DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.32/2015
Ms. Madhumeet Kaur
R/o Tower 13, Flat No. 301,
Heritage City, MG Road,
Gurgaon- 122001
….Complainant
Versus
Adiva Hospital
C/1 c Green Park Extension,
New Delhi
Dr. Monisha Kapoor
J-18, Ground Floor,
Near SBI Bank, Saket
New Delhi- 110017
New India Assurance Co. Ltd.
Through its Manager
2213, 3rd Floor, Chandna Complex,
Gurudwara Road, Karol Bagh,
New Delhi
….Opposite Parties
Date of Institution : 28.01.2015
Date of Order : 21.04.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
The present complaint has been filed by the complainant seeking compensation for financial loss, injury, mental torture, harassment and danger to life due to alleged negligence and malpractice by the OP Nos. and for seeking an amount of Rs.4,90,000/- with interest at 18% per annum. OP No.1 is Adiva Hospital and OP No. No 2 is Dr. Manisha Kapoor and another impleaded OP No. is New India Assurance Co.
It is stated by the complainant that she had undergone an abdominal and facial surgery by OP No. 2 on 27.01.2013 for a consideration of
Rs.1,40,000/- which was given to OP No.1. The complainant says that she consulted OP No. 1 on 25.01.2013 along with OP No. 2 and then agreed for a facelift and liposuction procedure.
It is alleged by the complainant that OP No. 2 that though OP No.2 took the money yet she was absent from the surgery. It is also stated that post the surgery also, OP No. 2 did not visit the complainant and the complainant was left in the care of nurses after two consecutive major surgeries. It is further stated that OP No. 2 visited her only for 2 minutes after 48 hours of the surgery and then without informing her or without assigning any specialists to her she had gone to Europe for 9 days without providing any medical care for post-operative period. It is also stated that the hospital also did not bother to assign a specialist to her.
It is further the case of the complainant that she was not made aware of the side effects of the surgery. As a result of the surgery, the complainant alleges that she suffered partial facial paralysis which lasted for more than 1.5 years and continues to deform her face. She alleges that her face has suffered permanent and irreparable damage. She further alleges that she has suffered extensive bruising due to a very poor job done by OP No. 2. She also says that her cheeks are asymmetrical. It is further stated by her that OP No.1 and 2 assured her that they would be correcting their mistake and repeated the surgeries causing her tremendous physical pain, trauma, mental and emotional agony, huge financial loss without any result.
In their preliminary objection, OP No. 2 has stated that this complaint is barred by law of limitation and that the complainant is not a consumer as there was no privity of contract between complainant and OP No. 2. It is stated that OP No. 2 was a visiting consultant with OP No. 1 and is not employed with OP No. 1. OP No. 2 further states that the surgery was conducted by her in the presence of other doctor, Dr. Shelja and another staff of OP No. 1.
She has stated that as a surgeon her job was to perform the surgery and the post -operative care was the responsibility of OP No. 1. It is further stated that OP No. 2 visited the patient in the evening as well as in the morning and found her fit to be discharged. It is also stated that post-surgical care was provided all throughout to the complainant by the full time house surgeon Dr. Snehal Patil and the nursing staff of OP No. 1. It is submitted that the patient was discharged in fit condition without any complication and her recovery was uneventful. It is stated that the complainant had got a parotid surgery done in Sir Ganga Ram hospital have which left her face asymmetric and paralyzed on the right side. It is stated that this fact was video graphed and photographed and documented in the hospital records and this fact was pointed out to the complainant of which she was already aware. It is also stated that the complainant has deliberately concealed the said fact and has not filed the records of her earlier treatment from Sir Ganga Ram hospital which would have exposed her falsehood.
It has also been stated that bruising is not a complication in fact it is a sequel of healing and there was no pus formation in any of her surgical scars which needed her to get dressing. There was no evidence of any infection and her post-operative recovery was uneventful. It is alleged that the complainant approached OP No. 1 for a facelift i.e. to tighten up the face which was successfully done and deformity correction was never part of the procedure to be conducted by OP No. 2. It is further alleged that the complainant was upset with her personal life and started accusing and blackmailing the hospital authorities by stating that she is a lawyer by profession and would initiate legal action against everyone if some amount of money is not paid to her. It is further stated that the hospital being in the service sector requested OP No. 2 to do a procedure totally unrelated to the earlier surgery for which the aforesaid complications are being alleged. A fat transfer was scheduled free of cost to fill her face to make it look more pleasing and the complainant enjoyed the free services like massages, slimming treatment and other consultations from various specialists of OP No. 1. It is alleged that till the time the freebies were given to the complainant there was no reason for her to complain but once the facilities were stopped, the complainant started blackmailing OP No. 1 and asked for a refund. The complainant also asked for a free Botox which OP No. 2 refused.
In her defence, OP No. 2 has stated that the complainant did not suffer from any partial facial paralysis or deformity due to surgery performed by OP No. 2. It is further stated that these existed prior to her surgery by OP No. 2. It is further stated that the complainant has not filed any expert opinion to establish that there was any deficiency in the services provided by OP No. 1 and OP No. 2. It is further stated that OP No. 2 herself prepared the discharge summary of the complainant and duly visited her on 29.01.2013. It is also stated that as the result of a prior surgery at Sir Ganga Ram hospital which the complainant had undergone in 2006, her face is asymmetrical with multiple scars and this is being concealed by the complainant.
