DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.124/22.08.2008 Decided on : 24.04.2009 Sh.Amarjeet Singh Oberoi S/o Sh.Khushbakhat Rai, resident of Jagri M.C. Street, Lalluana Road, Mansa. ..... Complainant. VERSUS 1.Dr.Ashok Kansal, Kansal Orthopedic Hospital, Near Civil Hospital, Mansa. 2. New India Assurance Company Limited, Mansa. ..... Opposite Parties . Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.Devinder Sharma, Advocate counsel for the complainant. Sh.Sunil Bansal, Advocate counsel for Opposite Party No.1 Sh.N.K.Sharma, Advocate counsel for Opposite Party No.2 Quorum: Sh.P.S. Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.P.S.Dhanoa, President: This complaint has been filed, by Sh.Amarjit Singh Oberoi son of Sh.Khushbakhat Rai, a resident of Mansa, against Dr. Ashok Kansal, an Orthopedic Surgeon and New India Assurance Company Limited, Mansa, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act'), for giving direction, to pay payment of Rs.1 lac, on account of expenses incurred by him, on his treatment alongwith compensation, for mental and physical harassment. As per allegations made in the complaint, the case of the complainant may briefly be Contd........2 : 2 : described as under: That on 27.8.2007, the complainant fell down and sustained injury, on his little finger, of his right hand, after fall in his shop, situated near railway station, Mansa. On being approached , Opposite No.1 advised him for X-Ray of his finger. After checking the X-ray film, he informed the complainant, that there is minor fracture, but the same is curable, in natural process, with the passage of time. He also applied dressing upon the little finger of the complainant and prescribed medicines and asked him to revisit him after a period of 20-22 days. After expiry of about 20 days, the complainant again approached the Opposite Party No.1, for checking of his finger. On opening the dressing, the Opposite Party No.1 informed the complainant, that his finer would start functioning again normally after some months and advised him for physiotherapy. Inspite of dressing and medicines prescribed by the doctor, little finger of the complainant, did not start functioning as earlier. When the complainant again met the Opposite Party No.1, he told him that his little finger needs operation and recommended plaster for the same. As such, there is deficiency in service on the part of the Opposite Party No.1, because of which complainant, has been subjected, to mental and physical harassment. Hence this complaint. On being put to notice, Opposite Party No.1 filed written version, resisting the complaint, by taking preliminary objections; that the complainant, is not the 'consumer' within the purview of its definition given in the Act, because he has not paid any fee for his treatment till date inspite of promise to do so; that the complaint, is not maintainable; that complainant, has no cause of action, and locus standi, to file the complaint; that there is no deficiency in service on the part of the opposite party No.1, who is M.S.(Ortho) and possess experience of 28 years by virtue of his service in Government Hospitals, including Rajindra Hospital, Patiala and has retired from the post of Senior Medical Officer; that the complainant has misrepresented the material facts by concocting false version to Contd........3 : 3 : extort money from the answering opposite party; that the answering opposite party is a heart patient; that answering opposite party has purchased professional indemnity insurance policy from the Opposite Party No.2 vide cover Note No.295790 dated 1.8.2007 for the period 7.8.2007 to 6.8.2008, as such, if this Forum comes to the conclusion that compensation is payable to the complainant, then liability to pay the same is of the Opposite Party No.2; that there is a delay of more than a year on the part of the complainant, after the alleged occurrence and treatment and in filing of complaint, as such, complaint deserves to be dismissed with compensatory costs. On merits, it is submitted that under the influence of liquor, the complainant approached the answering opposite party, who prescribed medicines, without charging any money, from him. It is contended, that complainant has told the answering opposite party, that he sustained injury, on his finger in the state of intoxication. It is reiterated that complainant made the promise, to pay consideration and charges of treatment, but he never visited the answering opposite party again, after getting initial treatment. It is denied that answering opposite party was negligent or deficient, in rendering service or that due to any lapse on his part, the complainant has acquired any disability or has been subjected to mental and physical harassment. Rest of the averments, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs. The Opposite Party No.2 filed separate written version resisting the complaint, by taking preliminary objections; that there is no negligence on the part of the Opposite Party No.1 in treatment of the complainant, as such, answering opposite party is not liable, to reimburse any amount, to him or to pay him compensation; that the Opposite Party No.1 is a renowned Orthopedic Surgeon against whom no other complaint has been filed, as such, instant complaint, being fabricated, is liable to be dismissed. On merits, all the averments made in the complaint have been Contd........4 : 4 : denied and a prayer, has been made, for dismissal of the same. On being called upon by this Forum, to do