BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 82 of 2014.
Date of Institution : 23.06.2014
Date of Decision : 04.05.2017.
Sumitra Devi @ Sumitra Rani wife of Jhanda Ram, resident of Kotli Road Khera Colony Shree Mukatsar Sahib (Punjab).
……Complainant.
Versus.
- Dr. Gaurav Bansal Sanjivini Hospital under Railway Bridge, Sirsa.
- Ganga Hospital, Dabwali Road Sirsa through its Managing Director/ Incharge.
- The Docland Services Ltd. Admn. Office, Shri Ram Market 2nd Floor Above the United India Insurance Company Ltd. 33 Cantonment Road Lucknow.
3(A). Oriental Insurance Company Ltd, through its Divisional Manager Sirsa vide policy No.221303/48/2014/755.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SMT. RAJNI GOYAT………………………PRESIDING MEMBER.
SHRI MOHINDER PAUL RATHEE ………MEMBER.
Present: Sh. D.S. Sra, Advocate for the complainant.
Sh. R.P. Jindal, Advocate for opposite party No.1.
Opposite party no.2 given up.
Opposite party no.3 exparte.
Sh. A.S. Kalra, Advocate for opposite party no.3A.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties with the averments that she is 42 years of age. The op no.1 is posted as Neuro Surgeon in Ganga Hospital, Dabwali road, Sirsa i.e. op no.2. The complainant was suffering from disease survical spine, so she visited to the op no.1 for treatment in the month of December, 2013. After diagnose, the op no.1 admitted her in Ganga Hospital on 3.12.2013 and started treatment and got conducted so many tests. Thereafter, he asked the complainant that an operation would be conducted for her disease. The complainant told him that her condition is not so much bad and he should treat her by medicines but the op under the greed of money forced/compelled her for operation and stated that otherwise her life can be in danger and the operation is necessary very soon. It is further averred that then under the fear and compelled circumstances, she gave permission for operation. Thereafter, the op no.1 operated the complainant for the said disease and received Rs.80,000/- as his fee and other charges in the presence of Amarjeet Singh son of Gheesa Ram resident of Goniana road, Mukatsar. The complainant also spent a huge amount of about rupee two lacs for other tests, medicines etc., but said operation could not be successful due to negligence and deficiency of the op and due to this failed surgery, it affected the nerve system of the complainant. The complainant is badly affected due to this wrong operation and she is still lying on bed and is unable to move. It is further averred that family members of the complainant approached the op and told him about the condition of the complainant but he falsely assured that after some days her condition will be improved and under this false assurance, the op kept the complainant and her family members in dark. But when there was no any improvement in her condition, then her family members consulted with other doctors and they told that this condition of complainant is due to negligent surgery and there are very less chances of her improvement. It is further averred that then family members of complainant approached to the op and asked about wrong treatment and surgery upon which the op instead to confess his guilt started to threaten her family members and openly asked that they can do whatever they want. In this way, the op in greed of money got operated the complainant unnecessarily and thereafter conducted wrong treatment due to which the life of complainant is in danger as her nerves system has been badly affected and she remains on bed. She every times needs special attendant, special care etc. The complainant has spent a huge amount on her treatment and she is in further need of treatment from the higher Medical Institution and all this occurred due to negligence and deficient service of op. Due to the act of the op, the complainant and his family members are suffering from mental tension, pain, agony and financial problem etc. She has two sons and one daughter and her children and her husband are in very petty condition due to the serious condition of complainant, hence the complainant is entitled to compensation of Rs.15 lacs alongwith medical expenses etc. and litigation expenses. Hence, this complaint.
2. On notice, opposite party no.1 appeared and filed written statement taking certain preliminary objections that complaint is neither maintainable nor sustainable in the eyes of law; that complainant has no cause of action against the op to file the present complaint; that complaint is bad for non-joinder and mis-joinder of necessary parties as the op no.1 is insured with Docland Services Limited, Lucknow; that there is no negligence of op no.1 to give treatment, nor any wrong has happened in conducting the operation of the complainant nor anything reported by any competent person; that op no.1 is fully qualified and experienced doctor to give the treatment and no guarantee and assurance was ever given to the patient for complete relief nor it is possible. The motto of the doctor is only “That we treat the patient, but He cures.” The treatment was given under expressed consent of the patient as well as her attendant and guardian. On merits, it has been submitted that op no.1 remained employed with op no.2 at the time of treatment of complainant and he was giving treatment to the complainant with full care and cautions. The operation was conducted and the requisite plate was inserted with full consent of the patient and her attendants, as required at that time and the patient improved well after surgery and felt full relief in her pains. The discharge slip dated 11.12.2013 (Annexure R1) depicts the above position of the patient. The post operation x-rays showed well plantation of plates and its situation. She was given the phone/mobiles numbers for further consultation at the time of any need and hence no negligence of any kind can be alleged against the answering op. The post operation test report dated 28.3.2014 from some Bathinda hospital also could not show any abnormality in conducting the operation but further development of any disease is not in the hands of a doctor but in the hands of God and the doctor should not be blamed. In this case, the patient started having weakness in her body due to development of a new disease which is a type of cancer and cannot happen due to any negligence in operation and even not related to the previous disease for which she was earlier operated. This is clearly evident in the enclosed MRI reports which do not show the disease which developed later on in March, 2014 and was completely non-existent in the pre-operative and postoperative MRI. Also the disease for which she was operated i.e. “Syrinx” in the spinal cord due to compression got completely resolved in the immediate post operative MRI which itself is evidence that operation was performed correctly. It has been further submitted that the payments of the bill of the hospital is a matter of record and the amount was charged reasonably by the management of op no.2. Rest of the contents of the complaint have been denied.
