BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint No. 130 of 2017
Date of Institution : 08.06.2017
Date of Decision : 16.05.2019
Ajit Singh aged about 38 years son of Shri Ami Lal resident of village Sherpura, Tehsil & District Sirsa.
……Complainant.
Versus
- Dr. Mohar Singh Surgical & Maternity Hospital, Hisar Road, District Sirsa
- Dr. Vinay Poonia, Dr. Mohar Singh Surgical and Maternity Hospital, Hisar Road, Sirsa.
- United India Insurance Company Limited, 42-C,3rd Floor, Mool Chand Commercial Complex, New Delhi 110024, through its Divisional Manager/ competent person/ authority with which respondent No.1 was insured vide insurance policy No.041200/46/14/35/00005311 w.e.f. 06.11.2014 to 05.11.2015 and respondent No.2 was insured vide policy No.041200/46/14/35/00004451 w.e.f. 07.10.2014 to 06.10.2015.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA………………. ……PRESIDENT.
SH. ISSAM SINGH SAGWAL ………MEMBER.
MRS. SUKHDEEP KAUR……………..MEMBER.
Present: Sh. B.C.Bhatiwal, Advocate for complainant.
Sh. Jagwant Singh, Advocate for opposite parties No.1 & 2.
Sh. J.B.L.Garg, Advocate for opposite party No.3.
ORDER
The case of the complainant, in brief, is that due to pain in body, the complainant visited Op No.1 for checkup, who advised some tests from Garg Diagnostic Centre. In the report, stone of size 8mm and 4 mm at iliac vessel level crossing in right kidney and stone in left kidney of size 9 mm were found. The Op No.1 advised surgery, therefore, the complainant was got admitted in the hospital on 08.08.2015 and surgery was done on 10.08.2015 by Op No.2. The complainant was discharged on 12.08.2015 with assurance that the stone has been removed completely. After two months of operation, the Ops had withdrawn one pipe from the body of the complainant on 10.10.2015. The complainant had spent Rs.15,000/- for operation and Rs.10,000/- for medicines etc. On 12.10.2015, the complainant felt severe pain, due to this, ultrasound was conducted by Dr.Shergil and he found that the stone has not been removed. Thereafter, on 13.10.2015, the complainant visited the Ops and narrated about the serious pain, who checked and told that the complainant is suffering from typhoid/fever. He remained admitted in the hospital at night and on 14.10.2015 he was discharged. After that, the complainant visited Shah Satnam Ji Hospital, Sirsa on 14.10.2015 and on examination and conducting of tests; it was told to the complainant that the stone in left and right kidney has not been removed. The complainant was admitted in the hospital on 15.10.2015. Dr.Kapil Singla, conducted operation, on the person of complainant, for removing the stone and he was discharged on 17.10.2015. He spent Rs.25,000/- in the said hospital besides Rs.10,000/- for the medicines etc. The complainant has spent more than Rs.1 lac on the operation and medicines etc. due to the entire negligence of the Ops, therefore, he requested the Ops for compensation but to no avail. The act and conduct of the Ops clearly amounts to deficiency in service and unfair trade practice no their part. Hence, this complaint.
2. On notice, Ops appeared and filed their separate replies. Ops No.1 & 2 in their joint reply have submitted that there is no negligence or deficiency in service on their part. The complainant had visited the replying Ops with ureteric stone and was taken up for surgery where painting and draping was done. Lithotomy position was given. 6/7.5 Fr.Richard Wolf Ureteroscope was used with normal saline irrigation connected to the inlet. Left side ureteric orifice identified and guide wire terumo inserted through the working channel of ureteroscope under fluoroscopy under C- arm.0.35 ” Terumo guide reached upto the stone. Ureteroscope was gradually pushed and inserted over the guide wire and stone visualized. Stone Fragmented-C Lithoclast probe. Fragmented stones were taken out by forceps. All steps were done diligently, prudently, under AOM Floursoc. It has been further submitted that Dr.Shergil has not pointed out any negligence on the part of replying Ops. He has never mentioned that earlier stones were not removed. Ureteric stone can recur during the period of 4 months because of irregular medicine and less water intake. As such stones recur once they are found in any patient. The same was informed to the patient before the surgery. The patient was given treatment diligently, prudently, with utmost due care and caution. Other contentions have been controverted and prayer for dismissal of the complaint has been mad.