so, the counsel for the complainant tendered his affidavit, Exhibit C-1 and copies of documents Ext.C-2 to C-6 before closing his evidence. On the other hand, learned counsel for the opposite parties has tendered in evidence, copies of documents, Ext.OP-1 to OP-7, and closed evidence, on their behalf. We have heard the learned counsel for the parties and gone through the oral and documentary evidence, adduced on record, by them, carefully, with their kind assistance. Learned counsel for the complainant Sh.Devinder Sharma, Advocate, has argued that the Opposite Party No.1, after screening the X-Ray film, detected fracture in the little finger of the right hand of the complainant, but instead of operating upon the same and applying plaster, he dressed the wound and prescribed medicines. Learned counsel further argued that relying upon the assurance given by the Opposite Party No.1, the complainant did not approach any other doctor and on being reapproached, the Opposite Party No.1 informed him that his little finger would start functioning in due course by natural process, but the defect still persists. Learned counsel further argued that defect in the little finger of the complainant is visible in X-Ray film produced by him on record, as such, there is deficiency in service on the part of the Opposite Party No.1, who has issued prescription slip, produced on record by the complainant, and he has become entitled, to seek compensation, which may be paid by either of the opposite parties, as per arrangement between them under the insurance policy or otherwise, as prayed in the complaint. On the other hand, learned counsel for the Opposite Party No.1 Sh.Sunil Bansal, Advocate has argued that there is no evidence that complainant has made any payment on account of treatment to the opposite party No.1, as such service rendered by him is without consideration. The complainant does not fall within the ambit of its definition of a consumer Contd........5 : 5 : given in the Act, as such, complaint is not maintainable. We find merit in the argument advanced by the learned counsel for the opposite parties, because the complainant, has not produced on record any evidence, to establish that he has paid some amount to the Opposite Party No.1, for prescription of medicines, his treatment and X-Ray, although specific plea has been taken by the Opposite Party No.1 that he was in state of intoxication and agreed to pay even the fees subsequently, but failed to so. The complainant has produced on record prescription slips dated 27.8.2007 and 28.8.2007 Ext.C-2 and C-3, respectively, which do not contain any recital regarding payment of fee charged by Opposite Party No.1 from him. He has also produced another prescription slip Ext.C-5 which is not on letter pad of Opposite Party No.1 and does not even bear his signatures. The complainant has not produced any evidence to prove that this document has been handwritten of Opposite Party No.1 in his own hand. It is also undated document and contain nothing regarding payment of fees and costs of treatment. He has neither taken any plea in the complaint, nor he has mentioned in his affidavit Ext.C-1 that he made some payment to the Opposite Party No.1, on account of fees or cost of his treatment, whereas affidavit of Opposite Party No.1 Ext.OP-1, supports the written version filed by him, in its entirety. Therefore, the factum of payment of fees, to Opposite Party No.1 or costs of treatment, cannot be assumed on the basis of conjectures and surmises alone. As per Section 2(1)(d)(ii) of the Act payment of consideration to the service provider by the consumer is a condition precedent before he is entitled to file the complaint in Consumer Fora. The complainant cannot be termed even as a 'Potential Consumer' in the ambit of its definition given under Section 2(1)(o) of the Act, until it is established that service has not been rendered free of costs. Since service rendered by the opposite party is without consideration, therefore, complaint is bound to fail on this technical ground alone. Contd........6 : 6 : Learned counsel for the opposite party No.1 has further argued that except the prescription slips dated 27.8.2007 and 28.8.2007, issued by the Opposite Party No.1 , no reliable evidence, has been produced by the complainant, to establish that he even approached the opposite party again for treatment or advice and that damage caused, to his little finger of his right hand still persists. Learned counsel further submitted that complainant has not examined any expert to prove defect in his finger and there is delay of more than a year on his part in filing of the complaint, as such, causing of fresh injury to him on the same hand and on the same finger during the intervening period, cannot be ruled out. Learned counsel further argued that the Opposite Party No.1 is experienced Orthopedic Surgeon, as such, he was not expected to take risk and ignore the damage caused to the little finger of the complainant, if the same needed operation or application of plaster. Learned counsel further argued that a doctor cannot be burdened, until grave act of negligence, is proved on its part and there is positive evidence of deficiency in service on his part. In this regard, learned counsel has relied upon 2006(I) CLT (NC) 384 K. Venkateshwarlu versus Managing Director, Nagarjuna Hospital, wherein allegation of the complainant was that he has acquired permanent disability due to wrong surgery in the hospital of the opposite party, but evidence of expert