BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.302 of 2015

Date of Instt. 16.07.2015

Date of Decision: 09.05.2017

Amarjit Singh aged about 50 years son of Gurmeet Singh R/o Village Kalra, Tehsil & Distt. Jalandhar.

..........Complainant

Versus

1. Dr. Amit Kumar C/o Guru Nanak Sadh Sangat Charitable Hospital, Kalra, Jalandhar at present Smt. Savitri Memorial, Miglani Hospital, Main Road, Adampur, Doaba, Jalandhar.

2. Guru Nanak Sadh Sangat Charitable Hospital, Kalra through its Chairman Sant Baba Malkit Singh.

3. Dr. Balwinder Singh CMO of Guru Nanak Sadh Sangat Charitable Hospital Kalra.

.........Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh, (President),

Sh. Parminder Sharma (Member)

Present: Sh. Anupam Pathania, Adv Counsel for complainant.

Sh. SK Gupta, Adv Counsel for OP No.1.

Sh. DK Gupta, Adv Counsel for OP No.2 and 3.

Order

Karnail Singh (President)

1. This complaint filed by the complainant, wherein alleged that the complainant is daily wage worker and is having a wife and three children namely Jaswinder Singh aged 21 years, Sujata is 19 years, Jasvir Singh is 18 years. That the complainant is the sole bread earner of the family as the wife of the complainant is house wife and the children of the complainant are also not settled in life and they are still studying. That all the expenses of the family were born by the complainant by doing hard labour. That in the month of August 2014 the complainant started having fever. So, for his treatment the complainant alongwith his wife went to Guru Nanak Sadh Sangat Charitable Hospital Kalra, Jalandhar for his treatment. There for his fever he was treated by OP No.1 and on 11.08.2014, he was given one injection in the left gluteal region. That due to the injection given by OP No.1 the complainant developed redness and swelling at the injection site. That the complainant alongwith his wife again went to OP No.2 because OP No.1 was working there. This time OP No.1 did a minor surgery on the swelling at the injection site by putting a small cut on the swelling at the injection site on 20.08.2014. But due to cut given by OP No.1 on the swelling at the injection site infection developed and the complainant reached to a critical condition due to acute infection. On seen the condition of his client, he was taken to Miglani Hospital on 24.08.2014 and was attended by Dr. Miglani. There on the same day i.e. on 24.08.2014 the complainant was operated for his infection. The complainant remained admitted in Miglani Hospital from 24.08.2014 to 27.08.2014 and huge amount was spent on his operation and medical treatment. Treatment slip is attached. The copy of the ration card and date of birth certificate are also attached.

2. That the operation conducted by Miglani Hospital on the complainant was not successful and the situation started going out of hand, so the wife of the complainant took him to Nova Hospital, Opposite Alka Petrol Pump, Jalandhar Road, Piplan Wala, Hoshiarpur but there also the complainant did not get any relief from his ailment due to negligence of OPs and his acute infection. Then the complainant was taken to PGI Chandigarh where two operations of the complainant were conducted. The complainant had to undergo medical treatment there and had to remain admitted in PGI, Chandigarh from 28.08.2014 to 24.09.2014. After discharge, the complainant is under continuous medical treatment. The infection on the injection site had caused a big wound and because of that the complainant has suffered permanent disablement. The complainant was admitted in Nova Hospital, Opposite Alka Petrol Pump, Jalandhar Road, Piplan Wala, Hoshiarpur on 15.10.2014 and was discharged on 21.10.2014. There he was operated for skin grafting and other procedure. That later on also the complainant had to visit Nova Hospital on 25.10.2014, 13.11.2014, 07.12.2014 and 12.02.2015 treatment slips are attached.

3. That due to the negligent act of OP No.1 in performance of his duty and his professional misconduct which was committed by OP No.1 being doctor Guru Nanak Sadh Sangat Charitable Hospital, Kalra, Jalandhar i.e. OP No.2 and OP No.2 and 3 are also jointly liable for negligent act of OP No.1 is serving in the Guru Nanak Sadh Sangat Charitable Hospital, Kalra, Jalandhar i.e. OP No.2 under the supervision of Dr. Balwinder Singh who was Incharge i.e. OP No.3 and OP No.2 and 3 should have been vigilant in appointing doctors and has failed to perform their duty by appointing such a careless and inefficient doctor. The OP No.1 alongwith OP No.2 and 3 had played with the life of the complainant and because of negligence on the part of OP No.1, the complainant had to go through acute infection on the injection site, then he had to go through surgeries and is still under medical treatment. Complainant has suffered permanent disablement due to the negligent act of OP No.1 alongwith OP No.2 and 3 and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP No.1 and 2 may kindly be directed to pay compensation/damages to the tune of Rs.19 lakhs alongwith interest @ 18% for causing mental tension, pain, agony and harassment to the complainant and a sum of Rs.33,000/- to the complainant towards legal expenses to pursue the present complaint.

