DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 299 of 06-08-2015

Decided on : 05-09-2017

Sukhpal Kaur, aged 44 years , W/o Baljeet Singh, R/o Village Bhagwangarh, District, Bathinda.

…...Complainant

Versus

1. Badyal Multispeciality Hospital & Trauma Centre, Bibiwala Road, Bathinda, through its Proprietor Dr. Rajesh Badyal.

2. Dr. Rajesh Badyal, Proprietor, Badyal Multispeciality Hospital & Trauma Centre, Bibiwala Road, Bathinda.

3. United India Insurance Company Limited, 2090 B, The Mall, Bathinda.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. M.P.Singh. Pahwa President

Sh. Jarnail Singh, Member

Present :

For the complainant : Ms. Rajinder Sidhu, Advocate.

For the opposite parties : Sh. Sanjay Goyal, Advocate, for OPs No. 1 & 2.

Sh. Sunder Gupta, Advocate, for OP No. 3.

O R D E R

M. P. Singh Pahwa, President

1. Sukhpal Kaur, complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Badyal Multispeciality Hospital & Trauma Centre and others (here-in-after referred to as 'opposite parties').

2. Briefly stated, the case of the complainant is that she is a house maker. Her husband Baljit Singh is an agriculturist. On 17-7-2014, she had suffered fracture of her left leg due to fall. She had swelling and pain in her left leg. She was rushed to opposite party No. 1 for medical treatment by her husband Baljeet Singh. The opposite party No. 2 checked the complainant and asked her to undergo x-ray examination of her left leg and other clinical tests. Thereafter, opposite party No. 2 informed the complainant and her husband Baljeet Singh that she has suffered fracture of tibia and fibula left leg. She is to be operated upon. The opposite party No. 2 further informed that during surgical operation of leg, a steel rod will be inserted. The complainant will have no problem in walking and will have no pain. Thereafter complainant was admitted to opposite party No. 1 on 17-7-2014. She was surgically operated by opposite party No. 2. She remained admitted to opposite party No. 1 till 28-7-2014 when she was discharged. During this period, from time to time, her husband deposited amounts with opposite party No.1. Her husband spent Rs. 2,50,000/- on the medical treatment of complainant including fee of doctors, medicines, hospital charges, tests, conveyance, special diet and attendants etc. On 28-7-2014, the complainant was discharged from the hospital of opposite party No. 1. She was asked to visit on 3-8-2014. Accordingly, complainant and her husband visited opposite party No. 2 for follow up treatment. The complainant informed opposite party No. 2 that she has pain in her leg and he prescribed some medicines and assured that pain will go slowly. Thereafter, on number of occasions, the complainant alongwith her husband visited opposite party No. 2 and informed that she is having pain in her left leg which was operated and she is not able to walk but opposite party No. 2 asked them not to worry and assured that pain will go slowly.

3. It is alleged that pain in the operated leg of complainant did not go. She was unable to walk. In the month of December 2014, she had severe pain in her left leg. She was not able to walk even a step . Her husband rushed her to Civil Hospital, Bathinda for medical treatment on 11-12-2014. After checking the complainant, the surgeon asked her to undergo x-ray examination of her leg and other clinical tests. Thereafter, on seeing the x-ray report, surgeon informed the complainant and her husband that she has to be operated for her left leg and rod is to be inserted. He further informed that she was not properly operated previously and rod was not of good quality, which has resulted in aggravation of injury. On 11-12-2014, the complainant was admitted to Civil Hospital, Bathinda. Her left leg was operated again. The surgeon removed a thick wire inserted by the opposite party No. 2 in the leg and inserted steel rod in the leg. During the course of operation, the surgeon had to remove flesh from other parts of body of complainant through operation to put the same in the operated leg of the complainant. She remained admitted to Civil Hospital, Bathinda till 22-12-2014. After her medical treatment at Civil Hospital, Bathinda, she has recovered and is not having pain in her left leg but she has to walk with the help of a walker.

4. It is alleged that complainant had spent Rs. 2,50,000/- on her medical treatment at opposite party No. 1 including medicines, operation charges, doctors fee, hospital charges, conveyance, diet, attendants etc., but she did not have relief even after operation and medical treatment given by opposite party No. 2, she had to spent another Rs. 75,000/- on her medical treatment at Civil Hospital, Bathinda including medicines, conveyance, diet, attendants etc.

