Satendra Kumar Singh Chauhan complainant has filed this complaint U/s 12 of the Consumer Protection Act of 1986 against the opposite parties praying that opposite parties be directed to make payment of Rs.19,00,000/-  to him immediately i.e. the amount spent by him on his  father’s treatment, diet, transport and compensation on account mental agony, physical harassment and deficiency in service on the part of the opposite parties no.1 to 5 which has resulted into death of his father alongwith Rs.5,000/- as litigation expenses, in the interest of justice.

2.        The case of the complainant in brief is that his father namely Sh.Gyan Singh Chauhan desired to live with him, therefore on posting at Pathankot which is a better peace station and near to Aligarh (UP), he brought his father at Pathankot on 1.6.2016. His father suffering from Eye Disease i.e. Motiabind. He took his father at K.D. Eye Hospital on 21.06.2016 for consultation. After thorough check, the concerned doctors advised for operation of the eye. His father selected opposite party no.1 hospital for operation being impressed with the fame of Dr.Rohit Sharma i.e. Opposite party no.2. So on 5.7.2016, he brought his father to opposite party no.1 hospital, where operation was also conducted by opposite party no.3 after final investigation. He has further pleaded that after necessary formalities and procedure, the operation was conducted on 10.07.2016 by opposite party no.4 instead of opposite party no.3 but the operation was unsuccessful being blood  was coming out in the left eye of his father and the opposite party no.4 stitched the eye without planting the lens in the eye. During the process of operation, his father suffered lot of pain in the eye. Even he was in heavy pain when came out from Operation Theatre. He also lost eye sight of his left eye. On account of this, his father became weak day and went in a deep psychological shock due to losing eye sight of his left eye. On 21.07.2016, his father left the world in deep sorrow and psychological shock. On the basis of situations of that time and feelings expressed by his father prior to death, he is sure that his father had expired in deep psychological shock caused due to loss of eye sight of his left eye and the unsatisfactory response of the opposite parties no.1 to 4. After operation, his father suffered a lot of trouble, pain, mental stress and physical harassment till his death due to direct or indirect affect of irresponsible role of the opposite parties no.1 to 4 and their staff. The situation that clearly shows the irresponsible and cheap role played by the opposite parties no.1 to 4 is as under:-

a) There is a contract between Om Parkash Eye Institutes and Neha Path Lab i.e. opposite party no.5 in which patient are directed by the opposite party no.1 the purposes of tests etc.

b) By charging the fees for tests the hospital gave a slip with directions to go to opposite party no.5. When the samples for tests were taken by the lab, he asked the date and time to collect reports of the same, but they denied to give him reports by saying that it will be given to the Eye Hospital directly by them. Due to such type of system, he was totally ignorant about the result of tests. It shows the efforts of earning money in an illegal method by compelling the patients. It is a matter of corruption because the hospital charges the fee for tests inspite of the lab.

c)  On 14.7.2016, certain tests were ordered by Bala Ji Hospital Pathankot and the LTC was found 20000. At that time a point has raised in his mind that it may be already increased at the time of operation and on account of which the blood came out in the eye, which ultimately resulted in his father's death.

d) On 10.8.2016, he reported to the opposite party no.5 for getting details of the result of tests to clear his doubt. He succeeds to see the details of reports mentioned in their register and to get a report on the basis of the entries made in the register.

e) He noticed that there is tampering in TLC portion of the report as mentioned in their registered TLC has been changed to 11600 by cutting the earlier entry. This tampering in TLC result recorded in their register shows unfair trade practice.

f)  On 08.07.2016 at about 1338 hours, he intimated through mobile call that operation will be carried out on 10.07.2016. He though it may be the reason for heavy pain in his father's eye during the operation for an unsuccessful operation, because sufficient time was not given for second type of eye drops to be used prior to operation.

g)  On 05.07.2016 i.e. the first day when he reported the hospital, his father was attended by opposite party no.3 for final investigation of his left eye, but, thereafter, opposite party no.4 handled the case.

h) On 10.07.2016, opposite party no.4 operated for nine persons including his father. Due to nine cases of operation by herself only, it may be possible that she may be in hurry as well as under pressure of work load resulting an unsuccessful operation of his father.

j) No properly records or operation was endorsed in Surgery guide booklet issued for his information and as a proof of operation and treatment. Therefore, at that time he was not in receipt of details in writing regarding the failure of operation and the reasons due to which the blood came in the eye during operation. He was briefed verbally by the opposite party no.4 that due to high pressure in the eye, a flow of blood occurred in large quantity. Therefore, she stitched the eye by removing the Motivabind without planting the Lance.

k) When his father came out from the OT at about 1300 hours after operation, he was suffering with heavy pain in the operated eye. No bed was provided for two hours to 81 years old his father who was suffering from pain. On repeated requests the staff replied that bed is not available in the hospital and after about one hour opposite party no.4 arranged bed in her husband's hospital located nearby to OP Eyes Institute.

