Haryana

StateCommission

A/817/2015

DR.MANOJ LAMBA - Complainant(s)

Versus

DEEPAK SHARMA - Opp.Party(s)

A.S.VIRK

31 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA

                                       

First Appeal No.817 of 2015

Date of Institution:28.09.2015    Date of Decision:31.05.2016

Dr. Manoj Lamba, MD Radio-diagnosis, Lamba Diagnostic Centre, 88, Durga Market, Opposite Nirankari Bhawan, Red Road,Kurukshetra.

     …..Appellant

                                                Versus

 

1.       Deepak Sharma S/o Sh.Suresh Sharma, R/o H.No.226 VPO Umri, Distt. Kurukshetra.

2.       The Oriental Insurance company Limited,A-25/27, Asaf Ali road, New Delhi through Branch Manager, Branch Office, Sabharwal Market, RailwayRoad, Kurukshetra (REF. Policy No.261303/48/2009/202.)

         …..Respondents

 

CORAM:     Mr. R.K.Bishnoi, Judicial Member.
                   Mrs.Urvashi Agnihotri, Member.

 

Present:-     Mr.A.S.Virk, Advocate for the appellant.

                   Mr.D.K.Jangra, Advocate counsel for the respondent No.1.

                   Sh.Ram Avtar, Advocate counsel for the respondent No.2.

 

First Appeal No.957 of 2015

Date of institution:-30.10.2015

Date of decision:- 31.05.2016

 

Oriental Insurance Company Limited, Regd. & Head Office: Oriental House, Asaf Ali Road, New Delhi now through its Regional Manager, Oriental Insurance Company Ltd. Regional Office, Jagadhari Road, Ambala Cantt.

…..Appellant

Versus

1.       Deepak Sharma S/o Sh.Suresh Sharma, R/o H.No.226 VPO Umri, Distt. Kurukshetra.

2.       Dr. Manoj Lamba, MD Radio-diagnosis, Lamba Diagnostic Centre, 88, Durga Market, Opposite Nirankari Bhawan, Red Road,Kurukshetra.

3.       Dr.Ved PrakashAggarwal MBBS Ex.P.C.M.S. Aggarwal Nursing Home Ultra sound and X-Ray Clinic Civil Hospital road Ladwa, Kurukshetra.

         …..Respondents

CORAM:     Mr. R.K.Bishnoi, Judicial Member.
                   Mrs.Urvashi Agnihotri, Member.

 

Present:-     Mr.Ram Avtar, Advocate for the appellant.

Mr.D.K.Jangra, Advocate counsel for the  respondent No.1.

Mr.A.S.Virk, Advocate counsel for the respondent No.2.

None for the respondent No.3.

 

                                      O R D E R

 

URVASHI AGNIHOTRI MEMBER:

 

1. This Order will dispose of Appeal No.817/2015 filed by OP No.1 (Oriental Insurance Company Ltd.) and Appeal No.957 of 2015 filed by the OP No. OP No. 3 (Dr. Manoj Lamba) against the order dated 24.08.2015 passed by the District Consumer Disputes Redressal Forum (for short ‘District Forum’), Kurukshetra, whereas the complaint of Deepak Kumar has been partly allowed by granting the following relief:-

“28. Thus, as a sequel to our above discussion, we partly allow the present complaint and direct the OPs to pay total amount of Rs.1,00,000/- to the complainant as compensation for deficiency in service on the part of the OPs 1 & 2, for loss of business and for expenses of medical etc. The OP No.3 is insurer of OP No.1. So, all the three opposite parties are jointly and severely liable to pay the above said amount of Rs.1,00,000/- to the complainant xx”.

