Haryana

Ambala

CC/124/2022

Meena Anand - Complainant(s)

Versus

Dr. Banarsi Dass - Opp.Party(s)

Prem Sagar Sharma

13 May 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	124 of 2022
Date of Institution	:	12.04.2022
Date of decision	:	13.05.2024

Meena Anand aged about 50 years wife of Sh. Raman Anand resident of 4381N, Anaj Mandi, Ambala Cantt.

…..Complainant

Vs.

1. Dr. Banarsi Dass Hospital through Dr. Dheeraj Sharma MBBS, M.S. (Ortho) 14-A, Tribune colony, Behind S.D. College, Subhash Park Road, Ambala Cantt.
2. Dr. Dheeraj Sharma MBBS, M.S.(Ortho), of Dr.Banarsi Dass Hospital, 14-A,Tribune Colony, Behind S.D. College, Subhash Park Road, Ambala Cantt.

 

….…. Opposite Parties

Before:         Smt. Neena Sandhu, President.

                       Smt. Ruby Sharma, Member,

           Shri Vinod Kumar Sharma, Member.           

Present:        Shri Abhishek Sharma, Advocate, counsel for the complainant.

                     Shri Rishi Gupta, Advocate, counsel for OPs.

 

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (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 pay compensation to the tune of Rs.49,00,000/-, on account of permanent disability of the complainant, because due to medical negligence of the OPs, she became handicapped and cannot use her right arm.
2. To pay Rs.1,00,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
3. To pay litigation expenses of Rs.5,000/-.
4. OR

Grant any other relief, which this Hon’ble Commission may deems fit.

 

