Haryana

Ambala

CC/144/2013

G.S SHARMA - Complainant(s)

Versus

DR. DHEERAJ SHARMA - Opp.Party(s)

R.D BEDI

03 Jul 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

            Complaint Case No.      : 144 of 2013

Date of Institution         : 12.06.2013

           Date of Decision            : 03.07.2017

G.S. Sharma son of Sh. M.L. Sharma, resident of House No. 931, Housing Board Colony, Ambala Cantt.                                                              

……Complainant.

Versus

Dr. Dheeraj Sharma, MBBS, MS (Ortho), Prop/Partner Dr. Banarsi Dass

Hospital, 14A, Tribune Colony, Gate No. 5, Ambala Cantt.  

                                                                   ……Opposite Party.

Complaint Under Section 12 of the Consumer Protection Act.

BEFORE:   SH. D.N. ARORA, PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

                   MS. ANAMIKA GUPTA, MEMBER.                  

Present:       Sh. K.C. Jain and Sh Ashutosh Aggarwal, counsel for the complainant.

                   Sh. Ashutosh Gupta, counsel for OP.  

ORDER.

 

                    In nutshell, brief facts of the complaint are that the complainant suffered injuries by self accident on 20-02-2013 near Subhash Park Ambala Cantt. and suffered injuries on his wrist of left hand. The complainant visited the hospital of the OP for treatment of the aforesaid injuries. The complainant was examined by OP and conducted X-ray of the writs and told that fracture of bones has been caused which is “lower end of radious”. No operation was conducted by OP of the fractured wrist but the fractured bones were tried ot be set manually by stretching by various part of the left hand. Thereafter the injured wrist was plastered for 30 days. The complainant was directed to use Arm Puch to keep the left arm straight to help healing of the injuries. The arm pouch was used by complainant as advised by the doctor and complainant was advised to visit clinic after three days i.e. on 23-02-2013 to examine the injuries and if need be x-ray will be conducted to ascertain the correct position of the injured part of the wrist of the left hand. On 23-02-2013 x-ray was conducted by OP and the complainant was told that the fractured bones of the left hand are coming to the correct position and will be cured within 30 days of the plaster. The complainant was again asked to visit the clinic on 09-03-2013 for re-examination of the injuries and to ascertain whether the treatment is on the proper line or not. On the 09-03-2013 the complainant was again directed to vision on 20-03-2013. On 20-03-2013 the complainant was advised for observing precautions prescribed by the opposite party in order to get relief soon. The complainant used the medicines in time as advised and observed the precautions as advised and observed the precautions as advised by the OP but inspite of the use of medicines and observations of the precautions the pain persisted in the injured part which was brought to the notice of the OP repeatedly by the complainant. Under these circumstances the complainant expressed the doubt that there is some fault in the setting of the bones of the wrist which needs early corrective steps but the complainant was told by the OP that treatment is on the proper line and there will be relief in time. The complainant was asked to visit again on 26-03-2013 for removal of plaster. The plaster was removed by the OP on 26-03-2013 without conducting x-ray. The complainant pointed out at that time that there is swelling and pain on the injured part of the wrist which indicates that the fractured bones have not been set properly and there is cause of extreme worry and mental harassment but the OP did not bother about the pains and swelling of the complainant. The complainant was asked to come after three days for re-examination and x-ray. Accordingly, on 30-03-2013 the complainant visited the OP and x-ray was conducted on the persistent demand of the complainant who had pain and swelling on his injured wrist but the true condition of the fractured bone was not revealed to the complainant and instead the OP told the complainant that the fractured bones have been set on the proper line and there is no problem now. The x-ray was shown to the complainant and on the casual look of x-ray it showed that the bones are not properly set but the complainant was told that this is not correct x-ray and the same was retained by the OP in his clinic. It is further submitted that being dis-satisfied with the treatment of the OP and persistent pain and swelling on the injured part of the wrist, the complainant visited the Civil Hospital, Ambala Cantt. for second option where the doctor advised the complainant to get the x-ray conducted on the injured part which was got conducted by the complainant in the hospital on the same day and the same was shown to the concerned doctor who told that the fracture bones have not been properly set and the treatment given to complainant was not proper. The complainant was told that now the only treatment of the fractured bones is operation which is urgently needed. Thereafter on 09-04-2013 the complainant visited Govt. Medical College & Hospital Sector 32 Chandigarh to seek another opinion where after examination, the doctor told the complainant that the treatment given to complainant is not proper and the same is real cause of swelling and pain on the wrist of the left hand of the complainant. The complainant was further told by the Doctors at Chandigarh that only treatment left now is operation of the fracture bones of the wrist and there is no other solution. The complainant visited the Hospital of Rotary Ambala Cancer and General  Hospital, opposite Dushera Ground, Ram Bagh Road, Ambala Cantt. for opinion and treatment. Dr. Rishab Bansal, MBBS, MS (Ortho) conducted x-ray of the injured wrist and advised surgery of the injured part of the wrist of the left hand as the bones of the wrist were maluniting, which was clear indication that the treatment given by the OP was not proper and there was negligence on the part of the OP. The complainant suffered acute pain and numbness on the injured portion of the wrist of the left hand and is feeling extremely uncomfortable and depressed. The left hand of the complainant is not working properly and needs immediate treatment from the competent doctor but the operation has not been got conducted on account of apprehension that the correction may not be proper. This has happened because of gross medical negligence on the part of the OP who failed to treat the injuries of the wrist of the left hand of the complainant properly in time and gave wrong promises to the complainant that the bones have been united properly. The complainant has spent about Rs. 10,000/- on the payment of consultation fee to OP and purchase of medicines and Rs. 5,000/- for consultation of other doctors and getting the x-ray conducted and visit to Chandigarh for consulting the doctors. The swelling and pain on the injured part of the wrist of the left hand is still continuing and is causing extreme mental torture and harassment to the complainant. It is further submitted that a legal notice dated 22-04-2013 was served on the OP but no reply whatsoever has been given to the complainant which amounts to non acceptance of the legal and genuine demands of the complainant. As such, the complainant prayed the opposite parties may kindly be directed to pay cost of consultation fee and medicines purchased for treatment under the OP of Rs. 10,000/-, cost of consulting other doctors and hospitals to ascertain the correct position of the injured bones of the wrist of the left hand of the complainant of Rs. 5,000/-, compensation of Rs. 5,00,000/- for extreme mental torture and harassment.

