Delhi

West Delhi

CC/09/304

BABITA - Complainant(s)

Versus

DR JATINDER JUNEJA - Opp.Party(s)

06 May 2017

ORDER

CONSUMER DISPUTES REDRESSAL FORUM (WEST)

GOVERNMENT OF NCT OF DELHI

150-151, Community Centre, C-Block, Janakpuri, New Delhi – 110058

 

  Date of institution: 01.04.2009 

Complaint Case No.304/09                                                   Date of order: 06.05.2017

IN  MATTER OF

Ms. Babita, 48-C, DDA Flats, Gulabi Bagh, Delhi-110007.           Complainant

VERSUS

 

1.       Dr. Jatinder Juneja, National Institute of Arthritis, E-5, Bali Nagar, New Delhi-110005.                                                                         Opposite Party no.1

 

2.       National Insurance Ltd., 8C-3, Puja House, First Floor, Karampura, New Delhi-110015.                                                                         Opposite party no.2

 

ORDER

R.S. BAGRI,PRESIDENT

Ms. Babita named above has filed the present Consumer Complaint under Section 12 of the Consumer Protection Act hereinafter referred as the act against Dr. Jatinder juneja and another herein in the opposite parties for directions to the opposite parties to pay a sum of Rs.10,00,000/- as compensation on account of unfair trade practice, deficiency in service and medical negligence with interest @18% per annum from filing the complaint till actual realization of the amount as well as litigation expenses.   

The brief relevant facts necessary for disposal of the present complaint as stated are that the complainant was suffering from severe back pain since 29.03.2007. Therefore, she contacted the opposite party no.1 for treatment. The opposite party no.1 got various tests such as ESR, blood sugar, blood Urea, LE Cell Phenomena, Serum uric acid, C-reactive proteins, zone ebb index, Glasgow Arthritic score, serum calcium, platelet count, serum, C.P.K and serum alkaline phosphatase etc. done and as per the test reports and diagnosis of the opposite party no.1 she was suffering from slip disc. The opposite party no.1 gave treatment as per the diagnosis and reports. Hegave medicines for back pain.

That when the complainant was not getting any relief and her pain was increasing day by day the opposite party gave traction (pull the complainant through machines). But she did not get any relief and her condition became bad to worst. The opposite party no.1 always told the complainant that she will be cured within 6-7 months. But after one month when her condition become more critical and the opposite party no.1 did not pay any attention, the complainant visited Sir Ganga Ram Hospital, New Delhi. Where on advise of doctor she conducted MRI and in the MRI report it was shown that there was Bone Tuberculosis and pott spine in her L-1 and L-2. The condition of the complainant became serious. She remained completely bed ridden for about two years continuously. Which happened due to wrong diagnosis and test reports of the opposite party no.1. She suffered mentally, physically and financially. She had to spend more than Rs.9,00,000/- on her treatment. She has not still fully recovered. Therefore, there is unfair trade practice, deficiency in service and medical negligence on the part of the opposite party no.1. She sent a legal notice to the opposite party no.1 to pay Rs10,00,000/- as compensation. But to no effect. Hence, the present complaint for directions to the opposite parties to pay Rs.10,00,000/- with interest @18% per annum from filing the complaint till actual realization of the amount on account ofunfair trade practice, deficiency in service and medical negligence on the part of the opposite party and litigation expenses.

Notices of the complaint were sent to the opposite parties. The opposite party no.1 filed reply while contesting the complaint and raising preliminary objections that the complaint is misconceived, groundless, frivolous, vexatious and scurrilous and unsustainable in the eyes of law, there is no specific, scientific and justified allegation of negligence and deficiency in service. The complaint is not supported by any medical expert opinion and allegations are without any basis and cause of action, complaint is false and frivolous, non- joinder of necessary party, the complaint is flagrant abuse of process of law and jurisdiction and prayed for dismissal of the complaint.

