ORDER
Rajyalakshmi Rao, Member
1. The present appellants are the original complainants whose Complaint No. 147/1989 was dismissed by the State Commission, Karnataka at Bangalore vide order dated 11.12.2002. Aggrieved by the said order the present appeal is filed.
2. Brief facts of the case are :
Appellant No. 1, Ms. Rekha Kumari, was 13 years when she was studying BBM Course in MES College, Mysore. Appellant Nos. 2 and 3 are her father and mother respectively. At the age of 2, Rekha had undregone a surgery for the correction of cleft clip (known as Harelip) and as a result of that, she had a permanent scar on the lip. As a teenager she felt the need to do corrective surgery for mending the in-built defect of the nose and the permanent scar on the lip. Appellants approached respondent No. 1, Prof. P. Sadashiva Murthy, Consultant in Cosmetic Plastic and Reconstructive Surgery, and accordingly corrective surgery was performed under anaesthesia on 21.6.1998 in Ganesha Nursing Home (respondent No. 2) after obtaining the written consent. The appellants were satisfied with the result and she was discharged on 1.7.1998.
3. It is the case of the appellants that Rekha developed foul smell from her nose shortly after the surgery. When the foul smell became intense, she contacted respondent No. 1 on 12.7.1998 who prescribed certain medicines and ointment after examining her. It is submitted that the foul smell persisted and her classmates resented to sit with Rekha and the Warden insisted on her vacating the hostel. Further, even the teacher advised her not to attend the classes till she gets rid of the foul smell. Appellant No. 1 stated that she applied the ointment and took the tablets as per the instructions of the respondent No. 1 but the foul smell did not only subside but increased and caused nuisance to every one. The inmates of the hostel complained to the warden and as a result she had to vacate the hostel. She once again reached Bangalore from Chickmagalur where she stays and consulted the respondent No. 1, doctor on 8.8.1998. On his instructions, she got admitted herself in the nursing home of the respondent No. 2 for undergoing another operation to get rid of the foul smell. After conducting the usual tests, the second operation was conducted on 9.8.1998 and she was discharged from the nursing home on the same day. She was informed that the problem of smell would be stopped and she would be all right. On such an assurance, she went back to College on 6.8.1998. Unfortunately the foul smell neither subsided nor stopped; and, the college mates and room mates in the hostel started disliking to be near her. She was removed from the hostel on account of these events. She suffered great mental agony, torture and lost all hopes of pursuing her further studies.
4. Then she went to Chickmagalur on 23.8.1998, narrated her agony to her parents. They consulted Dr. Ravi Prakash at Malnad Hospital in Chickmagalur. Dr. Ravi Prakash conducted all the tests and scanned the area where the operation was conducted and found that the gauze pack which was inserted in the nasal cavity after conducting operation at Bangalore by the respondent No. 1 was not removed which was creating the foul smell in the nose. It is submitted that Dr. Ravi Prakash conducted operation at Malnad Hospital on 26.8.1998 and removed the gauze pack from the nasal cavity of Rekha and she was discharged from the hospital on 29.8.1998. Thereafter the foul smell emanating from the nose stopped and she was relieved of torture and agony that she went through earlier.
5. It is argued by the appellants that due to sheer negligence of the respondent No. 1 the gauze pack which was inserted in the nasal cavity after conducting the surgery was not removed resulting in emission of foul smell in the nose. Her repeated complaints and visits to the respondent No. 1 were unheeded. The complainants claimed a compensation of Rs. 6 lakh from the respondents. Respondent No. 1 collected Rs. 15,000 towards his consultation fee and another payment of Rs. 10,550 towards Ganesh Nursing Home charges and also charges by Dr. Ravi Prakash was placed on record.
6. It is further contended that the complainants travelled a distance of 300 km. from Chickmagalur to Bangaloure to get treatment from respondent and unless there was cogent reason like the discomfort in the nose with foul smell emanating from it, they would not unnecessarily spend money to travel to Bangalore again and again. Dr. Ravi Prakash whose operation gave final relief gave a certificate which is produced as under:
This is to certify that Miss H.N. Rekha 18 years female d/o Mr. H.M. Nagaraj was under my treatment from 26.8.1998. She had a foreign body (Gauze Pack) in nasal cavity.
The impasted foreign body was removed under anaesthesia in operation theatre. Now she is free of her symptoms.
