PER JUSTICE R.C. JAIN (ORAL)

1.      Aggrieved by the concurrent findings and orders passed by the District Forum, Satna, M.P. and then the M.P. State Consumer Disputes Redressal Commission, Bhopal (for short the State Commission), the complainant has approached this Commission in these proceedings.

2.      We have heard Mr. Umeshwar Dayal, learned counsel for petitioner/complainant, Mr. Vinod Sharma, Advocate for respondents no. 1 and 2, Mr. Shailendra Chowdhury, Advocate for respondent no.3, and Mr. Mahavir Bhatnagar, Advocate for respondent no.4/Insurance Company and have considered their submissions. 

3.      The facts and circumstances, which led to the filing of the complaint, are amply noted in the orders passed by the fora below and need no repetition at our end.  For answering these proceedings, we may simply notice that the consumer dispute raised by the petitioner/complainant was in regard to the medical negligence and deficiency in service allegedly committed by the respondents no. 1 and 2 in the medical treatment of the petitioner/complainant Deepak Kumar Patel, who was admitted in Applied Research International (ARI) for some training, and after certain radiological tests respondents no. 1 and 2 had ruled out the presence of any stone in the kidney of the complainant although the stones were later on detected and operated only after ten days later at a different hospital i.e. Max Hospital.  As a result of this wrong diagnosis and incomplete/improper treatment given by respondents no. 1 and 2,  the petitioner/complainant suffered loss and injury in regard to his training programme where he had deposited a substantial amount of Rs.1,69,000/-. 

4.      The respondents no. 1 and 2 did not dispute the factual position but took shelter under the medical opinion expressed in certain medical journals to the effect that the small stones measuring less than 5mm are radiolucent and, therefore, it could not be detected and, consequently, the respondents no. 1 and 2 could not be held guilty for any medical negligence and deficiency in service.  The said plea weighed heavily with the fora below and accordingly the complaint was dismissed.

5.      Learned counsel for the petitioner/complainant would assail the said findings primarily on the ground that the same are not based on correct and proper appreciation of the evidence and material produced on record, least in consonance with the medical opinion as pointed out in certain other medical journals.  In this connection, our attention has been invited to the extracts taken from website Web Health Centre.com regarding the diagnosis and treatment of kidney stones.  As regards the ‘investigations’ to pin point the kidney stones, the following kind of tests are suggested :-

“Investigations

Some or all of the following tests may be necessary :

·        Urine Exams

·        A plain X-ray of the abdomen

·        An ultrasound as a small number are radiolucent (cannot be seen by an X-ray) stones may not be visible in a simple X-ray and can be picked up by an ultrasound examination of the abdomen.

·        Abdominal CT Scan

·        Stone Analysis”

6.      On the strength of the above, learned counsel for the petitioner/complainant submits that given the symptoms and history of the complainant, which is recorded in the OPD card, respondents no. 1 and 2 being not merely a diagnostic center but a general hospital ought to have advised/conducted further investigations like Urine Examination, Ultrasound and Abdominal CT Scan before respondents no. 1 and 2 could rule out the presence of stones in the kidney of the complainant with certainty.  The respondents no. 1 and 2 have not cared to conduct the above noted additional tests/investigations before making the firm diagnosis, which amounts to deficiency in service.  That no further tests were conducted by respondents no. 1 and 2 is manifest from the written version filed by respondents no. 1 and 2 in response to the complaint before the District Forum.  Therefore, the question is as to whether respondents no. 1 and 2 ought to have conducted those tests before they could rule out the possibility of presence of stones in the kidney of the petitioner/complainant and what was the effect of non-doing so remains to be considered. 

7.      Depending upon the consideration and answer to the above, next question which might arise is as to whether the petitioner/complainant has indeed suffered any loss or injury on account of making the incorrect/inconclusive/uncertain diagnosis and what compensation could have legitimately been claimed for the said loss or injury because his plea is that he was deprived of a valuable opportunity to complete the training and consequently the lifetime opportunity of employment which was linked with successful completion of the training.  That apart, the counsel for the petitioner/complainant submits that the petitioner has suffered a loss of Rs.1,69,000/- which he had deposited with the Institute towards the training.  All these questions require detailed examination, which cannot be done by this Commission in exercise of its supervisory jurisdiction under Section 21(b) of the Consumer Protection Act, 1986.

8.      In view of the foregoing, we consider it an appropriate case where the complaint should be remitted to the board of District Forum for deciding the matter afresh by giving due opportunity to the parties to make their submissions in respect of their respective pleas and also the submissions which have been made from the side of the petitioner/complainant before this Commission.

9.      In the result, the revision petition is partly allowed and the complaint is remitted to the District Forum for deciding afresh.  The parties are directed to appear before the District Forum concerned on 05.03.2012.  At this stage, Mr. Shailendra Chowdhury, learned counsel representing the Max Hospital/respondent no.3, seeks deletion of the name of the Max Hospital from array of parties.  Let this prayer be made before the District Forum.