Haryana

Karnal

CC/506/2020

Beero Devi - Complainant(s)

Versus

Dr. Anurag Kaushal, Shri Balaji Aarogyam Hospital Private Limited - Opp.Party(s)

Om Parkash Kashyap

23 Apr 2024

ORDER

BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION KARNAL.

 

                                                Complaint No.506 of 2020

                                                Date of Inst: 11.11.2020

                                                Date of Decision: 23.04.2024

 

Beero Devi aged about 42 years wife of Shri Sohan Lal, resident of Village Munak, Tehsil Ballah, District Karnal.

…… Complainant

Versus

1.     Dr.Anurag Kaushal, Shri Balaji Aarogyam Hospital, Pvt. Ltd. Behind old Bus Stand, Kurukshetra.

2.     Dr.Dhankhar, Mayo Healthcare Super Speciality Hospital, Sector-69, Near Gurudwara Singh Shaheedan, Mohali (Punjab).

3.     United India Insurance Company Limited Branch Shakti Colony, Mall Road, Karnal, through its Branch Manager vide policy No.1103002719P111654077.

4.     ICICI Lombard General Insurance Company Limited, Branch Office SCO-3, 2^nd Floor, Sector-8, HUDA Market, Karnal, through its Branch Manager vide policy No.4021/195939311/00/000.

                                                                 …… Opposite parties.

Complaint Under Section 35 of Consumer Protection Act, 2019 as amended upto date.

 

Before:    Shri Jaswant Singh…………President

                Sh.Vineet Kaushik……….Member

                Dr.Suman Singth…………Member

 

Argued by: Shri O.P.Kashyap, counsel for complainant.

                Shri Rajan Gupta, counsel for OP No.1.

                Shri Virender Adlakha, counsel for OPs No.2 & 3.

                Shri Gaurav Gupta, counsel for OP No.4.

                (Jaswant Singh President)

ORDER:

                The complainant has filed the present complaint under Section 35 of Consumer Protection Act, 2019 against the Opposite parties (hereinafter referred as the ‘OPs’) on the averments that on 28.05.2020 the complainant visited village Jogna Khera, District Kurukshetra to meet her relatives where she fell ill and was suffering from fever and in order to provide medicine the relatives of complainant took her to the hospital of opposite party no.1 and on checking / examining the complainant, opposite party no.1 advised to the complainant for an Ultrasound. On the reference of opposite party no.1 the complainant get an Ultrasound done from Akash Imaging Center on 28.05.2020. Based on the report of Ultrasound, opposite party no.1 told the complainant that both the kidneys of the complainant is defective as one kidney is completely dead and the second kidney of the complainant is working 25% only and opposite party no.1 started with detail diagnosed to the complainant. During the treatment, opposite party no.1 installed a pipe (drain) in the Kidney of the complainant by saying that it is a part of treatment as through this drain the bad articles / puss would came out through this drain. Due to the installation of said pipe, condition of complainant became miserable as from that pipe / drain the blood started leaking and immediately the complainant approached the opposite party no.1 and then opposite party no.1 removed the said drain / pipe from the body / kidney of the complainant. Thereafter opposite party no.1 advised the complainant to get herself examined from any higher institute and referred complainant to Fortis Hospital and on the advise of opposite party no.1 the complainant got herself examined from Fortis Hospital, on 13.06.2020 and spent an amount of Rs.17,000/- for her checkup. Thereafter on the report of doctor of Fortis Hospital, opposite party no.1 on 20.06.2020 told that the condition of patient is very bad as one kidney is completely damaged and another kidney is working 25% and opposite party no.1 demanded Rs.1,70,000/- from the complainant saying that the opposite party no.1 will remove the dead kidney and repair / clean the other kidney of complainant and then the condition of the complainant will improve. The family members of complainant to get the surgery done to save the life of complainant deposited Rs.1,70,000/- with to opposite party no.1 and for the treatment / operation of the complainant, called the opposite party no.2 by saying that OP no.2 is a specialist for doing such type of surgeries. Dr.Dhankad OP No.2 visited the hospital of OP no.1 and examined the complainant. The complainant and her other family members were shocked and surprised when Dr.Dhankad told that there is no fault in the kidneys of complainant and she is absolutely fine and there is no need of any cleaning of kidneys of complainant. Thereafter the complainant was discharged from the hospital. the complainant alongwith her husband visited to OP no.1 and requested to return the deposited amount of Rs.1,70,000/- which was received by opposite party no.1 from the complainant for removing and cleaning the kidneys of the complainant, whereas the kidneys of the complainant were OK, but OP no.1 refused to return the said amount of Rs.1,70,000/- by saying that Dr. Dhankhad i.e. OP no.2 has received the said amount from the complainant. OP no.1 in connivance with the other doctors and ultrasound firms played a fraud upon the complainant as the kidneys of the complainant was / is working properly, but by managing the reports OP played a fraud upon the complainant and also grabbed a huge amount of about Rs.7,80,170/- from the first date of getting treatment from OP no.1 till the end. Aggrieved from the acts of opposite parties the complainant got served a registered legal notice to the OP on 02.09.2020 through his counsel calling upon to pay Rs.7,80,170/- alongwith interest @ 18% and further compensate to the complainant with Rs.5,00,000/- compensate the complainant, the notice was duly served upon the opposite parties, but neither the opposite parties made the payment to the complainant nor given any reply to the notice of the complainant. Hence the complainant was left with no other alternative, but to file the present complaint.