(Dr. N. Raviprakash)
K.M. Road
Chikmagalur
7. It is contended by the appellants that the State Commission did not assign the reasons to justify whether there was negligence on the part of respondent Nos. 1 and 2 as to why in spite of three visits, consultations and two operations by the respondents, continuation of emanating foul smell from the cavity of nose did not stop. This problem was detected only by Dr. Ravi Prakash. Although he gave the certificate dated 27.8.1998 as reproduced above the State Commission did not consider the application filed dated 16.7.2002 for issue of summons to Dr. Ravi Prakash to assess and evaluate with regard to default and deficiency of service committed by respondent No. 1. It is further submitted that the State Commission failed to appreciate the oral evidence and documentary evidence placed on record to ascertain whether the cotton gauze plugged into the cavity of the nose of the appellant No. 1 was removed by surgical operation from the nasal cavity by Dr. Ravi Prakash or not.
8. It is further submitted that in the cross-examination of R.W.1, Dr. V. Sadashiva Murthy, respondent No. 1, in internal page No. 2 (running page No. 80) it is in his deposition stated that “It is true that I have inserted gauze pack into the nose of the complainant after surgery on both occasions. It is not true to say that I did not remove the gauze pack at the time of discharge. Witness volunteers that the patient was not there after the second surgery and she had gone away against medical advice. It is true that on 12.7.1998 i.e., before the second operation the patient consulted me about the foul smell in her nose. It is not correct to say that gauze pack was not removed on 12.7.1998 also, in fact removed on 1.7.1998 and on 24.5.1998 within the twenty-four hours of the operation. It is true that she came back 19.8.1998 with a complaint and I examined her.
9. Learned Counsel for the respondents argued that as far as the patient getting admitted in the Nursing Home of the respondent No. 2, and that the operation took place to rectify the scar by respondent No. 1, are admitted facts. It is submitted that the first surgery was successful and post-operative care was given after the first surgery. It is the common knowledge that postoperative infection is a common phenomenon. Smell is a subjective feeling. Second surgery was advised to remove the source of infection in the nasal cavity which was done. The patient left the Nursing Home without being discharged as her father being a prominent Tehsildar picked up a fight with the staff of the Nursing Home and filed the complaint which is vexatious, frivolous with mala fide intention claiming a huge compensation. It is further submitted that reasonably skilful medical treatment was given and the scar for which services of respondents were hired has been substantially cured by the surgery. The story of getting the nasal pack removed later by Dr. Ravi Prakash at Chickmagalur without the knowledge of respondent Nos. 1 and 2 is a concocted one and since Dr. Ravi Prakash did not file affidavit the alleged certificate produced by the appellants cannot be given credence to. It is submitted that the nasal pack which was kept on 9.8.1998 was to be removed on the next day by the respondents but the same could not be removed as the appellants left the Nursing Home without giving an opportunity to remove the gauze pack. It is admitted by the respondents that the nasal gauze pack was kept on 9.8.1998 by him might have been removed on 26.8.1998. This could not. be considered as negligence because the appellant has to blame herself for having left the Nursing Home, under instruction of her father, without getting the gauze piece removed from her nasal cavity. The affidavits of Teena and Elizabeth which have been filed on behalf of the complainants cannot be relied upon as they were not cross-examined.
10. We heard the arguments of both the parties and perused the record carefully. Appellant No. 1 has basically argued on the negligence of the doctor for not having considered her repeated complaints of foul smell emanating from her nose and the torture and mental agony she suffered due to the complaints of her college friends, hostel room mates, teachers and warden as they could not allow her to be near them. She could not attend her college and she had to leave the college on the request of her teachers and warden. The bad smell continued in spite of her going back to the respondent No. 1, who treated her for some infection and did not consider her grievance seriously.
11. After, the second meeting with the respondent No. 1, she went back again from Chickmagalur to Bangalore and on the second time also there was same complaint.
12. Respondent No. 1 after examining her stated in his affidavit dated 9.8.1998 (Pages 62-63, Para 4) that “I subjected her to a thorough examination under general anaesthesia, when I noticed a mild infection of soft tissues in the nose and small portion of the bone being infected. This was the cause for her sense (symptom) of smell. It was excised and cleaned thoroughly.” This itself is an admission by the respondent No. 1 that the appellant’s complaint of foul smell was within his knowledge.
