BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 580 of 2019
Date of Institution : 30.09.2019
Date of Decision : 11.09.2023.
Gurpatar Ram aged about 69 years son of Ram Bharose, resident of Street No.3, near Tubewell, M.C. Colony, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
1. Doctor Subhashini Jain Ex. Medical Superintendent/ Officer Civil Hospital, Sirsa, now Jain Orthopedic Hospital, in front of R.S.D. School, Sirsa, Tehsil and District Sirsa.
2. Dr. Mamta Kamboj, Medical Officer, Civil Hospital, Sirsa, Tehsil and District Sirsa.
3. Smt. Asha Mehta Staff Nurse Civil Hospital, Sirsa.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. PADAM SINGH THAKUR……………PRESIDENT
SMT. SUKHDEEP KAUR ………….…… MEMBER.
SH. OM PARKASH TUTEJA…………….MEMBER
Present: Sh. R.K. Verma, Advocate for the complainant.
Sh. A.K. Gupta, Advocate for opposite party no.1.
Sh. K.S. Dhanju, Advocate for opposite party no.2.
Sh. A.S. Kalra, Advocate for opposite party no.3.
ORDER:-
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (after amendment u/s 35 of C.P. Act, 2019) against the opposite parties (hereinafter referred as Ops).
2. In brief, the case of complainant is that complainant is working on a Dhaba and earns his livelihood hardly after doing labour work. On 11.06.2018 at about 6.00 p.m., complainant suffered abdominal and testicular pain and as such on the next day i.e. on 12.06.2018 he visited to Civil Hospital, Sirsa and after depositing fee of rupees five he went to the room no.2 where ops no.1 and 3 were present. That op no.1 after his check up written Hernia disease on his card, prescribed two types of medicines and also written some tests and asked him to sit outside. That after half an hour Staff Nurse and Doctor Mamta came outside and told to him that there will be no proper care in Civil Hospital Sirsa and operation cannot be conducted there. They also stated that husband of Dr. Subhashini Jain has an Orthopedic hospital near R.S.D. school and he has to pay an amount of Rs.8000/- as doctor fee and his operation will be conducted properly and medicines will also be provided to him. They asked him to come there in the evening. It is further averred that complainant was allured by the ops and on 12.06.2018 after arranging amount of Rs. eight thousand he visited to the hospital of the husband of op no.1 and paid the said amount to op no.1 and ops conducted his operation. That on the next day the husband of op no.1 discharged him from the hospital and assured him that his operation has been conducted properly and he will not suffer any problem in this regard in future. It is further averred that after two months complainant again suffered abdominal and testicular pain upon which he met with the ops in Civil Hospital, Sirsa and they told him that there remained some mistake in the operation and he has to be operated again. That as complainant developed more pain so he gave his consent for second operation. It is further averred that on 15.10.2018 ops again conducted operation of Hernia and he remained admitted in Civil Hospital, Sirsa from 15.10.2018 to 22.10.2018 and had to suffer mental, financial and physical harassment. It is further averred that on 03.03.2019 complainant again suffered abdominal and testicular pain upon which he visited to Dr. Mahipal M.D. who is running Radio Diagnosis Centre with the name of Ridhi Sidhi Research Centre who conducted his ultrasound and told him that his right testicular is not available and Hernia is still there and his operation of Hernia has not been conducted properly due to which he will continuously suffer from abdominal and testicular pain. He also stated that he will have to consume medicines regularly and he was astonished to hear this. It is further averred that first operation was conducted in the hospital of husband of op no.1 after charging amount of Rs. eight thousand, the receipt of which has not been supplied to him despite his several demands and this operation was conducted by op no.1 in the hospital of her husband. That complainant comes under the definition of consumer and the ops in order to conceal their mistake conducted second operation in Civil Hospital, Sirsa on 15.10.2018. Hence, this complaint seeking direction to the ops to refund the amount of Rs.8000/- and also to pay compensation to the tune of Rs.4,50,000/- for causing unnecessary harassment and mental agony and he has become permanent disabled and they be also directed to pay litigation expenses.
