Haryana

StateCommission

A/680/2017

KALRA CHILD CARE CENTRE - Complainant(s)

Versus

DHARMENDER KUMAR - Opp.Party(s)

VAIBHAV NARANG

06 Feb 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution: 05.06.2017

                Date of final hearing:06.02.2024

                                                Date of pronouncement: 12.02.2024

 

First Appeal No.680 of 2017

 

IN THE MATTER OF

 

Kalra Child Care Centre, 1485, Sector-15, Faridabad through its proprietor Dr. Rajan Kalra, Paediatrician & Neonatologist.

.….Appellant.

Through counsel Mr. Nitin Sood, Advocate

Versus

 

1.      Dharmender Kumar son of Shri Goverdhan aged about 39 years, R/o House No.170, Street No.5, Ward No.28, Bharat Colony, Old Faridabad, District Faridabad.

…..Respondent No.1.

Through counsel Mr. S.K. Tripathi, Advocate

 

2.      The Indraprastha Apollo Hospital, Sarita Vihar, Delhi-Mathura Road, New Delhi-110076 through Dr. Vineet Bhushal Gupta, MD (Ped) Sr. Consultant Paediatric Neurologist.

…..Respondent No.2.

Through counsel Mr. Ashish Chaudhary, Advocate

 

3.      M/s United India Insurance Company Ltd., 54, Janpath, Connaught Palace, New Delhi-110001 through its Divisional Manager/Principal Officer (Service be effected through its Divisional Office at B.K. Chowk, Faridabad). (insurer of respondent No.1 vide professional indemnity(Medical Establishment) policy No.040110/46/0-9/32/00005675 effective from 03.03.2010 to 02.03.2011).

4.      M/s National Insurance Company Ltd., Divisional Office, Himalaya House, 1^st Floor, 23, Kasturba Gandhi Marg, New Delhi-100001 (service be effected at Neelam fly over, NIT, Faridabad) (insurer of respondent No.1 vide policy No.351500/46/10/8700000211 effective from 11.08.2010 to 10.08.2011).

…..Respondents No.3 & 4.

Through counsel Mr. Rajneesh Malhotra, Advocate

 

CORAM:   S.C. Kaushik, Member.

 

Present:-    Mr. Nitin Sood, counsel for the appellant.

                   Mr. S.K. Tripathi, counsel for respondent No.1.

                   Mr. Ashish Chaudhary, counsel for respondent No.2.

                   Mr. Rajneesh Malhotra, counsel for respondents No.3 & 4.

 

O R D E R

S.C. KAUSHIK, MEMBER:

 

 

                    Delay of 19 days in filing of present appeal is hereby condoned for the reasons stated in the application for condonation of delay.

2.                Present appeal has been preferred against the order dated 31.12.2017, passed by learned District Consumer Disputes Redressal Forum, Faridabad (now ‘District Commission’), vide which complaint filed by the complainant was allowed and opposite parties No.3 & 4 (“OPs No.3 & 4”) were directed as under:-

“Opposite parties No.3 &4 are directed jointly & severally to pay amount of Rs.46,810/- along with interest @ 9% p.a. from the date of discharge of Baby Tanya from Sir Ganga Ram Hospital, New Delhi i.e. 03.12.2010 till its realization and to pay Rs.1,00,000/- on account of mental tension, agony as well as harassment besides Rs.5500/- as litigation expenses to the complainant within 30 days from the date of receipt of this order.”

 

