Haryana

Kaithal

216/19

Satinder Mohan Bansal - Complainant(s)

Versus

Bharat C.T Scan Imaging Centre - Opp.Party(s)

Sh.Naresh Bansal

17 Jul 2023

ORDER

                       

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                     Complaint Case No.216/2019.

                                                     Date of institution: 30.07.2019.

                                                     Date of decision:17.07.2023.

Satinder Mohan Bansal (since deceased) now represented by his legal heirs: a) Rajni Bansal (wife) b) Himank (son) c) Mahima (daughter) of late Sh. Satinder Mohan Bansal S/o Prem Chand Bansal, C/o Bansal Cold Storage, Jind Road, Kaithal.

                                                                        …Complainants.

                        Versus

1. Bharat C.T.Scan Imaging Centre, near Padma City Mall, Gali No.1, MITC Colony, Kaithal.
2. Dr. Shalu Consultant Radiologist, Bharat C.T.Scan Imaging Centre, near Padma City Mall, Gali No.1, MITC Colony, Kaithal.
3. Sarwan, Operator Bharat C.T.Scan Imaging Centre, near Padma City Mall, Gali No.1, MITC Colony, Kaithal.
4. Baldev, Operator Bharat C.T.Scan Imaging Centre, near Padma City Mall, Gali No.1, MITC Colony, Kaithal.  

….OPs.

        Complaint under Section 12 of the Consumer Protection Act

CORAM:     SMT. NEELAM KASHYAP, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                SH. SUNIL MOHAN TRIKHA, MEMBER.

       

Present:     Sh. Naresh Bansal, Advocate, for the complainants.   

                Sh. Naresh Sharma, Advocate for the OPs.No.1, 3 & 4.

                OP No.2 exparte.

               

ORDER

NEELAM KASHYAP, PRESIDENT

        Satinder Mohan (since deceased)-Complainant had filed this complaint under Section 12 of Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the OPs.

2.             In nutshell, the facts of present case are that the complainant namely Satinder Mohan (since deceased) was critically suffering from cancer alongwith some other ailments and was under treatment from BLK Superspecialty Hospital, Delhi.  On 23.04.2019 the complainant Satinder Mohan went to the OPs CT Scan Centre and asked to get the CT Scan (abdomen) effected.  The complainant paid the amount of Rs.4200/- to the OPs and the CT Scan was effected on the same day.  The complainant had also got himself X-rayed at the Ops centre on the same day on payment of Rs.300/- separately at the same time.  The OPs issued a report of CT Scan dt. 23.04.2019 to the complainant but the said report is totally false and fake on the face of it.  The said report is speaking a “distended normal gall bladder”, whereas the complainant had actually no gall bladder in his body.  Similarly, the said report also speaks about kidney as, bilateral kidney are normal in size and location, no evidence of calculus and no focal lesions seen, whereas the complainant had already suffered six times stunting to his kidney and had an abnormal kidney with swelling.  The said report speaks about small left inguinal hernia, whereas the complainant was not suffering from any problem of hernia.  The said report bears the signature of one Dr. Shalu Consultant Radiologist but there was no such consultant Radiologist for conducting test.  The alleged signature of Dr. Shalu on the test report are also not original but are scanned.  So, it is a clear cut case of deficiency in service on the part of OPs and prayed for acceptance of complaint.     

3.       Upon notice, the OPs No.1, 3 & 4 appeared before this Commission, whereas OP No.2 did not appear despite publication, so, OP No.2 was proceeded against exparte vide order dt. 25.03.2021 passed by this Commission.  OPs No.1, 3 & 4 contested the complaint by filing their joint written version raising preliminary objections with regard to locus-standi; maintainability; cause of action; that the complainant has concealed the true and material facts from this Commission; the true facts are that complainant Satinder Mohan (since deceased) had visited the office of OP No.1 on 23.04.2019 and had appraised the Ops about suffering from cancer since many years.  The complainant had further told that he had been taking some Ayurvedic Medicines for treatment of cancer (other than usual allopathic treatment) to reduce the size of affected urinary bladder from cancer.  The complainant asked to do the CT Scan only for Lower Abdomen (for urinary blacker cancer) and for X-ray chest.  The complainant had asked to report about the size of cancer.  Accordingly, imaging of CT Scan and X-ray of the complainant was done on 23.04.2019.  The CT Scan was not to be done of whole abdomen rather was to be done of the effected portion i.e. Lower Abdomen only to ascertain the size of the affected portion of urinary bladder.  It is further submitted that the swelling in any part of the body may be increased or deceased at any time.  The report regarding Gall Bladder and Hernia was not necessary to be given as the same was not required/demanded.  It is further clarified that computerized report is prepared on Proforma already feeded in the computer.  The other columns mentioned in the report regarding Gall Bladder and Hernia were not deleted/corrected as the report pertains regarding Lower Abdomen to ascertain the size of cancer mass only.  It is further submitted that report of CT Scan is prepared on computer having digital signature of OP No.2 and that is why it was not necessary to sign the report again manually.  There is no deficiency in service on the part of OPs.  On merits, the objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint.

