Complaint No: 519 of 2017.

                                                        Date of Institution: 29.09.2017.

                                                                 Date of order: 05.10.2023.

Sudesh Kumar, SI S/o Gurdial Chand resident of H. No. 549/8, Hari Darbar Colony, Gurdaspur, Tehsil and District Gurdaspur.

                                                                                                                                                                 …....Complainant.                                                                                                                                                                                                                                                                                                                                                                                                      

                                                        VERSUS

1.       Dr. Payal Arora C/o Arora Hospital, Gurdaspur.

2.       Nayyar Hospital, Amritsar, through Dr. Manan Anand.

                                                                                                                                                                 ….Opposite parties.

                                                Complaint u/s 12 of the Consumer Protection Act.

Present: For the complainant: Ms.Sakshi Sharma, Advocate.

             For the opposite party No.1: Sh.Munishwar Nagpal,          

             Advocate.

             For the opposite party No.2: Sh.Bishwajeet Uppal,

             Advocate.

Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.

ORDER

Lalit Mohan Dogra, President

          Sudesh Kumar, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against Dr. Payal Arora etc. (here-in-after referred to as 'opposite parties).

2.       Briefly stated, the case of the complainant is that the complainant is serving as Station House Office at Police Station Kanwan, Tehsil and District Pathankot and is the resident of Haridarbar, Colony, Gurdaspur. It was submitted that the complainant was hale and hearty and never suffered any heart problem during his services as chowki Incharge / SHO before 20 April 2017.  It is further pleaded that the department conducts medical checkup after every 6 month and no problem was detected during the services of the complainant in the department of police. It was further submitted that the opposite parties who is running a super specialty Hospital at Amritsar gives advertisement in various newspapers and also on their website and e­mail i.e. manananand@yahoo.com, which was read over by the complainant at Gurdaspur and was accordingly contacted by the complainant through opposite party No. l. It is further pleaded that the opposite parties in order to make hefty and exorbitant bills takes the patients for a ride and mislead them into believing that your life is in jeopardy and you have to undergo coronary Angiography. It is further pleaded that the opposite party No. 1 put the patient in fear of death to make money by illegal and unfair practices and the same happened with the complainant whose life was reduced into smithereens and the bright future in Punjab Police diminished. I It is further pleaded that the complainant who is M.A in Political Science and decorated officer brought laurels for the police department and played an active role during the terrorist attack at police station Dinanagar District Gurdaspur. It is further pleaded that no prior investigations were conducted by the opposite parties No. 1 and 2 which necessitated the demand / urgency for coronary angiography, which is utter negligence and unfair trade practice on the part of opposite parties, nor the opposite parties informed the family of the complainant to take their consent. It is further pleaded that the complainant requested the opposite party No. 2 to let him call his daughter who is doing MBBS at Amritsar but he turned deaf ears to his request. It is further pleaded that the opposite party No. 1 introduced the doctor / opposite party No. 2 to the complainant, who is on visiting terms to opposite party No. 1 stating that he is an eminent cardiac surgeon and has conducted many bypass surgeries and in case any need arises for bypass surgery he would be available for coronary angiography/ angioplasty by him. It is further pleaded that it was incumbent upon the doctor to conduct compulsory medical test of ECG, blood test, MRI, Eco stress, CT Angiography to check the blockage before doing angiography which the opposite party No. 2 has not done, which is utter negligence on the part of opposite parties. It is further pleaded that lecture on heart attack by Dr. Bimal Chhajer will be produced at the time of evidence. It is further pleaded that the opposite parties in order to make money put the complainant in fear and did coronary angiography by inserting stent without the consent of the family of the complainant. It was further alleged that the complainant suffered physical and mental harassment due to utter negligence of the opposite parties and his bright, future in police department was reduced into smithereens, due to which he cannot do strenuous job. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.

          On this backdrop of facts, the complainant has alleged deficiency in service and unfair trade practice on the part of the opposite parties and prayed that compensation of Rs.1,00,000/- be paid for causing mental agony and harassment and Rs.2,71,361/- charged exorbitantly be refunded alongwith interest @ 10% from the date of filing the complaint till realization and any other order as the Hon’ble commission deems fit be also passed, in the interest of justice.

3.       Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint is not maintainable against opposite party No. 1 and as per Section 2(1) (d) (ii) (hires or avails of ) "any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of ) the services for consideration paid or promised, or partly paid or partly promised or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails a such services for any commercial purposes. So, as per the definition "A person claiming himself as consumer should satisfy the three conditions, namely , (i) The service should have been rendered to him, (ii) The service should be hired by him and (iii) for hiring the service, he should have paid consideration in the manner envisaged by this Section of the Act". So as per the present complaint, the complainant has not hired or availed the services of opposite party No. 1. It is further pleaded that  the complainant is not the consumer of the opposite party No. 1. It was pleaded that the complainant never contacted opposite party No. 2 through opposites party No.1. It is further pleaded that as a matter of fact the complainant himself contacted opposite party No. 2 through various advertisements in various newspapers, website and E-mail i.e.

