DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.235/2006
DR. CHANDRESHWAR PRASAD RAI,
S/O SHRI KAILASH RAI,
R/O A-3/126, PASCHIM VIHAR,
NEW DELHI. ….Complainant
Versus
- AL–KHALEEJ DIAGNOSTIC CENTRE, H-58-59, SOUTH EXTENSION, PART-I, NEW DELHI-110049.
- MR. SATISH KAKKAR, MANAGER, AUTHORITY LETTER –KHALEEJ DIAGNOSTIC CENTRE, H-58-59, SOUTH EXTENSION, PART-1, NEW DELHI-110049.
- DR. SALIM MIJAMI, CHIEF MEDICAL OFFICER, AUTHORITY LETTER –KHALEEJ DIAGNOSTIC CENTRE,
H-58-59, SOUTH EXTENSION, PART-1,
NEW DLEHI-110049.
- DR. ARUN MISHRA, RADHIKA MEDICAL CENTRE, NO.-22, SOUTH EXTENSION, PART-1 NEW DLEHI-110049.
….Opposite Parties
Date of Institution : 02.03.2006 Date of Order : 07.10.17
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
Complainant’s case is that the complainant who is a qualified MBBS, M.D. doctor, had applied for a job in M/s Saudi Medicare Company Ltd. having its registered office in the Kingdom of Saudi Arabia and the said company had agreed to appoint him as a consultant obstetrician and gynaecologist at a salary of Rs.1,95,000/- per month for the period of one year subject to further extension on mutual consent vide agreement dated 24.11.2003 (copy annexure-A). OP-1 is authorized by the royal Consulate General of Saudi Arabia for medical check-up of the person willing to obtain VISA for Saudi Arabia and OP-2 is the manager and OP-3 is the Chief Medical officer and OP-4 is also working as a doctor in OP-1. Complainant approached the OPs for necessary medical check-up and deposited the requisite fee of Rs. 1,500/- vide receipt No. B-07 dated 08.12.2003. OPs declared the complainant to be UNFIT FOR FIBROCALCIFICATION IN LEFT MID ZONE (copy of annexure – C). Complainant sent a registered letter and reminders and also asked for details regarding the qualification and specialty of persons i.e. Radiologist, Pathologist, Physician who had examined the complainant and given opinion on medical fitness etc. but to no effect. According to the complainant, the OP’s act of declaring the complainant UNFIT on the basis of Fibrocalcification in the left mid zone was illegal, against the established medical rules and norms in as much as the OPs did not mention about the cause of Fibrocalcification which was most relevant and not mentioned in which organ the Fibrocalcification was existing. According to the complainant, OPs wrongly considered the Fibrocalcification in chest to be tuberculosis and did not correct their report despite the same was repeatedly brought to their notice. However, at the same time, the complainant’s case is that he was having this Fibrocalcification in his left mid zone (in chest) for the last 25 years but the same was not causing any symptom nor was due to past tuberculosis and in this respect complainant had also got his check up done and opinion (obtained) from chest specialist including specialist from chest department of All India Institute of Medical Sciences, New Delhi after getting catscan and pleural biopsy which showed “Thickened Pleura due to Fibrosis not Tubercular no AFB seen nor any Tubercle”. The case of the complainant is that OPs did not follow the guidelines which they were considering to have been binding on them in as much as in the said guidelines in clause 5(a)(b)(c), the person suffering from tuberculosis was to be declared unfit and it is clear that the complainant is not having any tuberculosis nor the same was mentioned in medical report; that it needs to be mentioned that the radiologist did not mention that Fibrocalcification was due to tuberculosis. It is stated that OPs have clearly violated the rules 1.2, 1.3, 1.6, 1.9, 3.1, 3.7, 6.13, 6.1, 3.12, 10.1, 10.4, 10.5, 12.2, 12.11 etc. of the CODE OF ETHICS OF THE DELHI MEDICAL COUNCIL, framed vide regulations for professional conduct, etiquette and ethics, 2001. It is further stated that the OPs following the guidelines as framed by the UAE without applying their independent decision about the correctness of the guidelines as per the internationally established medical rules and norms was illegal and unlawful. According to the complainant’s assessment he suffered loss of Rs. 3,00,000/- on account of loosing career prospects, mental pain and agony and Rs. 17,00,000/- towards the financial loss caused due to loosing his job. Complainant sent a legal notice dated 12.01.2004 through advocate to OPs and OPs gave very vague and evasive reply stating therein that the Kingdom of Saudi Arabia had specified that candidates with “Tuberculosis-any types:-
- Pulmonary by chest X-ray showing active or past evidence of old T.B. including minimum fibrosis, calcification and pleural thickening,
- Tuberculosis pleural effusion,
- Tuberculosis lymphadenitis
are disqualified.” (Para-19)
According to the complainant, OP had treated the Fibrocalcification in left mid zone as tuberculosis. Hence, pleading deficiency in service on the part of OPs, the complainant has filed the present complaint for issuing the directions to the OPs to pay to the complainant a sum of Rs.20,00,000/- along with interest thereon @ 24% per annum from the date of institution of complaint till realization.