4.             To prove their case, the complainants tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to Annexure-C21 and thereafter, closed the evidence.

5.             On the other hand, the OPs tendered into evidence affidavit Ex.RW1/A alongwith documents Annexure-R1 to Annexure-R8 and thereafter, closed the evidence.

6.             We have heard the learned Counsel for both the parties and perused the record carefully.

7.             Ld. counsel for the complainants has argued that the complainant namely Satinder Mohan (since deceased) was critically suffering from cancer alongwith some other ailments and was under treatment from BLK Superspecialty Hospital, Delhi.  On 23.04.2019 the complainant Satinder Mohan went to the OPs CT Scan Centre and asked to get the CT Scan (abdomen) effected.  The complainant paid the amount of Rs.4200/- to the OPs and the CT Scan was effected on the same day.  The complainant had also got himself X-rayed at the Ops centre on the same day on payment of Rs.300/- separately at the same time.  The OPs issued a report of CT Scan dt. 23.04.2019 to the complainant but the said report is totally false and fake on the face of it.  The said report is speaking a “distended normal gall bladder”, whereas the complainant had actually no gall bladder in his body.  It is further argued that the said report also speaks about kidney as, bilateral kidney are normal in size and location, no evidence of calculus and no focal lesions seen, whereas the complainant had already suffered six times stunting to his kidney and had an abnormal kidney with swelling.  It is further argued that the said report speaks about small left inguinal hernia, whereas the complainant was not suffering from any problem of hernia.  The said report bears the signature of one Dr. Shalu Consultant Radiologist but there was no such consultant Radiologist for conducting test.  The alleged signature of Dr. Shalu on the test report are also not original but are scanned.  There is deficiency in service on the part of OPs.

8.             On the other hand, ld. counsel for the Ops No.1, 3 & 4 has argued that complainant Satinder Mohan (since deceased) had visited the office of OP No.1 on 23.04.2019 and had appraised the Ops about suffering from cancer since many years.  The complainant had further told that he had been taking some Ayurvedic Medicines for treatment of cancer (other than usual allopathic treatment) to reduce the size of affected urinary bladder from cancer.  It is further argued that the complainant asked to do the CT Scan only for Lower Abdomen (for urinary blacker cancer) and for X-ray chest.  The complainant had asked to report about the size of cancer.  Accordingly, imaging of CT Scan and X-ray of the complainant was done on 23.04.2019.  The CT Scan was not to be done of whole abdomen rather was to be done of the effected portion i.e. Lower Abdomen only to ascertain the size of the affected portion of urinary bladder.  It is further argued that the swelling in any part of the body may be increased or deceased at any time.  It is further argued that the report regarding Gall Bladder and Hernia was not necessary to be given as the same was not require/demanded.  It is further clarified that computerized report is prepared on Proforma already feeded in the computer.  The other columns mentioned in the report regarding Gall Bladder and Hernia were not deleted/corrected as the report pertains regarding Lower Abdomen to ascertain the size of cancer mass only.  It is further argued that report of CT Scan is prepared on computer having digital signature of OP No.2 and that is why it was not necessary to sign the report again manually.  It is further argued that the copy of amended/corrected report was handed over to the complainant.  Ld. counsel for the OPs No.1, 3 & 4 has placed reliance upon the case law titled as Malnad Hospital and Institute of Oncology Super Specialty Surgical Centre decided by Hon’ble National Commission on 03.07.2012 bearing revision petition No.2702 of 2011. 

