Haryana

Yamunanagar

CC/207/2012

Santosh Rani age 42 years w/o SH.Krishan Lal, - Complainant(s)

Versus

Chadha Hospital - Opp.Party(s)

Surbhit Verma

26 Apr 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                          Complaint No. 207 of 2012      

                                                                                          Date of institution: 29.02.2012

                                                                                          Date of decision: 26.04..2017

 

  Santosh Rani aged about 42 years wife of Shri Krishan Lal, resident of village Harnauli, Tehsil Jagadhri, Distt. Yamuna Nagar.

 

 …Complainant.

                                    Versus

1. Chadha Hospital, 409-L, Model town, Yamuna Nagar through its Director.
2. The Oriental Insurance Company, Opp. Madhu Hotel, Jagadhri Road, Yamuna Nagar.
3. The United India Insurance Company Ltd. Jagadhri District Yamuna Nagar.                                                                                                   

                                                                                                         …Respondents.

 

BEFORE:       SH. ASHOK KUMAR GARG…………….. PRESIDENT

                        SH. S.C.SHARMA………………………….MEMBER

                        SMT. VEENA RANI SHEOKAND…………MEMBER

 

Present:          Sh. Surbhit Verma, Advocate, counsel for complainant.

                        Sh. Naresh Khurana, Advocate for respondent No.1

                        Sh. Sushil Garg, Advocate, counsel for respondent No.2.

                        Sh. Parmod Gupta, Advocate, counsel for respondent No.3.  

 

ORDER (ASHOK KUMAR GARG, PRESIDENT)

 

1.                      The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986.

2.                     Brief facts, as alleged in the complaint, are that after the death of her son the complainant opted to have a child and since the complainant could not conceive, as such she alongwith her husband approached the hospital of the respondent (hereinafter respondents will be referred as OPs) and after consultation, the OP doctor assured the complainant that she would certainly have test tube baby if she underwent treatment in his hospital. Believing on the assurance of doctor of OP No.1 Hospital as true, the complainant became ready to have a boy through test tube baby technology and on 21.05.2011, the test tube treatment of the complainant was done and for this treatment, the doctor of Op No.1 hospital charged total Rs. 1,80,000/- from the complainant, which included charges of delivery. At that time, doctor of OP No.1 hospital has also got signed on some blank papers of the complainant. After that, complainant followed all the prescriptions and guidelines as told by doctor of OP No.1 Hospital but it was quite astonishing that complainant could not conceive and when complainant reasoned with the doctor of OP No.1 Hospital he told that whole procedure would be repeated for which the complainant has to spent again Rs. 1,80,000/-. This demand on the part of the doctor of Op No.1 Hospital was totally wrong and illegal because the doctor of Op No.1 Hospital had made assurance of bearing pregnancy by the complainant through the above test tube baby but the doctor of OP No.1 Hospital totally refused to listen the same. Finding no alternate complainant got served a legal notice dated 24.01.2012 but doctor of OP No.1 Hospital neither replied the same nor complied with the same. Hence, there is a deficiency in service and unfair trade practice on the part of OPs. Lastly, prayed for directing the doctor of OP No.1 hospital  to refund an amount of Rs. 1,80,000/- alongwith interest and also to pay compensation as well as litigation expenses.