indicated requirement thereof. Since the complainant did not produce any supporting medical text and examine any expert doctor, to support his case, therefore, it was held by the Hon'ble National Commission, that every Physician or Surgeon cannot be gifted with extra ordinary skill and expect to perform miracles. It was also held that what was expected of a doctor is whether procedure adopted by him is acceptable to medical profession or not. Learned counsel further relied upon 1996(2) CPR(NC) 247 Dr.N.T.Subramanyan and another versus Dr.B.Krishna Rao & another wherein it has been held that a doctor can be held guilty of medical negligence only when he falls short of the standard Contd........7 : 7 : of reasonable medical care and in a matter of opinion he made an error of judgment. Lastly, learned counsel has relied upon 1996(II) CLT 249 Pravin Laljibhai Vaghela versus Dr.Binoy Palkhivala, wherein it was held by the Hon'ble Gujarat State Commission that in the absence of any expert medical negligence on the part of a doctor, complaint is liable to be dismissed. At this stage, learned counsel for the Opposite Party No.1 has argued that, even if, this Forum comes to the conclusion that complainant is entitled to payment of compensation, then Opposite Party No.2 is liable to pay the said amount, because medicine has been prescribed and complainant has been treated during the validity period of insurance policy. Learned counsel for Opposite Party No.2, Sh.N.K.Sharma, Advocate has submitted that his client cannot be burdened with the amount of compensation under the insurance policy, if deficiency in service on the part of the Opposite Party No.1, in rendering service, to the complainant, is proved alongwith the fact that he has sustained any permanent disability, due to any negligence, on the part of service provider, otherwise, the complaint is liable to fail and deserves dismissal with costs. Arguments advanced by the learned counsel for the opposite parties are not devoid of merits, because the complainant has not produced any evidence showing that his little finger was fractured and he has acquired some disability, rendering him unfit to earn his livelihood or follow the normal routine. He has produced on record the X-Ray Film, but has not examined any medical expert to prove the said fact. The Consumer for a cannot assume the role of expert. The medical negligence can only be proved by a medical expert. It needs positive evidence to burden a doctor with compensation for deficiency in service which shall be gross in nature i.e. an act or omission not approved by medical science. The affidavit of Contd........8 : 8 : the complainant is not corroborated by any evidence about the assurance given by the Opposite Party No.1 about the removal of defect in his finger by natural process. Even if, his version be assumed to be true, negligence on the part of Opposite Party No.1, in providing treatment to the complainant, cannot be said to have been proved in the absence of any positive evidence. As per his own version opposite party had advised him for physiotherapy but no evidence has been adduced by the complainant to establish that he followed the said advice. It is a matter of common knowledge that minor fractures do heal with natural process with the passage of time and physiotherapy and such type of opinion is often formed by experienced Orthopedic Surgeons depending upon the nature of fracture. As such, liability cannot be fastened upon the Opposite Party No.1, even if , there was some error of judgment on his part, while dressing the wound of the complainant and prescribing medicines. As per the version of the complainant, he sustained fracture in his little finger of the right hand on 27.8.2007 and he approached Opposite Party No.1 on 27.8.2007 and 28.8.2007. He has not produced any evidence, oral or documentary, to prove his version that after expiry of 20 days he again approached Opposite Party No.1 for treatment and advice. He has filed the instant complaint on 22.8.2008, but has not brought on record any evidence showing that for such a considerable time, he approached even any other orthopedic surgeon. In case defect in his little finger of his right hand was not rectified, he was expected to approach some other orthopedic surgeon. Even the complainant, has not made any attempt to seek the indulgence of the Forum for direction to the Chief Medical Officer of the District to assess the disability acquired by him or extent thereof, to enable this Forum to provide him relief. As such, he cannot shift the entire responsibility for defect in his finger, if any, upon Opposite Party No.1 alone. In the light of our above discussion and being fortified by the Contd........9 : 9 : ratio of judgments delivered in the authorities, discussed above, and relied upon by the learned counsel for, Opposite Party No.1, we have no hesitation, in holding that the complainant, has failed, to establish that he has acquired defect to his little finger, due to any negligence, on the part of the Opposite Party No.1, on account of which he may be burdened with compensation and costs, as prayed in the instant complaint. Since deficiency in service on the part of the Opposite Party No.1 is not proved, therefore, Opposite Party No.2 cannot be burdened with the liability. Resultantly, we dismiss the complaint and leave the parties to bear their own costs. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record. Pronounced: 24.04.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