4. Notice of the complaint was given to the opposite parties and accordingly OP No.1, 2 and 3 appeared through their respective counsel and OP No.1 filed his separate written statement whereas OP No.2 and 3 also filed their written statement but all the OPs took almost similar plea in their respective written statement. So, accordingly we jointly reproduced the plea taken by OP in their respective complaint by taking preliminary objection that the complaint of the complainant is not maintainable and even the complainant does not fall within the definition of consumer as defined under the Consumer Protection Act, as such, this Forum has got no jurisdiction to decide the present complaint and further alleged that the complainant has not come to the Forum with clean hands and has concealed and suppressed material facts from the Forum and further alleged that the complainant is estopped, barred and precluded from filing the present complaint by his own act and conduct and as such the present complaint is liable to be dismissed. On merits, all the averments made in the complaint are categorically denied and even the OP has specifically denied that the complainant never came to OP No.2 for his treatment nor any injection was given by the OP No.1 on 11.08.2014 and even the complainant was never admitted in the hospital nor any minor operation was conducted by OP No.1 and other allegations made in the complaint are categorically denied and lastly prayed that the complaint of the complainant may be dismissed.

5. In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith documents Ex.C-1 to Ex.C-42 and further tendered the affidavit of Jaswinder Singh Panch Ex.CB and further tendered the affidavit of Balwant Singh Ex.CC and then closed the evidence.

6. In order to rebut the evidence of the complainant, counsel for the OP No.1 tendered into evidence affidavit Ex.OP1/A and similarly counsel for the OP No.2 and 3 tendered into evidence affidavit Ex.OP2/A and OP's also closed their respective evidence.

7. We have heard the learned counsel for the respective party and also gone through the case file very minutely.

8. Precisely, the case set up by the complainant is only that he got a treatment from Guru Nanak Sadh Sangat Charitable Hospital, Kalra, Jalandhar for his fever and accordingly an injection was given by the OP No.1 to the complainant. Due to the injection given by OP No.1, the complainant developed redness and swelling at the injection site and then complainant alongwith his wife again went to OP No.2 because OP No.1 was working under OP No.2 and this time OP No.1 did a minor surgery on the swelling at the injection site by putting a small cut but due to that negligent act infection developed and complainant reached to critical condition due to acute infection and thereafter the complainant got a treatment from Miglani Hospital, Nova Hospital and then admitted in PGI, Chandigarh and in order to prove the treatment taken from Miglani Hospital, Nova Hospital and PGI, the complainant has brought on file certain documents Ex.C-1 to Ex.C-42 which includes the bills for purchase of medicines and further alleged that due to negligent act of OP No.1 in performing his duty and his professional mis conduct, the complainant has suffered mental and physical agony and as such the complainant is entitled for compensation to the tune of Rs.19 lakhs alongwith interest and litigation expenses.

9. To the contrary all the three OP's categorically denied the allegations of the complainant as well as admission in hospital of OP No.2 and also denied that any injection was given by OP No.1 to the complainant nor any minor surgery was conducted by OP No.1 and as such the complainant is not covered under the definition of Consumer.

10. We find that the complainant has to establish on the file that he is a consumer, for that purpose the complainant is required to produce on the file any medical treatment file of the OP hospital but admittedly the complainant has not brought on the file any document where from we can ascertain that the complainant has ever took any treatment from OP hospital. So, mere alleging that he has taken some treatment from OP No.1 who is working under OP No.2 is not sufficient to establish that any treatment was ever given by Dr. Amit Kumar because there is no documentary proof on the file. The complainant is simply making a reliance upon documents i.e. proceedings before the Panchayat and its photostat copy are Ex.C-31 to Ex.C-35. We have gone through these documents and find that the said proceeding of the Panchayat itself not sufficient to establish the negligent and professional misconduct of the OPs. So for the concern of given an amount of Rs.50,000/- by OP No.1 Dr. Amit Kumar is related in regard to that the document Ex.C-34 but in that document no where mentioned that the said amount of Rs.50,000/- is given as a compensation for any misconduct rather it is categorically mentioned in this document that the said amount is given just for a help to the complainant. So from any angle, the complainant is not able prove to be consumer of the OPs.

11. Apart from above, it is admitted that the OPs are charitable hospital and it is universal phenomenon that charitable hospital did not charges any expenses from the patient, if so then the complainant has not paid any charges, therefore, he is not a consumer and in support of this submission, we like to refer a pronouncement of Hon'ble National Commission cited in 2016(2) CLT 76 Logix Blossom Greens Buyers' Welfare Association Vs. Logix Infratech Pvt. Ltd and Others, wherein his Lordhsip held as under:-

“ Charitable Trust, Consumer, whether complainant which is Charitable Trust is a Consumer as per provisions of the Act, held Complainant Association is a Charitable Trust, it does not fall within the definition of Consumer, complaint dismissed in limine.”

12. In view of above detailed discussion, complaint of the complainant is found without merit and the same is dismissed. Complaint could not be decided within stipulated time frame due to rush of work.

13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

09.05.2017 Member President