3.                     Upon notice, doctor of OP No.1 hospital appeared and filed its written statement taking some preliminary objections such as complainant  has no locus standi to file and maintain the present complaint; complaint is not maintainable; complicated question of law and facts are involved; complainant has not come to this Forum with clean hands; complainant is estopped from filing the present complaint by her own act and conduct; complaint is bad for mis-joinder and non-joinder of necessary parties and on merit it has been submitted that as per record available in the hospital, the complainant, who was 49 years of the age, approached the hospital and she was consulted by lady doctor Jitender Chadha and after medical examination, she was advised that due to higher age she could not produce eggs which is necessary for the pregnancy and for IVF she will require egg donor. She was specifically told that IVF is an expensive technique which costs Rs. 1,00,000/- approximately i.e. Rs. 30,000/- for eggs if purchased, Rs. 40,000/- for injections and Rs. 30,000/- for lab charges, however, it has been denied that lady doctor Jitender Chadha or anyone from the hospital ever assured the complainant that she would certainly have test tube baby if she underwent treatment in the hospital. It has been further mentioned that  in IVF technique, no guarantee can be given because even after keeping the fertilized eggs, it depends on uterus whether the pregnancy results or not. In fact, the test tube baby is a new technique and the said technique has been adopted in India just a few years ago and its success is only 30%. These facts were specifically brought to the knowledge of the complainant as well as her husband and they after understanding the whole facts have initially opted for IVF and thereupon lady doctor Jitender Chadha advised certain tests and accordingly the complainant got conducted the said tests. Further, the complainant signed the consent memo for test tube baby treatment after understanding the whole facts. However, it has been denied that on 21.05.2011 the test tube treatment of the complainant was done. In fact after some visits and prior to the IVF some relatives who stated themselves to be the daughters and sons in law visited the hospital and asked the doctor of Op No.1 hospital either to charge Rs. 50,000/- instead of Rs. 1,00,000/- or to refund the amount charged by the hospital on account of registration charges, tests charges and visits etc. and when the hospital authority tried to make them understand that the said charges is not refundable, then the said relatives of the complainant created a scene of nuisance in the hospital and threatened the doctor of OP No.1 Hospital to teach a lesson and left the hospital with threat to see in the court. It has been further mentioned that the question of IVF on 21.05.2011 does not arise and this fact is evident from the document Ex. P1 which shows that injections and tablet has been advised up to 7, June for starting the treatment and same are for menses. The complainant at the instance of his relative has prepared false and fabricated documents P2 to P4/C-4 to C-6. The medicines prescribed in document Ex. P1/C-3 shows that the medicines prescribed therein are meant for improvement of uterus and the same are given prior to the IVF and even in this document Ex. P5/C-7, the semen test has been advised for husband which is done prior to the IVF and at the start of treatment for the IVF which itself falsify the IVF alleged in the complaint. Further, it has also been specifically denied that a sum of Rs. 1,80,000/- was charged from the complainant rather an amount of Rs. 10,000/- approximately for tests, registration and visits were charged from the complainant. Rest contents of the complaint were denied being incorrect. Lastly, prayed for dismissal of complaint.

4.                     OP No.2 i.e. Oriental Insurance Company also appeared through its counsel besides some preliminary objections, it has been mentioned that there was no privity of contract between OP No.1 and Op No.2 Insurance Company as the Insurance Policy in question exist in the individual name of lady Dr. Jitender Chadha w.e.f. 17.08.2010 to 16.08.2011 subject to the terms and conditions of the policy in question. Rest contents of the complaint were denied being wrong and matter of record for want of knowledge.

5.                     OP No.3 i.e. United India Insurance Company also appeared through its advocate and filed written statement by taking some preliminary objections such as: as per documents supplied by the complainant it is revealed that lady Dr. Jitender Chadha took one professional indemnity policy from the Oriental Insurance Company, Yamuna Nagar which was valid from 17.08.2010 to 16.08.2011 i.e. the said policy was inforce on 21.05.2011 i.e. on alleged date and as such the OP No.3 Insurance Company is not liable because it is settled principle of law that first insurance company is liable and if the limits exceeds then the second insurance company will pay the balance amount i.e which is later in time, shall indemnify the balance amount. As per policy, supplied by the OP No.3 it is revealed that the policy No. 040100/46/11/35/00000914 was taken by one Mrs. Jitender Chadha valid w.e.f. 18.05.2011 to 17.05.2012 but the said policy is not in the name of Chadha Hospital i.e. Op No.1 and the same is not for IVF test tube baby. As such, the Op No.3 is not liable to pay any compensation and indemnify the OP No.1. rest contents of the complaint were denied and lastly, prayed for dismissal of complaint against OP No.3.

6.                     In support of her complaint, complainant tendered into evidence her short affidavit as Annexure CW/A and documents such as photo copy of legal notice as Annexure C-1, Photo copy of acknowledgement as Annexure C-2, Photo copy of OPD slip issued by OP No.1 hospital as Annexure C-3, Photo copy of instructions “Do’s and Don’ts” of Op No.1 Hospital as Annexure C-4, Photo copy of Miscellaneous prescription slip without any name and signature of any doctor as Annexure C-5 and C-6, Photo copy of Prescription slip as Annexure C-7, Photo copy of some miscellaneous prescription slip as Annexure C-8 to C-10 and closed her evidence.

7.                     On the other hand, learned counsel for OP No.1 tendered into evidence affidavit of lady doctor Jatender Chadha as Annexure RW/A and photo copy of consent letter of two pages as Annexure R-1/1, Photo copy of another consent letter dated 09.06.2011 as Annexure R-1/2 and closed the evidence on behalf of OP No.1.

8.                     Learned counsel for Op No.2 also tendered into evidence photo copy of Insurance Policy as Annexure R2/1 and closed the evidence on behalf of OP No.2.

