BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.265 of 2019

      Date of Instt. 12.07.2019

      Date of Decision: 13.02.2024

Ranveer Singh minor aged about 3 months through his natural guardian/father namely Sh. Jaspreet Singh S/o Sh. Hardev Singh, resident of Nagar Road, Talwara, Tehsil Mukerian, Distt. Hoshiarpur.

..........Complainant

Versus

1.       Dr. Pankaj Chaudhary, Life Care Hospital, Talwara Road,        Mukerian, Tehsil Mukerian, Distt. Hoshiarpur,

2.       Dr. Devendra Panwar, M.S., Mch. (Paed Surgery) (P.G.I         Chandigarh, at Lifeline Advanced Neonatal Centre, 63 & 64,          Waryam Nagar, Cool Road, Jalandhar also at Ankur Kids Superspeciality Hospital, 663, Guru Teg Bahadur Nagar, Near           Guru Ravidas Chowk, Jalandhar, Tehsil and Distt. jalandhar)

3.       Dr. Gurdev Chaudhary, (MD (Prdiatrics) DM (Neonatology)   Medical Director Registration no.30398 (PMC) Owner of Ankur    Kids Superspecialty Hospital, 663, Guru Teg Bahadur Nagar,     Near Guru Ravidas Chowk, Jalandhar, Tehsil and Distt.          Jalandhar.

4.       Dr. Deeksha Chowdhary MD Pathology PMC 31469, of Synergy     Lab, Ankur Kids Superspeciality Hospital, 663 Guru Teg       Bahadur Nagar, Near Guru Ravidas Chowk, Jalandhar, Tehsil   and Distt. Jalandhar.

5.       Dr. Krishna Goyal, M.D. Pathology,

6.       Dr. Gomty Mahajan MD Microbiology PMC No.33884 both of        Synergy Lab, Ankur Kids Superspeciality Hospital, 663 Guru     Teg Bahadur Nagar, Near Guru Ravidas Chowk, Jalandhar,    Tehsil and Distt. Jalandhar

7.       The oriental insurance company Ltd. Branch office 1, 32, GT Road, Opp. Narindar Cinema, Jalandhar

8.       National Insurance Company Pvt. Ltd. Mukerian, Branch 35D-24     GT Road, Mukerian, Distt. Hoshiarpur.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)                                         

                     Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. Rajneesh Verma, Adv. Counsel for Complainant.

                    Sh. Umesh Dhingra, Adv. Counsel for OPs No.1 to 6.

                   Sh. Nitish Arora, Adv. Counsel for OP No.7.

