BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.41 of 2018

Date of Instt. 22.01.2018      Date of Decision: 02.12.2019

Mr. Jaspreet Singh Dhami aged 26 years son of Sh. Balwinder Singh Dhami resident of 88/7, Gurudev Nagar, New Grain Market, Jalandhar.

..........Complainant

Versus

1.       Dr. L. S. Chaudhary, Aastha Hospital, 14-Sri Guru Ravidass Nagar, Between Manbro & Guru Ravidass Chowk, Jalandhar

2.       Aastha Hospital, 14-Sri Guru Ravidass Nagar, Between Manbro & Guru Ravidass Chowk, Jalandhar through Dr.L.S. Chaudhary.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Sh. Karnail Singh           (President)

Smt. Jyotsna                   (Member)

Present:       Sh. Parvinder Singh, Adv. Counsel for the Complainant.

Sh. V. K. Sareen, Adv Counsel for the OPs.

Order

Karnail Singh (President)

1.                The instant complaint has been filed by the complainant, wherein alleged that on 05.11.2005, the complainant had met with an accident and got injury on his right side hip in the said accident. Immediately, the complainant was taken to hospital of the OP No.1 and got operated by the OP No.1 on 06.11.2015 and the OP No.1 operated the complainant by joining the hip bones by inserting screws in the bones and thereafter, the complainant was discharged with the directions to take proper medicines and also advised the complainant for a bed rest of 2 to 3 months and also told the complainant that the screw will be removed after one year i.e. in the year 2016 from the date of its operation.

2.                That the complainant has been taking proper medicines as per the direction of the OP No.1 and the complainant was also remained on bed for 3 months and thereafter, the complainant visited the hospital of OP No.1 and complained that he has a severe pain in his right hip/operated area and thereupon, the OP No.1 directed the complainant to get the X-Rays of the operated area. On the direction of the OP, the complainant got his X-ray of right hip from the OP No.2 and showed the X-Ray report to the OP No.1 and after examining X-Ray, the OP No.1 stated to the complainant that he is recovering day by day and assured the complainant that the OP No.1 is totally satisfied with the X-Rays report done in his hospital. But after passing of the period of three months, inspite of taking regular medicines and conducting regular check-ups from the OP No.1, the complainant was feeling severe pain and was unable to walk properly on his own legs and accordingly, the complainant again approached to the OP No.1 and told to the OP No.1, who replied that it will take one year for its permanent recovery, then the complainant visited the OP’s hospital on 04.04.2016 and complained the OP No.1 regarding his pain on which the OP No.1 directed the complainant to get a CT Scan of the right hip especially of the operated area. Then on 14.07.2016, the complainant got the CT Scan of his right hip especially of the operated area and showed the same to the OP No.1 and the OP No.1 stated the complainant that he is recovering day by day and his injuries are healing properly and the OP No.1 assured the complainant that the OP No.1 is totally satisfied with the CT Scan report.

3.                Due to intolerable and severe pain in his right hip especially of the operated area, the OP No.1 advised the complainant for digital X-Rays, accordingly, the complainant also got the same and showed the said X-ray to OP No.1, who after examining the same told that complainant that the ball of hip bone of the complainant has been damaged and the OP No.1 advised the complainant to get operated again.

4.                That due to continuous intolerable and severe pain in his right hip especially of the operated area, the complainant took second opinion from Dr. Piyush Sharma, M. S. Ortho of Ganga Ortho Care Hospital, who after examining the complete medical record of the complainant, which was conducted as per the instructions of OP No.1 stated that the ball of hip bone of the complainant was previously damaged and screws was not inserted properly and he advised the complainant to get it operated immediately and accordingly, the complainant got operated by Dr. Piyush Sharma, who replaced the damaged ball of the health insurance policy bone and also removed the screws inserted by the OP No.1. The main reason of intolerable, severe continuous pain in the right hip was due to screws inserted by OP No.1 negligently, which were even not fitted properly. After the operation conducted by Dr. Piyush Sharma, M. S. (Ortho) the complainant became fit for walking properly and his severe pain also gone. Due to the negligence of the OP No.1, the complainant had suffered a lot physical pain, mental agony and harassment on that time, again and again visited to the OPs and that too due to the negligence on the part of the OP No.1. The complainant had paid Rs.1,50,000/- for the treatment and other medical expenses of Rs.50,000/- with the OP No.1 and Rs.1,70,000/- of his treatment and medical expenses of Rs.30,000/- for the second time operation conducted by Dr. Piyush Sharma, MS Ortho, Ganga Orthocare Hospital, Jalandhar and the complainant estimates his loss of Rs.4,00,000/- spent by him and further, Rs.10,00,000/- suffered a lot of physical pain, mental agony and harassment and accordingly, prayed for accept the complaint and award the aforesaid amount to the complainant.

5.                Notice of the complaint was given to the OPs, who appeared through its counsel and filed a joint written reply, whereby contested the complaint by taking preliminary objections that the  complaint made by the complainant Jaspreet Singh Dhami is liable to be dismissed on the short ground that he while filing the complaint has purposely misstated the facts with intend to mislead this Forum in granting relief to him. According to law, a party who is guilty of purposely pleading incorrect facts, does not deserve any relief from the Forum and the lis initiated by such a party is liable to be thrown out on the very threshold and further averred that the OP No.1 while treating the complainant had not been guilty of any medical negligence, rather the procedure adopted by the OP No.1 for the unification of the fracture bone of the complainant, had been conducted in accordance with the known procedure of treatment for the type of the fracture, which the complainant had. Because of the procedure conducted by OP No.1, the fracture had completely healed and there was a complete unification of bone as is clear from the report of C.T. Scan. Therefore, the OPs cannot be held guilty for any medical negligence. It appears that some times after the complete unification of the fracture bone, the complainant once again sustained injury at the same very place and by taking advantage of the injury freshly sustained by him, he is trying to find fault with OP No.1 with intend to extort money. On merits, it is admitted by the OP that the complainant was admitted in the hospital and accordingly, he was operated and he was also advised to take complete rest for 2-3 months because keeping in view the type of fracture, which the complainant had. It is further submitted that the complainant had been clearly told, at the time of discharge from the hospital, not to put any weight on the leg and to avoid walking, but when the complainant came to the hospital for follow up check up, he came while walking and that too with the help of a stick and further admitted that X-ray was got of the complainant and even CT Scan was also advices on 04.04.2016 and the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

