Punjab

Fatehgarh Sahib

CC/115/2014

ranvir singh - Complainant(s)

Versus

DR Rs Dhindsa - Opp.Party(s)

Sh Pardeep kumar

16 Jun 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

Consumer Complaint  No.115 of 2014

                                                     Date of institution : 21.08.2014                        

                                                   Date of decision    : 16.06.2017

Ranvir Singh son of Mr. Piara Singh, resident of village Panjoli, Tehsil & District Fatehgarh Sahib.

……..Complainant

Versus

1. Dr. R.S.Dhindsa, Dhindsa Clinic, Bus Stand, Kharoura, District Fatehgarh Sahib.
2. Sehat Medicare, 50, Yadvindra Colony, The Mall, Patiala.
3. Mrs. Jaswinder Kaur wife of Dr. R.S.Dhindsa, R/o Dhindsa Clinic, Bus Stand, Kharoura, District Fatehgarh Sahib.
4. Apex Insurance Consultant Ltd.(AICL) 345, Ist Floor Near Canara Bank, B-Block, BRS Nagar, Ludhiana.
5. United India Insurance Company Ltd. Divisional Office, Near Bus Stand, Khanna, District Ludhiana.

…..Opposite Parties

Complaint under Section 12  of the Consumer Protection Act.      

Quorum

Sh. Ajit Pal Singh Rajput, President                       

Sh. Inder Jit, Member

 

Present :        Sh. K.M.S.Dhindsa, Adv.Cl. for the complainant.

                      Sh. G.S.Cheema, Adv.Cl. for OPs No. 1& 3.

                      Sh. Salil Sabhlok, Adv.Cl. for OP No.2.

                      Sh. S.R.Sharma, Adv.Cl. for OP No.5.

                      None for OP No.4

ORDER

 