                   Sh. R. K. Sharma, Adv. Counsel for OP No.8.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant is minor hence the present complaint is being filed through his natural guardian/father Sh. Jaspreet Singh S/o Sh. Hardev Singh, resident of Nagar Road, Talwara, Tehsil Mukerian, Distt. Hoshiarpur, who has no adverse interest against that of the minor. The minor was having the right side HERNIA problem and on dated 10/05/2019 he/minor was took for chek up to OP No.1 Dr. Pankaj Chaudhary, Life Care Hospital, Talwara Road, Mukerian, Tehsil Mukerian, Distt. Hoshiarpur who after chek up the minor, advised to approach and recommended the OP. No.2 Dr. Devendra Panwar, M.S, Mch. (Paed Surgery) (P.G.I Chandigarh), who is also operating the patients in the Lifeline Advanced Neonatal Centre, 63 & 64, Waryam Nagar, Cool Road, Jalandhar and also operating the patients in the Aukur Kids Superspeciality Hospital, 663, Guru Teg Bahadur Nagar, Nera Guru Ravidas Chowk, Jalandhar, Tehsil and Distt. Jalandhar. The OP No.2 check up the minor on 13/05/2019 and advised for some tests in the clinic laboratory of OP No.1 so that the operation of Hernia can be conducted. Then the tests was got done in the lab of OP No.1 at Mukerian and the report was issued as normally. Then the complainant went to the OP No.2 and showed the test report who said to the complainant that if you want to operate the minor at a time then he can operate in the Lifeline Advanced Neonatal Centre and if you operate the minor after 2/3 days than he will operate at Ankur Kids Superspeciality Hospital, 663. Guru Teg Bahadur Nagar, Near Guru Ravidas Chowk, Jalandhar, Tehsil and Distt. Jalandhar. On 16/05/2019 after contacting on the phone with OP. No.2 Dr. Devendra Panwar, reached at Ankur Kids Superspeciality Hospital for the Hernia Operation of the minor, and got registration vide receipt No.32222 and paid Rs.350/- for the receipt. Then the OP No.2 get an amount of Rs.20,000/- in advance for the operation as settlement receipt vide UHID No.43099 IP No.17100, Receipt No.1082 and Dr. Devendra Panwar sent the minor to the ICU for operation to be conducted on 2/3 PM and the complainant was directed to purchase the operation material which was purchased by the complainant from Gireesha Pharmacy situated in the said hospital of Rs. 1380/- and paid/delivered the same to the OP No.2. During this period, OP. No.3 Dr. Gurdev Chaudhary visited the minor patient and check up and then said that the blood and weight of the minor is so less then it is necessary to get the tests of the minor about the same, so that the operation can be conducted as per the position of the minor. Blood was taken of the minor and then the Rs.4480/- was got deposited from the complainant by the Ankur Kids Hospital for the test and test was conducted in the Synergy Lab situated under the Ankur Kids Hospital and the report was issued under the signature of OP. No.4 Dr. Deeksha Chowdhary on 16/05/2019 by mentioning Ammonia as 986 whenever the Ammonia cannot above 90-150 Ug/dL of the new born child and 40-120 of children and for adults 30-86 ug/dL. as has been mentioned in the said report. The said report has been watched by the OP No.2 & 3 then he said that the report is not O.K. as the Ammonia is 986 and you have to get the more check up as the Ammonia should not be more than 90-150 ug/dL and said to the complainant that the life of the minor is in danger then the complainant shocked and requested to the doctor to save the life of the minor, then the OP. No.3 get an amount Rs.5,000/- from the complainant and the test was conducted in the Life Cell Dignostics CAP and the result was issued in nine pages in which the report was mentioned as normal, But the OPs No.2 and 3 has not conduct the operation of the minor and even the medicines which was got purchased from the complainant has not been returned and the amount of Rs.32,000/- which was got deposited from the complainant for the operation of Hernia has not been returned, rather given the shock to the complainant by giving the false report of Ammonia by Dr. Deeksha Chowdhary. Hence, there is great deficiency in service on the part of OPs as the OPs No.5 and 6 are also responsible being the doctors in the said hospital whose names are mentioned in the Synergy lab report. In the month of May 2019 the complainant requested the OPs to return the amount got deposited by him for the operation and for medicines and for tests, and also requested to pay the compensation of harassment, mental agony, physical sufferings, loss of money, but the OPs has totally refused to return the medicines and to pay the amount get by them for operation of the minor, but the OPs have totally refused to return the medicines and the amount of medicines and tests as well as amount of compensation and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to return the amount got recovered from the complainant for operation and medicines to the tune of Rs.35000/- along with amount of tests and also directed to pay an amount of Rs.50 Lakh as compensation of harassment, mental agony, physical harassment and loss of money to the complainant and any other relief which this Forum may deems fit and proper may also be awarded to the complainant, in the interest of justice.