2.         Briefly stated, Complainant- Deepak Sharma felt acute pain in his renal area in night of 13.10.2008 and suffered for whole night. In the morning of 14.10.2008, he approached the diagnostic centre of OP-1 to diagnose the cause of his pain and OP No.1 conducted his ultrasound examination by charging Rs.250/- as fees for such examination. In his report it was depicted that two calculi of about 7.7 m.m. seen in right kidney and left kidney were completely normal alongwith other organ in the region. The complainant while acting upon report given to him by OP No.1 approached Dr. B. Aggarwal of Ladwa for necessary treatment and the treatment was started for curing his stone problem on same day. The complainant took complete rest as advised to him by treating doctor while acting on the report of OP No.1 even though, he was suffering loss in the terms of cable operation and in pecuniary level by incurring the cost of treatment and loss in his business. The complainant took medicine for 37/38 days for Rs.35/- per day given to him by Dr. B.Aggarwal which costing him Rs.1330/-. On 20.11.2008, Dr. B. Aggarwal referred him for ultrasound examination for finding his latest condition to the clinic of OP No1 and on the same day complainant approached the clinic of OP No.2 and OP No.2 conducted his ultrasound examination by charging Rs.250/- as requisite fees for such examination. In his report it was depicted that calculi of about 9.7 m.m.,6 m.m., 4 m.m. in his right kidney and two calculi of 07 m.m and 05 m.m. seen in the left kidney were seen. By acquainting with this report of OP No.2, the complainant felt too much fear about his condition of health as kidney hold a pivotal position in overall health of body and reports mentioned above showed a critical seriousness of health in his body and on the same time the complainant hold a great suspecting view about the genuineness and correctness of both the reports. So, to clarify again the status of kidneys, complainant approached the diagnostic centre of OP-1 on the next day i.e. on 21.11.2008 and OP No.1 again conducted ultrasound of kidneys of complainant by charging fresh fee of Rs.250/-. This time to his surprise and shock, the report of OP No.1 was showing that he had no calculi in the right kidney and left kidney was showing 4 m.m. calculi. Both the OPs No.1 & 2 failed to provide a standard medical diagnosis and caused deficiency in service to the complainant by giving wrongful diagnosis in their reports and as a result of which, the complainant suffered in every sphere of his life.  Accordingly he filed the complaint claiming Rs.820/- as cost of ultrasound examination, Rs.1330/- costs of treatment, Rs.10,000/- traveling expenses  and rupees four lacs as compensation for causing mental harassment, insecurity and mental agony.

3.      OPs contested the complaint by pleading that OP-1 has done M.D. in Radio diagnosis and he has 11 years of experience in sonography. The kidneys sometimes get afflicted by the process of stone formation. These stones can be of variable sizes. The stone can get out of the body by natural process or by medicines or by both. The disease of stone formation and their removal is a dynamic process. How soon the stones are removed by the body and how long it takes the kidney to form new stones is not very clear to the medical science. But the complainant had gone to the press and had also misrepresented his ultrasound report authored by him on 21.11.2008 that it did not show any stone, which was contrary to the facts. In fact OP No.1 had shown a stone of diameter 4 mm in left kidney. Therefore there was no deficiency in service on the part of the OPs. Despite that the complaint was allowed by the District Forum against all the OPs.  

4.         The appellants, in appeals before us, have repeated their respective contentions, already raised before the District Forum, and have pleaded that the impugned order was based on wrong factual position, hence, deserved to be set aside. On the other hand, the complainant reiterated his assertion that the diagnosis by the doctors was not based on facts due to which he suffered a great mental and financial loss.   

5.         We have heard the learned counsel for the parties and have also gone through the record. It is established by the affidavits and the documentary evidence produced by the appellants that both the doctors, who treated the complainant were fully qualified, experienced and specialists in their own field. The films of ultrasound prepared by them also evidenced the existence of stone in the right kidney as well as in the left kidney. It has further been pleaded with vehemence by OP-1 that the stone in the kidney very frequently shift its position and place by moving to other parts of the body and in the process some times it gets diluted or flashed out. This is all the more possible when the patient is taking medicine and moving about. This expert medical opinion has not been controverted by any other opinion by any expert doctor on the side of the complainant. It is also on record that the complainant according to his own assertion consulted some doctor in Govt. Medical College and Hospital, Sector 32, Chandigarh, who advised him that there was a stone in the right kidney of the complainant. He was asked to visit the hospital for the further procedure and treatment, but the complainant failed to visit to receive the necessary treatment. Thus, the complainant is himself at fault in not getting him treated in Sector 32, hospital, even though, it was confirmed by the doctors that there was a stone in the right kidney. In view of the aforesaid overwhelming documentary evidence produced by the appellants in their favour, it can not be held that there was any deficiency in service on their part.  In this regard the appellants have relied upon the law down by the Hon’ble Supreme Court of India in the case of Martin F.D.’s Souza V,. Mohd. Ishfaq, 2009 (3) SCC. 1, as under:-

“”36…In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men…. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care….”

         So far as his allegation regarding loss of business during this period is concerned, no relief can be considered or granted in this regard to the complainant as the complaint under the Consumer Protection Act, 1986 is not for the recovery of loss of profit.  

            Consequently, both the appeals are allowed, the impugned order dated 24.08.2015 passed by the learned District Forum is set aside and the complaint is dismissed in entirely with no order as to costs.   

         The statutory amount of Rs.25000/- deposited at the time of filing of both appeals be refunded to the appellant against proper receipt and due verification.

 

May 31st, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

S.K.