5. It is further alleged that complainant has suffered physically, mentally and financially also due to criminal medical negligence of opposite parties No. 1 & 2. They did not conduct operation of her left leg properly. She had to undergo three surgical operations on her body. The first operation was conducted by opposite party No. 2 which was a failure and she had to undergo second operation of her left leg at Civil Hospital, Bathinda. She had to undergo third operation at Civil Hospital, Bathinda for removal of flesh from other parts of her body for putting same in her operated leg. The complainant has claimed Rs.5,00,000/- from the opposite parties for harassment, physical and mental sufferings and financial loss and Rs. 22,000/- as litigation expenses in addition to refund of the amount charged by the opposite parties with interest @ 18% p.a. Hence, this complaint.

6. Upon notice, the opposite parties appeared through counsel and contested the complaint by filing written reply. In their joint written reply, the opposite parties No. 1 & 2 raised legal objections that complaint is not maintainable in the present form. That the complainant has no locus-standi and cause of action to file the complaint. The opposite parties are not guilty of any negligence or deficiency of service. Even otherwise, the opposite parties have obtained Doctor's Indemnity Insurance from opposite party No. 3 and the liability, if any, is to be borne by the opposite party No. 3. That the complaint is bad for non-arrainment and mis-arrainment of parties. United India Insurance Co. Ltd., is not party to complaint. That complaint is thoroughly frivolous, vexatious, malafide and instituted with black mailing motive. It deserves to be dismissed with special costs under section 26 of the 'Act', 1986. That the complainant has not come with clean hands and has concealed material facts from this Forum. That intricate and contentious question of law and facts are involved in this complaint. The procedure enacted before this Forum, being of summary nature, the matter is required to be adjudicated before civil court.

7. On merits, it is revealed that complainant approached the opposite parties on 17-7-2014 with the complaint of compound fracture /open fracture grade III of both bones leg. She was examined by opposite parties and required medical tests were got conducted. The opposite parties are qualified doctors and has experience of more than 30 years in this field. It is denied that the opposite parties ever informed the complainant that during surgical operation of leg, a steel rod will be inserted The complainant has not approached this Forum with clean hands and has not placed true and correct facts before this Forum.

8. As per opposite parties No. 1 & 2, true facts are that the complainant was admitted in the hospital of opposite parties with compound fracture/ open fracture grade III of both bones leg. After all required tests, standard treatment was started with consent. Debridement i.e. thorough irrigation and cleaning of wound was done to prevent infection. Thereafter rush nail in small bone fibula was inserted and external fixator was applied for Tibia fracture. Position of fracture was checked on image intensifier c-arm in operation theatre. Proper Antibiotics were given. It is denied that any steel rod was inserted. It is further mentioned that no nailing for Tibia was done. Whatever treatment was given to complainant was duly mentioned in the discharge card produced by complainant. It is also denied that complainant spent Rs. 2,50,000/- on medical treatment.

9. As per opposite parties, the complainant was discharged on 28-7-2014 in good condition. She was advised to visit on 3-8-2014 for follow up treatment. The complainant was clearly told that it may take one year in curing such type of fracture. She was advised follow up treatment upto one year. Even on discharge card, issued to complainant, it was clearly mentioned that next X-Ray or investigation is to be done after one month and then after two months, then after four months, then after six months, then after nine months, and thereafter one year. The complainant visited the opposite parties on 17-8-2014 for follow up treatment. Her X-Ray was got done. The complainant again visited the hospital of opposite parties on 17.9.2014, 17.10.2014 and again on 24-10-2014. On 24-10-2014 fixator was removed and PTB (Patellar Tendon Bearing Plaster) was done. The complainant was further advised to visit again on 17-11-2014, but after 24-10-2014 she never visited opposite parties for the reason best known to her. All other averments of the complainant are denied. In the end, the opposite parties No. 1 & 2 prayed for dismissal of complaint.