2.             On notice, OPs appeared and filed their separate written version. OP No.1 in its written version has raised preliminary objections regarding maintainability, cause of action, etc. On merits, it is pleaded that Dr.Anurag Kaushal, a qualified and experienced general physician and is duly registered with State Medical Council. OP No.1 has a clean and spotless professional career/track record and has been keeping himself updated in their professional skills and knowledge through various conferences and programs relating to his field. The complainant, without any rational basis or justification, has claimed an exorbitant amount of Rs.7,80,170/- alongwith interest @ 18% and Rs.5 lacs as compensation for causing deficiency in service, unfair trade practice, harassment, financial loss, mental agony and Rs.11,000/- as litigation expenses to the complainant. Such fictitious claims, which have been made without any germane justification or cogent grounds. The present complaint is not supported by any expert medical witness on behalf of the complainant. The complainant was diagnosed with Sepsis as well as U.T.I. with Pyelonephritis and was admitted for the conservative management of same. The patient was treated in General Ward with IV Antibiotics, Antacids, antipyretics and other relevant symptomatic treatment. She responded to the treatment, and her drain was removed and she was discharged on 02.06.2020 under stable condition with follow-up advice in OPD. The patient came for follow-up in OPD on 08.06.2020 and was advised DTPA scan. (DTPA scan is done to assess blood supply, function and flow of urine from the kidneys. It helps to assess, how each kidney is working and to find a cause of high blood pressure). The patient again came to Hospital on 14.6.2020 with complaint of high-grade fever with chills and rigors, decreased appetite and pain in left flank region with H/o hypertension with irregular intake of antihypertensive drugs. The patient was admitted for conservative management and treatment was started accordingly. Based on various test reports, option of Nephrectomy was considered and opinion of Urologist was received on 19.6.2020. Retrograde Pyelography (RGP) left was done by the visiting Urologist, Dr.Viren Dhankar which showed "Splaying of Upper & middle calyces due to extrinsic SOL (space occupving lesion). No pus seen emerging from Left Kidney (Pelvicalyceal)". Based on the findings, plan for left Nephrectomy was abandoned by the Urologist, Dr. Viren Dhankar and he attempted to do Percutaneous nephrostomy (PCN) but was unable to do so. CECT KUB [Contrast Enhanced Computerized Tomography (CECT) scan of the Kidneys Ureter Bladder (KUB)] was done on 20.6.2020 that showed Large infected peripherally collection in relation to upper and middle pole calyces of left kidney extending to peri-nephric space, compressing renal calyces containing heterogeneous fluid with air foci within the peri-nephric fat stranding. USG guided PCN was done by the Urologist, Dr.Viren Dhankar and the patient was managed with IV Antibiotics and other. The OP treated the complainant diligently according to her disease with reasonable care and skill and as per accepted medical standards. Thus, there is no deficiency in service and unfair trade practice on the part of OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.       

3.             Learned counsel for OPs No.2 & 3 had given separate statement that the written version filed on behalf of OP No.3 be read as part and parcel on behalf of OP No.2.

4.             OP No.3 filed its separate written version raising preliminary objections regarding maintainability, cause of action, estoppels etc. On merits, it is pleaded that the best treatment has been given to the complainant. The reply given by OP No.1 be read as part of reply on behalf of OP No.3.  There is no deficiency in service and unfair trade practice on the part of OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             OP No.4 filed its separate written version raising preliminary objections regarding maintainability, concealment of true and material facts, bad for mis-joinder and non-joinder of necessary parties, estoppels etc. On merits, it is pleaded that the case pertains to professional indemnity doctors. No claim is reported/intimated b the doctor so present complaint deserves dismissal qua OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.  

6.             Parties then led their respective evidence.

7.             Learned counsel for complainant has tendered into evidence her affidavit Ex.CW1/A, copy of Aadhar Card Ex.C1, postal receipts Ex.C2, copy of legal notice Ex.C3, copy of nurse note Ex.C4, copies of medical records Ex.C5 to Ex.C38 and closed the evidence on 17.04.2023 by suffering separate statement.

