Haryana

Ambala

CC/120/2018

Chakardhar - Complainant(s)

Versus

Dr. Ashok Sarwal - Opp.Party(s)

16 Aug 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint Case No.:           120 of 2018.

                                                          Date of Institution           :   11.04.2018.

                                                          Date of decision    :   16.08.2021.

 

Chakardhar son of Shri Vam Dev, resident of H.No.1133/4, Kalal Majri, Ambala City.

                                                                             ……. Complainant.

                                                Versus

 

1. Dr. Ashok Sarwal, Sarwal Hospital, 4, Civil Lines, Nr: Arya Chowk, Opp. Telephone Exchange, Ambala City.
2. The Oriental Insurance Company Ltd., through its Divisional Manager/Authorized person, 4E/14, Azad Bhawan, Jhandelwalan, Ext. Delhi-110055.

           ..…..Opposite Parties.

         

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                                                

Present:       Shri Rajiv Walia, Advocate, counsel for the complainant.

Shri S.S.Garg, Advocate, counsel for the OP No.1.

Shri Dev Batra, Advocate, counsel for the OP No.2.      

 

Order:        Smt. Neena Sandhu, President.

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To refund Rs.90,000/- paid to the OPs, for treatment of the complainant.
2. To pay Rs.9,00,000/- as compensation on account of financial loss, loss of health & mental agony and physical harassment suffered by the complainant.
3. To pay Rs. 10,000/- as litigation expenses.

                                      OR         

          Any other relief which this Hon’ble Commission may deem fit.

 

Brief facts of the case are that on 25.08.2016 at about 2/2:30 pm, complainant was getting down from the bus at Bus Stand, Ambala City, suddenly he slipped and fell down from the bus and his left elbow got fractured. Complainant was immediately taken to Civil Hospital, Ambala and was referred to PGI, Chandigarh. Since the condition of the complainant was critical, therefore, he was taken to the Hospital of OP No.1, where he was examined by OP No.1 and got admitted in the Hospital, thereafter, operation of left elbow of the complainant was conducted by the OP No.1, after taking charges of Rs. 35,000/-. Besides this complainant had spent Rs. 40,000/- on medical tests, medicines and transportation etc. Complainant was discharged from the Hospital on 27.08.2016. After some days, after removal of stitches, the complainant found that the bone of his left elbow was not fixed properly and it was fixed in tortuosity shape. Little finger of left hand of the complainant became senseless and was found unfit for movement. Complainant immediately complaint about this to OP No.1, who advised him to take some medicines. Complainant took all the prescribed medicines, but of no use. OP No.1, also advised to take treatment from physiotherapist and he took treatment from physiotherapist for two to three months. OP No.1, used to charge fee, every time from the complainant, whenever he visited the hospital for check-up. On 05.09.2017, when the condition of the complainant became very critical, then he was taken to the Government Multi Specialty Hospital, Sector-16, Chandigarh. On checking, concerned doctor opined that ‘failed implant’ and on 15.09.2017, he was again operated. It is stated that operation/implant was not conducted by the OP No.1 properly and was failed due to the negligence of the OP No.1, as a result whereof he remained on bed for a long time and could not do his work.  Due to the act of the OP No.1, complainant has suffered a lot of financial loss and also gone through mental agony and physical harassment. By not refunding the amount which the complainant had incurred on his treatment, the OPs have committed deficiency in service.  Hence, the present complaint.

2.                Upon notice, OP No.1 appeared through counsel and filed written version and raised preliminary objections regarding maintainability and jurisdiction. On merits, it is stated that it is sole negligence of the patient, which led to fall from the bus, which further led to the causing of the severe fracture. Everything had happened due to the original trauma caused by negligent fall from bus, for which answering OP is not responsible. It is stated that the patient was critical and spent money for his treatment caused by his own negligence. Patient aged about 57 years was admitted in this hospital on 26.08.2016 at about 01:00 pm, after falling from the bus, which has caused communicated intra-articular fracture lower end of left humerus with ulnar nerve paralysis, which is extremely bad with poor prognosis. The patient was operated upon diligently, prudently, with utmost due care and caution on the same day i.e. 26.08.2016. Double plating of lower end of the humerus was done after olecranon osteotomy, which is a standard and suitable treatment for these types of bad fracture. Patient is a chronic smoker and chronic alcoholic, which make all bones osteoporotic. In the X-ray report it is mentioned there are osteoporotic changes in the fractured bones. The patient already had ulnar nerve paralysis occurred at the time of injury, as bony fragments are very likely to cause injury to the nerve which is lying very close to the fracture fragments. Nerve was also explored and neuroraplasty was done, during operation to treat ulnar nerve paralysis. Patient was discharged on 27.08.2016, in satisfactory condition. Little finger was numb, due to pre operative ulnar nerve paralysis, caused by original trauma due to the patient’s own negligence. Whatsoever used to be charged from the patient, the receipts were handed over to the complainant. It is stated that everything was done diligently, prudently, with  utmost due care and caution in treating the said patient. There is no negligence, deficiency in service or unfair trade practice on the part of answering OP, thus complaint filed against it, deserves dismissed with costs.  

