Punjab

Rupnagar

CC/17/39

Jaspal Singh - Complainant(s)

Versus

Dr. J.P.S. Sangha - Opp.Party(s)

Rajvir Singh, Adv

16 May 2018

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

                                 Consumer Complaint No. :  39of 19.07.2017

                                 Date of decision                    :     16.05.2018

 

Jaspal Singh, aged about 67 years, son of Raunak Singh, resident of Village Shampura Colony, Near Gurmat Model School, Bela Road, Ropar, Tehsil & District Rupnagar.  

                                                                 ......Complainant

                                             Versus

1. Sangha Hospital, Zail Singh Nagar, Near Radha Swami Satsang Bhawan, Rupnagar, 140001, Tehsil & District Rupnagar, through its Managing Director Dr. J.P.S. Sangha
2. Oriental Insurance Company Limited, 4E/14, Azad Bhawan, Jhandelwalan, New Delhi -110055 

 

                                                                         ....Opposite Parties

                                   Complaint under Section 12 of the                                                      Consumer Protection Act, 1986

QUORUM

 

                        SH. KARNAIL SINGH AHHI, PRESIDENT

                        SMT. SHAVINDER KAUR, MEMBER

 

ARGUED BY

 

Sh.R.S. Mundra, Advocate, counsel for complainant 

Sh. Suraj Pal, Adv. counsel for O.P. No.1

Sh.Ankur Verma, Adv. counsel for O.P. No.2 

 

                                           ORDER

 

              SH. KARNAIL SINGH AHHI, PRESIDENT

 

1.         Complainant has filed the present complaint seeking directions to the opposite party to pay Rs.10,00,000/- as damages and also interest thereon @ 18% per annum from 30.12.2016 till payment on account of deficient services provided to the complainant by way of acceptance of this complaint.   

2.    Brief facts made out from the complaint are that complainant is an old person of about 67 years and he was suffering from abdomen pain and due to that very reason, he contacted the O.P. and the O.P. admitted him on 30.12.2016 in his hospital at Rupnagar who is running his hospital under the name and style of Sangha Hospital at Rupnagar. Thereafter, O.P. conducted various tests of the complainant and recommended him to undergo for open surgery instead of laser surgery which is more effective as well as safe compared to open surgery but the O.P,. the reason best known to him preferred to undergo for open surgery and thereafter the O.P. operated the complainant on 31.12.2016 and immediately after the operation the condition of the complainant started deteriorating day to day due to low blood pressure and subsequently, the complainant was referred to PGI, Chandigarh by Dr. Vikas Gupta of the O.P. on 05.01.2017. The complainant approached the PGI, Chandigarh and he was admitted at PGI, Chandigarh as the condition of the complainant was serious due to fall in blood pressure and internal bleeding and after getting the treatment/surgery at PGI, Chandigarh, the complainant was discharged from PGI, Chandigarh on 14.1.2017. It is further stated that due to negligence on the part of the O.P. while operating the complainant and due to failure in operation of the complainant by the O.P., the complainant was kept on waiting for hours in critical condition and after three days when the condition of the complainant become more serious only, then the O.P. referred the complainant to PGI, Chandigarh. It is grave medical negligence on the part of the O.P. due to which the O.P. put into danger the life of the complainant and it was only the efforts of the complainant and his family due to which he succeeded to save his life and this all was done due to negligence for not providing the proper and necessary treatment/precaution at the time of his operation, which was conducted by the O.P. Hence, this complaint  

  3.       On notice, O.P. No.1 appears through counsel and filed written reply taking preliminary objections; that the present complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous which is unsustainable in the eyes of law; that no specific, scientific and justified allegations in regard to negligence or deficiency in providing services has been made by the complainant against the answering O.P.; that no cause of action arose against the O.P. in this case; that the present complaint is totally false, fabricated, wrong and baseless which is synthesized on the basis of unscientific laymen conjectures, assumptions and presumptions and that in this case no negligence has been committed by the O.P; that this complaint is bad for non arraignment and mis- arraignment of parties. On merits, it is stated that patient was suffering from pain in abdomen due to presence of stone in the gallbladder and was taking treatment from the O.P. since last six months and was admitted in the O.P. hospital for gallbladder stone surgery on 30.12.2016. There are two methods of doing gallbladder surgery one is laparoscopic and second is open surgery. Both are accepted methods of surgery for gallbladder. O.P. because of adhesions preferred to do open surgery. O.P. duly conducted USG, which showed gall stones. All liver and other investigations conducted were normal. The patient had previous attacks of pancreatitis for which cholecystectomy was done which showed the presence of dense adhesions on the side. The patient was operated on 31.1.2016 for gallbladder stone surgery. The patient perfectly fine after operation i.e. removal of gallbladder stone through surgery. It is further stated that everything was done diligently, prudently, with utmost due care and caution. There is no negligence deficiency of service or unfair trade practice on the part of the O.P. Rest of the allegations made in the complaint have been denied and prayer has been made dismissal thereof. 

4.     The O.P. No.2 has filed written reply taking preliminary objections; that complainant has no locus standi to file the present complaint; that this Hon’ble Forum has no jurisdiction to entertain and try the complaint; that there is no deficiency in service on the part of the answering O.P. On merits, it is stated that the liability of the answering O.P. if any for medical services rendered by the O.P. No.1 for a sum of Rs.5,00,000/- vide policy bearing No.272200/48/2017/9439 dated 04.08.2016 for the period from 06.08.2016 to 05.08.2017 if the terms and conditions of the policy have been fulfilled by the insured/O.P. No.1 and beyond Rs.5,00,000/- the O.P. No.2 is not liable to indemnify the O.P. No.1. Rest of the allegations made in the complaint have been denied and prayer has been made dismissal thereof. 

