BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.407 of 2019

      Date of Instt. 13.09.2019

      Date of Decision: 07.08.2023

Lal Singh aged about years son of Kundan Singh, resident of house no.BX-814/1, Prithvi Nagar, Santokhpura, Jalandhar.

..........Complainant

Versus

1.       Arora Eye Hospital and Retine Centre (Super Specialty Eye     Hospital) 7, Lajpat Nagar, Near Guru Amar Dass Chowk,          Jalandhar.

2.       Dr. Amardeep Singh Arora, MBBS, As FVRS, FRCS (Glasgow)      ophthalmologist & Vitretinal Surgeon Arora Eye Hospital and Retine Centre (Super Specialty Eye Hospital)7, Lajpat Nagar,         Near Guru Amar Dass Chowk, Jalandhar.

3.       The Oriental India Insurance Company Ltd. having address at 4E/14, Azad Bhawan, Jhandelwalan Ext. New Delhi-110005

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:         Dr. Harveen Bhardwaj            (President)

                   Smt. Jyotsna                            (Member)                                         

Present:       Sh. Sumit Kumar, Adv. Counsel for the Complainant.

                   Sh. Anil Kalia, Adv. Counsel for OPs No.1 & 2.

                   Sh. A. K. Arora, Adv. Counsel for OP No.3.

Order

Dr. Harveen Bhardwaj (President)

1.                This complaint has been filed by the complainant, wherein alleged that the complainant namely Lal Singh was visited in the hospital of OP on 7.3.2019 for the diagnosis of cataract in right eye and the OP No.2 had prescribed the complainant's father with some medicines and told the complainant to come on 10.03.2019 with his father for surgery. While performing surgery the blood from the eye of father of the complainant was oozing and the opposite party immediately stopped the operation due to sudden expulsive HMG and prescribed some medicines for the same but the problem was remains the same. Thereafter on 14.3.2019, father of the complainant again visited in the hospital for the completion of operation of the complainant, the OP dilly dallied the matter on one pretext or the other and again prescribed some pain killer and told the complainant to review after one week. Thereafter on 19.3.2019 father of the complainant was suffering from severe pain and blood was constantly oozing from his eyes. Instead of providing better treatment to father of the complainant, the OP No.2 told the complainant to wait for 10 days. On the advice of the OP No.2. the complainant used to have medicines as per the directions in the hope that the eye will get completely fine in some time. When there was no improvement in the condition of the complainant, the complainant took his father to the PGI Hospital and the doctor of PGI while operating the eye of the complainant told the complainant that the ratina of eyes of father of the complainant is already damaged due to negligence on the part of OP No. 2, and when he was admitted in the PGI hospital and thereafter of the complainant was operated twicely in PGI to repair the ratina of eye of the complainant. Even after these surgeries, there was no improvement in the condition of the father of the complainant. Rather he was suffering from continues pain and lost his eye sight and he is continuously taking medicines. The complainant is senior citizen the prolonged and continues and after treatment/mistreatment by the OPs and due to their gross medical negligence, the father of the complainant suffered mental and physical harassment over a prolonged period of time. Due to the wrong and ill treatment of the OPs on the father of the complainant, he has also lost his vision had to undergo 02 surgeries. Not only this, the father of the complainant is still under medical treatment from PGI. The act of the OPs No.1 and 2 regarding the gross medical negligence in treating the complainant amounts to deficiency in service on the part of the OPs and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs No.1 & 2 be directed to pay a sum of Rs.5,00,000/- as compensation for gross medical negligence in treating the complainant which resulted in the left forearm of the complainant to be disfigured and any other relief which this Commission deems fit may also be granted to the complainant.