By Ajit Pal Singh Rajput, President

                      Complainant, Ranvir Singh son of Mr. Piara Singh, resident of village Panjoli, Tehsil & District Fatehgarh Sahib, has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Sections 12 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.           The wife of the complainant, namely; Mrs. Simranjeet Kaur started her treatment from Dr. R.S.Dhindsa(OP No.1) on 24.01.2014 and the complainant paid Rs.1500/- to him. OP No.1 prescribed some allopathic medicines to the wife of the complainant. As per the instructions of OP No.1, the complainant along with his wife visited the clinic of OP No.1 at regular intervals for follow up and paid huge amount to him. On 30.06.2014, when the complainant along with his wife again visited the clinic of OP No.1, the wife of OP No.1, who conducted the deliveries of pregnant women in same premises, checked up the wife of the complainant in a separate room. After the said checkup, OP No.1 told the complainant that there was need to take further treatment from OP No.2 and without explaining anything he gave referral slip to the complainant. The complainant was shocked to see the condition of his wife as she was on trolley and was in severe pain and was also having vaginal bleeding. The complainant took his wife to OP No.2, where the doctors handled the case and after examination told that one baby had been aborted. But the doctors of OP No.2 also aborted the other live foetus after the Sonography report of complainant's wife. The complainant asked the doctor of OP No.2 that why they aborted the second live baby despite the fact that as per Ultra Sonography report the second baby was having normal movements and regular cardiac activity, but OP No.2 did not give any satisfactory reply. The complainant bore an expenditure of Rs.25,000/- for the treatment of his wife at the clinic of OP No.2. The complainant visited the clinics of OP No.1 and 2 to know the cause of death of first baby and second baby respectively. But they were not even ready to listen to the complainant. Rather OP No.1 threatened the complainant that a false case would be got registered in the police station against him. The complainant many times requested OPs No.1 & 2 to provide the complete records/documents regarding the treatment of his wife but they never handed over the same to the complainant. The complainant also served a legal notice on OP No.1 on 14.07.2014 but no reply was received.  Complainant further stated that OP No.1 had the qualification of an Ayurvedic Doctor i.e. B.A.M.S. but during the treatment of his wife he prescribed Allopathic Medicines. The complainant further stated that his wife told him that the wife of OP No.1 inserted something per vaginally and gave an injection after that she had heavy per vaginal bleeding and felt severe pain. The Act and conduct of the OPs amounts to deficiency in service, medical negligency and unfair trade practice on their part. Hence, this complaint for directing the OPs to pay Rs.15,000,00/- as compensation for loss of babies and mental and physical harassment suffered by the complainant.
3. The complaint is contested by the OPs. In reply to the complaint OP No.1 raised preliminary objection that the present complaint is not maintainable in its present form. As regards the facts of the complaint, OP No.1 stated that the wife of the complainant was suffering from irregular menses and was barren, although married for about 7 years. OP No.1 started her treatment and prescribed Allopathic as well as Ayurvedic medicines to her. The medicines were given to enable the wife of the complainant to conceive the child and when she become pregnant, she was advised complete bed rest for minimum 5 months and was also advised to avoid any kind of journey. It is further stated that OP No.1 is perfectly qualified to prescribe the allopathic medicines. After conceiving the child, the complainant and his wife always came for follow up on a two wheelers despite strong advice by OP No.1 not to travel on two wheeler. On 30.06.2014, the complainant brought his wife in a car and the condition of the wife of the complainant was not so good. OP No.1 immediately referred the wife of the complainant to OP No.2, as he did not handle the surgical deliveries. The complainant never visited OP No.1 to know about the alleged cause of death of first foetus and reason of abortion of second foetus.  The entire record regarding the treatment of the wife of the complainant is already with the complainant and no record concerning the treatment was retained by OP No.1.  There is no deficiency in service, medical negligency or unfair trade practice on the part of OP No.1. After denying the other averments made in the complaint, OP No.1 prayed for dismissal of the complaint.
4. In reply to the complaint, OP No.2 stated that wife of the complainant, namely; Simranjeet Kaur came in the emergency department of OP No.2 on 30.06.2014 at 12:50 p.m. with heavy bleeding and leaking per vaginum at 15 weeks of pregnancy. She was being supervised outside and this was her first visit to OP No.2, as she was referred by OP No.1.  She was immediately attended to by the senior Gynecologist of the Hospital Dr. Sukhwinder Kaur Bajwa and on examination she was found to be bleeding per 'Vaginum'. Her foetus was lying in the vaginal canal after having been spontaneously expelled out. Her Placenta was retained and was still in the uterus. The patient was stabilized and an urgent ultrasound of the abdomen was ordered in view of the fact that she was a case of ''Inevitable and Incomplete Abortion with retained placenta'' and also presented with a discrepancy between the height of uterus(26 weeks) and Gestation period(15 weeks). The ultrasound report showed twin pregnancy with two placentas and one foetus. One placenta was lying covering the 'OS' with intra placental hemorrhage, these being clear indications of it being a case of "Incomplete and Inevitable Abortion" with hemorrhage. The patient was still bleeding 'Per Vaginum' after the ultrasound and approximately 350 ml of clots were evacuated 'Per Vaginum' and patient was immediately shifted to the O.T at 3:00 p.m. as her second Foetus (Breech Presentation) was also in the process of expulsion due to it being a case of 'Inevitable and Incomplete Abortion'.  Before shifting the patient to the OT, requisite consent for the management of patient was obtained from the patient and her husband after explaining to them the situation and condition in their own language. In the OT, the expulsion was completed, followed by Check Curettage. Homeostasis was achieved by administering Uterotonic agents. Patient was shifted from OT in satisfactory condition and was advised antibiotics and one unit of blood transfusion in view of the bleeding(Hemorrhage). The said treatment was in accordance with the standard protocol of management of 'Inevitable and Incomplete Abortion' as per text book "Willians Obstetrics". Post operatively, the patient remained stable and was discharged in satisfactory condition on next day i.e. 01.07.2014. In such situations, saving the life of the mother is the priority, which was done in the present case as well. Hence, there is no deficiency/medical negligence/unfair trade practice on the part of OP No.2. After denying the other averments made in the complaint, OP No.2 prayed for dismissal of the complaint.