3. Opposite party no.3 i.e. The Docland Services Ltd. Lucknow appeared and filed written statement taking certain preliminary objections especially that answering op is a legal service provider company and it provided the legal services to the Doctors and the answering op is not an insurance company. Dr. Gaurav Bansal is insured from Oriental Insurance Company vide Policy No.221303/48/2014/755 valid from 31.7.2013 to 30.7.2014 with insurance code No.56388001. On merits, the contents of the complaint have been denied in toto.
4. Opposite party no.3-A i.e. Oriental Insurance Company Ltd. after appearance filed written statement taking preliminary objections that complaint is not maintainable before this Forum as matter needs elaborate enquiry, evidence, cross-examination of witnesses and only thereafter finding can be given with regard to the allegations leveled by complainant more particularly when there is no report/opinion of any expert, Board of doctors supporting the allegations; that complainant has no cause of action to file the present complaint against answering op as description of the work location covered under the policy to the doctor-op no.1 was for the Sai Hospital Moradabad i.e. for the omission, commission, lapses committed by him while working in the said hospital. OP no.1/ doctor never got effected the change of risk of location by getting an endorsement to this effect in the policy nor intimated any incident as alleged by complainant, thus there is willful, malafide and deliberate breach of term and conditions of the policy on the part of op no.1. Delay in intimating is also fatal as according to the term and conditions of the policy, immediate intimation ought to have been given, hence answering op is not liable to indemnify the op no.1 in any manner. Further the benefits of the policy can be availed by insured only, if claim is reported within the calendar year and in this case claim against answering op is otherwise also barred by law. Intimation has been received by answering op first time from this Forum in the month of December, 2016, so complaint qua answering op is liable to be dismissed as alleged incident relates to the year 2013. Further, for the delay in reporting any case against insured, answering op should not be burdened with any liability on account of interest for the pre-appearance period and only op no.1 should be burdened with the same as term and conditions of the policy clearly states that in the happening of any event or receipt of summons from any court of law, insured-doctor will immediately intimate the company and will extend co-operation in defending the litigation but op no.1 failed to abide by term and conditions of the policy. It has been further submitted that without admitting any liability, it is submitted that op no.1/ doctor was insured with the maximum indemnification from 31.7.2013 to 30.7.2014 for the sum of Rs.20,00,000/- only subject to compliance of term and conditions of the policy, that also where the court gives a finding that doctor committed the medical negligence. The false assertion of complainant regarding medical negligence on the part of op no.1 is not sufficient enough to hold the doctor liable for medical negligence, rather in view of peculiar facts and circumstances of the case, complainant should adduce, bring and prove the medical negligence by way of expert evidence. On merits, while reiterating the pleas taken in the preliminary objections, the written statement filed on behalf of op no.1 has also been adopted.
5. Op no.2 was given up by learned counsel for complainant.
6. In evidence of complainant, affidavit of Sumitra Devi complainant Ex.C1, documents Ex.C2 to Ex.C20 and affidavit of Jhanda Ram Ex.CW2/A have been tendered. On the other hand, op no.3-A tendered affidavit of Sh. Sushil Kumar, Divisional Manager Ex.R1 and copy of insurance policy Ex.R2. Affidavit of OP no.1 has been tendered as Ex.R3 and copies of documents have been tendered as Ex.R1 to Ex.R10. On 7.3.2017 none appeared on behalf of op no.3 and therefore, op no.3 was proceeded against exparte.