6.                Replication not filed.

7.                In order to prove the case of the complainant, the complainant himself tendered into evidence his own affidavit Ex.CW1/A alongwith some documents Ex.C-1 to Ex.C-34 and then closed the evidence.

8.                Similarly, counsel for the OPs No.1 & 2 tendered into evidence affidavit of Dr. L. S. Chaudhary as Ex.OP-A and one document Ex.OP-1 and closed the evidence.

9.                We bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and also gone through the written arguments submitted by learned counsel for the complainant as well as case file very minutely.

10.              After considering the case of both the parties, it reveals that the factum in regard to admission of the complainant in the hospital of OP No.1 for operation of the hip, is not denied by the OP No.1. Moreover, the documents placed on the file by the complainant Ex.C-1 to Ex.C-5 as well as OPD Slip-cum-Treatment and further, the Copy of Bills Ex.C-6 and Ex.C-7 established that the complainant got operated of his hip from the OPs and also make the payment of the same, vide bills Ex.C-6 and Ex.C-7 and then on the advice of the OP No.1 got CT Scan Ex.C-8 and whatsoever medicines were given by the OP No.1 to the complainant, he has been consuming the same, but despite that the complainant alleged the he was bearing the severe pain of his hip especially the operated area, as per prescription slip, the complainant repeatedly visited the hospital of the OP No.1 and even digital X-ray was also advised to the complainant by the OP on 25.08.2016, vide Slip Ex.C-5 and thereafter, the complainant got CT Scan dated 13.07.2016, means the document shows that the complainant has been visiting the hospital of the complainant number of times and as per version of the OP, one year period has been given to the complainant for fully recovery of the said operation, but despite elapsing of one year, the complainant was suffering from the severe pain especially on the operated area, but the OP No.1 did not bother to give a proper treatment for recovery of the severe pain and ultimately, the complainant has no alternative except to get a second opinion from other doctor and accordingly, the complainant approached to the Ganga Ortho Care Hospital, where he was treated by Dr. Piyush Sharma and on the advice of Dr. Piyush Sharma, a second operation was conducted and complainant was discharged from Ganga Ortho Care Hospital on 10.04.2017, vide Discharge Summary Ex.C-13 and thereafter, the complainant again follow up the said hospital and visited the same on 29.04.2017 as per prescription slip Ex.C-14 and then on 22.05.2017 prescription slip ExC-15, similarly on 18.07.2017 prescription slip  Ex.C-16. So, it means the complainant got second operation from Ganga Ortho Care Hospital due to some defect in the operation conducted by the OP No.1.

11.              No doubt, there is no direct evidence came on the file that there is any negligence or fault on the part of the OP while conducting operation of the complainant on 06.11.2015, but it is very difficult to procure such like evidence from other doctor, being reason none of the doctor will ready to comments on the treatment of his co-professional i.e. other doctor and under these circumstances, we have to adjudge from the pleading as well as from the documents available on the file to find out whether there is any negligence on the part of the operating doctor or not, for that purpose, we like to refer a document, which shows that the doctor can make a mistake by depending upon other staff i.e. staff nurse or other assisting staff. For reference, a document Ex.OP-1 produced on the file by the OP itself, which is Patient’s Record and on the second page of the said record, the performa is meant for consent of the patient or his relatives and in the said Consent Form, the procedure has not been mentioned, in the column for specific purpose, by the doctor, which he followed for conducting an operation of the complainant, if this type of glaring mistake can be done by the doctor, then how we can accept that the other mistake regarding conducting of operation cannot be done by the doctor.

12.              Furthermore, the complainant visited the hospital of the OP number of times and as per the version of the OP No.1, the recovery of the said operation is to be made within one year from the date of  operation, means the operation conducted on 06.11.2015 and its complete recovery is to be hoped on or before 06.11.2016, but even after 06.11.2016, the complainant was suffering from the same severe pain upon the area of said operation, which shows that there is some fault and negligence on the part of the OP while conducting the operation and due to that negligence within a short span the same operation is to be got done by the complainant from other hospital i.e. Ganga Ortho Care Hospital. So, from the circumstantial evidence, it is clearly established that there is negligence on the part of the OP No.1, if so, then he is liable to be punished for that negligence, so that in future he will be more conscious not to commit such like negligence again on any patient and thus, we hold that the complainant is entitled for the relief.

13.              As an upshot of our above detailed discussion, the complaint of the complainant is partly accepted and OP No.1 is directed to pay the expenses incurred by the complainant upon his first operation i.e. Rs.2,00,000/- with interest @ 9% per annum from the date of getting operation i.e. 06.11.2015, till realization and further, OP No.1 is directed to pay compensation to the complainant for causing mental tension and harassment to the complainant including litigation expenses, to the tune of Rs.80,000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

14.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                                       Jyotsna                           Karnail Singh

02.12.2019                                        Member                          President