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2003 DIGILAW 273 (UTT)

Vimlesh Dixit v. R. K. Singhal

2003-11-18

K.D.SHAHI, LUXMI SINGH, SURENDRA KUMAR

body2003
ORDER K.D. Shahi, President - This is an appeal against the judgment and order dated 28.6.2000 passed by the District Forum, Haridwar whereby the complaint of the appellant for medical negligence was rejected. 2. The appellant met with an accident on 24.12.1995 and she approached Dr. R.K. Singhal, M.B.B.S., M.S.(Orthopaedic Surgeon) for check up. After complete investigation the doctor started treating the appellant. It is said that the appellant took all the medicines as prescribed by the doctor. Dr. Singhal is said to be working with opposite party No.2 Shardhanand Chikitsalaya, Gurukul Kangari, Haridwar. After looking into the tests reports Dr. Singhal advised the appellant that her shoft humourous right bone is broken and for that operation was necessary. She deposited Rs.1,500/-(Rupees fifteen hundred only) for operation. On 14.1.1996 operation was done. After the operation there was plaster in the appellant's hand and other instruments were also attached. On 22.1.1996 the appellant was discharged. It is said that after the discharge the appellant was shocked to see that the portion below the wrist of the right hand became paralytic and when the doctor was informed he told that after medicines it shall be alright. The right hand of the appellant was perfectly right before the operation, except the minor injury and it is after the operation that the appellant had radial nerve paralysis on her right hand. It is said that this was due to the negligence of the doctor. The appellant approached Dr. Mukesh Jain of Muzaffar Nagar. Dr. Jain informed her that the nerve of her hand is cut at the time of shoft hummorous plaster due to the negligence of the doctor who conducted the operation as a result of which the wrist and the portion below the wrist of right hand has stopped functioning. The appellant filed the complaint against Dr. Singhal who is said to have operated and is the employee of Shardhanand Chikitsalaya. 3. In his written statement the appellant alleged that he was never employed with Shardhanand Chikitsalaya, neither he examined the complainant, nor he did any operation and nor he charged any fee. It is said that the complainant might have consulted him for which he is not liable. He further said that if the complainant has been operated in Shardhanand Chikitsalaya, he is not liable for that. 4. Shardhanand Chikitsalaya also alleged that Dr. It is said that the complainant might have consulted him for which he is not liable. He further said that if the complainant has been operated in Shardhanand Chikitsalaya, he is not liable for that. 4. Shardhanand Chikitsalaya also alleged that Dr. R.K. Singal was never employed with it, nor he has ever treated and operated the appellant in its hospital. The hospital told that it is not known to them that Dr. R.K. Singhal has ever operated the appellant. 5. The learned Forum took the evidence of the parties and in a very detailed judgment has held that the complainant has made certain forgery in the receipts to get a false claim. It is further held that it is not true that Dr. R.K. Singhal has operated the complainant and it was again held that no deficiency in service of the doctor found, therefore, the complaint was dismissed. 6. Being aggrieved by this order the present appeal has been filed. 7. The learned Counsel for the opposite party did not deny that there was paralysis in the hand of the complainant but he denied that there was no deficiency in the service of the doctor. 8. We have heard the learned Counsel for the parties and gone through the records. The case of the complainant that she was treated in Shardhanand Chikitsalaya and Dr. R.K. Singhal operated her up appears to be a correct one. Such a conduct from the doctor of the hospital is not at all appreciable. Dr. Singhal has also written a letter to Dr. Sanjay that he was referring the complainant to him and the complainant was his patient. It may be true that the letter did not show that the operation was done but at any rate the relationship of the complainant with the doctor is established in the matters of treatment. 9. But the question is that of negligence. Every operation is not a case of negligence. Failure of operation is also not a case of negligence. Side effects are also possible. Happening of side effects is also not negligence. The term "negligence" is defined to mean absence of lack and care, which a reasonable man should have taken in the circumstances of the case. Every operation is not a case of negligence. Failure of operation is also not a case of negligence. Side effects are also possible. Happening of side effects is also not negligence. The term "negligence" is defined to mean absence of lack and care, which a reasonable man should have taken in the circumstances of the case. Not even a single word has been told in the complaint nor in the grounds of appeal about what care was desired from the doctor in which he failed. It is not said anywhere that what negligence was done during the course of operation. Nerves may be cut down at the time of operation and mere cutting of nerve does not amount to negligence. It is not said that it has been deliberately done. To the contrary it is also not said that the nerves were cut in the operation and it was not cut at the time of accident. No expert evidence whatsoever has been produced. Only the report of the Chief Medical Officer of Haridwar has been produced wherein it has been said that the patient is a case of Post Havmatic Wrist Drop. It is not said that it is due to any operation or the negligence of the doctor. The mere allegation will not make out a case of negligence, unless it is proved by reliable evidence and is supported by expert evidence. It is true that operation has been done. It is further true that the complainant has met heavy expenses but unless the negligence of the doctor is proved she is not entitled to any compensation. 10. The learned Forum has discussed the factual aspects of the case in detail. We need not repeat the same. In the appeal we do not find any medical negligence by the doctor and as such the appeal is liable to be dismissed. ORDER The appeal is hereby dismissed. Cost of the appeal shall be easy. Appeal dismissed.