13. It is contended that in order to prevent the possible bleeding in the cavity of the nose, it was packed with gauze pack. The argument of respondents that appellant No. 2 who was with his daughter, created a nasty scene, quarrelled with the nursing staff and left that very night, shouting that that treatment was not to his satisfaction, is not believable. In our view when appellant could come from ail the way from Chickmagalur for the third time, it could be presumed that there was any reason for them to leave the Nursing Home without getting the post-operative checkup on the next day, i.e., 10.8.1998 in such hurry. Had they been told clearly to stay for removing the gauze packing they would have stayed and got the packing in the nose removed and left. It is clear that they were not informed by the respondents.
14. Further it is denied by the respondents that the foul smell was due to non-removal of cotton gauze which was plugged inside her nose cavity by respondent No. 1. Whatever may be the position, it was the duty of the respondent No. 1 to remove the cotton gauze which was placed in the nasal cavity and for that the complainant should have been clearly instructed to stay on or visit the hospital soon or in any case he could have advised her to get it removed by any other Doctor, but the cotton gauze should not be left inside for long.
15. Further, whether the cotton gauze which was left inside the nasal cavity was inserted on 21.6.1998, or 12.7.1998 or on 9.8.1998, could be a matter of argument. But the fact that a cotton gauze was left inside the nasal cavity; that it was noticed and removed by a different Doctor on 26.8.1998 is proved it amounts to negligence on the part of the respondent No. 1. The certificate given by Dr. Ravi Prakash confirmed the fact that she was relieved of her complaint of foul smell only after the removal of the cotton gauze plugged in her nose on 26.8.1998. There is no reason to disbelieve the statement of the appellants in this regard.
16. Further the affidavit filed by Ms. K.P. Teena, third year student of Bachelor of Business Management Course, residing in MES Girls Hostel supports the say of the complainants. She has stated that after her surgery, Rekha was looking normal but foul smell was noticed. She further stated that “The foul smell was so awful and causing nuisance that we hesitated to sit by her side in the class room. We abandoned her company due to foul smell due to which Kum. Rekha was mentally upset and she used to be always in a depressed mood. I further state that she used to often complain before us that even her room mates in the hostel were also hating her and not willing to stay with her in the hostel. The foul smell increased day-by-day and it became intolerable. Our teachers advised Kum. Rekha to take proper treatment and till then not to attend the classes. Kum. Rekha became very much depressed and left the college stating that she will go to Bangalore for proper treatment. When she came back to the College again in the 1st week of September 1998 she was completely cured. The foul smell coming from her nose was stopped. When we enquired from her she told that she again underwent operation at Malnad Hospital at Chickmagalur and the doctor noticed some foreign body in the nose and removed it by conducting operation and since then the foul smell has stopped.” The other affidavit filed by Ms. Elizabeth P. Major, third year Bachelor of Business Management Course student also reveals the same in her affidavit.
17. Hence, the averments made by the appellant in her complaint are supported by the affidavits of her friends, her parents and the certificate given by Dr. Ravi Prakash. This amply shows that she had suffered two surgeries and repeated complaints to get relief from the first surgery.
18. Therefore, not removing the gauze pack from the nose cavity inserted by respondent No. 1, is deficiency in service and negligence and this has caused mental agony to appellant No. 1 and her parents- appellant Nos. 2 and 3. We hold respondent No. 1 guilty of deficiency in service and negligence for not informing the appellant No. 1 that gauze pack should be removed with in a day.
Conclusion
19. Unknowingly, uninformed about the gauze which remained in her nose cavity, complainant No. 1 suffered lot of mental agony. The anguish of this young girl who was being kept away from her freinds, college, hostel and to be told by her friends, teachers and warden to stay away from them for no fault of hers is agony and insult beyond doubt.
20. In our view, for the expenses which have been incurred in travelling Chickmagalur to Bangalore twice after the main surgery and then for going to another doctor (Dr. Ravi Prakash) to get it removed and further for agony that has been caused, respondents are required to pay heavy compensation to the complainants. We feel that the prayer for compensation for a sum of Rs. 6 lakh is on much higher side. Considering the fact of the case, we direct respondents to pay Rs. one lakh as compensation to appellant No. 1 along with costs of Rs. 10,000 to be paid within four weeks from receipt of the order. Accordingly appeal is allowed and the order of the State Commission is set aside.