2.                Notice of the complaint was sent to the OPs and accordingly, OPs No.1 to 6 appeared through its counsel and filed its joint written reply and contested the complaint by taking preliminary objections that present complaint is not maintainable under Law. The dispute raised by the complainants in the present complaint is manifestly outside the purview of the Act. The controversy involved in the present complaint is not a consumer dispute. The proceedings initiated by the complainant under the Act are nonest, null and void and without jurisdiction. The present complaint is wholly misconceived, groundless and unsustainable and untenable in law, besides being extraneous and irrelevant having regard to the facts and circumstances of the matter under reference. Thus is liable to be dismissed. It is further averred that the present complaint is liable to be dismissed out rightly because in the complaint the complainant has even not mentioned anything regarding the wrong treatment or suffering any kind of problem due to the treatment. The complaint is totally vague, imaginary, hypothetical and ambiguous, therefore the same is liable to be dismissed with special compensatory cost. It is further averred that the present complaint is baseless and flagrant abuse of process of law to harass and blackmail the answering OPs, the complainant has filed the complaint with some ulterior motive. The complainant has no locus-standi to initiate the present proceedings. It is further averred that the complainant has no cause of action against the answering OPs, as such the complaint is liable to be dismissed. It is further averred that it is settled principle of law that a medical practitioner can't be held negligent without expert opinion. In the present complaint there is no expert opinion. The complainant has not placed on record any expert opinion either from a specialist of similar branch or from the medical board constituted by the Government or from the Government Institute in order to substantiate the allegations made in the complaint. It is further averred that the complainant dragged the answering OPs into unnecessary, uncalled and unwarranted litigation. The answering OPs are known in the medical fraternity for its services to the humanity, with the present complaint and the complainant wants to tarnish the name of the answering OPs. The answering OPs are entitled for special damages from the complainant. It is further averred that the complaint is false, frivolous, as such the complainant is liable to be penalized under section 26 of the Consumer Protection Act. On merits, it is admitted that the complainant took his minor child to OP No.1 at Mukerian on 10.05.2019 with the complaint of swelling and at his suggesting, the complainant took his minor child to OP No.2 Dr. Devendra Panwar on 13.05.2019 at Kidney and Life Line Medical Institution, where he was medically checked up and he was advised to get the child admitted in Ankur Kids Superspeciality Hospital having ICU pre-operative and post-operative care for the small kids. It is also admitted that the child was admitted on 16.05.2019 with the OP No.2. It is further admitted that the pre-operation tests were suggested, which the complainant got conducted. Medicines were purchased from the Pharmacy situated in the premises of Ankur Kids Superspeciality Hospital. It has also admitted that the operation was not conducted due to the fact that the son of the complainant was declared medically unfit for operation as the Ammonia in the child was hyper, but 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.

3.                OP No.7 filed its separate written reply and contested the complaint by taking preliminary objections that the complainant is not the consumer of the answering OP and that being so the present complaint is liable to be dismissed against the answering OP. It is further averred that there is no privity of contract between the complainant and the answering OPs. It is further averred that there is no deficiency of service or unfair trade practices on the part of the answering OPs and that being so, the present complaint is liable to be dismissed. It is further averred that without admitting any liability, it is submitted that the answering OP had issued Professional Indemnity- Doctor Policy bearing no.233105/48/2019/1154 to Dr. Gurdev Chowdhary Proprietor M/s Ankur Super Speciality Hospital for the period 23.07.2018 to 22.07.2019 for a sum of Rs.20,00,000/- subject to terms and conditions of the policy of insurance. The said policy of insurance along with its clauses/terms and conditions is on record. It is further averred that without admitting any liability, it is submitted that the answering OP had issued Professional Indemnity Doctor Policy bearing no.233105/48/2019/904 to Dr. Devendra Kumar, 37, Second Floor, Saraswati Vihar, Kapurthala Road, Jalandhar for the period 30.06.2018 to 29.06.2019 for a sum of Rs.50,00,000/- subject to terms and conditions of the policy of insurance. The answering OP is not certain whether OP No.2 is the same to whom the said policy of insurance has been issued, since in the policy of insurance issued by the answering OP, the name of the doctor has been written as Dr. Devendra Kumar, but in the complaint the name of the doctor has been written as Dr. Devendra Panwar. Further, the address of the concerned doctor written in the policy of insurance is different than given in the complaint. On merit, all the 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.

