1. THIS appeal is directed against the order dated 5.10.2007 of Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad whereby
appellant/opposite party was directed to pay compensation of Rs. 5.00 lakh with interest @ 9% p.a. and cost to the respondent/complainant.
2. FACTS giving rise to this appeal lie in a narrow compass. Respondent who had stone in kidney, was admitted in the clinic of the appellant on
16.7.1995. On 17.7.1995, operation for removal of stone as also prostate was performed by the appellant. Respondent alleged that he was
discharged on 23.7.1995 from the clinic by the appellant with instruction to visit clinic on 25.7.1995 for removal of stitches. Respondent again
visited the clinic on 25.7.1995. He was kept there and was discharged on 28.7.1995. Relatives of the respondent informed the appellant on
telephone that the respondent has been passing stool in urine. Appellant, therefore, called the respondent at the clinic and he removed the catheter.
Soon thereafter the respondent developed temperature which rose upto 1040F. Problem of the respondent of passing the urine mixed with stool
continued. On being contacted, the appellant advised the respondent to get admitted in clinic. Respondent was re-admitted in clinic where he was
kept for 5 days. During this period, the appellant gave high dose injections but there was no improvement. As advised by the appellant, the
respondent was got admitted on 8.8.1995 in Civil Hospital to which the appellant was attached as a Professor in Kidney Diseases. On 10.8.1995,
operation of Colostomy was conducted by the appellant. Since the condition of the respondent was deteriorating, he was shifted to Sir
Harkishandas Narottomdas Hospital at Bombay. Dr. Nayan Sanghvi working in the hospital told the respondent that while performing first
operation on 17.7.1995 his bladder was damaged and a false passage between bladder and intestine was created where Fistula had developed.
Thus, alleging deficiency in service on the part of appellant, a total amount of Rs. 18,16,000 was claimed towards compensation, etc. Appellant
contested the complaint by filing written version. It was alleged that the complaint was barred by limitation as having been filed beyond two years
of 28.7.1995 when the appellant was lastly treated by the respondent. Appellant is a highly qualified doctor and used his skilful knowledge and
experience which was required in this case. It was not disputed that operation was performed on 17.7.1995 as alleged. However, it was pleaded
that the respondent was discharged on 20.7.1995 with the advise to come for removal of stitches. Respondent came to the appellant on
27.7.1995 for removal of stitches and catheter. Certain medicines were prescribed. Sonography of the respondent was done on 28.7.1995 and
1.8.1995 which showed that the bladder of the respondent was normal. Respondent got admission in Civil Hospital on 8.8.1995 and operation of
Colostomy was performed on 10.8.1995 by the appellant. The appellant visited respondent every day in the hospital. It was denied that during first
operation any damage was caused to the bladder of the respondent or that the appellant was negligent in treating him. We heard the parties learned
Counsel and were taken through the record.
3. CONDUCTING of respondent''s operation for prostate and lt. Ureteric Stone and for Colostomy are admitted by the appellant. Respondent
alleges that during operation on 17.7.1995, the appellant negligently damaged the bladder, created false passage between intestine and bladder
where fistula had developed. According to the respondent, it was because of this reason that the urine and stool used to mix up. Thrust of
argument advanced on behalf of the appellant was that the two sonography reports dated 28.7.1995 and 1.8.1995 would show that the bladder
was normal. These reports belie respondent''s case in regard to the bladder being damaged in the operation on 17.7.1995. Appellant was not
responsible if as a result of severe urinary track infection, the respondent later on had developed fistula. It was pointed out that in support of the
alleged damage to the bladder, the respondent had not examined any expert witness. Reliance was placed on the decision in Martin F. D''Souza v.