10. The opposite party No. 3 in its separate written reply also raised legal objections that there is no deficiency in service on the part of the opposite parties No.1 & 2 in providing treatment to complainant. Wrong allegations have been levelled against opposite parties No.1 & 2. That Doctor Professional Indemnity (Medical Establishment) Policy No. 041200/46/13/32/00007095 effective from 03-02-2014 to 02-02-2015 issued to the opposite party No. 2 and Doctor Professional Indemnity (Medical Establishment) Policy No. 041200/46/13/32/00002647 effective from 25-07-2013 to 24-07-2014 issued to opposite party No.1 by United India Insurance Co. Ltd., New Delhi, subject to compliance U/S 64VB of Insurance Act.

11. It is further mentioned that it is a contract of insurance to indemnify the insured regarding legal liability/award/order, which is passed against the insured and which has been satisfied by the insured. Since no award/liability/order/payment has been made against the opposite parties No.1 & 2 and in favour of the complainant and no compensation has been awarded to complainant so far, the insurance company cannot be impleaded at this stage and name of the opposite party No. 3 is liable to be deleted from the array of the opposite parties. That no expert evidence has been placed on file, which could prove that the opposite parties No.1 & 2 were negligent in any manner in performing operation and providing treatment to complainant. No report was sought by this Forum from expert doctor of Civil Hospital, Bathinda before issuing summons. The doctors of Civil Hospital, Bathinda from where the complainant took treatment subsequently, has not mentioned in the discharge summary that opposite parties No.1 & 2 were negligent in any manner in giving treatment to complainant. There is great difference between complication and negligence.

12. The further legal objections are that as per exclusion clause 2(v) of the policy, this policy if proved genuine, even then it does not cover the risk arising out of fines, penalities, punitive or exemplary damages. If this Forum comes to the conclusion that the opposite party No.3 is liable in any manner, then liability of the opposite party to indemnify the insured is limited as per terms and conditions of insurance policy.

13. The further legal objections are that the complainant has not come with clean hands before this Forum. That this Forum, has got no jurisdiction to try and entertain the complaint as opposite parties No.1 & 2 have obtained above said policies from United India Insurance Co. Ltd., New Delhi and opposite party is not branch office of the aforesaid New Delhi Office. That neither any claim has been lodged against the opposite party nor any deficiency in service on its part has been alleged in the complaint. As such, complaint is not maintainable against it. That the intricate question of law and facts are involved in the present complaint, which require voluminous evidence and as such the present complaint cannot be disposed off in summary nature and should be decided only by Civil Court. That the amount of compensation claimed is highly excessive and exorbitant one. That the complaint is false, frivolous and vexatious to the knowledge of the complainant. It is liable to be dismissed with special costs.

14. On merits, the opposite party No. 3 denied all the averments for the reason that these are not related to it. In the end, the opposite party No. 3 also prayed for dismissed of complaint.

15. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavits dated 4-8-2015 & 16-3-2016 (Ex. C-1 & Ex. C-4 respectively), photocopy of discharge card (Ex. C-2), photocopy of admission record (Ex. C-3)

16. In order to rebut this evidence, opposite parties No. 1 & 2 have tendered into evidence affidavits dated 19-7-2016 & 2-8-2016 of Dr. Rajesh Badyal (Ex. OP-1/1 & Ex. OP-1/4 respectively), photocopy of policies (Ex. OP-1/2 & Ex. OP-1/3), photocopy of indoor file. (Ex. OP-1/5), photocopy of discharge card (Ex. OP-1/6) and photocopy of receipt (Ex. OP-1/6).

17. The opposite party No. 3 has tendered into evidence affidavit dated 9-8-2016 of Sh. B B Goyal (Ex. OP-3/1), photocopy of policy (Ex. OP-3/2 & Ex. OP-3/3) and closed the evidence.