2.             Brief facts of this case are that the complainant is a working woman and is doing business under the name and style as M.D. Sales and is also a household lady managing the daily house/family affairs and taking care of her family. On 25.9.2020 while doing domestic work at home, the complainant accidently fell down and sustained injuries on her body, particularly in her right arm and ankle and other body parts. As she was under severe pain, so she was shifted to OP No.1 hospital in order to provide appropriate medical treatment. The complainant was attended by OP No.2 who is specialized skilled doctor practicing in M.S. Ortho. Before giving treatment to the complainant, OP No.2 took complete history from the complainant that how she sustained injuries and also got identified the body parts where the complainant was suffering from severe pain. After diagnosing and taking complete history of the complainant, OP No.2 conducted X-ray of front elbow joint, right hand and ankle joint of the complainant. After conducting X-ray OP No.2 diagnosed multiple fractures in the right arm of the complainant and advised for putting plaster on the right arm in order to treat the fracture. Believing the treatment, after diagnose, the complainant trusted OP No.2 and agreed to the treatment. During treatment,  OP No.2 put plaster on the right arm of the complainant and also gave medicines to be taken as per prescription and also assured the complainant that fractured bone of right arm of the complainant will be healed /joined to its natural place and with a proper treatment from the OPs. OP No.2 did the follow up treatment also of the complainant on 2.10.2020, 17.10.2020, 24.10.2020, 29.10.2020, 12.11.2020 and 17.12.2020. On the dates mentioned above, OP No.2 conducted X-ray of right arm of the complainant on every visit to ascertain the healing/natural joining of the fractured bone to its original position and also gave/prescribed medicines to be taken by the complainant. Even after taking regular treatment from the OPs and taking medicines as per the prescription, the complainant did not feel comfortable in normal movement of her right arm, regarding which on every date of her visit to hospital, she disclosed this fact to OP No.2, but OP No.2 every time assured to the complainant that her right arm will be O.Κ. after taking regular medicines, but of no use. OP No.2 had only provided the X-ray conducted on 25.9.2020 to the complainant. But X-rays conducted after 25.9.2020 on subsequent visits of the complainant to the OPs, has not been provided to the complainant, inspite of her demand. On every visit of the complainant to the hospital of the OPs, they charged Rs. 200/- as consultation charges and Rs.400/- for conducting X-Ray and Rs.3000/- was charged separately for putting plaster on arm. However, no receipt in this regard was ever issued to the complainant. Till December, 2020 the complainant remained under treatment of the OPs, but the complainant could not get any relief in her right arm and she is not able to move her right arm in regular movement, even she was unable to do her routine work. When the complainant did not get any relief even after spending three months under treatment of the OPs and spending a lot of money which included initial treatment cost of Rs.20,000/-, she thought to take medical opinion from other doctor. Son of complainant, who is serving in Indian Air Force, who was on emergency duty during this period, suggested the complainant to visit Military Hospital and get diagnosed the problem being faced by the complainant in her right arm. The complainant visited Military Hospital, Ambala Cantt and underwent treatment there; she gave complete history regarding her injury and subsequent treatment taken by her from the OPs. During her treatment in Military Hospital fresh X-ray of right arm was conducted in Military Hospital on 7th January, 2021 where by doctors of Military Hospital found as “MALUNION COMMINUTED FRACTURE PROXIMAL END RADIUS AND ULNA RIGHT”. The complainant was shocked, when she came to know that fracture sustained by her on 25.9.2020, for which the OPs gave treatment to the complainant and even put plaster on right arm of the complainant, has not joined to its natural position, rather has been dislocated and has been joined permanently in an irregular manner. OP No.2 who had conducted X-ray on every visit of the complainant, was well aware that the fracture bone had not been placed/joined to its natural location, still OP No.2 did not bother to disclose this fact to the complainant nor even bothered to give any alternate treatment or suggested surgery at any point of time during treatment. While deciding to undertake the case of the complainant, the OPs being a medical professional, who possesses a certain degree of skill and knowledge, was duty bound to treat the complainant with a reasonable degree of skill, care and knowledge. OP No.2 being doctor specialized in orthopedic was expected to carry out proper examination/treatment of the complainant including the X-ray examination. Had proper diagnoses /treatment been given to the complainant, she must be living normal regular life with no disability. By not performing duty properly, OP No.2 is guilty of medical negligence and had failed to exercise reasonable care expected from a professional like the OPs, which amounts in deficiency in service, unfair trade/professional practice. The complainant has to spend an amount of Rs.20,000/- on her initial treatment from the OPs, which included consultation charges, charges for X-ray and medicines etc, apart from that additionally since the day of her treatment she is continuously bearing Rs. 10,000/- for the maid services for household chores, Rs.15,000/- for professional helper to take care of the business, Rs.6000/- for physiotherapist, Rs.10,000/- for home attendant, additional diet of Rs.6,000/- and Rs.3000/- for transportation. These expenses are on monthly basis and are in addition to normal expenses which were before the injury. Accordingly the complainant is spending Rs.50,000/- per month for the last 16-17 months which equals to Rs.8,00,000/- till date and will continue. The complainant has also been advised to undergo multiple surgeries in order to remove her deformity occurred because of medical negligence of OP No.2. Although it is not certain that even after undergoing multiple surgeries deformity of the complainant can be completed cured or not. Moreover she is now dependent on a care taker and a permanent attendant in her day-to-day routine. She has also been advised to undergo multiple surgeries in order to remove her deformity occurred because of medical negligence of OP No.2. Hence this complaint.   