Mohd. Ishfaq, I (2009) CPJ 32 (SC)=II (2009) SLT 20=157 (2009) DLT 391 (SC)=2009 (3) SCC 1. In order to appreciate the said
submission, reference need be made to the said two sonography reports, admission made in cross-examination by the appellant, Cystoscopy
report dated 9.10.1995 (copy at page 289 and 290), Cystoscopy report dated 14.7.1995 (copy at page 220) and the operation/procedure sheet
dated 13.10.1995 (copy at page 311 and 312) done at Sir Harkishandas Narottomdas Hospital, Bombay. Omitting immaterial portion, the
sonography report dated 28.7.1995 (copy at page 56) reads thus:
Sonography screening of KUB region On ultrasound examination both kidneys are of normal size, shape and position. Both kidneys show
presence of mild hydronephrosis with dilation of ureters. Hydronephrosis is more on right side. Cortical thickness is 20 mm. No calculus is seen on
either side. Urinary bladder appears normal. No evidence of cystitis or bladder calculus is seen. Prostatic foss is empty. Post voiding screening
shows presence of marked resicual urine (almost as full as before voiding)."" Omitting immaterial portion, cystoscopy report dated 9.10.1995 at
page 290 reads thus: ""Procedure Urethra stitches with false passage (Details) Bladder not visualized Scopy from suprapubic was done -Bladder is
filed with full of fungus ball. -Betadine was given. Closure Catheterization was done.
Aforesaid operation sheet dated 13.10.1995 would show that ""Explolaprotomy with Excision of bladder with Neoureterostomy"" of the respondent
was done and pre-operative diagnosis indication of surgery, was R.V. Fistula. The procedure sheet notices:
- SG/a P/O/l of part. - Explo Lapritomy was done. - Bladder was slaughed out and signaid colone big Fistula. - Fistula was repaired. - Both
oreter was isolated and............... and.... ......Was done - Bladder excisized. - Drawn was kept - Closure was done
4. SAMPLE of the slough and urine was sent for bio-chemical examination. Bio-chemical examination report dated 14/17.10.1995 showed that
the sections shown was extensively ulcerated, necrotic mucose with a copious mural inflammation.
5. COPY of the statement including cross-examination of the appellant has not been filed. Order of the State Commission is written in Gujarati.
However, English translation thereof has been filed. It is in cross-examination of the appellant extracted in para 22 of the Impugned order that the
catheter of the respondent was removed on 27.7.1995; thereafter respondent got 104°F fever and he complained of passing stool with urine; he
asked the complainant for ultrasound which was got done on 28.7.1995. Thus, according to the own admission of the appellant, the respondent
complained of the passing of urine mixed with stool even before the sonography was done on 28.7.1995 and 1.8.1995. Sonography would not
necessarily reveal any injury to the bladder. Therefore, reliance by the appellant on the said two reports to disprove the injury to the respondent''s
bladder is totally misplaced. As is seen from the aforesaid report dated 13.10.1995 of Sir Harkishandas Narottomdas Hospital, Bombay where
the respondent had taken treatment later on, the abdomen of the respondent was opened, damaged bladder was excisized and fistula was
repaired. This report completely belies the stand taken by the appellant in regard to damage to the bladder not having been done during the first
operation. The appellant, thus, cannot escape liability of the fistula having developed after the performing of the surgery by him and the
consequences arising therefrom. No further evidence on negligence of any expert was required to be adduced by the respondent. Martin D.
Souza''s case (supra), is of no help to the appellant.
6. COMING to the plea of limitation, complaint was filed on 11.8.1995. Appellant alleges that period of limitation will start running from
28.7.1995 when he lastly treated the respondent. Limitation reckoned from this date the complaint was barred by limitation. First operation was
conducted by the appellant at his clinic on 17.7.1995. Second operation of Colostomy was conducted at the Civil hospital on 10.8.1995.
Document at page No. 67 of the Civil Hospital would show that the respondent was under the treatment of appellant as an indoor patient in the
said hospital till 18.9.1995. Computed from this date the complaint filed on the said date was well within limitation. Moreover, the State
Commission had rightly held that as the cause of action was continuing, the complaint instituted on 11.8.1997 was within time.
7. AS regards the quantum of compensation awarded, the respondent has to survive with a permanent urine bag, respondent had undergone lot of
physical pain and incurred, expenses on treatment. Considering the circumstance, the total compensation of Rs. 5.00 lakh with interest cannot be
said to be arbitrary or excessive. In fact, this amount is on lower side. Appeal is without any merit and is dismissed as such with Rs. 20,000 as cost
to the respondent. Half of the awarded amount if deposited pursuant to the order dated 14.2.2008 by appellant with this Commission will be
released by the Registry in favour of the respondent. Awarded amount will be paid by the appellant within six weeks to the respondent. Appeal
dismissed.