However, on merits the opposite party no.1 asserted that the complainant on 29.03.2007 approached the opposite party no.1 while suffering from lower backpain for 15 days and injections abscess in gluteal region. She also gave history of pain after slipping from step and having lunge for support side ways to prevent her from fall. She had taken treatment from her family doctor. Who treated her with injections and one of the injection had developed into an abscess in her gluteal region. She was advised medicines, bed rest and complete blood test. On second visit on 04.04.2007 it was explained to the complainant that test reports revealed presence of a chronic inflammatory lesion in her spine. This was most likely tubercular in nature since her ESR, CRPs were high. Therefore, she was further advised for getting an MRI done soon to aid in the diagnosis and start a proper treatment in the required direction. But the complaint was reluctant and tried to delay in getting MRI on one or the other pretext and that she has to discuss the matter first with her husband. Whereas at the time of third visit husband of the complainant instead of the complainant visited the opposite party no.1 with prescription and informed that the patient had stopped antibiotic for abscess since she had consulted a surgeon, who had taken her treatment for theabscess. The complainant’s backache was much better. The opposite party no.1 advised husband of the complainant that MRI was must.

That the opposite party no.1 during fourth visit of the complainant on 23.04.2007 examined her and advised her getting an MRI done soon to start the treatment in the right direction at the earliest to avoid any further complication. But the complainant tried to delay the MRI done. But on persistent persuasion of the opposite party no.1 she was convinced and wished the opposite party no.1 to take appointment for MRI from reputed MRI centre. The opposite party no.1 took an appointment for complainant’s MRI on her behalf from a reputed MRI center. She was duly informed. Later on the opposite party no.1 came to know that the complainant visited Sir Ganga Ram Hospital. Where MRI revealed that there was a bone tuberculosis and Pott spine in her L-1 and L-2. Which later became more severe and she had to remain completelybed ridden for about two years. The opposite party no.1 is a qualified and reputed doctor with a practicing experience of more than 25 years. He has done & obtained degrees in MBBS in 1981, MD in 1997 and MD Rheumatology also. He maintains highest standard of profession. He properly examined, investigated, diagnosed and treated the complainant as per prescribed norms of general practice. He did not deviate from normally prescribed line of treatment .All other allegations of the complaint are vehemently denied and once again prayed for dismissal of the complaint.

On application of Dr. jitender juneja opposite party no.1 , the National Insurance Company Ltd. was impleaded as opposite party no.2.

Notice of the complaint was sent to the opposite party no.2. The opposite party no.2 filed reply admitting that the opposite party no.1 has issued insurance policy no.368300/46/06/8700000277 for the period from 18.02.2007 to 17.02.2008 in favour of the opposite party no.1 for Rs.10,00,000/- only. The opposite party no.2 is not a proper and necessary party. There is no privity of contract between the complainant and opposite party no.2. The primary liability, if any, towards the complainant is of the insured alone and the opposite partyno.2 is liable to indemnify the insured later on and prayed for dismissal of the complaint.

The complainant filed rejoinder to the reply of the opposite party no.1 while controverting stand of the opposite party no.1 and reiterating her stand taken in the complaint.

When Ms. Babita complainant was asked to lead evidence, she tendered her affidavit in evidence narrating facts of the complaint The complainant has also relied upon copy of prescription slip of the opposite party dated 29.03.2007, copy of blood analysis report dated 29.03.2007, copy of pathological reports by Classic Diagnostic Lab, copy of liver function test by Modern C.T. Scan and Diagnostic Centre, copy of private OPD slip of Sir Ganga Ram Hospital dated 18.05.2007, copy of discharge summary by city hospital alongwith bills and receipts, copy of OPD slip of AIIMS, New Delhi, copy of report of MRI dated 14.06.2007, copy of MRI reports alongwith photograph and bills by Focus Imaging and Research Centre Pvt. Ltd., copy of report by Anand Imaging Centre, copy of bills of chemists, copy of legal notice dated 12.03.2009 and copy of reply dated 20.03.2009 of legal notice.