2.                Upon notice, OP appeared through counsel and filed reply raising preliminary objection qua maintainability of complaint, cause of action and concealments of the true and material facts.  It has been submitted that the complainant approached the answering OP in evening on 20-02-2013 having plaster on his left hand wrist for second opinion. The complaint told the respondent that he has suffered the above injury in the morning and has got plastered the same from some unqualified quack. The complainant was also having an x-ray of his injury. It is further submitted that complainant is known to Dr. Banarsi Dass Sharma (Grandfather of the OP) and asked the OP to give his second opinion by referring his relations with grandfather of the complainant. The OP after examination of the x-ray, advised the complainant to get the plaster afresh as the same, which was already applied, is not proper. However, the complainant did not agree to the suggestion of the OP and only asked for some medicines for fast recovery. On the request of the complainant, OP advised the medicines to the complainant for three days and also to take certain precautions for the fast recovery. The complainant again visited on 23-02-2013 for re-examination and on 23-02-2013 for re-examination and on 23-02-2013, the complainant was further advised to take all precautions. It is further submitted that on 23-02-2013 the complainant came to the clinic by driving his scooter which was strictly prohibited by OP. The complainant was again advised not to put load on his left hand wrist. The complainant again visited the OP on 09-03-2013 and did not make any complaint in respect of pain or movement of his left hand wrist. The complainant was given medicines for 15 days more. The complainant again visited the OP on 20-03-2013 and it was observed that the complainant is not taking full precautions and he was strictly advised to take all the precautions and medicines for six days. The complainant was accompanied by one Sh. Brij Mohan Vig and Arun Vig on 20-03-2013 and they also endorse that the complainant is not taking any precautions as advised by OP. The complainant again visited the OP on 26-03-2013 and the OP was surprised to see that the complainant has removed the plaster and on the asking of the OP, complainant told that the plaster has been removed by the person, who applied the same as the injury suffered by him has been fully recovered and advised him to take medicine for some more time. The OP advised the complainant for an x-ray to ascertain the actual position. However, the complainant refused for the same and only insisted for medicines. As such the OP prescribed some medicines to the complainant and further advised him to use crape bandage. On 30-03-2013, the complainant was again visited and told the OP that he has been fully recovered. It is further submitted that the OP did not charge any fees from the complainant. Thereafter, he never visited the OP.    Rest of the averments made by the complainant are wrong hence, denied. As such, the OP has prayed that the complaint is liable to be dismissed with costs.