OP No 2 has stated that she has performed her duties as a surgeon immaculately and with utmost professionalism. There has been no negligence in discharge of her duties as a surgeon. In this regard, she has placed reliance on documents/ records relating to her surgery. OP No. 2 has relied on the judgment of the Hon’ble Supreme Court in ‘Jacob Matthew vs State of Punjab (2005)6 SCC 1’. An affidavit has also been filed by Dr. Snehal Patil wherein the said doctor has deposed that the complainant’s surgery was conducted by OP No. 2 and was successful and there was no post-operative complication.
New India insurance company was also added as a party to this case being the insurer to OP No. 2. On their part, the insurance company has stated that they had no knowledge with respect to the treatment taken by the complainant from OP No.2 and as such they are not liable as it is in violation of the policy’s terms and conditions. It is also stated that the complainant was taking treatment for plastic surgery from OP No. 2 which is not covered under the terms and conditions of the policy. It is also stated that the complaint has alleged that the surgery was not carried out by the insured that is Dr. Manisha Kapoor therefore the insurance company is not liable for any negligence caused by any other doctor. It is also stated that as per the proposal form, the insured was not attached to any hospital but as per the complainant and OP No. 2, she is a practicing surgeon at OP No. 1 which is violative of her statement made in the proposal form and therefore the insurance company is not liable.
OP No.1 has filed reply and have stated that Adiva hospital Pvt. Ltd was taken over on 26.03.2015 and that Adiva Hospital Pvt. Ltd and Adiva Healthcare Pvt. Ltd. are both two different separate legal entities and directors of both the concerns are different. It is also stated that the relevant records have been obtained from Adiva Super Speciality care and that OP No.2 had never worked Adiva Hospital Pvt. Ltd. It is also denied that the taking over hospital has any access to records pictures and videos of the complainant. It is also stated that the matter pertains to the year 2013 therefore there is no record available having UH ID number 000867 of the year 2013. It is stated that they are not liable and not responsible for any delay of the case or that there is any attempt on their part to mislead the court.
The complainant, in her rejoinder has not stated anything new and mostly reiterated her averments made in the complaint.
The Hon’ble Supreme Court in the matter of SGS India Limited vs Dolphin International AIR 2021 SC 4849 has held the following
“The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the Respondent in the complaint.”
It is therefore, upon the complainant to initially discharge its onus to prove that there was deficiency in service on the part of OP. This Commission has gone through the pleadings and documents filed by the parties and arrive at a finding that complainant has not been able to discharge its onus. It is not the case of the complainant that she had approached the OP for corrective surgery. As per the records filed and the statement of the complainant, she had approached the OP for facelift and liposuction.
As far as allegation of the complainant in giving money to the OP No. 2 is concerned, OP No. 2 has categorically denied it stating that the money was paid by the complainant to the OP No.1 and that OP No.2 has no privity of contract with the complainant. This Commission is of the view that the complainant has not filed any proof regarding payment being made to OP No.2 and in fact she herself has categorically admitted in para 2 of her complaint that the payment was made to OP No.1 in cash. However, as far as the response of the OP No.2 is concerned, it is not correct to state that OP No.2 did not have any privity of contract with the complainant. A doctor always has a moral and ethical duty towards his/her patient and the complainant in this case, undeniably was the patient of OP No.2.
Further, it is alleged by the complainant that she was not operated upon by OP No.2 and that OP No.2 also did not visit her after the surgery. From the emails filed on record by the Complainant, it is seen that the complainant though complaining yet has a concern about the manner in which OP No.2 dresses or her visits abroad. And OP No.2, in this regard has filed the notes of the nurses and full time house surgeon Dr. Snehal Patil which corroborates the version of OP No.2. Further,OP No. 2 has also signed the discharge summary of the complainant. It has also been stated by OP No. 2 that the post operative care was the duty of the OP No.1 and to prove the same, many documents have been filed on record which goes to show that the complainant was attended to. Therefore, the version of the complainant cannot be accepted.
It is observed that the complainant has not filed any documents in support of the alleged deformity suffering partial facial paralysis, financial loss. On the other hand deformities which are attributed to the surgery are pre-existing and OP No. 2 in pre operative examination talks to the complainant that her facial nerve palsy is very obvious and face is in a deformed condition even prior to surgery, the transcript of the said conversation is on record. CD filed in this regard has also been seen. The facial nerve palsy is also discussed in the patient history and examination proforma wherein it is recorded that the patient came to the hospital for liposuction and facelift and thereafter for some cosmetic surgeries.
It is also seen from the record of the case that the surgery was performed in January 2013 and the first complaint was made by the complainant in January 2014 i.e after one year of the surgery. The complainant could have procured relevant record from Sir Ganga Ram Hospital where her first surgery was carried out but the complainant has not done so. Since the complainant has not been able to place on record any material from the past surgery nor any expert opinion has been sought/produced regarding her surgery no case is made out against OPs in this regard.
In view of the discussion above and after having gone through the material placed on record, this Commission arrives at the finding that the complainant has not been able to establish her case and therefore the complaint is dismissed with no order as to costs.
File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.