2.                Notice of the complaint was sent to the OPs and accordingly, OPs No.1 and 2 appeared through its counsel and filed joint written reply and contested the complaint by taking preliminary objections that patient has not paid a single naya paisa to OP, hence there is no consumer-vendor relationship between opposite party and complainant. Therefore, the Consumer Protection Act is not applicable and this case should be dismissed on this ground only. It is further averred that the present Complaint is wholly misconceived, groundless. frivolous, vexatious and scurrilous which is unsustainable in the eyes of law and has been filed without any justified reason/cause against the OPs No.1 and 2 just to harass, defame and extort illegal sum of money from the OPs No.1 and 2, hence the Complaint is liable to be dismissed. It is further averred that no specific, scientific and justified allegations in regard to negligence or deficiency in providing services has been made by the complainant against the OPs No.1 and 2 and the complainant has totally failed to explain ‘as to how he is involved and the OPs No.1 and 2 were negligent’, hence the Complaint is miserably failing to explain the cause of action against the OPs No.1 and 2. Hence is liable to be dismissed outright. It is further averred that the complainant has filed this Complaint with false allegations of negligence to the Commission by claiming exorbitant amounts without any basis, just to waste the valuable time, harass and defame the OPs No.1 and 2. Although it is a fact that the OPs No.1 and 2 has not committed any negligence in this case, while providing the said treatment, hence Complaint is liable to be dismissed. It is further averred that no cause of action arose against the OPs No.1 and 2 in this case, no negligence or deficiency in services in services has been made/provided by the OPs No.1 and 2 to the patient while providing the said services in question, and hence this complaint is not maintainable in present form and is liable to be dismissed outright. It is further averred that the present Complaint is totally false, fabricated, wrong and baseless which is synthesized on the basis of unscientific laymen conjectures, assumptions and presumptions and that in this case no negligence (either in the form of commission or omission) has been committed by the OPs No.1 and 2 and hence the Complaint is liable to be dismissed. On merits, it is admitted that the patient Lal Singh came to OPs hospital on 07.03.2019 for free eye check-up and he was diagnosed to have grade 5 nuclear cataract eye with Phacodonesis, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                OP No.3 appeared and filed its separate written reply and contested the complaint by taking preliminary objections that the complainant is not the consumer of the answering OP and that being so the present complaint is liable to be dismissed against the answering OP. It is further averred that there is no privity of contract between the complainant and the answering OP. It is further averred that there is no deficiency of service or unfair trade practices on the part of the answering OP and that being so, the present complaint is liable to be dismissed. It is further averred that without admitting any liability, it is submitted that the answering OP had issued Professional Indemnity Doctor Policy bearing no.272200/48/2019/7044 to Dr. Amandeep Singh, 309, New Jawahar Nagar, Jalandhar for the period 23.07.2018 to midnight of 22.07.2019 for a sum of Rs.10,00,000/- subject to terms and conditions of the policy of insurance. The answering OP is not liable to make payment of any claim to the complainant as per terms and conditions of policy of insurance. The intimation of the claim was received by the OP on 20.12.2019 i.e. after the expiry of last renewed policy on 31.08.2019. Thus the claim is not tenable as per condition no.8.1 of the policy of insurance, which reads as under:-

                   8.1 The Insured shall give written notice to the Company as soon as reasonably practicable of any claims made against the Insured (or any specific event or circumstances that may give rise to a claim being made against the Insured) and which forms the subject of indemnity under this policy and shall given all such additional information as the Company may require. Every claim, writ, summons or process and all documents relating to the event shall be forwarded to the Company immediately they are received by the Insured.

Further clause 5 (b) of the policy of insurance reads as under:-

Extended Claim Reporting Clause

                   In the event of non-renewal or cancellation of this Policy either by the Company or by the Insured, the Company will allow a time limit not exceeding 90 days from the date of expiry or cancellation of the policy. provided no insurance is in force during this extended reporting period for the same interest, for notification of claims for accidents which had taken place during the period of insurance but could not be made during the Policy period, provided however, all claims made during the extended reporting period shall be handled as if they were made on the last day of the expiring policy period and subject to the limits of indemnity and the terms, conditions and exceptions of the policy. On merits, all the allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

4.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. 

5.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

6.                We have heard the learned counsel for the respective parties and have also gone through the written arguments submitted by both the parties as well as case file very minutely.