6.    On being called upon to do so, the learned counsel for the complainant has tendered sworn affidavit of complainant Ex.CW1/A along with documents Ex.C1 to Ex.C16 and closed the evidence. The learned counsel for the O.P. No.1 has tendered sworn affidavit of Dr.J.P.S. Sangha, Ex.OP1/A along with documents Ex.OP1 & Ex.OP2 and closed the evidence. The learned counsel for the O.P. No.2 has tendered sworn affidavit of Smt. Paramjit Kaur, Asst. Manager of Oriental Insurance Company Ex.OP2/A and closed the evidence.  

7.    We have heard the learned counsel for the parties and have gone through the record of the file, carefully.

8.    Complainant counsel Sh. R.S. Mundra, argued that Jaspal Singh aged about 67 years, due to physical trouble admitted with O.P. No. 1 on 30.12.2016 and complainant Jaspal Singh undergone for open surgery, whereas the facility of laser surgery available. After the operation dated 31.12.2016 the condition of the complainant started deteriorating day to day then O.P. No.1 referred the complainant to PGI, where complainant remain under treatment of Dr. Vikas Gupta with effect from 05.01.2017 to 14.1.2017. It all occurred due to the negligence of the O.P. doctor. The complaint be allowed and compensation against the O.Ps. in favour of complainant be granted.

9.    Sh. Suraj Pal, counsel for O.P. No.1 argued that it is the duty of the complainant to prove deficiency on the O.P. doctor and also to prove if any error committed. Complainant though admitted on 30.12.2016 but operated on 31.12.2016 due to slow improvement of the patient.  On the request of his relatives/nearest, patient was referred to the PGI, now the everything is ok and the learned counsel referred the evidence as well as documents and prayed that no ground is made out to allow the complaint as complainant has not been able to prove deficiency in service.

10.  Sh. Ankur Verma, counsel for O.P. No.2 argued that if complainant has been able to prove deficiency in service on the part of the O.P. No.2 while operating then O.P. No.2 is liable for payment of the said compensation. No evidence qua the deficiency has come on the file, even in the complaint, complainant nowhere leveled any allegations qua the fact of deficiency in service or negligence of the doctor. So the complaint is without merit.

11.  Before coming to the relevant question of deficiency in service, the Forum is to see whether it is a consumer dispute and whether the complaint is maintainable having territorial jurisdiction. Complainant Jaspal Singh hails from District Rupnagar, whereas Sangha Hospital is also situated in this District. O.P. No.2 is Insurance Company. Complainant leveled the allegations of negligence of the doctors while operating. So admission/operation of Jaspal Singh is admitted by the O.P.No.1 and also admitted that the patient was referred to PGI where he undergone the treatment. So it is a consumer dispute and complaint is maintainable. 

12.  Coming to the controversial point, whether complainant has been able to prove negligence and deficiency on the part of the O.P. No.1 or not. It is the admitted fact that Jaspal Singh admitted due to pain with O.P. No.1 on 30.12.2016, then operated on 31.12.2016 for the surgery for removal of Gall Bladder. Few days complainant remain admitted with O.P. No.1. Complainant has come forward by filing the complaint and in the complaint given the date of admission, surgery, referring to PGI dated 05.01.2017 then discharged on 14.1.2017. After going through the entire complaint nothing found qua the fact of negligence on the part of O.P. doctor. Simply stating doctor was negligent is inadequate to held deficiency on the part of doctor. At the same time by filing reply by O.P. No.1 given the details qua the admission, operation, treatment and removal of Gall Bladder with surgery. Complainant counsel vehemently argued qua para No.3 of the factual reply of O.P. No.1 that in this para O.P. doctor admitted his negligence. But that is not correct approach to the complainant because he has given the detail qua the treatment.

13.  Though, complaint was filed and in support of the complaint Jaspal Singh tendered affidavit Ex.C1/A and beside this Ex.C1 legal notice, Ex.C3 photocopy of the bed head ticket, Ex.C4 again treatment, Ex.C5 report of ultrasound, Ex.C6 to Ex.C16 are record of PGI and from the close perusal of all these documents the Forum has come to the conclusion that deficiency remain unproved. At the same time, O.P. No.1 placed on file sworn affidavit of Dr.J.P.S. Sangha, Ex.OP1/A then Ex.OP1 & Ex.OP2.  

14.  O.P. No.1 relied upon the law laid down by the State Consumer Disputes Redressal Commission, Punjab, Chandigarh, order dated 18.03.2011, passed in appeal No.996 of 2005 and its relevant portion are rerpdocued as under:-

      “There was no negligence in performing the operation or opting a particular treatment by respondent No.1 and that delayed union/non-union of the fracture was one of the complications that is expected to rise and the complications cannot be equated with negligence – Respondent No.1 has taken the due care and chose one best methods for conducting the operation and there is nothing on record that it is due to his negligence, the appellant has to undergo operation second time because the above complications – Order of the District Forum dismissing the complaint upheld the appeal dismissed.

      The authorities’ gives guidelines that if complainant remain fail in proving deficiency or negligence on the part of the doctor then no claim made out.

15.  After close perusal of the documents, arguments, and appreciating the facts, Forum has come to the conclusion that complainant remain fail in proving deficiency on the part of the O.P. No.1. So complaint is without merit.

16.  In the light of above discussion, the complaint stand dismissed, leaving the parties to bear their own cost.

17.  The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to Record Room.

 

                     ANNOUNCED                                                    (KARNAL SINGH AHHI)

                     Dated .16.05.2018                          PRESIDENT
 

 

 

                                                          (SHAVINDER KAUR)

                                                                             MEMBER