1. The following order of the Commission was delivered by A. K. Tiwari, Presiding Member:

This appeal by the opposite party/appellant is directed against the order dated 11.09.2008 passed by the District Consumer Disputes Redressal Commission, Rajgarh (for short the ‘District Commission’) in C. C. No. 25/2008 whereby the complaint filed by the complainant/respondent is allowed.

2. Brief facts of the case are that the complainant’s son Satish fell down during playing and sustained fracture in his left elbow. It is alleged that the opposite party/appellant doctor treated him and plastered his hand for which he took Rs.10,000/- towards fees and Rs.25,000/- incurred in medicines. It is alleged that the doctor was asked to get the X-Ray done but he told that there is no necessity. On removal of plaster, it was found that the bone joined wrongly. The doctor told him about operation and replaster for which Rs.10,000/- has to be deposited. When he refused to pay the fees again, the doctor refused to treat. Aggrieved complainant therefore filed a complaint before the District Commission seeking compensation of Rs.50,000/-, Rs.10,000/- expenses incurred in treatment and Rs.10,000/- for medicines.

3. The opposite party/appellant doctor by filing reply raised objection that the District Commission, Rajgarh had no territorial jurisdiction to entertain the complaint as he treated the complainant’s son in Jeevan Rekha Hospital, Bhopal. It is alleged that the complainant brought his son after 3-4 months of fracture as he got massage by unskilled person and due to which problem of massage Arthrodesis occurred and the doctor treated him for the same. The treatment is called Orthlysis. Joint of the patient was mobilized under general anesthesia and he was asked to follow up but after a long time on 09.01.2008, the complainant bring the patient by that time his elbow stiffed for which the complainant is himself responsible. The opposite party has not committed any deficiency in service while treating the complainant’s son Satish. It is therefore prayed that the complaint be dismissed.

4. The District Commission allowed the complaint filed by the complainant/respondent holding the opposite party/appellant doctor deficient in service directing the opposite party doctor to pay Rs.25,000/- towards compensation along with Rs.5,000/- expenses incurred in medical fees and medicines within a period of 30 days failing which the amount shall carry interest @ 10.5 % p.a. In addition, Rs.1,000/- is awarded towards costs.

5. Heard learned counsel for the respondent. Perused written arguments filed by the appellant as also the record.

6. Learned counsel for the complainant/respondent argued that the District Commission has rightly passed the order as despite taking fees, the opposite party doctor wrongly treated the patient. Despite operation, the problem in left elbow remained and there was stiffness in the hand of the complainant’s son. He argued that the appeal deserves to be dismissed.

7. On perusal of record we find that during pendency of appeal, the appellant relying on the decision of Hon’ble Supreme Court in Civil Appeal No.3541 OF 2002 decided on 17.02.2009 (Martin F. Dsouza Vs Mohd. Ishaq) has moved an application for referring the matter to Senior Orthopedic Surgeon. In reply, the respondent/complainant relying on the decision of the Hon’ble Supreme Court in V. Kishan Rao Vs Nikhil Super Speciality Hospital & Anr III (2010) CPJ 1 (SC) argued that it is not necessary to get an expert opinion in each and every case, it depends upon the facts and circumstances of the case.

8. The Hon’ble Supreme Court in V. Kishan Rao (supra) has held that the directions given in D’souza (supra) are not consistent with the law laid down by the Larger Bench in Jacob Mathew Vs State of Punjab and Anr III (2005) CPJ 9 (SC). In Mathew (supra) the direction for consulting the opinion of another doctor before proceeding with criminal investigation was confined only in cases of criminal complaint and not in cases before the Consumer Fora. The reason why the larger bench in Mathew (supra) did not equate the two is obvious in view of the jurisprudential and conceptual difference between cases of negligence in civil and criminal matter. This has been elaborately discussed in Mathew (supra).

9. Thus we find that the appellant has filed the aforesaid application for referring the matter to Senior Orthopedic Surgeon at the appellate stage with ulterior motive following the delayed tactic. There was sufficient evidence available on record before the District Commission and on that basis the District Commission has decided the complaint. If it was so necessary, it could have been filed before the District Commission. Accordingly, the application is disallowed.