8.             Learned counsel for OP No.1 tendered into evidence affidavit of Dr.Anurag Kaushal, as Ex.OPNo.1/A, copy of degree Ex.R1, copy of insurance Ex.R2, copy of treatment record and discharge summary Ex.R3 and closed the evidence on 22.09.2023 by suffering separate statement.

9.             Learned counsel for OP No.2 tendered into evidence affidavit of Dr.Virender Dhankar as Ex.OP2/A and closed the evidence on 07.12.2023 by suffering separate statement.

10.           Learned counsel for OP No.3 tendered into evidence affidavit of Ramesh Kumar Chawla, DM as Ex.OP3/A and closed the evidence on 07.12.2023 by suffering separate statement.

11.           Learned counsel for OP No.4 tendered into evidence affidavit of Divyam Suri, Legal Manager as Ex.RW4/A and copy of professional indemnity policy Ex.R4/A and closed the evidence on 03.08.2023 by suffering separate statement.

12.           We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

13.           Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that OP No.1 got prepared false tests report and grabbed huge amount of Rs.7,80,170/-, whereas OP No.2 has clearly stated that there was no damage in the kidney of the complainant and when the complainant demanded back the said amount from the OP No.1, then he refused to return the same and lastly prayed for allowing the complaint.  

14.           Per-contra, learned counsel for OP No.1 while reiterating the contents of written version has vehemently argued that the complainant was duly treated for the illness from which she has suffered and this fact was very well proved from the medical treatment record attached with the complaint. Moreover, no excess amount has been charged from the complainant. The reasonable amount was charged from the complainant only for the treatment which was given to her. There is no deficiency in service on the part of OP and lastly prayed for dismissal of complaint.

15.           Learned counsel for OPs No.2 & 3, while reiterating the contents of written version, has vehemently argued that Dr.Anurag Kaushal has treated the complainant diligently and prudently with utmost care and there was no medical negligence on the part of the doctor. There is no role play of OPs No.2 & 3. The Ops are not party to the payment and receipt of the amount as alleged by the complainant and lastly prayed for dismissal of complaint.

16.           Learned counsel for OP No.4 while reiterating the contents of the written version has vehemently argued that no case pertain to doctor was every reported to the OP which constitute gross violation of terms and condition of policy. Moreover, the first liability to pay the award amount, then the answering OP will pay the same to the concerned doctor and lastly prayed for dismissal of complaint.  

17.           We have duly considered the rival contentions of the parties.

18.           The complainant has alleged that on 28.05.2020, the complainant suffered from fever and she took to the hospital of opposite party no.1, ultrasound was conducted and both kidneys of the complainant were found defective by OP No.1. OP No.1 started diagnosis of the complainant and received Rs.1,70,000/- from the complainant on account of removing the completely dead kidney by Dr.Dhankad i.e. opposite party No.2 and on checking by Dr.Dhankad, it came to know that there was no fault in the kidneys of complainant. Complainant requested the OP No.1 to refund of Rs.1,70,000/- which was obtained for removing the dead kidneys, but opposite party no.1 refused to refund the same. The onus to prove her case was relied upon the complainant but complainant miserably failed to prove her case by leading cogent and convincing evidence. In this regard, we place reliance on the judgment titled as C.P. Sreekumar (Dr.), MS (Ortho) versus S. Ramanujam, wherein Honb’ble Supreme Court of India has held that the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.”

19.           Furthermore, there is nothing on file that the complainant has paid Rs.1,70,000/- to the OP No.1 for removing the dead kidneys. It is not the case of the complainant that she was not treated properly by the OPs. .Moreover, from the medical treatment records Ex.R2, it is clearly proved that initially the complainant was suffering from left Renal drain in situ and Pus was discharged by installing a drain, when she responded to the treatment, thereafter, she was discharged in a stable condition with follow-up advise. When the pus was already cleaned through drain and the body responded then it is a common knowledge that there will be improvement in the condition of the patient. Thereafter, tests were conducted and Dr.Viren Dhankar and found “no pus seen emerging from left kidney”.

20.           Furthermore, it is bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

21.           The complainant has alleged that OPs have grabbed a huge amount of Rs.7,70,170/- from her but there is nothing on the file that the OPs have charged the said amount from the complainant. Thus, it appears that the complainant has concocted a false story in order to extort money from the OPs.  

22.           Thus, as a sequel to abovesaid discussion, the present complaint is devoid of any merits and same deserves to be dismissed and same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated:23.04.2024                                                             

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Suman Singh)

                           Member                          Member