3. On notice, ops appeared. Op no.1 filed written statement raising certain preliminary objections that Dr. Subhashini Gupta is employee under the State of Haryana and had been working as Senior Medical Officer, Civil Hospital, Sirsa. She is a very qualified MS General Surgeon and has been working as a Surgeon for the last 20 years and has successfully been conducting the operations of all types (General Surgeries) in the Civil Hospital and has gained a lot of experience. That complaint is bad for non joinder of necessary parties. The Civil Hospital, Sirsa is a necessary party being the employer which has not been impleaded and as such the complaint is liable to be dismissed on this score alone. The State of Haryana is vicariously liable for all the acts done by the employees. It is further submitted that being an employee of the Govt. of Haryana, the Consumer Protection Act is not applicable to Dr. Subhashini Gupta and complaint is liable to be dismissed on this score alone. That Dr. Subhashini has not charged a single penny from the complainant or from any other patient who comes to Civil Hospital, Sirsa. The services of surgery are provided to the beneficiaries free of costs by the health department, State of Haryana under “Mukhiyamantri Mufat Illaz Yojna” under which no charges are made by the patients. It is further submitted that complaint is wholly misconceived, groundless, frivolous which is unsustainable in the eyes of law and has been filed without any justified reason or cause against the answering op just to harass, defame and extort illegal sums of money from the answering op, hence complaint is liable to be dismissed with heavy costs. That no specific scientific and justified allegations in regard to the negligence or deficiency in providing services has been made by the complainant against the answering op and complainant has totally failed to explain as to who he is involved and how answering op was negligent and in fact op no.1 has not committed any negligence while providing the said treatment. It is further submitted that complainant never reported to Civil Hospital or the answering op on 12.06.2018 and this version of complainant is a totally concocted version. Even the hospital records also testify this fact that the complainant never visited the civil hospital on 12.06.2018 nor has paid any alleged amount of Rs.5/-. Further Dr. Mamta on 12.06.2018 was not working at Sirsa Civil Hospital. She had been posted on deputation at Civil Hospital, Sirsa for four months on 21/22 June, 2018 and she had joined Civil Hospital, Sirsa on 26.06.2018 and as such the allegations of complainant that he was advised by Dr. Mamta on 12.06.2018 to get himself operated from Jain Hospital outside the Civil Hospital are baseless and complainant has not come to this Commission with clean hands. That complainant had made a complaint on CM Window before filing the present complaint which was entrusted to the Civil Hospital, Sirsa and a thorough enquiry was made into the allegations of the complainant by the Civil Hospital Authorities and it was categorically found that there was no negligence on the part of the treating doctor. The procedure was done as per the medical/ surgical protocols and complaint was as such filed. The complainant has concealed this fact from this Forum (now Commission) and as such complainant is guilty of concealing the true and material acts and is not entitled to any relief whatsoever and complainant is estopped by his own act and conduct.
4. On merits, it is submitted that on 12.06.2018 complainant never visited Civil Hospital, nor paid any amount of Rs.5/- as alleged by him. The Civil Hospital maintains a regular record of the patients and charges of the OPD. The record of Civil Hospital clearly depicts that no such patient ever visited on 12.06.2018 as alleged. It is further submitted that it is incorrect that complainant was operated by the answering op in Jain Hospital, Sirsa on 12.06.2018 or that she ever charged Rs.8000/- from the complainant. That complainant for the first time had come in OPD on 01.10.2018 vide UHID No. 402010247310 according to Hospital records and accordingly the answering op had advised laboratory tests which were got done by him on 04.10.2018. The answering op had found the complainant to be suffering from Right Inguinal Hernia. However, it is incorrect that answering op ever told the complainant for second operation as alleged. It is further submitted that after getting the informed consent from the complainant as per the hospital norms the complainant underwent right hernioplasty with orchidectomy under spinal anesthesia on 16.10.2018 as per bed head ticket vide CR no. ADM/21805/2018 after laboratory investigations and pre-anesthetic checkup. The operation was conducted as per the recognized and accepted medical norms. It is further submitted that as the patient was elderly of advanced age of 70 years approximately so as per the medical norms and recognized principle of surgeries in such cases the orchidectomy and hernioplasty was done. This patient after the operation was discharged on 22.10.2018 and his treatment remained uneventful and satisfactory during the hospital stay. The complainant thereafter had visited the Civil Hospital on 30.10.2018 and the condition of the patient was found to be satisfactory. It is further submitted that complainant has not disclosed as to how and under whose prescription the complainant had got his ultrasound done from Ridhi Sidhi Diagnostic Centre. The complainant was well aware of the fact that right testis has been removed during his operation, as per the recognized medical principles. The whole procedure of surgery was made clear to the complainant before the operation. As regards the recurrence of inguinal hernia, the same is very common. The recurrence rate persists from 14.8% at the age of 40 to 59 years and to 22.8% at the rate of 60 to 74 years, which can be due to chronic cuff, prostatism, poor tissue quality, age and being to active soon after the surgery and smoking etc. and so many other factors. It is further submitted that it is incorrect that answering op had ever conducted any operation in Jain Hospital. With these averments, dismissal of complaint has been prayed for.