When Dr. Jitender Juneja the opposite party no.1 was asked to lead evidence in support of his version, he tendered in evidence his affidavit narrating facts of the reply. He also tendered in evidence affidavit of Shri Sanjeev Pandey, who deposed that Dr. Juneja take appointment for MRI examination of Ms. Babita. The opposite party no.1 in support of his defense relied upon Annexure R-1 copy of insurance policy, Annexure R-2 copy of degree, copy of certificate of registration of Punjab Medical Council and copy of certificate of registration of Delhi Medical Council and Annexure-A copy of medical literature.

It is worth mentioning here that opinion from Medical Board was taken from R.M.L. Hospital, New Delhi. The Board opined as under:-

“On perusal of available treatment records. It is observed that patient was treated symptomatically for backache. However, a radiological examination could have been done if patient was not getting relief during a period of one month.”

After going through the complaint, replies of the opposite parties, rejoinder to the reply of the opposite party no.1, documents and affidavits filed by the parties, medical board opinion it is common case of the parties that the complainant was suffering from low back pain. She contacted the opposite party no.1 on 29.03.2007for her treatment. The opposite party no.1 after examination and tests opined injection abscess in gluteal region of the complainant and back pain. The complainant visited the opposite party no.1 on 29.03.2007, 04.04.2007 and 23.04.2007. Complainant’s husband with all record and prescription also visited the opposite party no.1 between 04.04.2007 and 23.04.2007. The complainant took treatment from the opposite party no.1 for about one month. But when the complainant did not get any relief and her condition deteriorated. She visited Sir Ganga Ram Hospital , New Delhi. The doctor at Sir Ganga Ram Hospital opined for MRI. On receipt of MRI report they further opined bone tuberculosis and pott spine in her L-1 and L-2. She took treatment for tuberculosis and pott spine for about two years.

The case of the complainant is that there is unfair trade practice, deficiency in service and medical negligence on the part of the opposite party no.1. The condition of the complainant was worsening but the opposite party no.1 did not advise for MRI. Therefore, she had to suffer for about two years and spent huge amount on her treatment. She could not carry her profession.

Whereas the case of the opposite party no.1 is that he asked the complainant for MRI. The complainant was reluctant. The complainant after persistent persuasion by the opposite party no.1 agreed for MRI and asked the opposite party no.1 for her appointment for MRI in a reputed MRI institute. But the complainant instead of going for MRI visited Sir Ganga Ram Hospital. Where after MRI she was diagnosed tuberculosis and pott spine in her L-1 and L-2. Therefore, there is no unfair trade practice, medical negligence and deficiency in service on the part of the opposite party no.1.

It is worth mentioning here that the medical board has opined that a radiological examination could have been done if patient was not getting relief during a period of one month. The opposite party no.1 has also admitted that from the tests reports revealed presence of chronic inflammatory lesion in her spine. This was most likely tubercular in nature since her ES, CRP’s were high. Therefore, from a prudent and qualified medical practitioner MRI test of the complainant was required. The opposite party no.1 has also asserted that he asked the complainant for MRI test. Therefore, the burden to prove that the opposite party no.1 advised for MRI is on the opposite party no.1.

The opposite party no.1 to prove that the complainant was advised for MRI has tendered his affidavit narrating that the opposite party no.1 asked the complainant for MRI test. But she was reluctant and after persistent persuasion she agreed for MRI test and asked the opposite party no.1 for booking for MRI test with a reputed MRI centre. On asking of the complainant, he booked a slot with MRIcentre. The opposite party no.1 in support ofhis version has also tendered in evidence affidavit of Shri Sanjeev Pandey. He has deposed that on 04.04.2007 Dr. Jatinder Juneja asked for a slot for MRI examination of Ms. Babita. But Ms. Babita never turned up for MRI test. The version of the opposite party is rebutted by Smt. Babita complainant.