l) The opposite party no.1 to 4 did not care about psychological affect on mind of complainant's father due to losing his eye sight and suffering with pain by not admitting him inspite of unsuccessful operation.

m)  By not admitting his father after unsuccessful operation, the opposite parties no.1 to 4 also not cared about any type of infection which can be occurred due to bleeding in the eye due to rainy season.

n) The opposite party no.1 to 4 not refer his father to any other doctor for further treatment for the problem occurred after operation like “Hichki”, loss of appetite, stocking of foods and liquids in his throat, vomiting and fever whereas he timely given feedback to the opposite parties physically as well as mobile phone.

o) On 14.7.2016, when the pain started in left side of chest of his father, he brought his father to Bala Ji Hospital, where certain tests were conducted and it was found that there was infection, because of the TLC 20200, whereas it should be within the range of 4000 to 11000. It is crystal clear that prior to the operation TLC was also in its enhanced rate and the Path Lab changed it to 11600 by tempering it purposely.

It was further pleaded that from 14.7.2016 his father was under treatment of Bala Ji Hospital and no any other sign of his death was noticed by the doctors of opposite party no.4. After failure of operation and losing eye sight of left eye, his father has a thought that the hospital is greedy, cheater and cheaper in quality. Even it is not clear that what is the correct name of opposite party no.1 because name of hospital mentioned on first page in Surgery booklet is Dr.Om Parkash Charitable Trust and in the bills it is written as Dr.Om Parkash Eye Institute (P) Ltd, but in the bottom portion of stamp affixed at Discharged Summary paid of second booklet, the name is mentioned as Dr.Om Parkash Eye Institute (P) Ltd. He has next pleaded that signatures in test report of opposite party no.5 held with eye hospital are not authenticated with stamp and also not matching with the signatures of the report given to him on 10.08.2016, as such one of these seems to be forged. Thus there is deficiency in service as well as negligence on the part of the opposite parties. Hence this complaint.

3.     Notice of the complaint was issued to opposite parties. Opposite party no. 1,2 and 4 have appeared and filed their joint written reply by taking several preliminary objections. On merits, it was submitted that Mr.Gian Singh Chauhan son of Mr.Ishwar Chauhan consulted in Dr.Om Parkash Eye Institute, Pathankot on 5.7.2016, ID-1112043546 at 3.33pm. He was an old man of 80 years. As per examination protocol, he was examined by consultant on duty Dr.Nitin Gupta (opposite party no.3). He was diagnosed to have Cataract in left eye. As per history narrated by the complainant, the patient had already been undertaken a cataract surgery in his right eye about one year back in Aligarh with some Mittal Eye Centre this fact was disclosed at the time of consultation and has been recorded in the patient history. This fact was not disclosed before the opposite parties and nor medical records were shown. He was advised further evaluation which includes evaluation of cataract, retina after instilling dilating drops. Patient revisited hospital on 6.7.2016 at 10.52 am and was examined in cataract unit by consultant-cataract ad phacosurgen, Dr.Triputi Sharma. Thorough evaluation was done and he was diagnosed to have dense brown cataract with corneal degeneration and entropion. Due to dense cataract details of his retina could not be visualized, hence guarded prognosis was explained and after counseling for surgery was done name of surgeon, type of procedure, was clearly explained and relatives Mr.Satendra Kumar Singh's signature were taken. Dr. Trupti managed the case as per standard guidelines in such an event and was successful in prompt closure of wound. Cataract was extracted and wound was closed. Decision not to implant IOL was taken as is advised in such cases. IOL implantation could be planned at later date. Surgery was done under anesthesia and after complete pre-anesthesia check up and clearance of fitness for surgery. The same is duly documents in the medical record. Patient complained of pain which was managed by intra operative mannitol and pain killer injections. The patient’s heart rate oxygen saturation and vitals were monitored by anesthetist Dr. Sanjiv, they were stable. He was monitored in operation recovery room for 1 hour and afterwards shifted. The patient was examined on 11.7.2016, 12.07.2016. His surgical wound was well opposed healthy and blood clot had started retracting. Plan for next intervention could be planned once clot resolved further. Further plan of action was explained to the patient and attendants and they were clearly briefed that once the clot is removed lens will be implanted and they need not worry.  The patient did not come for follow up further.  Thus, there is no deficiency in service on the part of the opposite parties.  All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs.        

4.      Opposite party no. 5 has appeared and filed its` written reply by taking certain preliminary objections. On merits, it was submitted that there is no contract between opposite party no.1 and 5 but since there are very few standards labs the opposite party is one of the few labs on the approval list of the opposite party no.1. It was further submitted that reports are not denied to the patient but are sent to the hospital referring because of the urgency of the matter as the patients are waiting at the hospital for the report and the consultants treatments are pending on the report. No test was done in this lab on 14.07.2016 the tests of Balaji Hospital of 14.07.2016 cannot be comment3ed by the opposite party. The test conducted by opposite party was on 6.7.2016 when the TLC was 11600. The report of 20000 on 14.07.2016 cannot be imputed on 06.07.2016 by the complainant on mere presumption. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs.