5. Op no.2 also filed written statement taking certain preliminary objections that complainant is not a consumer of the answering op, hence complaint is not maintainable and that this Forum has got no jurisdiction to entertain, try and decide the present complaint and complaint is bad for non joinder and mis joinder of necessary party because the answering op has been impleaded unnecessarily in this complaint as at the time of alleged surgery i.e. on 12.06.2018 the answering op was not posted at Civil Hospital, Sirsa and that complainant has not come with clean hands and has concealed the true and material facts and as such complainant is not entitled to any relief, that complainant has no legal and valid cause of action or locus standi to file the present complaint against the answering op and complainant is estopped to file the present complaint by his own act and conduct against the answering op. On merits, it is submitted that in fact the answering op had joined Civil Hospital, Sirsa on 29.06.2018 vide receipt no. 2258 according to the order of Health Department (Govt. of Haryana) via endorsement no. 25/30/2018-6HB-1 dated 21/22 June, 2018. Prior to joining at Civil Hospital, Sirsa the answering op was posted at Civil Hospital, Sonipat. While denying all other contents of complaint, it is submitted that contents of para no.5 of the complaint are correct to the extent that answering op had given anesthesia to the complainant at the time of surgery at Civil Hospital, Sirsa. After surgery the complainant was in normal condition and was shifted to wards. There is no negligence of deficiency on the part of the answering op. The answering op was not posted in Civil Hospital, Sirsa at the time of alleged first operation of the complainant. With these averments, dismissal of the complaint prayed for.
6. Op no.3 also filed written statement taking certain preliminary objections that complaint against answering op is not maintainable on the ground that answering op is discharging her duty as Staff Nurse in Civil Hospital, Sirsa and she has no concern and connection with the diagnose, rather is to abide by the directions given by treating doctor after diagnose, admission, if any as per duty roster and complainant never met answering op on 12.06.2018 as alleged by complainant as answering op was on earned leave from 11.06.2018 to 20.06.2018, hence present complaint is liable to be dismissed qua answering op. That ingredients for maintaining the complaint before this Commission are not satisfied, hence complaint is liable to be dismissed and that complainant has concealed true and material facts from this Commission and has misled the Commission by leveling false and frivolous allegations against answering op and that answering op has been impleaded as party in her personal capacity knowingly very well that her job is transferable and she has nothing to do with the diagnosis and surgery etc. and her duty is limited to the extent of looking after the patient and assisting the doctor in operation theatre mainly by handing over the surgical instruments in performance of surgery and to give the medicine, treatment prescribed by doctor, hence complaint against answering op in her personal capacity is liable to be dismissed. On merits, the contents of complaint are denied to be wrong, pleas of preliminary objections are reiterated and prayer for dismissal of complaint made.
7. The complainant in evidence has tendered his affidavit Ex. CW1/A and copies of documents Ex. C1 to Ex.C11.
8. On the other hand, op no.1 has tendered her affidavit Ex. RW1/A and copies of documents Ex. RW1/1 to Ex. RW1/6. OP no.2 has tendered her affidavit Ex.R2 and copies of documents Ex.R2/A and Ex.R2/B. OP no.3 has tendered her affidavit Ex.R3 and document Ex. R3/A.