3. Op No.3 has filed separate reply wherein it has been submitted that Op No.2 is a qualified and reputed doctor and he has not committed any negligence in providing treatment to the complainant. The complainant has neither filed the present complaint with clean hands nor has he got any locus standi to file the present complaint as there are no scientific and justified allegations with regard to the negligence on the part of OP No.2. The complainant has not produced any expert opinion to prove any negligence on the part of treating doctor; therefore, he is estopped to file the present complaint. It has been further submitted that the complainant remained under treatment of Op No.2 after the surgical operation and as per his own admission, pipe was removed from his body by treating doctor on 10.10.2015 but on 12.10.2015 he got himself checked up from another doctor, without reporting any complication to Op No.2 from whom he got the treatment. Other contentions have been controverted and prayer for dismissal of the complaint has been made.
4. Thereafter, the parties have led their respective evidence.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. That the complainant in order to prove his case has tendered his affidavit Ex.CW1/A wherein he has reiterated all the facts mentioned in the complaint and also tendered documents such as discharge card Ex.C1, prescription slip Ex.C2, discharge card of Shah Satnam Ji Specialty Hospital Ex.C3, receipts and medicine bills Ex.C4 to Ex.C15, investigation slip Ex.C16, tests reports Ex.C17 to Ex.C19, ultrasound report Ex.C20, photo of ultrasound film Ex.C21, test report Ex.C22, prescription slip of Medicity Hospital Ex.C23, ultrasound and x-ray report Ex.C24, Ex.C25. On the other hand, Op No.1 has tendered his affidavit Ex.RW3/A wherein he has reiterated all the facts mentioned in the reply and tendered document such as copy of insurance policy of Op No.1 Ex.R3, copy of insurance policy of Op No.2 Ex.R4, certificates of Op No.1 Ex.R5, Ex.R6, certificates of Op No.2 Ex.R7 and Ex.R8, treatment record of complainant Ex.R9, tests report Ex.R10, ultrasound report Ex.R11, test report Ex.R12, prescription slip and notes Ex.R13, Ex.R14, discharge card Ex.R15copy of letter Ex.R16, consent letter Ex.R17, copy of another letter Ex.R18 and copy of insurance policy Ex.R19. The Op No.2 has not tendered his affidavit in his evidence due to the reasons best known to him whereas the Op No.3 has tendered affidavit of Sh.K.R.Jain, Divisional Manager Ex.R1 wherein he has reiterated all the facts mentioned in the written statement and also tendered documents such as copy of insurance policy of Op No.2 Ex.R2 and copy of insurance policy of Op No.1.
7. It is an undisputed fact between the parties that there was stone in the right kidney of size 8 mm and 4 mm at iliac vessel level crossing and stone in left kidney of size 9 mm. The respondent No.1 advised for operation to remove stone of left kidney. He got him admitted in the hospital of the Op No.1 on 08.08.2015 and the operation was conducted by Op No.1 on 10.08.2015. As per allegations of the complainant, he was assured by Ops No.1 & 2 that the stone has been completely removed from the left kidney and the complainant was discharged from the hospital on 12.08.2015. There are further allegations that after two months of conducting operation, the respondents had withdrawn one pipe from the body of the complainant on 10.10.2015 and in this way, the complainant has spent Rs.15,000/- for this operation and Rs.10,000/- for medicines etc.
