Haryana

Kurukshetra

CC/283/2021

Mrs Uma Devi W/o Lt Shri Jai Bhagwan - Complainant(s)

Versus

Dr Ajay Aggarwal - Opp.Party(s)

Vijay Anand

05 Oct 2021

ORDER

Uma Devi Versus Dr.Ajay Aggarwal etc.

Present: Sh.Vijay Anand  Advocate for the complainant.

ORDER:

                Heard on the maintainability of the present complaint.

2.             In brief the complainant  has filed the present complaint alleging medical negligence on the part of the Ops.  It is stated that real son of the complainant namely Aakash who was 32 years old on 10.11.2014 at 6:45pM vide MRNNo.49837 was admitted in the Nursing Home of OP No.2 with the symptoms of fever and pain in abdomen. At the time of admission the OP N o.1 and 2 assured to provide best services to him and cure his son properly. It is submitted that no  ultra sound was done by the OP No.1 and 2 and the OP No.1 and 2 charged Rs.1050/- i.e. Rs.200/- for parchi and Rs.328/-  for medicines and Rs.522/- were charged for injection fees and written 5 days medicines.  It is further submitted that due to wrong  treatment given by the Ops and wrong injection was administered by Ops and he died at 8:00PM on 10.11.2014. Hence, son of the complainant died due to sole negligence and fault and there is deficiency in services on the part of the OP. It is also stated that son of the complainant was earning Rs.400/- per month and was doing the job of painter.  On 11.11.2014 last rites of son of the complainant were done and for the death of son of the complainant, the Ops are liable to pay the compensation of Rs.10.00 lacs which the Ops failed despite service of legal notice.  It is also submitted that the complainant had filed a civil suit against the Ops and the same was withdrawn by the complainant with permission to file afresh vide order dated 25.8. 2021, Thus, by way of the present complaint, the complainant has sought the compensation of Rs.10,00,000/- from the Ops for deficiency in services on the part of  the Ops and compensation of Rs.5.00 lacs for the mental harassment caused to her and the litigation expenses.

3.             The main question for consideration  in this case is as to whether the complainant is consumer qua the Ops.

4.             (7) “consumer “ means any person

                (i) buys any goods for a consideration which has been paid or promised  or partly paid and partly promised , or under any system of  deferred payment and includes any user of such goods other than the person who buys such goods f  or consideration paid or promised or partly paid or partly promised or under any system of deferred payment, when such use is  made  with the approval of such person but does not include a person who  obtains such goods for resale or for any commercial purpose; or

        (ii)  hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised or under any system deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for  consideration paid or promised or partly paid and partly promised, or under any system deferred payment , when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such service for any commercial purpose.

5.                After hearing the learned counsel for the complainant, we are of the view that the present complaint before this Commission is not maintainable. The complainant has alleged that her son namely Aakash was admitted in the hospital of OP No.2 on 10.11.2014 and in para no.3 of the complaint she has alleged that she made the payment of Rs.1050/- for Parchi and medicines etc. but the complainant has failed to place on record any documentary evidence to show that her son took treatment from the Ops and made payment for the same. Therefore, the complainant does not fall under the ambit of “Consumer”  as envisaged under the provisions of the Consumer Protection Act and the present complaint merits dismissal on this score alone.

6.             The  present incident of alleged treatment is stated to be of the year 2014 and regarding the said incident, the complainant also filed a civil suit in the Civil court, Kurukshetra on 2.2.2015 and on  25.08.2021 when the case was fixed for evidence of the plaintiff, the present complainant withdraw the said civil suit due to  technical default.  The complainant has failed to place on record any evidence, if any, produced before the civil court regarding the medical negligence committed by the Ops and as such filing of the present complaint before this Commission appears to be a futile exercise of law and same deserves to be dismissed.

7.             In view of our above discussion, we dismiss the present complaint being not maintainable. File be consigned to the record room after due compliance.

 

Announced in the open Commission.

Dated: 05.10.2021.                                                      President.

 

                                Member             Member.