9.                     Learned counsel for the OP No.3 tendered into evidence affidavit of Kuldeep Kumar Official UIIC, Ambala Cantt. as Annexure R3/A and documents such as Photo copy of insurance policy as Annexure R3/1, Photo copy of terms and conditions of insurance policy as Annexure R-3/2 and closed the evidence on behalf of OP No.3.

10.                   We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully. 11.              Learned counsel for the complainant argued at length that doctor of OP No.1 hospital assured the complainant that she would certainly have test tube baby if she underwent treatment in her hospital and accordingly the complainant got the test tube treatment on 21.05.2011 from the doctor of OP No.1 Hospital and paid a sum of Rs. 1,80,000/- including charges of delivery etc. but it was quite astonishing that complainant could not conceive and when the complainant reasoned with the doctor of Op No.1 Hospital then the doctor of Op No.1 hospital told that whole procedure would be repeated for which complainant has to spend again Rs. 1,80,000/-. This demand on the part of the Op No.1 Doctor is totally wrong and illegal because the doctor of Op No.1 had given assurance of bearing pregnancy by the complainant through test tube baby.  Further, learned counsel for the complainant draw our attention towards the OPD slip Annexure C-3 and other prescription slips Annexure C-4 to C-10 and argued that complainant is entitled to get the refund of Rs. 1,80,000/- from the doctor of OP No.1 Hospital as the complainant could not conceive the test tube baby which constitute the deficiency in service and unfair trade practice on the part of doctor of Op No.1 hospital.

12.                   On the other hand, learned counsel for Op No.1 argued at length that the complaint of the complainant is totally abuse of process of law whereas in fact after some visits and prior to IVF some relatives who stated themselves to be the daughters and sons in law visited the hospital and asked the doctor of Op No.1 either to charge Rs. 50,000/- instead of Rs. 1,00,000/- or to refund the amount charged by the hospital on account of registration charges, test charges and visits etc. and when the hospital authority tried to make them understand that the said charges is not refundable then the said relatives of the complainant created a scene of nuisance in the hospital and threatened to the doctor of OP No.1 hospital to teach a lesson and left the hospital with threat to see in the court. It has been further argued by the learned counsel for the OP No.1 hospital that the question of IVF on 21.05.2011 as alleged in the complaint by the complainant does not arise and this fact is duly evident from the copy of OPD slip Annexure C-3 which shows that injections and tablets has been advised up to 07.06.2011 for starting of treatment and the same are for menses. Learned counsel for the OP No.1 Hospital further argued that the documents Annexure C-5 and C-6 has been falsely prepared by the complainant just to extract the money from the OP No.1 doctor and draw our attention towards these receipts and argued that the writing of these receipts are totally different from the writing of lady Dr. Jitender Chadha which can be compared by the naked eye with the OPD slip issued by doctor of OP No.1 Hospital Annexure C-3. Learned counsel for the OP No.1 further draw our attention towards the prescription slip dated 31.05.2011 Annexure C-7 and argued that the medicines prescribed therein are meant for improvement of uterus and the same are given prior to IVF. Even in this prescription Annexure C-7, the semen test was also advised for husband which is done prior to the IVF. So, the question of IVF on 21.05.2011 does not arise as alleged by the complainant in her complaint. Learned counsel for OP No.1 argued that only an amount of Rs. 10,000/- approximately for tests, registration and visits was charged from the complainant and the story for charging of Rs. 1,80,000/- as mentioned in the complaint are totally false and manipulated. Learned counsel for the Op No.1 further argued that even if for the sake of argument it is presumed that the doctor of Op No.1 Hospital conducted the IVF then also there is no negligence on the part of the doctor of Op No.1 Hospital as the test tube baby is a new technique and the said technique has been adopted in India just a few years ago and its success is only 30%, even this rate can be decreased age wise i.e. in old age and in the instant case the complainant was more than 49 years and draw our attention towards the medical book European Journal of Obstetrics & Gynecology and Reproductive Biology 1992-2005. Learned counsel for the OP No.1 argued that complainant has totally failed to place on file any cogent evidence or any receipt for charging of Rs. 1,80,000/- by cash or any other mode by the Op No.1 Doctor. Further, learned counsel for the Op No.1 argued that even the complaint of the complainant is not maintainable as the present complaint has been filed only against Chadha Hospital through its Director but neither the treating doctor i.e. lady doctor Jitender Chadha has been impleaded nor any specific allegation has been leveled individually against any treating doctor of Chadha Hospital. Learned counsel for the OP No.1 referred the case law titled as D.H. Kumari Versus Director, Nizam’s Institute of Medical Services, 2004(1) CLT page 134 wherein it has been held that “Medical Negligence- Non joinder of doctor- Unless the doctor is made a party vicarious liability cannot be fastened to the hospital- Non-joinder of the doctor as a party to the complaint is fatal to the maintainability of the complaint- The complaint is liable to be dismissed in limini.” Lastly, prayed for dismissal of complaint.