4.                OP No.8 also filed its separate written reply and contested the complaint by taking preliminary objections that the complaint is not maintainable against the answering OP as the complainant is not a consumer qua the OP No.8, as such the complaint against the answering OP is liable to be dismissed. It is further averred that there is no privity of contract between the complainant and the OP No.8. The OP No. 8 is not a necessary party in the present complaint, as such the complaint against the OP No. 8 is liable to be dismissed. It is further averred that without admitting any liability it is submitted that issuance of policy bearing No.4015506491910000001 for the period 13.04.2019 to 12.04.2020 under the Professional Indemnity Doctors and Medical Practitioners in the name of OP No.1/ Dr. Pankaj Chaudhary produced on record is not denied for indemnifying the insured in the claims arising out of bodily injury and/or death of any patient caused by or alleged to have been caused by error, omission, or negligence in professional service rendered or which should had been rendered by the insured. In the present case, there is neither any error nor any omission or negligence on the part of OP No.1, as such there is no liability of the OP No.8 and the complaint is liable to be dismissed. Neither any treatment has either been taken by the complainant from OP No.1  nor the OP No.1 has treated the complainant at any stage, as such the complaint against the answering OP No. 8 is liable to be dismissed. It is further averred that this Forum has no jurisdiction to fix any liability qua the insurance company. In this regard, it is submitted that this Forum has only to see whether the concerned doctor is liable to pay any compensation or not. As far as the insured and the insurance company are concerned, the matter between them is to be decided by the insurance company by determining whether there is any alleged carelessness/negligence and whether the same is covered under the policy obtained by the concerned doctor and thereafter, the liability of the insurance company is to be determined by the competent authority as per terms, conditions and exclusion clauses of the policy, however no relief can be granted directly in favour of the complainant against the replying OP No. 8. It is further averred that till date, no claim has been intimated by the OP No.1 with the replying OP No. 8. It is the condition No.10.1 of the insurance policy that the insured shall give written notice to the company as soon as reasonably practicable of any claim made against the insured (or any specific event or circumstances that may give rise to a claim being made against the insured) and which forms the subject of indemnity under this policy and shall give all such additional information as the company may require. Every Claim, writ, summons or process and all documents relating to the event shall be forwarded to the company immediately they are received by the insured. No intimation given or claim lodged or notice given nor forwarded the summons or process received by the OP No.1 to the answering OP No.8 at any point of time. As no claim has been lodged by the OP No.1 with the answering OP No.8 as per policy terms and conditions, as such answering OP No.8 cannot be made liable in any circumstances. On merits, all the 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.

5.                Rejoinder not filed by the complainant.

6.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

7.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the complainant and OPs No.1 to 6 very minutely.

8.                It has been admitted that the complainant took his minor child to the OP No.1 at Mukerian on 10.05.2019 with the complaint of swelling. On the suggestion of OP No.1, the complainant took his minor child to OP No.2 Dr. Devendra Panwar on 13.05.2019 at Kidney and Life Line Medical Institution, where he was medically checked up and he was advised to get the child admitted in Ankur Kids Superspeciality Hospital having ICU pre-operative and post-operative care for the small kids. It is admitted that the child was admitted on 16.05.2019 with the OP No.2. It is admitted that the pre-operation tests were suggested, which the complainant got conducted. Medicines were purchased from the Pharmacy situated in the premises of Ankur Kids Superspeciality Hospital. It has been admitted that the operation was not conducted due to the fact that the son of the complainant was declared medically unfit for operation as the Ammonia in the child was hyper. The complainant has alleged that the amount of Rs.32,000/- was got deposited from the complainant by the OP for the operation, but the operation was not conducted nor the amount of Rs.32,000/- has been returned. The medicines have also not been taken back by the Pharmacy. The amount taken for tests has not been refunded and the complainant has alleged that wrong reports have got been prepared by the OPs and has further alleged the deficiency in service and unfair trade practice on the part of the OPs.

9.                The OPs on the other hand have alleged that the doctors, who have medically checked the son of the complainant are fully qualified doctors. The pre-operative tests were conducted by the expert doctor i.e. OP No.3. After getting the test conducted, the child was found medically unfit for operation. For knowing the reasons for Hyperammonemia and the child being not growing, the test were suggested and Rs.5000/- were taken from the complainant by the OPs. It has been alleged by the OPs that the amount of Rs.14,400/- has been returned to the complainant. The amount spent on tests and the room rent has not been returned as the complainant himself left the hospital and there is no deficiency in service on the part of the OPs.