3.               The brief facts giving rise to the complaint are that the daughter of complainant namely baby Tanya suffered a stroke in school on 27.10.2010 and she was admitted with OP No.1 (Nursing Home). OP No.1 referred her to Metro Heart Institute, Sector-16A, Faridabad on the same day from CT Scan. However, baby Tanya remained admitted with OP No.1 from 27.10.2010 to 30.10.2010 and at the time of discharging her, OP No.1 prescribed some medicines. It was alleged that on 04.11.2010, minor rashes were developed on the body of baby Tanya, so she was brought to OP No.1 for check up from where she was referred to Dr. V.B. Gupta, who advised to continue old treatment with the same medicines without any skin test. It was further alleged that baby Tanya was again taken to OP No.1 on 09.11.2010 as there was no improvement and further treatment was given by Dr. Rajan Kalra, who also admitted her on 10.11.2010. Thereafter, on 11.11.2010, baby Tanya was shifted to Sir Ganga Ram Hospital, New Delhi on advice of OP No.1, where doctors declared that she was suffering from reaction of Neuro Medicine Tegrital given by OP No.1 without conducting any culture test. It was further alleged that baby Tanya was admitted for 23 days and complainant spent an amount of Rs.5,19,843/- on her treatment, conveyance etc. in said hospital. It was further alleged that the complainant also sent legal notice dated 25.01.2011 to the OPs and OP No.1 sent an unsatisfactory reply. Thus, there was deficiency in service on the part of OPs and complainant prayed for issuance of directions to OPs for paying an amount of Rs.5,19,843/- along with interest @ 18% p.a. from the date of payment till its realization; to pay an amount of Rs.5,00,000/- on account of mental agony, torture, loss of future etc.; to pay an amount of Rs.50,000/- on account of loss of profession of the complainant and to pay Rs.22,000/- as litigation expenses.

4.                Upon notice, OPs have appeared before learned District Commission and filed their separate written statements. OP No.1 in its written statement submitted that OP No.1 was insured with United India Insurance Co. Ltd. (OP No.3) vide policy No.040110/46/0-9/32/00005675 effective from 03.03.2010 to 02.03.2011. It was submitted that the case of complainant’s daughter was properly examined, investigated, diagnosed and treated by OP No.1 as per prescribed norms of medical practice as mentioned in text book and journals of the subject concerned. It was further submitted that OP No.1 (Dr. Rajan Kalra) was a qualified doctor and had been running his hospital for the last number of years. Baby Tanya was admitted for the first time with OP No.1 on 27.10.2010 at about 9:30 A.M and was referred to Metro Heart Institute for CT Scan only where Dr. Kamal Aggarwal (Radiologist) diagnosed her to be a case of NCC (Neurocysticercosis), but he did not give any treatment to her rather only made a CT Scan of the patient. After examining the said CT Scan report, OP No.1 referred baby Taya to Dr. G.B. Gupta, MCR (U.K), Pediatric Neurologist i.e. OP No.2, who started Tegretol and Dexamethasone. As the patient started improving gradually so she was discharged on 30.10.2010 with the advice to call OP no.2 for review on 04.11.2010. It was further submitted that on 09.11.2010, baby Tanya was again brought to OP No.1 with complaint of rashes as well as fever. However, the complainant also informed that the child was being shown to Dr. Dalip Jha in Old Faridabad as she was suffering from fever, who had given her PCM and pyralfin (Suplha Drugs) i.e. anti-material, upon which OP No.1 advised complainant to admit the child and to stop medicines prescribed by Dr. Jha but the complainant neither admitted her nor agreed to stop medicines as prescribed by Dr. Jha. It was further submitted that baby Tanya was admitted in the hospital of OP No.1 on 10.11.2010 at 3:00 P.M. and treatment was started in the form of I V fluids as well as antibiotic and all other medicines were stopped but she did not show any significant improvement, so baby Tanya was referred to higher center on 11.11.2010 at about 5:30 P.M. It was further submitted that there was no deficiency in service on the part of OP No.1 and prayed for dismissal of the complaint.

5.                OP No.2 in its written statement submitted that baby Tanya was seen by OP No.2 only once on 28.10.2010 and was advised for review after one week but complainant did not bring her for examination. It was further submitted that in legal notice dated 25.1.2011, complainant demanded an amount of Rs.4,99,876/- from OPs towards the treatment of her daughter in Sir Ganga Ram Hospital, whereas in the complaint he demanded an amount of Rs.5,19,847/-. It was further submitted that there was no deficiency in service on the part of OP No.2 and prayed for dismissal of the complaint.

6.                OP No.3 in its written statement submitted that OP No.3 ad issued establishment error & omission policy No.040100/46/09/32/0005675 valid from 03.03.2010 to 02.03.2011 to OP No.1 and profession indemnity policy No.040100/46/10/35/00001591 valid from 03.07.2010 to 02.07.2011 to Dr. Rajan Kalra. OP No.3 admitted that standard terms and conditions and its exclusions of said policies were applicable in the present case. It was further submitted that there was no deficiency in service on the part of OP No.3 and prayed for dismissal of the complaint.