5.       Opposite party no.6 appeared through its counsel and file its written statement taking the preliminary objections that the opposite parties no.1 to 4 was not insured with the company and therefore, the company is not liable to pay any compensation. The present complaint against the Insurance Company is not maintainable and insurance company is not liable to pay compensation to the complainant as under the terms and conditions of the “Professional Indemnity Doctors Policy”, the alleged insured opposite parties no.1 to 4  did not give written intimation to the company regarding the present claim filed by the complainant against the opposite parties no.1 to 4, nor other required document i.e. Medical treatment record of the complainant, Admission and Discharge Certificate of the complainant etc. Supplied by the opposite parties no.1 to 4 to the Insurance Company. Hence in absence of the required documents, the insurance company is not in a position to investigate the matter and to give the proper and complete reply of the complaint. Hence, the present complaint is liable to be dismissed on this ground. On merits, all averments made in the complaint have been denied and prayed for dismissal of the complaint with costs.

6.      Notice issued to the opposite party no.3 had not been received back. Case called several times, but none had come present on its behalf, therefore, it was proceeded against exparte vide order dated 3.7.2017.

7.     Complainant tendered into evidence his own affidavit Ex.C1  alongwith other documents Ex.C2 to Ex.C6 and closed the evidence.

8.       Counsel for the opposite parties no.1 and 2 tendered into evidence affidavit of Dr.Rohit Om Parkash Ex.OP-1,2/1A, alongwith other documents Ex.OP-1,2/1 to Ex.OP-1,2/5 and closed the evidence.

9.      Counsel for the opposite party no.4 tendered into evidence affidavit of Dr.Trupti Sharma Ex.OP-4/1 alongwith other document Ex.OP-4/2 and closed the evidence.

10.     Counsel for the opposite party no.5 tendered into evidence affidavit of Dr.Neha Mahajan, M.BB.\S. Ex.OP-5/A alongwith other documents Ex.OP-5/1 and Ex.OP-5/2 (containing three pages) and closed the evidence.

11.      Counsel for the opposite party no.6 tendered into evidence affidavit of Sh.Karam Singh Divisional Manager Ex.OP-6/1 alongwith other document Ex.PO-6/2 and closed the evidence.

12.        We have carefully examined and thoroughly considered the evidence along with its supporting documents as available on records of the proceedings in the backdrop of the arguments as put forth by the learned counsels for the participating litigants along with the scope of ‘adverse inference’ that may be discretionarily drawn on account of the non-production of some documents vital for the present adjudication in spite of the ample opportunity available for the purpose. We observe that the complainant side has not produced (on records) any cogent evidence or even otherwise an acceptable documentary evidence of legal value so as to prove his allegations as put forth in the present complaint. Somehow, even the layman’s interpretation(s) of the opposite parties’ explanation as put forth in the written statement confirms the procedure/medical treatment as provided to the patient has been seemingly satisfactory. The produced documents Ex.C2 to Ex.C6 do not comprise of any cogent evidence such as: expert/ medical opinion/ medical-reports/ treatment chart etc of other treating Hospital so as to prove the alleged ‘negligence/ deficiency in service’ as has been duly stated in the present complaint.    

13.     We further find that the complainant has failed to establish his charges of great ‘pain and distress’ as allegedly imposed upon the patient by the opposite parties for ulterior motives but here the OP Doctors have rightly explained their delivered treatment and opinion of the possible treatment of the ‘eye-ailment’ to which the complainant has apparently reacted with exceptional sensitivity. All the OP produced Evidence (Ex.OP1,2/1 to Ex.OP1,2/5) and others exhibited evidentiary documents do satisfactorily support their prosecuted defense. It has always been the complainant’s own discretion to have ‘second opinion’ and treatment of his patient father and he has exercised it well. Moreover, it has not been anyway proved on records that the opinion/treatment as put forth by the opposite parties (here) has been medically ‘wrong and incorrect’. These different opinions are not ‘unwarranted’ so long as these do not drift away from the known and acceptable medical science. Lastly, we find the lone depositions (Affidavits) by the opposite parties to be quite true, genuine & bonafide and thus accept these as admissible on records. We are also convinced with the OP’s plea that going by the medical precautionary custom and practice nothing stands ignored. Further, there may have been many other findings on other trivial issues but with main complaint failing to hold water (at its prime allegation) the favorable findings as to its ‘admissibility/maintainability’ and ‘jurisdiction’ etc with no statutory violation having actually incurred are of little solace and/or legal interest to any of and/ or all of the participants. Thus, we prefer to stall here itself.         

14.     Finally, in the light of the all above, we do not see any merit in the present complaint and thus ORDER its dismissal, however, with no orders as to its costs.

15.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.

                           (Naveen Puri)

                                                                                 President.

ANNOUNCED:                                                            (Jagdeep Kaur)

january  17,2018.                                                              Member               

*MK*