          On merits, the opposite party No. 1 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.

4.       Upon notice, the opposite party No.2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint is not legally maintainable and the complaint is filed against wrong person and the Name of opposite party No. 2 hospital is Nayyar Heart Institute & Super Specially Hospital. It is further pleaded that Dr. Manan Anand is not the owner of Nayyar Institute and Super Specially Hospital, he only works for the hospital and is on the rolls of management of the hospital and thus the present complaint is liable to be dismissed on this short ground. It is further pleaded that however, the replying opposite party is the Director of Cardiology department. It is further pleaded that the complainant has not come in the Hon’ble Commission with clean hands and has suppressed material facts from the notice of this Hon’ble Commission. It is further pleaded that complainant has filed false complaint on distorted facts as such the present complaint merits dismissal by invoking section 26 of the Act and  the complaint is mala-fide and same has been filed by the complainant on false allegations just to extract money from the answering opposite party No. 2. It is further pleaded that the complainant has given best treatment and adopted the standard line of treatment as per international practices well known to the medical profession and the alleged false complaint has been filed after four months and even otherwise the allegations that the complainant's health has deteriorated is false version and he is not suffering from any problem after the treatment. It was pleaded that it is wrong that the complainant was hale and hearty and never suffered from any heart problem during his service as Chowki In-charge /SHO before 20.4.2017. It is further pleaded that complainant himself approached opposite party No. 2/ Nayyar Hospital on 20.04.2017 with chest pain radiating to left ARM/W DOE and restlessness for the last one day and he was admitted in hospital. It was further pleaded that thorough lab investigation and investigations i.e. ECG, 2D-Echo Cardiograph was conducted and found single vessel disease. It is further pleaded that best medical treatment, medicines were given under instructions and supervision of Dr. Manan Anand, expert DNB Cardiologist. It is further pleaded that admission and after furnishing of Registration form, consent letter duly signed by the attendant of the patient/complaint. It is further pleaded that after taking consent of patient, Angiography and Angioplasty was conducted the patient and one stent inserted in single vessel and thereafter he was kept under observations and supervision of qualified doctors was discharged in satisfactory condition on 21.4.2017 with discharge advice and medicines to follow up in case of chest pain. It is further pleaded that proper treatment was given to the complainant and opening of same vessel. It was further pleaded that it is wrong that the opposite party No. 2 in order to make hefty and exorbitant bills take the patients for a ride and mislead them into believing that your life is in jeopardy and he has to undergo coronary angiography. It is further wrong that the complainant was put into the fear of death to make money by illegal and unfair process. It is further pleaded that it is further wrong that the complainant's life has been reduced into smithereens and the bright future has been diminished. It is further pleaded that after investigation the patient and his attendant was clearly apprised with medical reports and angiography was advised and stent was installed after taking consents of the attendant of the patients / complainant to save any miss-happening of the life of the patient / complainant. It is further pleaded that it is wrong that the opposite party No. 2 had charged any alleged amount of Rs.2,71,361 /- from the complainant. It is further pleaded that opposite party No.2 had charged total cost of Rs.1,35,689/- from the patient / complainant, as is clear from the patient / complainant discharge bill.

          On merits, the opposite party No. 2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.

5.       Learned counsel for the complainant has tendered into evidence affidavit of Sudesh Kumar, (Complainant) as Ex.C-1 alongwith other documents as Ex.C-2 to Ex.C-30.

6.       Learned counsel for the opposite party No.1 has tendered into evidence affidavit of Dr. Payal Arora as Ex.OP-1/A alongwith other documents as Ex.OP-1/1 to Ex.OP-1/5.

7.       Learned counsel for the opposite party No.2 has tendered into evidence affidavit of Dr. Manan Anand as Ex.OP-2/A alongwith other documents as Ex.OP-2/1 to Ex.OP-2/15.

8.       Written arguments filed by the opposite parties but not filed by the complainant.

9.       Counsel for the complainant has argued that complainant is a police official and felt pain in his chest and thereafter consulted with opposite party No.1 and opposite party No.1 referred the complainant to opposite party No.2 and opposite party No.2 without conducting the compulsory medical tests i.e. ECG, blood test, MRI, Ecostress, CT angiography inserted a stent by doing coronary angiography inspite of the fact that complainant was not suffering from any such disease and as such opposite parties are liable to pay Rs.2,71,361/- to the complainant alongwith compensation.

10.     On the other hand counsel for the opposite party No.1 has argued that complainant had consulted with opposite party No.1 and opposite party No.1 never referred the complainant to opposite party No.2 and the allegations are totally false having been made to grab the money from opposite party No.1.