10.              The complainant has produced on record the Universal report dated 13/05/2019 Ex.C-1, Life line Advanced Neonatal centre report dated 13/05/2019 Ex.C-2, Registration fee slip dated 16/05/2019 of Ankur Kids Superspeciality Hospital Ex.C-3, Settlement receipt dated 16/05/2019 Ex.C-4, medicines and material got purchased by the complainant for operation of the minor from Gireesha Pharmacy dated 16/05/2019 Ex.C-5, Test report dated 16/05/2019 by Ankur Kids Hospital Ex.C-6, and TMS 119 condition slip of Rs.5000/- dated 16.05.2019, Test Report from Sardana Labs Jalandhar dated 25.05.2019 showing the test report of the minor and Letter of report awaited issued by the Ankur Kids Superciality Hospital dated 16.05.2019 Ex.C-9.

11.              All the material facts have been admitted and proved by the complainant. The complainant has not alleged anywhere nor has proved anywhere that the OPs No.1 to 6 are not capable or not qualified. No negligence on the part of the doctors has been alleged except that the wrong report has been prepared by the OPs. The complainant has not produced on record the certificate of any doctor to show that wrong pathological report i.e. test report have been prepared by the OPs. It is admitted that the son of the complainant was suffering from Hernia. The amount received by the OPs from the complainant is also not denied. Perusal of the Ex.C-3 shows that Rs.350/- were received by the OP as registration fee and Rs.20,000/- were received by the OP No.2/Dr. Devendra Panwar by cash from the complainant and Rs.1380/- were given to the Gireesha Pharmacy Ex.C-5 for the purchase of the medicines. Ex.C-7 shows that Rs.5000/-were given for the TMS 119 condition Baby Shield Test as alleged by the OP for knowing the reasons for the child being not growing. By Ex.C-8 Rs.500/- were taken for the test of Ammonia. Perusal of Ex.OP-7 clearly shows that the doctor/OP No.3 has medically checked up the child and after discussing and explaining in detail the condition of the child before surgery, the doctor has opined that ‘in view of severe failure to thrive (failure to gain weight) dehydration and loose stool child is not medically fit for surgery’. The surgery was canceled in view of the findings of the doctor. The doctor has opined that in such circumstances, ‘there is strong possibility of either low grade Septicemia or inborn error of metabolism’. The doctor has categorically opined the child not to be fit for surgery. The complainant has purchased the medicines of Rs.1380/- from Gireesha Pharmacy, which include Cannula, Antibiotics, Syringe and Paper Gloves, Baby Bands and other material. As per settlement receipt Ex.OP-11, the complainant has received the amount of Rs.14,400/- from the OP and Rs.235/- on account of medicines vide Ex.OP-12. The detail of the amount taken, has been given by the OP in Ex.OP-4. Rs.20,000/- were taken advance for admission, Rs.4480/- Synergy Lab Tests, Rs.5000/- Life Cell Diagnostics and Rs.1380/- for medicines. It has been mentioned in Ex.OP-14 that the registration charges were online and these were non-refundable. Out of Rs.20,000/-, Rs.5600/- were deducted as for one day ICU Stay Doctor Care Nursing Charges, Bed Charges, Pulse Oximeter/Monitor Charges as per Ex.OP-15. The other amount of Rs.4480/- was given for tests and the reports have been proved on record by both the parties. As per submission of the OP, the reports were handed over to the complainant and this fact has not been denied.  Similarly, Rs.5000/- was taken for the TMS 119 condition Baby Shield Test, outsourced and the report has been given by the OP to the complainant vide Ex.OP-1 and Ex.OP-4 respectively. For unused medicines Rs.235/- were returned to the complainant as per Ex.OP15. The amount which was deducted was for the services rendered by the OPs and availed by the complainant. There was no negligence nor there is any deficiency in service on the part of the OPs. The complainant has concealed the fact of receiving the refund of Rs.14,635/-. The complainant has failed to prove any deficiency in service and unfair trade practice on the part of the OPs and thus, the complaint of the complainant is without merit and the same is dismissed with no order of costs. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

12.              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          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

13.02.2024         Member                    Member               President