complainant has not established by filing any material on record, the line of business he was involved in and if the scar and his condition had affected the nature and extent of business — Compensation @ Rs. 5 lakh awarded towards mental agony — Treating doctor and nursing home are jointly and severally liable.

[Paras 30, 33, 35, 36, 38]

Result : Ordered accordingly.

Cases referred: 

1. Jacob Mathew v. State of Punjab & Anr., III (2005) CPJ 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC)=III (2005) CCR 9 (SC). (Relied) 

[Para 17]

2. Indian Medical Association v. V.P. Shantha and Ors., III (1995) CPJ 1 (SC)=1995 (SLT SOFT) 561. (Relied) 

[Para 17]

3. Derr v. Bonnev, 231 p 2d 637, Wash. 1951. (Relied) 

[Para 18]

4. Savita Garg v. The Director. National Heart Institue, IV (2004) CPJ 40 (SC)=VI (2004) SLT 385. (Relied) 

[Para 30]

5. Balram Prasad v. Kunal Saha, IV (2013) CPJ 1 (SC)=IV (2013) ACC 378 (SC)=VIII (2013) SLT 513. (Relied) 

[Para 37]

Counsel for the Parties: 

For the Appellant : Mr. Rahul Sharma, Amicus Curiae and appellant in person.

For the Respondents : Mr. Partha Sil and Mr. Tavish B. Prasad, Advocates.

ORDER

1. Challenge in this Appeal under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”), is to the order, dated 12.3.2013, passed by the West Bengal Consumer Disputes Redressal Commission (for short “the State Commission”) in Case No. SC/5/O/2006, By the impugned order, the State Commission has dismissed the Complaint, observing that the Petitioner/Complainant had failed to establish that there was any deficiency in service or medical negligence on the part of the Respondents.

2. The brief facts, as set out in the Complaint, are that in the year 1986, while playing cricket, the Complainant met with an accident and hurt his nose, resulting in breathing complications. Subsequently, a septoplasty operation was performed removing most of the septum along with the tip support in the columella region. The Complainant felt sudden structural weakness in his nose which was solved three years later, by a plastic surgeon of N.R.S. Medical College, by grafting with the iliac crest bone. The Complainant averred that he was successful in his’ business and was also acting in T.V. serials and that in this profession the structure of his facial features is extremely important. During the year 2005, the Complainant again started feeling some functional disorder in his nose as the graft got dissolved giving rise to weakness in the support at the tip. The Complainant pleaded that on 27.3.2005 he had consulted the first Opposite Party, (hereinafter referred to as “the treating Doctor”), who, on physical examination and analysing the history of the Complainant, gave him an option of fixation of support at the tip by way of an L-shaped graft.

3. The Complainant averred that on 7.8.2005, the treating Doctor had advised him to undergo rhinoplasty costing Rs. 22,000 and subsequently, on 15.8.2005, the operation was performed onhis nose by the treating Doctor at the Nursing Home of the second Respondent. The Complainant pleaded that after the operation, he found a much longer columella scar extending above the original tip position. There was further dumping of that portion of the skin below the nose, which was done to hide the scar and this resulted in aggravating his discomfort, on account of refunctioning of the Ala muscles. The Complainant brought to the notice of the Doctor that the soft tissue above the dorsum on the end (tip) had bent down in a vertical direction through the columella. On 28.8.2005, the plaster was removed and a red infected patch was found in the nose above the graft and on top of the dorsum. He was asked to come again after two weeks and certain medicines were prescribed. The Complainant pleaded that the treating Doctor did not take proper care, though pus was oozing out of the nose. On 3.9.2005, the Complainant visited the treating Doctor, who advised proper drainage and complete washout under anaesthesia. On 27.9.2005, the Complainant once again visited the clinic of the treating Doctor at CMRI with continuous infection and pus accumulation.

4. The Complainant pleaded that the treating Doctor operated his nose with vertical incision through columella and tip, on account of which a scar was caused extending from the base to the tip

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