Delhi

StateCommission

A/08/771

INDERPRATHA APOLLO HOSPITAL - Complainant(s)

Versus

ANAND MOHAN JAIN - Opp.Party(s)

24 Oct 2017

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                                    Date of Arguments:   24.10.2017

                                                                     Date of Decision:      02.11.2017

First Appeal No. 771/08

In the matter of:

Indraprastha Apollo Hospital

Through the Director

Sarita Vihar, Delhi-Mathura Road

New  Delhi-110076.                                                                                                   ….Appellant

 

                                                            Versus

 

Shri Anand Mohan Jain

S/o Late Shri H.C.Jain

R/o Flat No. 32, Maitri Apartments

Mayur Vihar, Delhi-110091.                                                                                ….  Respondent

 

CORAM

Hon’ble Sh. O.P.Gupta, Member(Judicial)

Hon’ble Sh. Anil Srivastava, Member

1.Whether reporters of local newspaper be allowed to see the judgment?  Yes/No

2. To be referred to the reporter or not? Yes/No

SHRI O.P. GUPTA(MEMBER JUDICIAL)

JUDGMENT

                The OP feeling aggrieved from order dated 23.06.08 passed by District Forum VII in CC No. 730/07 has preferred the present appeal.  Facts as noticed in the impugned order are that on 18.06.07 complainant visited OP for treatment of skin related problem and paid Rs. 100/- towards registration fee. The said doctor advised complainant to get admitted in hospital for proper diagnosis and take package of Rs. 30,000/- which was to include the diagnosis, room charges and food.  Expected time for entire required test and diagnosis was to be less than 24 hours.  Complainant took admission in the hospital and was allotted room no. 3622. The complainant found room in miserable condition with broken, dirty tiles where from insects and cockroaches were coming out.  He cleaned the same.  During the lunch time canteen people served complainant with sub-standard and stale food with stinking chapattis which was unfit even for animals.  This was brought to the notice of OP but canteen Incharge ignored the same and said that the food was prepared under the expert advice of dietician.  Complainant went without food and could not take regular medicine.  Absurdity crossed when canteen people served him with same left over/stale food in the dinner.  Complainant contacted night manager of OP to get the complaint book.  The night manager refused to do so by saying that hospital was a private hospital and was not bound to maintain any complaint book.   After strong reaction the OP replaced the food.   However after eating the said food, complainant suffered severe stomach pain, followed by steep rise in hypertension and blood sugar. Consequently doctors of OP  advised him to stay in the hospital for another day for the purpose of observation.  He was forced to stay till 22.06.07.  OP gave bill of Rs. 64,970/- including  visit charges of various doctors who never visited the complainant.  Immediately after discharge from hospital he suffered stomach infection/disorder which was aggravated to the extent that he was taken to Dr. Pawan Gupta /a homeopathic doctor.  On 11.07.07 his stomach pain went out of control and he was taken in emergency of Max Balaji Hospital where after observing him for sometime he was discharged.  Complainant prayed for the refund of Rs. 64,974.12 alongwith compensation of Rs. 1,00,000/- and litigation cost of Rs. 10,000/- .

2.         Appellant filed reply stating that complainant was admitted with complaints of kin nodules over nose for past one year and decreasing eyesight for past one month.  It was known case of diabetes Mellitus since last three to five months and hypertension since last two months.  He was on treatment for tubercular leprosy for the past six months with some other hospital.  Hospital has different categories of bed.  Complainant chose bed in a single room and bill was raised as per hospital tariff. Hospital never served complainant with sub-standard stale food unfit for use. He was served with patient diet from the same lot from which rest of the patients had eaten.  No other patient complained about the food.  He was reviewed by Dr. Uma Mallaya for eye evaluation,  by  Dr. Joshi for skin biopsy and Dr. A.Mittal, Sr. Consultant for  Mellitus diabetic management. There was no negligence on the part of the OP.  After going through the material on record and hearing the argument the District Forum found that OP had not filed the affidavit of Dr. Deepak Rosha or any other doctor to show that there was no negligence on the part of doctor or the hospital.

3.         We are unable to appreciate the approach of the district forum. Burden of proof lies on person who asserts the fact.  There can be evidence of positive negligence but no evidence to show that there was no negligence.  The district forum wrongly placed the burden of negating negligence  on OP.

4.         The District Forum referred to the decision of Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab and another 2005 CTJ 1085 in which it was held that professional may be held liable for negligence either when he was not possessed of requisite skill which he professed to have possessed or when he did not exercise skill  with reasonable competence.  It appears that the said dictum has been applied wrongly by observing that disease was cured by Dr. Pawan Gupta Homeopathic doctor of Max Balaji Hospital.  There can be cases where treatment from one doctor does not respond but treatment from other doctor gives the relief.

5.         The bill included Rs. 11,000/- for bronchoscopy test.  District Forum found that since OP did not file copy of those tests the  only conclusion was that no other test was made for which huge amount has been charged. From this a case of greediness and exploitation of poor patient by the OP was inferred.  It may be so but that does not make out medical negligence.

6.         The District Forum went on to observe that Dr. Rosha and his other companion doctors entered the room of the complainant 11 times and charged Rs. 3800/-. What was the treatment and what was the aim of those doctors to visit the room of the patient, is not clear.  So conclusion was that OP exploited the poor patient.  Again this is not the evidence of medical negligence.  It is obvious that visit by doctor is to check the patient and find out whether the treatment given was proper or required some change.

7.         The District Forum further went on to observe, it does not stand to reason as to why there was shabby condition of the room for which Rs. 3300/- per day was being charged which is equivalent to rent of 3-4 star hotel room.  The averment of the complainant that food was stale  and unfit was not afterthought because it was mentioned  in the complaint lodged instantly.   Again reasoning is quite strange.

8.         Alternatively the District Forum found that appellant has illegally retained Rs. 6500/- rounded and assessed the compensation of Rs. 1,00,000/-.  Accordingly it directed the appellant to pay said sum with interest @ 10% per annum and Rs. 5000/- as litigation expenses.

9.         We have gone through the material on record and heard arguments advanced by counsel for appellant.  Respondent did not turn up for addressing arguments.

10.       We find ourself in complete agreement with the submission of counsel for appellant that it can be a case of deficiency in service but is not a case of medical negligence.  Consequently appeal is accepted,  ismpugned order is set aside and complaint is dismissed.

            Copy  of the order be sent  to both the parties free of cost.

            One copy of the order be sent to District Forum for information.

 

(ANIL SRIVASTAVA)                                                                                                                        (O.P.GUPTA)

MEMEBR                                                                                                                             MEMBER(JUDICIAL)