8. Further, there are allegations in the complaint again on 12.10.2015, the complainant suffered serious pain and he visited Dr. Shergil for check up, who conducted Ultrasound of the complainant and found that the stone has not been removed. He again approached the Ops No.1 & 2 on 13.10.2015, where he remained admitted in the hospital till 14.01.2015. Thereafter, the complainant visited Shah Satnam Ji Hospital, Sirsa where after conducting tests, it was disclosed by the doctors that there is stone in left and right kidneys and same has not been removed from the left kidney. On the advice of the doctor Kapil Singla of the hospital, who conducted another operation for removing stone and remained admitted in the hospital w.e.f. 15.10.2015 to 17.10.2015 and he spent Rs.25,000/- in this hospital and Rs.10,000/- for the medicines etc. Further, there are allegations of the complainant that the act and conduct of the respondents comes under the ambit of deficiency in service and unfair trade practice due to which the complainant is suffering from serious harassment, humiliation, mental tension, pain, fatigue, shock etc. In order to prove his allegations, the complainant has produced the documents Ex.C1 to Ex.C25 related to his treatment from Ops No1 & 2, Dr.Shergil and Shah Satnam Ji Hospital, Sirsa hospital.
9. Dr.Mohar Singh, OP No.2, proprietor of Op No.1 has furnished his affidavit Ex.RW3/A, in which he has deposed in support of his defence plea taken in the written statement but he has not denied that the treatment was not taken from the hospital of Dr.Shergil as well as Shah Satnam Ji Hosiptal, Sirsa. He has deposed in the affidavit Ex.RW3/A that the patient Ajit Singh came with ureteric stone and was taken up for surgery where painting and trapping was done; that Lithotomy position was given 6/7.5 Fr. Richard Wolf Ureteroscope was used with normal saline irrigation connected to the inlet; that left side ureteric orifice identified and guide wire terumo inserted through the working channel of ureteroscope under fluoroscopy under C- arm. 0.35” Terumo guide reached up to the stone; that ureteroscope was gradually pushed and inserted over the guide wire and stone visualized. Fragmented-C Lithoclast Probe; that fragmented stones were taken out by forceps; that all steps were done diligently, prudently, under AOM Flourose; that Dr.Shergil has not pointed any negligence on the part of the respondents; that he has never mentioned that earlier stones were not removed. Ureteric stone can recur during the period of 4 months because of irregular medicines and less water intake. So, from the evidence of Dr.Mohar Singh, it can not be presumed that the complainant did not approach Dr.Shergil and after conducting the ultrasound stones were not found in the left and right kidney of the complainant. Further, Dr. Mohar Singh has not denied this fact that the treatment was not taken from the Dr. Sher Gil and the operation was not conducted on the body of the complainant.
10. Though as per allegations of the complainant and defence plea of the Ops No.1 & 2, operation was conducted by Op No.2 but he has not furnished his affidavit in support of his pleadings, due to the reasons best known to him. So adverse inference can be drawn against him that he was negligent and deficient while conducting the operation for removing the stone from the left kidney of the complainant.
11. It is proved on the case file that the Ops No.1& 2 had taken Professional Indemnity Dr. (other) Policy and there is a contract of insurance between the Op No.3 and Ops No.1 & 2 by virtue of issuance of policy and as per terms and conditions of the policy, it is legal obligation of the insurance company to indemnify the loss, if any, suffered by the Ops, in case they are found negligent and deficient in providing services to the patients like present complainant.
12. In view of the above discussion, we allow the present complaint and direct the OPs No.1 & 2 to pay a sum of Rs.20,000/- to the complainant as compensation for their negligent act and on account of pain, suffering and harassment etc. We further direct the ops No.1 & 2 to pay a sum of Rs.2,000/- as litigation expenses to the complainant. Order be complied within a period of 30 days from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @ 7% per annum from the date of filing of present complaint till actual payment. The Op No.3 is directed to reimburse the awarded amount, if the same is payable, as per terms and conditions of policy purchased by Op Nos.1 & 2. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum. President,
Dated: 16.05.2019 District Consumer Disputes
Redressal Forum, Sirsa.
Member Member
DCDRF, Sirsa DCDRF, Sirsa