The burden to prove that the opposite party no.1 advised for MRI by the complainant is on the opposite party no.1. But there is no cogent and convincing evidence on behalf of the opposite party no.1, to prove that he advised for MRI test by the complainant except affidavits of Dr. Jatinder Juneja, the opposite party no.1 and Shri Sanjeev Pandey. The affidavits of Dr. Juneja and Shri Sanjeev Pandey are rebutted by the affidavit of Ms. Babita complainant. The affidavits of Dr. Jatinder Juneja, the opposite party no.1 being interested party and Shri Sanjeev Pandey don’t inspire confidence. The parties have filed prescription slip and medical treatment record of the complainant. The opposite party no.1 has never prescribed for MRItest of the complainant. No medical practitioner can ask any one for MRI test without prescription. The version of the opposite party no.1 is after thought and has been manufactured to create false defense. Hence, the opposite party no.1 has miserably faile to prove that he ever advised for MRI test of the complainant.

Ld. Counsel for the opposite party no.1 argued that there is nothing on the record to prove that the opposite party no.1 committed medical negligence and there is unfair trade practice or deficiency in service on the part of the opposite party no.1. The complainant is required to show that the opposite party no.1 did something or failed to do something which in the given facts and circumstanceno medical professional in his ordinary senses and prudence would have done or failed to do, for holding the opposite party no.1 guilty for commission of medical negligence. In support of his arguments he relied upon case law reported as Jacob Mathew V/s. State of Punjab and another 2005 (6) Supreme Court cases 1.

 

 

On the other hand, Ld. counsel for complainant argued that after physical examination and medical test reports the opposite party no1 on 04.04.2007 reached to the conclusion that complainant was most likely case of tubercular since her ESR and CRP’s were high. Even then the opposite party no.1 did not advise for MRI. The medical expert board has opined that in such circumstance the MRI test was required. Therefore, the opposite party no.1 has committed medical negligence. He adopted unfair trade practice and there is deficiency in service on the part of the opposite party no.1. In support of his arguments, he relied upon case law reported as Bombay Hospital and Medical Research Centre V/s. Krishnabehari M. Agarwal 2004 CTJ 468 (CP) (NCDRC) wherein the Hon’ble National Commission has observed that medical negligence is when a doctor does not do what a doctor of average knowledge, experience and capability would do or he does what a large body of doctors would not do.

Admittedly the opposite party no.1 is qualified doctor. He has practicing experience of about 25 years. On 04.04.2007 from medical reports and physical examination of complaiannt he came to the conclusion that the complainant was most likely case of tuberculosis and for definite opinion MRI test was required. But the opposite party no.1 did not advise for MRI test of the complainant. Therefore the case law relied upon by Ld. Counsel for the opposite party no.1 in Jacob Mathew’s case (Supra) is distinguishable on the facts and circumstances of thepresent case. Whereas the case law relied upon by Ld. Counsel for complainant in Bombay Hospital and Medical Research Centre’s case (Supra) has full force on the facts and circumstance of the present case. The opposite party no.1 was required to advise the complainantfor MRI. But he failed for advise of MRI test of the complainant. Hence he has committed medical negligence.

Admittedly, the complainant visited the opposite party no.1 on 27.03.2007. She remained under treatment of the opposite party no.1 for about one month. Later on she visited Sir Ganga Ram Hospital where she was advised MRI. The doctor at Sir Ganga Ram Hospital opined bone tuberculosis and pott spine in her L-1 and L-2. The condition of the complainant detoriate due to negligence on the part of the opposite party no.1. She suffered mentally, physically and financially on account of medical negligence, unfair trade practice and deficiency in service on the part of the opposite party no.1 Admittedly she remained bed ridden and took treatment for about two years. She also could not pursue her legal practice for a long period. The complainant had to spent huge amount on her treatment. Therefore in totality of the above facts and circumstance we direct the opposite party no.1 to pay a compensation of Rs.5,00,000/- withinterest @ 9% per annum from the date of filing the present complaint till actual realization.

Admittedly, the opposite party no.1 is insured with the opposite party no.2. Therefore, the opposite party no.2 is liable to indemnifythe opposite party no.1.

15.          

• Compliance of the order be made within 30 days after receipt of the order.
• Copy of order be sent to the concerned parties free of cost.
• Thereafter, file be consigned to record.

 

 

 

(PUNEET  LAMBA)                                                     (R.S.  BAGRI)

                             MEMBER                                                                      PRESIDENT