5. Reply to complaint not filed by OPs No. 3 & 4. Rather the Ld. counsel for OPs No. 3 & 4 made a statement that there are no allegations in the complaint against OPs No. 3 &4, so it is not necessary to file the written version on behalf of said OPs. However, written version of OP No.1 may be read as written version on behalf of OPs No. 3 & 4.
6. In reply to the complaint OP No.5 raised certain preliminary objections, inter alia, that the present complaint is wholly misconceived, groundless, frivolous, vexatious, which is not sustainable in the eyes of law;  no cause of action arises against OPs No. 1 & 3 and the present complaint is not maintainable against OP No.5. As regards the facts of the complaint, OP No.5 stated that OP No.3 is not a qualified doctor and has taken the Diploma in Multipurpose Health Worker from Punjab Nurses Registration Council, Mohali and is a Staff Nurse. OP No.3 had taken the professional indemnity insurance policy from OP No.5 by misrepresenting herself as a doctor and has misled the insurance company.  Moreover, OP No.1 is a BAMS Doctor and is a bachelor in Ayurvedic Medicine and as such, cannot practice Allopathic medicines. As such, OP No.5 is not liable to indemnify. There is no medical negligence or deficiency in service on the part of OPs No. 1 & 3 nor they have adopted any unfair trade practice. After denying the other averments made in the complaint, it prayed for dismissal of the complaint qua it.
7. In order to prove the case, the complainant tendered in evidence affidavit of Mrs. Simranjeet Kaur Ex. C-1,  affidavit of complainant Ex. C-2, attested copies of prescription slip Ex. C-3 to Ex. C-6, attested copies of documents regarding treatment Ex. C-7 to C-12 and closed the evidence.
8.  In rebuttal OP No.1 & 3 tendered in evidence affidavit  of Dr. R.S.Dhindsa Ex. OP1/1, copies of documents i.e. application filed by Simranjeet Kaur Ex. OP1/1, inquiry report dated 04.12.2014 Ex. OP1/2, inquiry report by office of CMO Ex. OP1/3, registration certificate Ex. OP1/4, insurance policy Ex. OP1/5, letter of Punjab government Ex. OP1/6 and closed the evidence. OP No.2 tendered in evidence true copies of documents i.e. consent form Ex. OP2/1, higher risk consent form Ex. OP2/2, book extract Ex. OP2/3, affidavit of Dr. Sukhwinder Kaur Bajwa Ex. OP2/4, certified copy of report of CMO Ex. OP2/5 and closed the evidence. OP No.5 tendered in evidence affidavit of Jatinder Kumar Ex. OP5/1, copy of policy in the name of Dr. Jaswinder Kaur Ex. OP5/2, copy of qualification of certificate of Jaswinder Kaur Ex. OP5/3, copy of letter dated 06.05.2014 written to Jaswinder Kaur Ex. OP5/4,  copy of policy in the name of Dr. Rajinder Singh Dhindsa Ex. OP5/5, copy of registration certificate Ex. OP5/6, copy of letter dated 06.05.2014 written to Dr. Rajinder Singh Ex. OP5/7 and closed the evidence. No evidence was tendered by OP No.4 despite several opportunities, hence its evidence was closed by order.
9. Learned counsel for the complainant has stated that the OPs have committed medical negligence and due to the act and conduct of the OPs wife of complainant lost two babies and is under immense stress and mental agony. He pleaded that the complainant alongwith his wife have deposed i.e Ex.C-1 and Ex.C-2 about the act and conduct of the OPs. He further pleaded that it is established from the material placed on record by the insurance company  that OP No.1 and OP No.3 were not qualified gynecologist and were not even competent to give medication or do check up of a pregnant lady, whose case was complicated and this fact is proved on record. Learned counsel argued that it is also established that OP no. 1 and 3 being not qualified to see Gyne patients, had been doing regular checkup of pregnant ladies in the area and instead of referring the cases to Government Hospitals are referring the cases to OP No.2. Learned counsel further argued that although complainant and his wife cannot be compensated monetarily but they have filed the present complainant to help protect other pregnant ladies.
10. On the other hand, the Learned counsel for the OP no.1 and 3 objected to the submissions made by the Learned counsel for the complainant. He stated that OP No.1 was competent to prescribe the allopathic mediciens as per notification under Drug Rule 2(ee)(3) i.e. the persons holding degree of G.A.M.S/B.A.M.S are eligible for prescribing Allopathic medicine in State of Punjab Ex.OP1/6. Learned counsel argued that the complainant has made false allegations against the OPs in order to blackmail and take out money. He pleaded that OP No.3 never examined the wife of the complainant and all the allegations are false and baseless. He further argued that the present case deserves to be dismissed with heavy costs. He further placed reliance on case laws: 1) Mukhtiar Chand Vs. State of Punjab, (Civil Appeal No.89 of 1987), SLP (C) No.8422 of 1995, WP(C) Bi,423 of 1997 and SLP (C) No.4009 of 1998 decided on 08.10.1998 by Hon'ble Supreme Court. 2) Bolom Vs. Friern Hospital Management Committee,  1957 W.L.R. 582, 586.
11. Learned counsel for OP No.2 stated that OP had adopted the requisite procedure and the doctor who attended the wife of the complainant is a qualified Gynecologist as it is proved from the material placed on record. He submitted that complainant had also filed complaint against OP No.2 with the Civil Surgeon who gave clean chit to OP No.2, Ex.OP2/5. He further submitted that the present complaint be dismissed qua OP No.2.
12. Learned counsel for OP No.5-Insurance Company- stated that OP No. 5 is not liable to indemnify OP No. 1 and OP No.3 as both had procured the Policy by misleading the truth with regard to their qualification and the same is evident from  copy of policy in the name of Dr. Jaswinder Kaur Ex. OP5/2, copy of qualification certificate of Jaswinder Kaur Ex. OP5/3, copy of letter dated 06.05.2014 written to Jaswinder Kaur Ex. OP5/4,  copy of policy in the name of Dr. Rajinder Singh Dhindsa Ex. OP5/5, copy of registration certificate Ex. OP5/6, copy of letter dated 06.05.2014 written to Dr. Rajinder Singh Ex. OP5/7. He stated that Policy does not cover OP No.1 also as he was not competent to conduct the case of Gyne, as only specialist gynecologist  can conduct the case of Gyne and not BAMS doctors. Learned counsel argued that the OP no.1 and OP No.3 have failed to rebut the evidence tendered by the OP No.5, hence his prayer be accepted
13. After hearing the Learned counsel for the parties and going through the pleadings, evidence, written arguments as well as oral submissions, we find that the following points of determination arise in this case;