7.                The complainant Lal Singh alleged himself to be the son of Lal Singh and Aadhar Card of the complainant is allegedly filed as Ex.C-1 and of Lal Singh Ex.C-2. Perusal of Ex.C-1 shows that it is the Aadhar Card of Lal Singh, but Ex.C-2 is the discharge card of Lal Singh. In the present case, it is not clear as to who is the complainant. In the entire complaint, the complainant is alleging that the father of the complainant namely Lal Singh was diagnosed of cataract in right eye, but record produced by the complainant as well as OP shows that it was Lal Singh i.e. the complainant, only who was a patient. Considering Lal Singh to be the patient as well as the complainant, the present complaint is being decided.

8.                The OP has alleged that the complainant is not consumer as no consideration was ever paid to the doctors for the operation. He has referred Ex.OP1&2/4, where the category has been mentioned as ‘Free’. The OP has relied upon the law laid down by the Hon’ble Supreme Court, titled as ‘Nivedita Singh Vs. Dr. Asha Bharti & Ors., wherein the Hon’ble Supreme Court has held that if the services rendered by the hospital or doctor are without any consideration, complainant does not come within the definition of consumer as per Section 2(1)(d)(ii) as no services were availed of the OPs for any consideration. The OP has also relied upon the law laid down by the Hon'ble National Commission, in a Revision Petition No.3470 of 2006, decided on 26.02.2007, titled as ‘Bitoni and Anr. Vs. Satya Narain Chauhan (dr.) and Anr. The OP has further relied upon the law laid down by the Hon’ble State Commission, Punjab, in a complaint No.63 of 1993, decided on 10.01.1994, titled as ‘S. S. Kahlon & Anr. Vs. Bawa Hospital & Others’. Further, the OP has relied upon a law laid down by the Hon’ble Haryana State Commission, in a F. A.  No.80 of 1993, decided on 07.04.1993, titled as ‘Parmeshwari Dass Tijoriwala Vs. Dr. Virender Kumar and another’.

                   In the above said law, the Hon'ble National Commission, Hon’ble State Commission, Punjab and Hon’ble State Commission, Haryana has held that where nothing was charged from the complainant and no services of the OPs are availed by the complainant for consideration, the complainant does not fall under the definition of a consumer under Section 2 (1) (d) of the Act. In Para No.9 of the written statement, the OPs No.1 and 2 has mentioned the fact that the patient Lal Singh came to OPs on 07.03.2019 for free eye checkup. This fact is supported with the document Ex.OP1&2/4. The complainant in the entire complaint, has not mentioned anywhere about the consideration paid by the complainant for his eye checkup and for the operation conducted by the OP. In the rejoinder, in para No.1 of reply to preliminary objections, the complainant has denied the fact that the patient has not paid a single naya paisa to OP. He has simply denied this fact, but he has not stated anywhere how much amount, he has paid for the operation conducted by the OP. The complainant has produced on record the receipts of payment made by him in PGI, Chandigarh, Ex.C-6 to Ex.C-9, bill of pharmacy of Chandigarh Ex.C-11, Ex.C-13 to Ex.C-17, but he has not filed on record any receipt to show that the services of OPs No.1 & 2 were availed for consideration. The complainant has not produced on record any evidence in support of the fact that he had paid fee to the OP. It has been held by the Hon’ble State Commission, Punjab, in a complaint No.63 of 1993, decided on 10.01.1994, titled as ‘S. S. Kahlon & Anr. Vs. Bawa Hospital & Others’, where the OP was a private hospital, the Hon’ble Punjab State Commission has held that where there is no evidence that any operation fee was charged by the OP from the complainant, the complainant cannot be said to be consumer as the services rendered by the OPs were free of charge. If that is so, it will not be service within the meaning of Section 2 (1)(O) of the Act. Hence, they were not held entitled to maintain the complaint.

                   In the present complaint also, the complainant has failed to prove that any fees were charged by the OP for the operation and the services of the OP were hired for consideration, therefore, as per the provisions of the Consumer Protection Act as well as the law laid down by the Hon'ble National Commission, Hon’ble State Commission, Punjab and Hon’ble State Commission, Haryana, the complainant is not a consumer in the eyes of law and the present complaint is not maintainable and the same is dismissed with no order of costs. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

9.                Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                                 Jyotsna                               Dr. Harveen Bhardwaj     

07.08.2023                       Member                               President