9. We have heard learned counsel for the parties and have gone through the case file carefully.
10. The complainant has alleged that on 11.06.2018 due to abdominal and testicular pain he visited to Civil Hospital, Sirsa on 12.06.2018 and paid registration charges of Rs.5/- where op no.1. Dr. Subhashini Jain after his check up stated that he has disease of Hernia and thereafter ops no.2 and 3 allured him to get conducted operation of Hernia in the hospital of husband of op no.1 as there will be no proper care and proper operation in the Civil Hospital, Sirsa. The complainant has also alleged that they also asked him to arrange an amount of Rs.8000/- for the said operation in the hospital of husband of op no.1 and as such complainant paid an amount of Rs.8000/- to op no.1 and op no.1 conducted his operation on 12.06.2018 but said operation was failed and was not successful as he again suffered from abdominal and testicular pain just after two months of the operation. Since it is the allegation of the complainant himself that first operation was conducted by op no.1 in the hospital of her husband after charging an amount of Rs.8000/- though no receipt in this regard is placed on file, the hospital of husband of op no.1 as well as her husband were necessary parties to be impleaded in the complaint but complainant has not impleaded them as opposite parties. Further more, op no.1 doctor was posted in Civil Hospital at the relevant time i.e. at the time of both the operations of complainant, so Civil Hospital, Sirsa was also a necessary party in this case but complainant has also not impleaded Civil Hospital, Sirsa as a party for the reason best known to him. Further more, the allegations of complainant that ops no.2 and 3 allured him for operation in the hospital of husband of op no.1 are false and baseless because op no.2 as well as op no.3 were not present in Civil Hospital on 12.06.2018 as op no.2 joined Civil Hospital, Sirsa only on 29.06.2018 (FN) on deputation as is evident from joining report Ex. R2/A and she was posted in Civil Hospital, Sirsa on deputation from Civil Hospital, Sonepat as per order dated 19.06.2018 passed by Additional Chief Secretary to Government of Haryana, Health Department (Ex.R2/B). So there was no reason for op no.2 to be present in Civil Hospital, Sirsa on 12.06.2018 as alleged by complainant. The op no.3 was on earned leave from 11.06.2018 to 20.06.2018 as is evident from office order passed by Medical Superintendent, Civil Hospital, Sirsa Ex. R3/A. Moreover, the Hon’ble Supreme Court of India in case titled as Civil Hospital & Ors. Versus Manjit Singh & anr. Civil Appeal No. 6208/ 2022 decided on 06.09.2022 while giving reference of their earlier decision in case titled as Indian Medical Association Vs. V.P. Shantha & Ors. (1995) 6 SCC 651 in which it was held that Doctors and hospitals who render service without any charge to every person availing of the service would not fall within the ambit of ‘service’ under Section 2 (1) (O) of the Act and the payment of a toen amount for registration purposes only would not alter the position in respect of such doctors and hospitals allowed the appeal filed by Civil Hospital and others and the order passed by Hon’ble NCDRC granting compensation to the respondent was set aside. Similarly, the Hon’ble Supreme Court of India in case titled as Nivedita Singh Versus Dr. Asha Bharti & Ors. CA No (s) 103 of 2012 decided on 7.12.2021 relied upon by learned counsel for ops has held and concluded that the services rendered by employee- medical officer of Civil Hospital to a person free of charge would continue to be service rendered free of charge and would be outside the purview of Section 2 (1) (O) of the Act. Further more, the complainant has also failed to prove on record that there was any medical negligence of op no.1 doctor or ops no.2 and 3 and in the complaint filed by complainant on C.M. Window, it was found that there is no negligence on the part of treating doctor and procedure was done as per medical/ surgical protocols and as such his complaint was filed. The complainant has not placed on file any expert opinion to prove any medical negligence of the ops and the complaint of the complainant deserves dismissal on the grounds mentioned above.
11. In view of our above discussion, we do not find any merit in the present complaint and same is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced. Member Member President,
Dated: 11.09.2023. District Consumer Disputes
Redressal Commission, Sirsa.
