The complainant Sheetal Parkash has filed the present complaint against the titled opposite parties alleging unfair trade practice/emotional exploitation through fear-psychosis by the OP1 Doctor/Hospital and thus claiming suitable compensation along with cost of litigation from the OP1 Doctor with the other parties arrayed as proforma respondents, only.

2.        Somehow, the complainant Sheetal Parkash on 17.05.2019 had injured his First R.H. (Right Hand) Finger during his routine core-work and had thus approached the OP1 Hospital for medical treatment etc. There, the OP1 Doctor told him that his injured finger will require ‘surgery’ and so took his blood sample for routine pre-surgery clinical tests. Thereafter, the OP1 Doctor stitched/dressed the complainant’s finger in order and also told him that he has tested ‘positive’ for Australian Antigen (Hbs. Ag.) Kala Peelia (Ex.C1) and further told him that he shall not stay alive for more than a few days and he need to visit the Liver Specialist Dr Sham Lal at Ludhiana, urgently. The OP1 Doctor Suo-moto advised that Dr Sham Lal was well-known to him and he will recommend him for medical consult/treatment, on priority-basis. The complainant returned home with the positive report and the entire family could neither eat nor sleep throughout the day/night and the home/work activity came to a complete halt and a pal of gloom shadowed the lives of family-members.

3.        On the very next day on 18.05.2019 the complainant got his blood-samples tested at the OP2 Lab and was reported negative (Ex.C2) for the Antigen Hbs. Ag. However, at the advice, instance and insistence of all his family members the complainant had to get his samples tested from the OP3 (Ex.C3) Civil Hospital (Pathankot), the OP4 (Ex.C4) Lab (Sarna) and the OP5 Pathology (Ex.C5 & Ex.C6) Lab (Mumbai) and was reported/tested negative for the Antigen Hbs. Ag. (Kala Peelia).

4.        In the meantime, the complainant lost 5 Kg of weight and could not attend to his poultry-farm business as requisite and his family members also led disturbed life till they did get the negative report from the Mumbai Lab besides having suffered physical/mental harassment/agony and financial-loss by way of Losses in Business and Lab Expenses etc., merely on account of an employ of unfair trade practices and unscrupulous exploitation by the OP1 Doctor at his OP1 Hospital.

5.        The complainant, in the above backdrop, has thus filed the present complaint along with his affidavit (Ex.CW1) and exhibits (Ex.C1 to Ex.C6), Rejoinders seeking Rs.10 Lac as compensation and Rs.50,000/- as litigation expenses, in the interest of justice.                 

6.          The titled opposite party no.1 Hospital (the OP1), in response to the commission’s summons appeared through their counsel and filed their written reply stating therein preliminary as well as the other (on merits) objections as:

7.        The complaint has been addressed as misconceived, groundless, frivolous, vexatious and scurrilous unsustainable in the eyes of law and has been filed to harass, defame and extort illegal sum of moneys from the Hospital/Doctor and thus need be dismissed. There are no specific, scientific and justified allegations in regard to being negligent or deficient in service. The complaint is comprised of false allegations as there’s no negligence while providing medical treatment/fixing the first injured finger of the complainant. And, there being no charge of deficiency in service the complaint deserves outright dismissal.  

8.        Further, the complaint is bad for non-joinder of necessary parties i.e., the Oriental India Insurance Co. Ltd., who have insured the OP Hospital/Doctor through its Error and Omission Policy (Ex.OP1/1) w.e.f. 26.10.2018 to 25.10.2019 covering the date of alleged cause of action i.e., 17.05.2019. The OP1 Doctor has further elaborated and explained the Factual Matrix and Medical Facts pertaining to the present complaint stating that all pathological investigations have their limitations of sensitivity and specificity and confirmation is always advisable if report is alarming or unexpected etc. and the complainant was advised Viral Load Test on the OPD slip, itself. And, no succeeding doctor has indicated/hinted of any negligence in their reports or otherwise. The OP1 Hospital/Doctor in the paragraph-wise reply on merits have repeated/responded on similar lines as have denied the contents of the complaint praying for its dismissal with costs. Somehow, the OP1 Doctor has not filed the mandatory affidavit deposing the contents of the reply.