13.                   Learned counsel for the OPs No.2 & 3 also argued that OPs Insurance Companies are not liable to pay any compensation as the complainant has totally failed to prove any negligence n the part of doctor of Op No.1 Hospital. Learned counsel for the OPs No.2 & 3 further argued that doctor of Op No.1 neither conducted any operation nor given any treatment to the complainant, so, no question arise of any type of negligence on the part of doctor of OP No.1. Maximum, it may be case of failure of test tube baby technique from which it cannot be held that there was any negligence or carelessness on the part of doctor of OP No.1 Hospital because as per medical books the success rate in such like cases is only 30% and lastly prayed for dismissal of complaint.

14.                   After hearing both the parties, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of doctor of Op No.1 Hospital as the complainant has totally failed to prove that doctor of OP No.1 Hospital conducted the IVF i.e. test tube baby technique on 21.05.2011 as alleged in the complaint as neither any cogent evidence has been placed on file nor any record was summoned from the concerned hospital to prove the same. Even, the complainant has also not placed on file any receipt in respect of charges of Rs. 1,80,000/- as alleged in the complaint. Even, the complainant has not disclosed in her complaint that she paid the entire amount of Rs. 1,80,000/- in one time or in installments and on what date/dates and to whom. We have gone through the contents of the complaint but not a single iota of word has been disclosed in the complaint that for conducting the IVF, the doctor of Op No.1 Hospital used the egg of the complainant herself or arranged the same from any other donor similarly for the semen. From the perusal of OPD slip issued by Chadha Hospital Annexure C-3 it is duly evident that injection and one tablet was advised by the treating doctor till 07.06.2011, so, the version of the complainant that doctor of OP No.1 Hospital conducted the IVF on 21.05.2011 proves falsified. Even, from the prescription slip issued by the treating doctor Annexure C-7 dated 31.05.2011, it is also evident that on that day semen test was advised and some medicines were prescribed for one month which also proves that on 21.05.2011 no IVF was conducted by the treating doctor.

15.                   On the other angle also, the present complaint has been filed by the complainant on the allegation that ( as mentioned in para No.4 of the complaint) when the complainant could not conceive and enquired reason from the doctor of OP No.1, Hospital he told that whole procedure would be repeated for which complainant has to spend again Rs. 1,80,000/- and this demand on the part of treating doctor is totally wrong and illegal. Meaning thereby that it is not the case of the complainant that there was any carelessness or negligence on the part of treating doctor in conducting the first IVF procedure (as alleged). The only grievances of the complainant is that the doctor demanded Rs. 1,80,000/- from the complainant again. But the complainant at the same time has not placed on file any written documents as well as oral evidence that treating doctor was given any guarantee or assurance that if the complainant will not conceive the pregnancy at first instance then she will provide free second chance. The complainant has placed on file only her affidavit and she has even failed to file any affidavit of her husband or any other independent witness in whose presence she had made the payment to the doctor of OP No.1 Hospital or any assurance was made by the treating doctor. The arguments advanced by the counsel for OP No.1 that the complaint of the complainant is also not maintainable as neither the treating doctor has been impleaded in the present complaint nor any specific allegations of any negligence has been leveled in the complaint have also weightage. The case law titled as D.H. Kumari Versus Director, Nizam’s Institute of Medical Services (supra) referred by the counsel for the OP No.1 is fully applicable to the facts of the present case.

16.                   Resultantly, in the circumstances noted above and after going through the case law and literature referred by the OPs, we find no merit in the present complaint and the same is hereby dismissed against all the OPs with no order as to costs. Copies of this order be sent to the parties concerned free of cost as per rules.  File be consigned to the record room after due compliance.

Announced in open Court:

Dated: 26.04.2017.

 

                                                                                 (ASHOK KUMAR GARG)

                                                                                  PRESIDENT,

                                                                                  DCDRF Yamuna Nagar

 

 

                        (VEENA RANI SHEOKAND)       (S.C.SHARMA)

                         MEMBER                                        MEMBER