1. Whether the OPs-Doctors and Nurse were qualified and skilled to handle and deal a case of Gynecologist? And Whether the OP-Doctors and Nurse were skilled enough to provide and recommend medication to a pregnant lady?
2. Whether OPs are guilty of deficiency in service and unfair trade practice?
   14.  

15.                We are of the view that OP No.1 did not possess the qualification of a gynecologist nor he had any skills. OP No.1 was also not qualified to prescribe or give consultation to a complicated Gyne case. OP No.3 was no doubt a qualified Nurse & Midwives but OP No.3 was also not qualified nor skilled to handle a complicated Gyne case. The complainant and his wife have deposed by affidavits Ex.C-1 & Ex.C-2 how the case was handled by OPs No.1 and No.3. OP No.5 has also admitted the contentions made by the learned counsel for complainant. The Apex Court in a case tiled as Poonam Verma Vs. Ashwin Patel, II(1996)CPJ 1(SC)  (Para No.39) held as under:-

                 "That since the law, under which respondent No.1 was registered as Medical Practitioner, required him to practice in HOMOEOPATHY ONLY, he was under a statutory duty not to enter the field of any other System of Medicine as, admittedly, he was not qualified in the other system, Allopathy, to be precise. He trespassed into a prohibited field and was liable to be prosecuted under Section 15(3) of the Indian Medical Council Act, 1956. His Conduct amounted to an actionable negligence particularly as the duty of care indicated by this Court in Dr. LAXMAN JOSHI"s CASE(SUPRA) was breached by him on all the three counts indicated therein".

16.            In our view, OP No.2  is a qualified Gynecologist and possessed the requisite skills to handle such complicated cases. Further the Civil Surgeon had also stated that OP No.2 had not done any negligence, while handling the case as it is proved from the report Ex.OP-2/5.

17.                  Accordingly, in view of observation of Hon'ble Supreme Court in case of Poonam Verma Vs. Ashwin Patel(Supra) and our aforesaid discussion, we decide the points(a & b) against OPs No. 1 & 3.  The case law citied by OPs No.1 & 3 are not applicable to the facts and circumstances of the present case. Thus we find that OPs No.1 and 3 have committed unfair trade practice by providing services to a pregnant lady having a complicated case and by not possessing  qualification of a Gynecologist  nor had any special skills in the field of Gynecology. The Insurance Company had also stated the same fact and verified the same. Thus we leave it open to Insurance Company to decide whether to indemnify the OPs or not. No negligence has been proved against OP No.2.

18.                 Hence we direct OP no. 1 and OP no.3 to jointly pay a compensation amounting to Rs.8,00,000/-(Eight Lakhs) on account of causing mental as well as physical harassment which is unbearable and casing irreparable loss. The complainant is also held entitled to the tune of Rs.10,000/- as litigation costs. The present complaint is dismissed qua OP No.2 and stands allowed against OP No.1 and OP No.3. The compensation and the costs be paid within a period of 45 days from the date of receipt of the certified copy of this order. If the orders are not complied within the stipulated period, it shall carry 9% interest p.a. till its realization.      

19.          The arguments on the complaint were heard on 02.06.2017 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

         Pronounced

Dated:16.06.2017

(A.P.S.Rajput)       

 President

 

(Inder Jit)     

 Member