3.                To prove his version, counsel for the complainant has tendered the affidavit of the complainant as Annexure CX and examined Dr. Rishab Bansal as CW1 in support of his evidence and Dr. Rishab Bansal proved the annexure C1 i.e. treatment record given by Dr. Rishab Bansal and also proved the annexure R1 to annexure R3 in his cross-examination and counsel for the complainant closed the evidence on behalf of the complainant. On the other hand, OP tendered affidavits Annexure RX and RY and closed the evidence.

                   Thereafter, counsel for the complainant has moved an application to summon Brij Mohan, who tendered his affidavit in support of the version of the opposite party. But the same has been dismissed vide order dated 21-06-2017.

4.                We have heard learned counsel for the parties and gone through the case file very carefully.  OP has taken the first objection that he has not charged any fee from the complainant keeping in view the relation of the complainant with his grandfather, so, present complaint is not maintainable in view of Section 2 (1) (d) of Consumer Protection Act.

                   On the other hand counsel for the complainant has averred that he had spent an amount of Rs. 10,000/- on the consultation fee and medicines to OP. We are of the view that it is not possible to believe that any pvt. doctor can give the treatment to any patient for a long period without any charges. Rather the onus to prove that he did not charge any fee from the patient for giving treatment, is upon the opposite party/treating doctor but the opposite party/treating doctor has failed to produce OPD record pertaining to the treatment given to the complainant for the period of 20-02-2013 to 30-03-2013, in order to prove that whether the doctor has charged anything from the complainant or not. So, this Forum draws, adverse inference against the treating doctor as he withheld the best evidence available with him.

                   Counsel for the complainant has also drawn our attention the law laid down by Hon’ble National Commission in case title Vijay H. Mankar Vs. Dr. (Mrs.) Mangla Bansod & ors. 1 (2000) CPJ 37 (NC). The Hon’ble National Commission has relied upon in the above said judgment the law laid down by the Hon’ble Supreme Court in case title Indian Medical Association Vs. V.P.Shant & ors, 1995 CPJ Vol. III Page 1 held that it has been inter alia state that services rendered by a non-government hospital/nursing home where charges are required to be paid by person who are in a position to pay and persons who cannot afford to pay are rendered services free of charge would fall within the ambit of the expression “Service’ as defined in Section 2(1)(o) of the Act and law. It is true in the present case, OPs averment is that fees were not charged because the patient was a close relative of colleague doctors and that it was not a case of ‘free service because the patient could not afford to pay. Although in their order, the Supreme Court have not distinguished a case of ‘free service of the kind as in the case on hand, the spirit of their order is that expenses incurred for providing service free of charge to certain patients are met out of income earned by the doctors/hospitals from services rendered to paying patients and in this view of the matter the non-paying patients are beneficiary of the services which are hired or availed of by the paying patients. That apart, the Supreme Court observed that all persons who avail of the services of doctors are to be treated on the same footing irrespective of the fact that some of them pay for the services and other avail the same free of charge. Also, the complainant had deposed that opposite party had not given receipt for fees paid and that opposite party told his mother in law on 31.05.1990 that she would give consolidated receipt for all payments, after delivery.                

          Similarly, in the present case, the treating doctor has taken the objection that the complainant is known to Dr. Banarsi Dass Sharma, grandfather of the OP, so he did not charge any fee from the complainant.  But in view of the law laid down mentioned above (supra) is fully applicable in the present case. The complainant falls under the definition of Consumer. The plea of the OP is not sustainable that the complainant is not a consumer.   