11.     Counsel for the opposite party No.2 has argued that complainant had approached opposite party No.2 hospital on 20.04.2017 with chest pain radiating to left Arm/W DOE and restlessness for one day and after admission lab. investigation i.e. ECG, 2D-Echo Cardiograph was conducted and found single vessel disease and was explained every aspect about the disease and getting consent of patient/complainant and his attendant, the  angiography and angioplasty was conducted and one stent was inserted in single vessel. Complainant was given best treatment available at that moment and as such there is no deficiency in service on the part of opposite party No.2 and complaint is liable to be dismissed.

12.     We have heard the Ld. counsels for the parties and gone through the record.

13.     To prove his case complainant has placed on record investigation report and medical bills Ex.C2 to Ex.C19. Opposite party No.1 has placed on record affidavit of Dr.Payal Arora Ex.OP-1/A and aspect of medical journals Ex.OP-1/1 to Ex.OP-1/5. Opposite party No.2 has also placed on record affidavit of Dr.Manan Anand Ex.OP-2/A report of investigation Ex.OP-2/1 and consent form Ex.OP-2/11 signed by the complainant and his attendant. It is admitted fact that complainant had approached opposite party No.2 on 20.04.2017 with chest pain and opposite party No.2 had conducted angiography and angioplasty upon the complainant and one stent was inserted in single vessel. The only disputed point for adjudication before this Commission is that whether angiography and angioplasty and installation of one stent in single vessel were required or not. We have gone through the entire file and investigation reports placed on record by the complainant and opposite parties. Perusal of report of ECG Ex.OP-2/5 shows abnormal ECG which is carried on 20.04.2017 at 4.26. P.M. To prove this fact that whether the angiography and angioplasty carried out by opposite party No.2 was required or not, the complainant has not placed on record any expert opinion as such we are of the view that it is prerogative of the doctor under whose treatment the patient is, as to what treatment is to be given to the patient to save is life. As far as the question of medical negligence is concerned complainant has failed to placed on record any expert opinion and since for pleadings and investigation reports there is no other evidence to prove medical negligence on the part of opposite party No.2. There is no evidence on record that opposite party No.1 referred the complainant to opposite party No.2.

14.     We have placed reliance upon the judgment of Hon'ble National Consumer Disputes Redressal Commission, New Delhi in FA No.431 of 2005. D/d 17.11.2009 in case titled as Pushkar Dutt. Vs. Christian Medical College and Hospital Ludhiana and another in which it is held as under:-

          12.     But now, it is a well settled proposition that onus of  proof in medical negligence is on the complainant who alleges     medical negligence. No medical expert/evidence has been led  by the appellant/complainant to substantiate the allegation of           medical negligence that whatever was done by the Hospital  was not f as per expected medical practice.

          13.     Husbury's Laws of England, Volume 6, 3rd Eition,  Pages 17-18, defines, medical negligence in the following   terms:

          22.     Negligence dudes owned to the patient. A person who holds himself oat as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a   registered medical practitioner or not, who is consulted by a  patient, owes him certain duties, namely, a duty of care in  deciding whether to undertake the case; a duty of care in deciding what treatment to give : and a duty of care in his administration of that treatment (b) A breach of any of these duties will support an action for negligence by the  patient(c)".

          14.     Hon'ble the Supreme Court of India in paragraphs 22 of its judgment in Jacob Mathew V. State of Punjab and another,    reported in 2005 (2) ALD (Crl.) 334 (SC) : 2005 (2) ALD 52 (SC) III (2009) CPJ 9 (SC) : (2005) 6 SCC 1, held as under:- "The opinion of Lord Denning , as expressed in Hucks V.  Cole, (1968) 118 New LJ 469, a medical practitioner was not to be held liable simply because things went wrong from  mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of  another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field".           

          15.     Of course, the Doctor brings in his task of providing  medicine, reasonable degree of skill and knowledge and exercise the same to a reasonable degree, then, the medical practitioner cannot be held guilty of the medical negligence only because someone else of better skill and knowledge would have given different treatment or operated in a different  way. It has not been shown by leading any evidence that the line of treatment adopted by the respondents was not in line with the medical practitioners.

          16.     A doctor can be held guilty of medical negligence only where his conduct falls short below that the standard of a    reasonably competent Doctor in his field, so much so, that his conduct might be deserving of censure or inexcusable.

15.     As such from the above discussion we are of the view that this procedure before this commission is summary in nature and examination and cross examination of witnesses is required to prove medical negligence and the fact that whether the treatment given was required or not, as such we are of the view that complainant has miserably failed to prove medical negligence and deficiency in service on the part of opposite parties and as such complaint is ordered to be dismissed with no order as to costs. However, complainant is at liberty to approach the appropriate Civil Court for redressal of his grievance.

16.      The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

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

                               (Lalit Mohan Dogra)

                                                                          President   

Announced:                                          (B.S.Matharu)

Oct. 05, 2023                                                Member

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