Full Judgment
Vinay Kumar, Member
The case of the Appellant/Complainant before the State Commission was that on 24.9.1994 his 15 year old son had fallen from a bicycle and injured his right forearm. The Appellant took him to the Respondent/ Opposite Party, Dr Debapi Roy who, after taking an X-ray, found that both the bones of the forearm were fractured. Thereafter, the respondent put plaster cast on the limb and assured full recovery within 6 weeks. On 6.11.1994, a check X-ray was taken in which angulation in marked degree in the bone structure was revealed requiring conservative manipulation to the deformed union. Respondent did a second plaster on 9.11.1994. Subsequently, on 13.11.1994, after examining the patient, respondent/OP told the appellant that no check X-ray was required.
2. The appellant/complainant, dissatisfied with the attitude of the respondent, got a fresh check X-ray done on 20.11.1994 wherein further angulation of the bone was noticed. The appellant took his son to Dr. B. K. Chakraborty at Kolkata who advised him to consult Dr. A. Mallick on 27.11.1994. Dr. Mallick, after examination, found that the plaster cast put twice, had tended to make it bow-shaped and could have lead to gradual withering of the arm because of stiffening of the joints. Therefore, immediate corrective surgery was advised. This surgery was performed on 5.12.1994, fixing steel plates and screws on the broken bones.
3. Alleging negligence on the part of the respondent, appellant filed the complaint before the State Commission claiming Rs.50,000/- as reimbursement of the entire medical expenses Rs.10 lakh towards compensation and damages, further compensation of Rs.2,50,000/- for physical and mental torture; together with Rs.10,000/- towards costs. The State Commission allowed the complaint and awarded compensation of Rs.50,000/- and costs of Rs.5,000/- in favour of the appellant/complainant. The complainant has now filed the present appeal, seeking enhancement of compensation, as per his claim in the complaint.
4. During the course of consideration of the appeal counsel for the respondent/OP, on his specific request, was given several opportunities to file reply to the appeal on behalf of the respondent/OP. He failed to file any reply and eventually on 1.5.2013 informed the Commission that he has not received any instructions from his client. On that account, he sought to withdraw from the case. His request was declined and he was appointed as Amicus Curiae to conduct the case on behalf of the respondent. Mr. Partha Sil, Advocate (Amicus Curiae) for the respondent and Mr. Siddhartha Chowdhury, Advocate for the appellant/Complainant have been heard. We have also carefully perused the records submitted before this Commission.
5. It is contended on behalf of the appellant/Complainant that the State Commission after fully considering the case of the Complainant reached the conclusion that there was negligence on various counts in the treatment of his son. Yet, very meager amount of compensation has been awarded, which is highly disproportionate to the Complainants long fight for justice since 1995 and the suffering of his son.
6. From a careful consideration of the impugned order, it is seen that the State Commission has, after detailed consideration of pleadings, evidence, expert opinions and relevant medical literature, arrived at the following findings of negligence/deficiency on the part of the respondent/OP”.
a) On detection of marked angulation in the X-ray of 6.11.1994, six weeks after the first close manipulation, corrective surgery would have been the proper mode of treatment. By not doing the same, the OP had acted with negligence resulting in physical and mental pain to the victim and his father.
b) The four medical experts examined on behalf of the respondent/OP admitted in their cross examination that before giving general anesthesia OP himself should have examined the boy clinically, which he failed to do.
c) On two occasions manipulation of angulation in the fractured arm was done by the OP. On both occasions, he failed to advise any follow up exercises by the patient, despite claims in his oral evidence to have given such advice.
7. The case of the appellant is that due to negligent and deficient service rendered by respondent/OP, family life of the appellant as well as future of their young son have both been destroyed. In addition, the family has had to raise considerable debts for his prolonged treatment.
8. Considering the matter in its entirety, this Commission is of the view that the quantum of relief awarded by the State Commission is grossly inadequate, compared to the nature of inadequacy of medical treatment by the OP and its consequences for the appellant and his son. The State Commission has infact allowed only reimbursement of cost of treatment with cost of litigation and no compensation. Therefore, in the interest of justice and equity, we deem it necessary to raise it to Rupees five lakhs. Consequently, a lump sum compensation of Rs.5 lakhs is awarded, in substitution of the award made by the State Commission. The same shall be paid within two months from the date of this order. Failing this, interest at 9% per annum shall be paid for the period of delay. The appeal is allowed in the aforesaid terms.