7. We have heard learned counsel for the parties and have perused the case file carefully.
8. The complainant who was suffering from disease of cervical spine went to the hospital of opposite party no.2 on 3.12.2013 and opposite party no.1 was practicing in the hospital of op no.2 at that time. It is also an admitted fact that after getting some tests conducted of the complainant, the opposite party no.1 advised operation which was conducted by him on 4.12.2013 and plate was inserted in the back of complainant. According to the complainant, she asked the op no.1 that her condition is not so much bad and she should be treated with medicines but the op no.1 out of greed of money, forced her for operation. It is further stated that the condition of the complainant deteriorated after operation as her nerve system is badly affected due to wrong operation and she is lying on bed and is unable to move. Whereas the op no.1 has asserted that the operation was conducted and the requisite plate was inserted with full consent of the patient and her attendants as required at that time and the patient improved well after surgery and felt full relief in her pains. The opposite party no.1 has placed on file copy of consent dated 3.12.2013 as Ex.R10 which bears thumb impression and under the thumb impression LTI of Chanda Ram (husband) is written. The contents of the consent note dated 3.12.2013 are self explanatory and loudly speak about the fear and force with which consent of the complainant/ relatives obtained. Name of the husband of complainant is Jhanda Ram and not Chanda Ram and the person who scribed the said document did not take care of correct name of husband of complainant. It is clearly evident from the contents of the said consent note that doctor was well aware that complainant will not be fully cured even after the operation. The complainant visited the hospital of op no.2 on 3.12.2013 and operation was conducted just after one day i.e. on 4.12.2013. The circumstances of the case lead to conclusion that with a view to extract more money operation was advised by op no.1 and as the patient was in fear, so they were compelled to give consent for the operation. The tone and tenor in which the contents of the said consent have been written lead to conclusion that it is not a free and voluntary consent of the complainant/ husband of the patient. As per laid down professional ethics, the op no.1 was required to prescribe medicines or any other therapy for some days to the complainant and should have waited for the result of the same because there is nothing authentic on record to show that condition of the complainant was so critical before admission to hospital on 3.12.2013 that there remained no option except operation instantly. Thus, the doctor failed to observe professional ethics and reasonable care.
9. Further, the plea of the opposite party no.1 that the patient improved well after surgery has no force because same is not corroborated by any authentic document/ x-rays report etc. There is also no substance in the plea of op no.1 that post operation test report dated 28.3.2014 from some Bathinda hospital also could not show any abnormality in conducting the operation. In the MRI scan of cervical spine of complainant conducted by Arora Neuro Centre Pvt. Ltd. on 28.3.2014 contrast study for the possibility of Thoraco- Cervico- Medullary Intramedullary Tumor-Likely Astrocytoma advised. So it cannot be said that after the operation conducted on 4.12.2013 by op no.1, no abnormality was found and the version of opposite party no.1 in this regard is incorrect. The op no.1- doctor failed to take reasonable degree of care and skill as a result of which the condition of patient deteriorated after her operation. The complainant has proved on record that she paid an amount of Rs.80,000/- as fee for the operation which fact is evident from document Ex.C3. We are of the considered opinion that op doctor failed to take reasonable professional care and found guilty of unfair trade practice.
10. Now we assess the compensation to be awarded to the complainant and also determine that who is liable to pay the compensation to the complainant. The complainant has alleged and proved that she paid an amount of Rs.80,000/- as operation fee. The fact of payment of Rs.80,000/- as operation fee is proved beyond any doubt. The complainant, however, put no evidence on record about incurring of Rs.2,00,000/- approximately for other tests, medicines etc. and could not prove this fact. Thus, she is entitled to refund of Rs.80,000/-. Further keeping in view the pain and suffering of complainant and her family members after the operation and now she is bed ridden due to failure of operation conducted by op no.1 on 4.12.2013 and she has three children, we are of the view that complainant is entitled to an amount of Rs.5,00,000/- as compensation. The plea of Oriental Insurance Company Ltd. i.e. op no.3A that policy was issued for the location of Sri Sai Hospital, Moradabad is not admitted because breach of any terms and conditions of policy is between insurance company and insured doctor and has no effect on the claim of complainant. The op no.3 the Docland Services Ltd. has not led any evidence and has opted to be proceeded against exparte, whereas op no.2 has been given up by learned counsel for complainant. So, in our view the ops no.1, 3 and 3A are liable to compensate the complainant.
11. Thus, as a sequel to our above discussion, we partly allow the present complaint and direct the opposite parties No.1, 3 and 3-A to pay a sum of Rs.5,80,000/- to the complainant as compensation and also to pay a sum of Rs.5500/- as counsel fee and Rs.1000/- as litigation expenses to the complainant. This order should be complied by the ops No.1,3 and 3-A jointly and severally within a period of one month from the date of receipt of copy of this order, failing which complainant will be entitled to interest @9% per annum on the amount of Rs.5,80,000/- from the date of filing of complaint till actual payment. A copy of this order be supplied to the parties as per rules. File be consigned to record room after due compliance.
Announced in open Forum. Presiding Member,
Dated: 04.05.2017. Member. District Consumer Disputes
Redressal Forum, Sirsa.