18. The learned counsel for the complainant has also submitted written arguments.

19. We have heard learned counsel for the parties, gone through the record and written arguments of complainant.

20. Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that it is admitted by opposite parties that on 17-7-2014 complainant suffered fracture and she was checked by opposite parties No. 1 & 2. It is also admitted by the opposite parties that she was operated upon at the hospital of opposite party No. 1 by opposite party No. 2 and discharged on 28-7-2014. The complainant has also pleaded that after discharge, she used to approach opposite parties No. 1 & 2 for treatment. The version of the complainant is that operation conducted by opposite party No. 2 at the hospital of opposite party No. 1 was not successful and the complainant again got conducted operation from civil hospital, Bathinda. The complainant has placed on record copy of record of civil hospital as Ex. C-3. It proves that complainant was admitted at Civil Hospital, Bathinda on 11-12-2014 and she was discharged on 22-12-2014. This record will prove that complainant was admitted due to fracture in her leg. It also proves that complainant was operated upon for the same leg. Therefore, it stands proved by medical evidence that complainant has undergone second operation of the same leg as operation conducted by opposite parties No. 1 & 2 was not successful. This fact itself proves negligence on the part of opposite parties No. 1 & 2. The complainant has pleaded that she was forced to undergo two subsequent operations. This fact stands proved from the medical report Ex. C-2 & Ex. C-3. The complainant has pleaded that her husband spent Rs. 2,50,000/- for treatment from opposite parties No. 1 & 2. Of course opposite parties 1 & 2 have placed on record receipt (Ex. OP-1/7) to prove that they have charged only Rs. 19,000/-. It is not disputed that opposite parties got conducted various tests and Xrays. The opposite parties have also prescribed medicines from time to time. The complainant spent for these tests and medicines. The complainant remained confined to bed. She also required attendant and special diet. Therefore for all these, complainant claims Rs. 2,50,000/- from opposite parties No. 1 & 2. The complainant suffered trauma, mental tension and harassment for negligence on the part of opposite parties No. 1 & 2. The compensation of Rs. 5,00,000/- claimed by complainant is quite reasonable. The complainant is also entitled to cost of litigation.

21. On the other hand, learned counsel for the opposite parties have submitted that complainant has not levelled any specific allegation in the complaint alleging any negligence on the part of the opposite parties. The only allegations of the complainant are that opposite parties informed that a steel rod is to be inserted in her fractured leg and she will be alright. There is nothing on record that opposite parties asked regarding insertion of any rod as alleged by complainant. The treatment given to the complainant is duly recorded in the discharge card relied upon by the complainant. It is also mentioned in the indoor file produced by the opposite parties. It is clearly mentioned in the treatment record (Ex. OP-1/5) that Debridement i.e. thorough irrigation and cleaning of wound was done to prevent infection. Thereafter rush nail in small bone fibula was inserted and external fixator was applied for Tibia fracture. There is no reference of insertion of any rod. In complaint, the complainant has also alleged that doctors at Civil Hospital informed that she was not properly treated and the rod was not of good quality which has resulted in aggravation of injury. No rod was inserted. Therefore, allegations of the complainant regarding quality of rod are totally false and baseless. There is no opinion of the treating doctor at Civil hospital, Bathinda, regarding any negligence on the part of opposite parties No. 1 & 2.

22. It is further submitted by learned counsel for the opposite parties that as per complainant herself, she got treatment from the opposite parties from 17-7-2014 to 28-7-2014 and the second operation is dated 11-12-2014 i.e. after about 5 months thereafter. It is also admitted by the complainant that opposite parties got conducted x-ray. Thereafter x-ray was also got conducted at Civil hospital, Bathinda. Therefore the best evidence with the complainant was X-ray films of both times but no x-ray films are brought on record to establish that subsequent fracture was same which was earlier treated by opposite parties No. 1 & 2. The complainant has alleged that she was undergone three operations in all. The date of 3^rd operation is not mentioned. No record is produced to prove any 3^rd operation as alleged by complainant. This fact also shows that complainant concocted false story only to extract money. The complainant has not produced any evidence to prove any negligence. The discharge card (Ex. C-2) also proves that complainant was advised follow up (for 'Next X-ray or Investigation' for one year) after intervals as detailed in discharge card. It is not the case of complainant that she approached opposite parties for follow up as advised. The opposite parties have categorically mentioned in written reply as well as in affidavit that on 24-10-2014 fixator was removed PTB (Patellar Tendon Bearing Plaster) was done. The complainant was advised to visit again on 17-11-2014 but she never visited after 24-10-214. This averment of the opposite parties is also corroborated by affidavit. The complainant has not denied these facts in her affidavits. Therefore, this version of the opposite parties stands admitted by the complainant. From this fact also, it is clear that complainant has failed to follow up as advised by the opposite parties. In these circumstances, no fault can be found with the opposite parties as alleged by the complainant.