5.                 Admittedly complainant visited the hospital of OP for treatment on 20-02-2013 as he suffered injury on his left hand wrist and distal lower end at 5:00 PM in the evening. OP i.e. treating doctor has prescribed medicine antibiotic and analgesics. As per OPD record Annexure R1, there is no mentioning about the existing plaster and from whom he has got plaster but OP has taken stand that the complainant is having the plaster when visited his hospital for the first time. Even if we presume the aforesaid version of the OP as true then he should mention the same in the history of the patient on the OPD card while treating first time. But he failed to mention the same in any of the treatment record. No necessary examination has been advised to ascertain the nature of fracture and position of the fracture bone. Whereas complainant kept on visiting the hospital of the OP regularly with the complaint of swelling, pain and numbness on the left hand. But treating doctor has only prescribed the regular medicine but complainant could not get any relief. As per version of the OP, the complainant got the plaster removed by some other doctor but his name has not been mentioned in the follow up treatment record. Consequently complainant visited Ortho Surgeon for second opinion and Dr. Rajeev Gupta, Radiologist conducted the x-ray of the complainant, which is already on the file. As per x-ray report, there is fracture on the lower end of radious bone. Complainant has also placed the treatment record of Govt. Medical College and Hospital Sector 32 Chandigarh dated 09-04-2013. As per the examination report treating doctor diagnosed the patient as a case of malunited fracture of the lower end of the radious with the history of accident injury two months back and advised surgical intervention/operation. However, on reviewing the case of the complainant, we further observed that the complainant has not mentioned in the complaint whether he has got himself operated or not after advise of the doctor of the G.M.C.H.  Chandigarh.

 

6.                From the above said discussion and circumstances of the case, we are of the opinion that treating doctor should have advised to the complainant on his first visit and subsequent visits that he should go for fresh x-ray and plaster in hand in order to ascertain whether bone deformity has been corrected or not. Had he found after x-ray that deformity has not been corrected in that eventuality he should have removed the plaster and fully counseled to the complainant regarding re-plaster after proper close reduction of the deformity or if he is not satisfied with the close reduction he should have advised for surgical procedure.

7.                 In view of the law laid by Hon’ble National Commission in case title as Tarun Thakore vs. Dr. Noshir M. Shroff (OOP No. 2015/2000 dated 24-09-2002) wherein the National Commission made some observation about the duties of doctor towards his patient. From those observations it is clear that one of the duties of the doctor towards his patient is a duty of care in deciding what treatment is to be given and also a duty to take care in the administration of the treatment.

8.                 Further we have gone through the judgment delivered by Hon’ble Apex Court in case titled as “V. Kishan Rao vs. Nikhil Super Speciality Hospital& Another” 2010 (2) RCR Civil 161, Whereby in para No. 47, Hon’ble Supreme Court is held that in a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself”. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.

          On the other hand counsel for the opposite party has relied upon the judgment cited in 2014 (3) 19 (SC) titled as Mrs. Kanta v. Tagore Heart Care and Research Centre Pvt. Ltd. & Anr, which is not identical to the facts of the present case.  

9.                In view of the aforesaid discussion, we are of the considered view that OP Dr. Dheeraj Sharma was negligent to perform his duty as he has failed to treat the complainant carefully and due to the negligence of the OP, the complainant has to suffer himself for deformity in his hand.

                   Now, we are coming to the point that what compensation amount is to be awarded to the complainant. Complainant has claimed an amount of Rs. 15,000/- as consultation fee, medicines, which was paid to the OP and other doctors. He further claimed the compensation of Rs. 5 lacs for harassment, mental agony. But complainant failed to produce any document regarding treatment expenses. Although it is clear from above mentioned discussion that the complainant is suffering from deformity in his left hand due to negligence of the treating doctor. Hence, in view of the totality and circumstances of the case, complainant is entitled for compensation and the same is, hereby, assessed to the tune of Rs. 50,000/- in lump sum on account of harassment (Physical and mental), As such, the complaint of the complainant is partly accepted and OP is directed to comply with the following directions within a period of 30 days from the date of receipt of copy of this order:-

(i)      To pay an amount of Rs. 50,000/- as compensation for suffering pain, mental agony and harassment.

 

2. Also to pay a sum of Rs. 5,000/- as cost of proceeding. Failing which, opposite party will be liable to pay interest @ 12 % per annum on the compensation amount of Rs. 50,000/- for the default period.

 

                   Copies of this order be sent to the parties free of costs. File be consigned to the record room.

 

ANNOUNCED ON:      03.07.2017                                                   Sd/-

                                                                                                      (D.N. ARORA)

                            PRESIDENT       

         

                    Sd/-

(PUSHPENDER KUMAR)

                                                                                      MEMBER

 

                                                                                              Sd/-

            (ANAMIKA GUPTA)

                                                                                      MEMBER