10. On going through the record, we find that the appellant took objection in his reply before the District Commission as also in this appeal that the District Commission, Rajgarh had no territorial jurisdiction to entertain the complaint. The complainant had filed annexure C-2, C-3 and C-4 which are the prescription papers of Dr. Farid Sheikh, an orthopedic surgeon of Jeevan Rekha Nursing Home, Bioara District-Rajgarh. From the aforesaid documents it is clear that the doctor treated the complainant’s son at Bioara. Thereafter he treated the complainant’s son Satish at Jeevan Rekha Hospital, Bhopal. Therefore, the plea of the appellant that the District Commission Rajgarh had no territorial jurisdiction has no force. The District Commission has dealt with this point in paragraph 8 of the impugned order and has rightly concluded that the District Commission, Rajgarh had territorial jurisdiction to entertain the complaint in view of Section 11(2) of the Consumer Protection Act, 1986.

11. The opposite party/appellant admitted this fact that he treated the complainant’s son and perform some procedure under general anestheis to mobilize the joint as it was wrongly joined. The submission of the complainant that he paid Rs.10,000/- towards and incurred Rs.25,000/- towards medicines was not denied by the appellant doctor.

12. Annexure C-2, C-3, C-4 and C-5 are the prescription papers of the appellant doctor. From Annexure C-5, the discharge ticket in the column of diagnosis it is mentioned that 2 month old Post-massage Arthodesis Left Elbow. Further in the column of operation, it is mentioned that Closed Arthodysis done under General Anesthesia and joint mobilization was done. From the said discharge ticket, it is evident that the patient was admitted on 13.09.2007 and discharged on 14.09.2007 and at the time of discharge the patient was asked to come for review after one week. From the said document C-5 it is evident that the patient approached the doctor on 23.09.2007.

13. From the document Annexure C-5, it is clear that the doctor has mentioned two months old post massage arthrodesis. From the document Annexure C-3, it is evident that the patient consulted the doctor on 01.08.2007 at Biora, thereafter on 12.09.2007 at Biaora (C-2) and got admitted on 13.09.2007 at Jeevan Rekha Hospital, Bhopal (C-5). The opposite party/appellant doctor has nowhere stated in his affidavit that he has not treated the patient nor controverted the aforesaid facts.

14. The District Commission has rightly observed that the medical papers like X-Ray and Pathological Tests reports and other investigation reports must have been kept by the hospital because as per Indian Medical Council Act, wherein it has been specifically mentioned that Every physician shall maintain the medical records pertaining to his/her indoor patients for a period of 03 years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India.

15. The Hon’ble Supreme Court in Savita Garg Vs National Heart Institute (2004) 08 SCC 56 has held that “The burden is greater on the institution/hospital than that on the claimant. In any case, the hospital is in better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence.”

16. In view of the aforesaid, it is duty of the treating doctor to establish that the bone was not correctly joined and stiffness occurred due to carelessness of the patient and not because of his negligence. The complainant by filing documents and affidavit alleged that he got treated his son from the opposite party doctor but when there was no progress, he approached the doctor, who told him that again operation has to be performed and to get the plaster done and he was asked to deposit Rs.10,000/-. On refusal of the same the doctor refused to treat his son.

17. So far as the pleading of the appellant doctor that the patient did not come for proper follow up, from the document Annexure C-5, the discharge ticket dated 14.09.2007 it is evident that the patient was asked for review after one week and thereafter the patient consulted the doctor on 23.09.2007. Subsequently, the patient consulted the doctor on 09.01.2008 which is evident from the document Annexure C-4, in which it is mentioned that old case of Pseudo Arthodesis post massage left elbow 2 month old, Artholysis done under general anesthesia joint mobilized. It has been further mentioned that patient did not turned for regular follow up/physiotherapy and Very Poor follow up. However, from the discharge ticket dated 14.09.2007 (C-5), we find that the patient was asked to come for review after one week and the patient consulted the doctor on 23.09.2007. However, thereafter there is no advice for regular follow up after how many days, even there is nothing in the said discharge ticket regarding physiotherapy. Thus the aforesaid pleading of the treating doctor that the patient was irregular in follow up cannot be accepted.

18. Thus the opposite party/appellant doctor failed to establish that the deformity regarding stiffness and joint immobilization found in the patient was not because of his negligence but because of patient’s negligence.

19. Therefore, on the basis of aforesaid discussion, we reach a conclusion that the opposite party/appellant doctor has committed deficiency in service in not treating the patient properly and the District Commission has rightly allowed the complaint directing the opposite party/appellant doctor to pay Rs.25,000/- towards compensation, Rs.5,000/- towards medical fees and expenses and Rs.1,000/- as costs.

20. In view of the above, we do not find any illegality or perversity in the impugned order passed by the District Commission. Accordingly, it is affirmed.

21. This appeal being devoid of merit is therefore dismissed. No order as to costs.