23. We have carefully gone through the record and have considered the rival contentions.

24. From the contents of the complaint, the allegations of the complainant against opposite parties No. 1 & 2 are summed up as under :-

    (i) The opposite parties asked for insertion of steel rod in her fractured leg and the rod inserted was not of good quality

    (ii) The complainant remained suffering from pain after discharge from the hospital of the opposite parties till December, 2014.

    (ii) The complainant was not properly operated by the opposite parties which resulted in aggravation of injury

    (iv) The complainant undergone two operations subsequent to the operation conducted by the opposite parties.

25. It is well settled that complainant has to prove her case by affirmative evidence. Now it is to be seen whether the complainant has been able to prove averments from her evidence. The only evidence produced by the complainant are her affidavits (Ex. C-1 & Ex. C-4) Copy of discharge card (Ex. C-2) and copy of admission record (Ex. C-3). The affidavits Ex. C-1 & Ex. C-4 are repetition of averments made by the complainant in the complaint. It is well settled that these affidavits cannot be accepted as substantial evidence. These can be corroborative to other evidence. Ex. C-2 is the discharge card issued by the opposite parties. This document will prove that complainant was admitted with the hospital of opposite parties on 17-7-2014 and discharged on 28-7-2014. This document will also prove that opposite parties conducted procedure of Tibia fixation but from this document, no negligence on the part of the opposite parties can be proved. The last evidence of the complainant is admission record of Punjab Health Systems Corporation, Bathinda (Civil Hospital, Bathinda). This document will prove that complainant was admitted in the civil hospital on 11-12-2014 and was discharged on 22-12-2014. This document will also prove that complainant was again undergone operation of her left leg but in this document also, there is nothing regarding any negligence on the part of opposite parties No. 1 & 2.

26. From the contents of complaint, the main allegations of the complainant are that the opposite parties asked for insertion of steel rod in her fractured leg and she was informed at Civil Hospital, Bathinda, that rod inserted was not of good quality which has resulted in aggravation of injury. As per these allegations, aggravation of injury is due to inferior quality of rod insertion but there is no record to prove insertion of any rod by opposite parties No. 1 & 2. The categorical stand of the opposite parties is that rush nail in small bone fibula was inserted and external fixator was applied for Tibia fracture. This procedure is also recorded in indoor file. The discharge card Ex. C-2 relied upon by the complainant also proves that complainant was advised for follow up after one month, two months, four months, six months, nine months and one year for X-ray or investigation. The complainant was discharged on 28-7-2014. Therefore she was required followup for one year i.e. upto 28-7-2015. It is also version of the opposite parties that on 28-10-2014, the external fixator was removed and PTB (Patellar Tendon Bearing Plaster) was done. It is also version of the opposite parties that thereafter complainant never visited. These averments of the opposite parties are also supported by way of affidavits filed by them. The complainant has not denied these facts in her affidavits filed subsequent to the written version of the opposite parties.

27. The complainant has admitted that she has undergone X-ray examination at the instance of opposite party No. 1. The complainant has admitted that she was subjected to x-ray before operation at Civil hospital, Bathinda. The first operation was conducted on 17-7-2014 and 2^nd on 11-12-2014. The best evidence for the complainant to prove that second operation was for the same fracture, were x-ray reports but these x-ray reports were not produced for the best reason known to the complainant.

28. The complainant has also alleged that in all she has undergone three operations but date of 3^rd operation is not disclosed. No other evidence is brought on record to prove 3^rd operation as alleged by complainant.

29. Keeping in view the facts, circumstances and the evidence placed on file by the parties, this Forum is of the considered view that complainant has failed to prove any negligence on the part of opposite parties No. 1 & 2 by producing any cogent and convincing evidence. Hence, this complaint fails and is hereby dismissed with no order as to costs.

30. The complaint could not be decided within the statutory period due to heavy pendency of cases.

31. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    05-09-2017

    (M.P.Singh Pahwa )

    President

     

     

    (Jarnail Singh )

    Member