7.                OP No.4 in its written statement submitted that OP No.4 repudiated the claim of complainant as he failed to pinpoint the deficiency in service on the part of OP No.4. It was further submitted that the complainant wrongly arrayed OP No.4 as a party as OP No.4 is only the insurer of OP No.2 vide policy No.351500/46/10/8700000211 covering the risk from 11.08.2010 to 10.08.2011. It was further submitted that in case of any liability, it should be fastened upon OP No.2, then OP No.4 would be required to indemnify its insured. Further, it was submitted that there was no deficiency in service on the part of OP No.4 and prayed for dismissal of the complaint.

8.                After hearing the parties, learned District Commission allowed the complaint of complainant and issued directions as mentioned in para 2^nd (supra).

9.                Feeling aggrieved therefrom, OP No.1-appellant has preferred this appeal for setting aside the impugned order by acceptance of present appeal.

10.              Arguments have been advanced by Shri Nitin Sood, learned counsel for the appellant, Shri S.K. Tripathi, learned counsel for respondent No.1, Shri Ashish Chaudhary, counsel for respondent No.2 and Shri Rajneesh Malhotra, counsel for respondents No.3 & 4. With their kind assistance the entire record including documentary evidence as well as whatever evidence had been led during the proceedings of the complaint had also been properly perused and examined.

11.              It is an admitted fact that the daughter of respondent No.1-complainant namely baby Tanya was admitted in the hospital of appellant-OP No.1 from 27.10.2010 to 30.10.2010 and appellant-OP No.1 referred her to Metro Heart Institute, Sector-16A, Faridabad for CT Scan, where Dr. Kamal Aggarwal, Radiologist conducted CT Scan and diagnosed her to be a case of Neurocysticercosis (NCC) and appellant-OP No.1 prescribed some medicines  (Tab. Tegretol) to baby Tanya. It is also an admitted fact that respondent No.2-OP No.2 also prescribed the same medicine i.e. Tab. Tegretol to baby Tanya on 04.11.2010. As per the respondent No.1-complainant, appellant-OP No.1 & respondent No.2 were required to order a test before starting of treatment to see if the complainant’s daughter (Baby Tanya) had any genetic risk factor or not. However, it is also an admitted fact by appellant-OP No.1 & respondent No.2 that they did not conduct any such like test before treating baby Tanya. As, such, medical negligence and deficiency in service on the part of present appellant-OP No.1 & respondent No.2 is established

12.              It is also proved on record that baby Tanya remained admitted in Sir Ganga Ram Hospital, New Delhi from 11.11.2010 to 03.12.2010 and respondent No.1-complainant paid an amount of Rs.46,810/- to said hospital as her share in the final bill dated 03.12.2010. On the other hand, respondent No.3-OP No.3 admitted that it had issued policy No.040100/46/09/32/00005675 valid from 03.03.2010 to 02.03.2011 to present appellant-OP No.1 and professional indemnity policy No.040100/46/10/35/00001591 valid from 03.07.2010 to 02.07.2011 to Dr. Rajan Kalra and respondent No.4-OP No.4 also admitted that it had issued policy No.351500/46/10/8700000211 covering the risk from 11.08.2010 to 10.08.2011 to respondent No.2-OP No.2 and in case of any liability, same would be fastened upon respondent No.2 and then respondent No.4 would indemnify its insured. Thus, deficiency in service on the part of OPs-respondents No.2 to 4 stands proved.

13.              Thus, there is no illegality or infirmity in the findings given by the learned District Commission on merit.  Impugned order passed by learned District Commission is well reasoned, based on facts and as per law. Therefore, the present appeal is without any merit and is liable to be dismissed and is, therefore, dismissed.

14.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

15.              Application(s), pending, if any, stands disposed off in terms of the aforesaid order.

16.              File be consigned to record room alongwith a copy of this order.

Pronounced on 12^th February, 2024

                                                                                       

           

                                                                                                            S.C Kaushik

                                                                                                            Member                                                                                                                                 Addl. Bench-III