3.           Upon notice, OPs appeared and filed written version, raising preliminary objections to the effect that the complaint is false and fabricated; the complainant is not a consumer, as not even a single penny has been charged from the complainant, she being neighbor of the OPs and treatment was given during COVID period; this complaint is not maintainable etc. On merits, it has been stated that on 15.03.2020 there was complete lock down in the entire India including Ambala Cantt. and the same was announced and declared by Hon'ble Prime Minister in Month of March 2020, due to covid-19 pandemic. The OPs also stopped taking patient of orthopedic injuries and the staff of the OPs was sent on leave. The OPs were not charging from any patient during covid, only x-ray facilities was available and the general emergency medicines were prescribed to relive the patient from pain and the patients were advised to approach government hospital for their treatments. OPs never put plaster on the alleged arm of the complainant. Even after perusal of the alleged paper attached by the complainant would remain unsatisfactory, as the complainant has attached two papers of two patients, one is Meenakshi and other is Meena Anand i.e. the complainant. The patient Meenakshi was given medicine to relieve pain from her body which are general medicines for body ache of patient whereas the second patient i.e. only x-ray of Meena Anand was done on 25.09.2020 and x-ray film and report was handed over to the patient. Only medicines for body pain were prescribed on 17.12.2020. The complainant had gone to a doctor of her own choice for the further treatment. However form the perusal of paper attached by complainant that the complainant was treated at some civil/government hospital as per the history shown in the alleged paper of complainant dated 09.01.2021 in report of Military Hospital, Ambala Cantt. Even from the scrutiny of all papers of treatment of Army Hospital or other documents attached by complainant, it is confirmed that the complainant was never treated for alleged injury nor her arm was plastered by OP No.2, nor a single penny was charged even for the x-ray of the complainant by the OPs at any time as the OP No.2 call the complainant as Aunty Ji or Chachi Ji. The complainant was also given general medicine for her body ache on 17.12.2020. The present complaint has been filed by the complainant with same ulterior motive of hatching criminal conspiracy with other persons who wanted to spoil reputation of the OPs. OP No.2 never treated the complainant except x-ray on 25.09.2020 and prescription for general medicine of body ache on 17.12.2020 only, so, there is no breach of any duty or negligence on the part of the OPs. Rest of the averments of the complainant were denied by the OPs and it prayed for dismissal of the present complaint with heavy costs.
4.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure C-A alongwith documents as Annexure C-1 to C-23 and closed the evidence on behalf of the complainant. Learned counsel for the OPs tendered affidavit of Dr.Dheeraj Sharma son of Late Shri Surinder Sharma r/o 14-A, Tribune Colony, Ambala Cantt. as Annexure OPA alongwith document as Annexure OP-1 and closed the evidence on behalf of OPs.
5.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
6.           Learned counsel for the complainant submitted that it was on account of medical negligence on the part of OPs that the complainant was found as MALUNION COMMINUTED FRACTURE PROXIMAL END RADIUS AND ULNA RIGHT by Military hospital, as a result of which, she has become handicapped as she is unable to use her right arm properly for doing any work of house hold or in the office.
7.           On the other hand, learned counsel for OPs while reiterating the objections raised in the written version submitted that since no consideration was paid by the complainant to the OPs, this consumer complaint is not maintainable. He further submitted that the complainant was given only general medicine for her body ache on 17.12.2020. He further submitted that the present complaint has been filed by the complainant with same ulterior motive of hatching criminal conspiracy with other persons who wanted to spoil reputation of the OPs. OP No.2 never treated the complainant except x-ray on 25.09.2020 and prescription for general medicine of body ache on 17.12.2020 only, so, there is no breach of any duty or negligence on the part of the OPs.
8.           The moot question which falls for determination before this Commission is whether the complainant falls within the definition of consumer or not. It may be stated here that Section 2 (7) of Consumer Protection Act, 2019 provides the definition of consumer which says that consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person. Relevant part of the said Section is reproduced hereunder:-

“…….(7) "consumer" means any person who— (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

 

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose….”

 

9.           It is significant to mention here that a specific plea has been taken by the OPs in their written version that not even a single penny has been paid by the complainant for the treatment given by them, as she is the neighbours of the OPs. On the other hand, the complainant has failed to place on record even an iota of evidence to prove that any consideration stood paid by her to the OPs for the said treatment. In our considered opinion, when the OPs have taken a specific objection/plea to the effect that not even a single penny has been paid by the complainant for the treatment given by them, then it was required of her to prove her case by placing on record some cogent and convincing evidence to prove that she had paid some consideration to the OPs, for the said treatment but she miserably failed to do so.
10.           Under above circumstances, we are of the considered view that since the complainant has failed to place on record any evidence to prove that she has paid any amount for the treatment given by the OPs, as such, no relief can be granted to her, as she did not fall within the definition of consumer.
11.           Resultantly, this complaint stands dismissed with no order as to cost.  Certified copies of the order be sent to the parties concerned, as per rules.  File be annexed and consigned to the record room.

Announced:- 13.05.2024.

 

 

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