9.             We have considered the rival contentions of both the parties.  The main grievance of the complainants is that the report of CT Scan dt. 23.04.2019 regarding Satinder Mohan (since deceased) issued by the OPs as per Annexure-C4/R5 is totally false and fake on the face of it because the said report is speaking a “distended normal gall bladder”, whereas the complainant had actually no gall bladder in his body.  In this regard, the complainants have drawn our attention towards the report of BATRA MRI dt. 30.08.2016 as per Annexure-C16, wherein it is clearly mentioned that “Gall Bladder could not be visualized.  CBD is normal.  No e/o filing defect seen.”  During the course of arguments, ld. counsel for the complainants have also placed on file report dt. 21.12.2012 given by Dr. Anand Colour Doppler, Ultrasound & X-ray Centre as per Mark-A, wherein it is mentioned that “GALL BLADDER: History of cholecystectomy”.  The complainants have also placed on file the definition of cholecystectomy after taking the print out from the internet which is Mark-B on the file, wherein the definition of cholecystectomy is given as “Surgical removal of the gall bladder”.  The next contention of complainants is that the said report dt. 23.04.2019 also speaks about small left inguinal hernia, whereas the deceased was not suffering from any problem of hernia.  Whereas, on the other hand, the contention of ld. counsel of the Ops No.1, 3 & 4 is that the OPs had got corrected the report from the doctor on the same day i.e. 23.04.2019 as per Annexure-R6 & Annexure-R7 and the same were handed over to complainants on 25.04.2019.  They have admitted that in the said report as per Annexure-R6, it is mentioned “GALL BLADDER-not seen” and in the report as per Annexure-R7, there is no GALL BLADDER as-well-as Hernia.  To rebut the said contention of OPs, ld. counsel for the complainants has vehemently contented that these reports were never supplied to the complainants.  The next contention of ld. counsel for the Ops No.1, 3 & 4 is that during the pendency of present complaint, Satinder Mohan, whose CT Scan was conducted by the Ops has been died and contract was with him and complainants have no right to claim any benefit from the OPs as they does not fall under the definition of consumer.  In this regard, ld. counsel for the OPs No.1, 3 & 4 has placed reliance upon the case law titled as Malnad Hospital and Institute Vs. H.C.Eranna (mentioned supra).  In rebuttal, ld. counsel for the complainants has placed reliance upon the Order XXII, Rule 3 & 4 of Code of Civil Procedure, 1908, wherein Order XXII, for sub-rule (2), substitute the following sub-rule, namely:-

        “(2)   Where within the time limited by law no application is made under sub-rule (1), the suit shall not abate as against the deceased plaintiff and the judgment may be pronounced notwithstanding his death which shall have the same effect as if it has been pronounced before the death took place, and the contract between the deceased and the pleader in that event shall continue to subsist.”

        4.     Procedure in case of death of one of several defendants or of sole defendant-(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause proceed with the suit.

        (2)    Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.”

                The complainants have also placed on file copy of abstract of Section 2 of Consumer Protection Act, 2019, wherein the definition of (5) “complainant” is mentioned as under:-

                “(vi) in case of death of a consumer, his legal heir or legal representative or”

                The complainants have also placed reliance upon the case law titled as Mukesh Kumari (Minor and dead) by LRs Vs. M. Lal Oswal Cancer Treatment and Research Foundation 2004((13) SCC 69 decided by Hon’ble Supreme Court, wherein it is held that “Medical negligence-Compensation-Right to sue-In complaint for compensation for medical negligence, right to sue would survive in legal heirs who would then be entitled to compensation.”

                The aforesaid law produced by the complainants are fully applicable to the facts of instant case and in the light of aforesaid law produced by the complainants, reliance placed by the OPs No.1, 3 & 4 on the authority of Malnad Hospital and Institute Vs. H.C.Eranna (supra), is not applicable to the facts of instant case.  Hence, in view of facts and circumstances of the case and documentary evidence available on the file, we are of the considered view that there is deficiency in service on the part of OPs.

10.            Thus, as a sequel of aforesaid discussion, we direct the Ops jointly and severally to pay the amount of Rs.30,000/- as compensation on account of physical harassment and mental agony to the complainants within 45 days from today, failing which, the aforesaid amount shall carry interest @ 7% p.a. from the date of this order till its realization.  The OPs are further directed to pay Rs.5,000/- as litigation charges to the complainants.  Hence, the present complaint is accepted accordingly.

11.            In default of compliance of this order, proceedings against OPs shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.     

Announced in open court:

Dt.:17.07.2023.

                                                                (Neelam Kashyap)

                                                                President.

 

(Sunil Mohan Trikha),           (Suman Rana),          

Member.                            Member.

 

Typed by: Sanjay Kumar, S.G.