                   Upon notice, OP No.2, appeared through counsel and filed written version and raised preliminary objections regarding maintainability and jurisdiction. On merits, it is stated that all claims are subject to terms and conditions of the insurance policy. Even otherwise as per provisions of  Professional Indemnity Doctors policy, if negligence is proved compensation can be awarded as per the terms and conditions of the policy provided, insured submit the claim before the insurer. As gathered patient had suffered due to his own negligent fall from the bus causing, comminuted intra-articular fracture lower end of left humerus with ulnar nerve paralysis, which is extremely bad with poor prognosis. The OP No.1 had operated the complainant diligently, prudently with utmost due care and caution on the same day i.e. 26.08.2016. Thus, there is no medical negligence on the part of the OP No.1 thus it is not liable to indemnify the complainant. Even otherwise also complainant has no privity of contract with it. Complaint filed by the complainant against the OP No.2, deserves dismissal.

3.                Complainant tendered his affidavit as Annexure C-A alongwith documents as Annexure C-1 to C-40 and closed the evidence. On the other hand, learned counsel for OP No.1 tendered affidavit of Shri Ashok Sarwal son of Shri P.N.Sarwal, C/o Sarwal Hospital, Ambala City as Annexure OP1/A alongwith documents Annexure OP1/1 to OP1/9 and closed the evidence on behalf of OP No.1. The learned counsel for OP No.2 tendered affidavit of Shri S.K.Madan, Sr. DM, Oriental Insurance Company Limited, D.O, Ambala Cantt. as Annexure OP2/A alongwith document Annexure OP2/1 and closed the evidence on behalf of OP No.2

4.                We have heard the learned counsel for parties and carefully gone through the case file and the written arguments filed by the OP No.1.  

5.                Learned counsel for the complainant has argued that OP No.1, conducted the operation of the complainant for implant to join the fractured bone of left hand elbow of the complainant. But due to negligence of OP No.1, the implant was not done properly as a result whereof he was again operated upon on 05.09.2017, at Government Multi Speciality Hospital, Sector-16, Chandigarh.

6.                The learned counsel for the OP No.1 argued that the operation for implant was done with due care diligence as per medical norms by the well qualified doctor. There are many reasons for implant failure and treating doctor cannot be blamed for the same. The OP No.1 has not committed any medical negligence during operation or thereafter. The said fact got fortified from the expert report dated 27.04.2020, furnish by the penal of experts in the field of orthopaedics, so constituted by the direction PGIMER, Chandigarh, as sought for by this Ld. Commission, vide order dated 11.02.2020.

7.                The learned counsel for the OP No.2 argued that from the expert report it is abundantly clear that no medical negligence has been committed by the OP No.1, therefore, OP No.2 being insurer of the OP No.1 has no role to play. The complaint filed by the complainant against the OP No.2 may be dismissed with costs.

8.                From perusal of expert report it is evident that the said medical board has opined as under:-

(i).     “The medical board is of the opinion that injury to the Ulnar nerve due to supracondylar fracture resulting in laceration/partial tear of the nerve has poor chances of recovery. Ulnar nerve symptoms occur in average 19.6% (up to 23.3%) patients. This is further aggravated by the fact that the patient is a chronic smoker. It is well known that chronic smoking predisposes to poor chances of recovery from ulnar nerve injury.

(ii).    Sypracondylar-intercondylar fractures of the Humerus may go into mal-union/non-union rate in an average 6% (maximum up to 24%) of operated patients, this is a known complication.

(iii).   The medical board did not find any evidence of negligence while treating left supracondylar fracture of the Humerus. Treatment was being provided according to the established standards of care for ‘Supracondylar fracture with Ulnar nerve injury”.

                    In the case of Baljit Singh Versus Kumar Hospital & Another 2017 (2) CLT 72 (NC), the Hon’ble National Commission, New Delhi has held that if the screws or plates have loosened, for some reason after surgery, the doctor who conducted the surgery cannot be blamed.

                    In view of the report given by the experts, who after hearing the patient i.e complainant, treating doctor and going through the record have opined that there is no negligence on the part of the OP No.1 and the law laid down by the Hon’ble National Commission, New Delhi in the case referred to above, we hold that there is no medical negligence on the part of the OP No.1 and thus the complaint filed by the complainant against it is liable to be dismissed. Since, no medical negligence has been proved against the OP No.1(insured), therefore, the complaint filed against OP No.2 (insurer), is also liable to be dismissed.

                   In view of aforesaid discussion, we hereby dismiss the present complaint, being devoid of merits. The parties are left to bear their own costs. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 16.08.2021.

 

 

 

          (Vinod Kumar Sharma)        (Ruby Sharma)                   (Neena Sandhu)

              Member                             Member                            President