9.       The OP2 Dr Verma Path Lab appeared through his counsel and filed the written reply along with his self-attested deposition confirming the genuineness of his report and also filed an application for deletion of his name from the array of respondents as neither any charge has been leveled against him nor any relief has been claimed from him.

10.      The OP3 Dr. Attri of Govt. Hospital was deleted from the array of parties vide order dated.01.10.2019.

11.      The OP4 Lab appeared and filed the written reply through its counsel deposing the truthfulness of their report and praying discharge from the present proceedings.

12.      Similarly, the OP5 though proceeded against exparte vide order dated 01.10.2019 sent its reply by post duly confirming therein the correctness of their report etc.

13.     We have examined the available documents/evidence on the records so as to statutorily interpret the meaning and purpose of each document and also the scope of adverse inference on account of some documents ignored to be produced by the contesting litigants against the back-drop of the arguments as put forth by the learned counsels for their respective litigants. We find that the present dispute has arisen on account of the impugned ‘pathological-repot’ and Suo-moto medical advice/reference put forth to the complainant who along with his entire family had got scared to the utmost level that he did lose 5 Kg of weight in a matter of few days and also closed his poultry-business in his pursuit to save his life. His entire family had suffered along with him. 

14.      We have minutely examined the versions/documents produced in evidence by the complainant, the OP1 Hospital/Doctor and other pathological Labs during the course of the present complaint proceedings and find that there's neither any chance nor scope of any doubt pertaining to the dishonest intentions of the OP1 Doctor who himself through his written version has repeatedly stated that the Lab Reports need be confirmed/verified first through repeat tests and/or alternate confirmations/means before drawing the final conclusion and here he has been fore-telling the complainant of his death.

15.      It shall be pertinent here to mention that the OP1 Hospital/Doctor had filed an application (along with their written reply) on 21.10.2019 to implead/enjoin their insurers (The Oriental India Insurance Co. Ltd.) in the array of opposite parties as they had insured/indemnified the herein OP1 against any loss/damages, of whatsoever, caused to them. The complainant had opposed the application on 25.11.2019 and thus the same was deferred for consideration, at the appropriate time. The said application was however dismissed on 04.01.2023 after having duly heard the herein parties.

16.     We understand as to how such alarming words from the mouth of the one treating Doctor must have affected the very psyche/morale/courage of the patient along with that of his family members who could neither eat well and/or sleep well after pronouncement of the mortal ailment.

17.     Finally, in the matter pertaining to the present complaint and in the light of the all above, we find and address the intentional 'misinformation' to the complainant by the OP1 Doctor as 'unfair-trade practice' and ‘unscrupulous-exploitation’ of the subservient status of his patients, at its worst; and ‘deficiency in service' looks quite trivial at the face of such a stark/serious misconduct(s). Although, inclined to award a somewhat severe penalty under the herein applicable law/statute, we being governed by the Majesty of Justice and guided by the Law of Moderation, thus ORDER the OP Hospital/Doctor to pay Rs.50,000/-(Rupees Fifty Thousand only) in lump sum to the complainant as compensation for having inflicted upon him and his entire family, the fear-of-death cum physical/mental harassment/agony cum business-loss etc. besides this opposite party No.1 is also directed to pay Rs.10,000/- to the complainant as litigation expenses within 45 days of receipt of the certified copy of these orders otherwise the award shall attract additional interest @ 9 % PA from the date of orders till actually paid.

18.     The herein OP1 Hospital/Doctor shall however be at liberty to claim the herein awarded amount from their insurers in terms of the related policy in accordance with the provisions in law and as available to them in law.

19.      The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

20.      Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.   

                                                              (Naveen Puri)

                                                                 President.

ANNOUNCED:                                   (B.S.Matharu)

JAN. 11, 2023.                                             Member.

YP.