SLP(C) No.19165 of 2009 decided by Hon'ble Supreme Court of India on 26-10-2010.
The appellant was admitted in the hospital of the respondent on 31-10-1994 with the complaint of loose motions. After some laboratory tests, the respondent put him on medication and also injected glucose saline through his right shoulder. This did not improve the condition of the appellant, who started vomiting and started having loose motions frequently. On 3-11-1994, the respondent is said to have administered glucose saline through the left foot of the appellant. In the evening, the parents of the appellant noticed swelling in the toe of his left foot, which was turning black. This was brought to the notice of the respondent, who stopped the glucose. On the next day, the parents of the appellant pointed out to the respondent that blackish discoloration had spread. Thereupon, the appellant was sent to one Dr. Chudasama, who was known to the respondent. Dr. Chudasama applied a small cut, removed black coloured fluid from the left toe of the appellant and gave some medicines. In the morning of 5-11-1994, it was noticed that the left leg of the appellant had become totally black upto the knee. Thereupon, he was taken to Vadodara. Dr. Ashwin Bhamar, who examined the appellant at Vadodara suspected that he had developed gangrene in his left leg and advised his admission in Bhailal Amin Hospital.The appellant was operated in that hospital and his left leg was amputated below the knee.
The appellant filed a complaint through his father and claimed compensation of Rs.10,00,000 by alleging negligence on the part of the respondent. According to the appellant, even though the factum of swelling of the toe and blackening of the leg was brought to the notice of the respondent, he did not bother to get the appellant examined through an expert, which could save his leg. It was also pleaded that due to the respondent's failure to pay requisite attention, the appellant's left leg had to be amputated below the knee and he would suffer throughout his life.
In the written statement filed by him, the respondent claimed that the appellant was hospitalized for gastro-enteritis, dehydration acidosis and septicemia shock and mal-nutrition and anaemia and seriousness of the case was communicated to his father. According to the respondent, treatment was given to the appellant keeping in view the laboratory reports and no glucose was administered after 2-11-1994. The respondent denied the allegation of negligence and pleaded that he had taken every possible care in treating the appellant and even got him examined by Dr. Chudasama despite the fact that his hospital was closed on account of holidays.
The State Commission did not accept the version of the respondent that the appellant had been brought to his hospital in a serious condition by observing that if this was so, there was no reason for him to stop medication and glucose. The State Commission noted that the case papers were produced by the respondent after a time gap of 6 years and that too after cross-examination of the complainant's father and vascular surgeon, Dr. Ashwin Bhamar, who was produced as an expert. The State Commission further noted that the respondent had not filed the affidavit of Dr. Chudasama, to whom the appellant is said to have been taken for further treatment. The State Commission concluded that the respondent had not exercised reasonable care while treating the appellant and awarded compensation of Rs.5,00,000 with interest at the rate of 9% from the date of complaint.
The National Commission allowed the appeal preferred by the respondent and set aside the order of the State Commission only on the ground that in his cross-examination, Dr. Ashwin Bhamar admitted that there could be ten other reasons for gangrene.
Held: A critical analysis of the order of the State Commission shows that it did not accept the respondent's version that the appellant had been brought to his hospital in a serious condition and he was suffering from gastro-enteritis, dehydration acidosis and septicemia shock and mal-nutrition and anaemia by observing that if that was so, there was no valid reason for the respondent to stop medication and withdraw glucose on
2-11-1994. The State Commission also took serious view of the respondent's conduct in producing the case papers after a gap of 6 years from the date of filing the complaint and that too, after the appellant's father and Dr. Ashwin Bhamar had been cross-examined. The State Commission then referred to the statement of Dr. Ashwin Bhamar and opined that in view of his statement, the printed material produced by the respondent cannot be relied for denying relief to the appellant. The State Commission concluded that there was deficiency in service on the part of the respondent and directed him to pay compensation to the appellant.
The National Commission did not advert to these important aspects and allowed the appeal on the solitary ground that on his cross-examination, Dr. Ashwin Bhamar had admitted that there could be ten to twelve other reasons for development of gangrene.
The National Commission was duty bound to pay serious attention on the respondent's failure to produce the case papers for 6 long years and called upon him to explain why the record pertaining to the treatment given to the appellant was held back from the State Commission till the complainant's evidence was virtually over. The case papers/bed ticket maintained by the hospital of the respondent would have disclosed the line of treatment adopted by him. Why he did not produce those papers along with reply to the complaint or at least before commencement of the evidence of the appellant is inexplicable. By withholding those papers till the completion of the evidence of Dr. Bhamar, the respondent appears to have made an attempt to mislead the State Commission about the steps taken by him for treating the appellant.
Equally intriguing was respondent's failure to file affidavit of Dr. Chudasama to whom he claims to have taken the appellant for treatment. The respondent did try to fill in this lacuna by filing affidavit of Dr. Chudasama before the National Commission. The latter should have enquired as to why he had not filed such affidavit before the State Commission or examined him as a witness before the State Commission. These omissions on the part of the National Commission are extremely serious and have resulted in failure of justice. The impugned order is set aside and the matter is remanded to the National Commission for fresh disposal of the appeal filed by the respondent. Since, the matter is almost 16 years old, we request the National Commission to decide the appeal within a period of 6 months from the date of receipt/production of copy of this judgment. The parties are directed to appear before the National Commission on 8th of November, 2010. They may file additional affidavits and documents within next four weeks.