OPs in the written statement have inter-alia stated that as per the admission made by the complainant, he had Fibrocalcification in his left mid zone and, hence, the medical report in question is correct. It is stated that the OPs are not under the obligation to disclose the cause nor it co-related to the fitness or otherwise of the complainant. As per rules of Kingdom of Saudi Arabia, the presence of Fibrocalcification in the left mid zone of the body of the complainant which could develop in any subsequent medical problem in the body of the complainant was valid reason for him to be declaring as unfit for the consultant’s job in the Kingdom of Saudi Arabia. The rules and norms laid down by the Medical Council of India, if any, are not applicable to the Government of Saudi Arabia. The Kingdom of Saudi Arabia extends their approval to such centres like OP-1 after going through very carefully the competence of such centres as the people of the Kingdom hire should be fit, free from all kind of diseases, healthy, both physically and mentally and therefore put, to be employed, consultants to hard tests and do not compromise on the quality of such people. OPs have prayed for dismissal of the complaint.
Complainant has filed a rejoinder to the written statement of OPs.
Complainant has filed his own affidavit in evidence wherein he has relied on documents exhibits AW-1/1 to exhibit AW-1/20 (infact given exhibit CW1/1 to CW1/20 in the documents). On the other hand, affidavit of Dr. Arun Mishra (OP-4) has been filed in evidence on behalf of the OPs.
Written arguments have been filed on behalf of the parties.
We have heard the oral arguments on behalf of the parties and have also carefully gone through the file.
From the perusal of the file, it appears that interrogatories were filed on behalf of the complainant and OPs filed replies. However, order dated 26.07.2010 passed by our Predecessors show that the application for interrogatories was rejected on that date.
On 06.5.2016, complainant filed an application for seeking expert opinion on certain type of interpretation of GCC (Gulf Cooperation Council) guidelines. We referred the matter to the Safdarjung Hospital to get the expert medical opinion. The Safdarjung Hospital sent medical opinion report bearing No. 2-19/16-MR dated 02.11.2016 received in this Forum on 09.11.2016. The complainant has filed objections against the medical expert opinion. Reply to the objections has been filed on behalf of the OPs. We have heard the complaint in person and counsel for the OPs on the objections against the medical opinion report which we mark as Mark-Y for the purposes of identification. The Medical Board examined the matter and the relevant report reads as follows:
“In the present case where the petitioner has not placed on record any of his previous medical records which can establish the cause of fibrocalcification, the cause of fibrocalcification remains uncertain. The questions in this scenario are, “whether the petitioner gets the benefit of the uncertainty for the cause of fibrocalcification in his lung or not?” “Who has to establish the cause of fibrocalcification, the petitioner or the respondents?” The committee felt that these are purely legal issues and are beyond the scope and competence of the committee. In view of the fact that the basic issues involved in this case require legal knowledge rather than medical expertise, the committee felt that there is no medical negligence in the present case.”
The objection of the complainant against the medical expert opinion is that he wanted to get the Medical expert opinion on the issues “Right interpretation of the Gulf Cooperation Council (GCC) guidelines” but the medical board has not done so. The reply to this objection is that it is not disputed by the complainant that the GCC guidelines set up by Gulf States would apply for declaring the person fit or unfit and the GCC guidelines set up by the Gulf States alone have to be considered to find out whether the complainant is fit or unfit in terms of the said guidelines. In the reply, it is further stated that the complainant cannot approach OP-1 directly unless he has been referred for his medical examination as per the norms set out in the GCC guidelines set up by the Gulf Cooperation Council (GCC). The complainant was declared unfit on account of “Fibrocalcification in left middle zone of chest” and hence there is no need for further medical examination and that too after almost 12 years which will serve absolutely no purpose whatsoever in decision of the complaint.
We make it very clear that we had referred the case to the Safdarjung Hospital for getting the expert medical opinion with regard to the disease and we had not asked the Safdarjung Hospital to interpret or define the terms of Gulf Cooperation Council (GCC) guidelines. This is a mixed question of facts and law which therefore, requires to be adjudicated/ decided by the Forum and not by the hospital. Therefore, we do not find any fault in the report submitted by the Safdarjung Hospital.
According to the complainant himself, he was having Fibrocalcification in his left mid zone in chest for last 25 years but without any symptom nor the same had been related to tuberculosis nor was due to past tuberculosis. The medical report bearing No. B-0005 is exhibit CW-1/3 which is in respect of complainant wherein it is written that “HE IS UNFIT FOR FIBROCALCIFICATION SEEN IN LEFT MID ZONE”. The report does not suggest that this Fibrocalcification was due to the tuberculosis as mentioned in Para-19 of the complaint the relevant portion of which has been reproduced hereinabove. The Kingdom of Saudi Arabia had thus specified that the candidates with “tuberculosis - any type including minimum fibrosis, calcification and pleural thickening were disqualified”.
The complainant was found having fibrocalcification in the left mid zone. Infact he was suffering from the said symptom for the last about 25 years. Therefore as per the guidelines specified by the Kingdom of Saudi Arabia, due to this symptom he had become medically unfit to join as qualified gynaecologist and obstetrician in Saudi Arabia.
Therefore, the medical report in question exhibit CW-1/1 given by the OPs does not suffer from any defect or deficiency and has not been given with malafide intention or with intention to cause wrongful loss to the complainant.
In our considered opinion, objections do not carry any weight and are accordingly dismissed. With the dismissal of objections the complaint is also liable to be dismissed.
In view of the above discussion, we also do not find any merit in the complaint and dismiss it with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 07.10.17.
