BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR
Complaint No.106 of 2018
Date of Instt. 16.03.2018
Date of Decision: 28.09.2021
Rajesh son of Sh. Faryad, resident of Tulsi Nagar, Kartarpur, District Jalandhar.
..........Complainant
Versus
1. Dr. Piyush Sharma, M.S Ortho (Trauma and Joint Replacement Surgeon), Fooball Chowk, Jalandhar City.
2. Guru Nanak Dev Mission Hospital, Guru Nanak Dev Chowk, Jalandhar through its Manager/Trustee.
3. The New India Assurance Co. Ltd., Regd. Office, New India Assurance Building, 87, M. G. Road, Mumbai 400 001, Divisional Office 1st (360900), SCO 30-31, Ist Floor PUDA Complex, Shri Guru Ramdas Divine Tower, Jalandhar.
….…..Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Kuljit Singh (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Gulshan Arora, Adv. Counsel for the Complainant.
Sh. V. K. Gupta, Adv. Counsel for the OP No.1.
Sh. A. K. Walia, Adv. Counsel for the OP No.2.
Sh. R. K. Sharma, Adv. Counsel for the OP No.3.
Order
Kuljit Singh (President)
1. The instant complaint has been filed by the complainant against OPs on the averments that he sustained injuries in a road accident and his right leg below knee was amputated. On 13.12.2016, he was admitted in Guru Nanak Mission Hospital, Jalandhar where OP no.2 was serving in Ortho Department and OP no.1 was the Incharge. After his thorough examination, OP no.1 advised him for operation and assured him that rod shall be inserted in the left leg and thereafter he would be able to get implant artificial leg. As per advice of OP no.1, he underwent operations. After the operation, he was shifted to room, OP no.1 left the stitches opened and as result of which, the blood perfuse badly and spread on the bed. His blood pressure also went down. Thereafter, he was discharged on 18.12.2016 and sum of Rs.2,00,000.00 was spent. He approached OP and OP advised him to approach him at his private Hospital where OP had been giving medicines. OP again advised him for another operation for removal of the rod and acting on the advice of OP. OP no.1 charged more than Rs.40,000 for the said operation. He could not get any recovery and feeling pains in his leg. The artificial leg cannot be implanted. All the treatments have been provided by OP no.1 while he was in service with OP no.2 as well as from Ganga Ortho Care Hospital owned by OP no.1. The complainant consulted Dr. Navjot Singh of Global Hospital who advised him for further surgery and further advised him that in case he shall not undergo further surgery, he would not be able to get implant the artificial leg rather there are more and more chances for infection. The act and conduct of OP no.1 is clear cut deficiency and negligence in service. The complainant also served legal notice dated 09.10.2017 upon OP but of no use. Due to act and conduct of OPs, he has filed the present complaint and prayed that the OPs be directed to refund the amount which he has paid to OP during the course of treatment along with interest @ 18% per annum from the date of payment till realization besides Rs.5 lakh as damages and Rs.20,000/- as cost of litigation.
2. Upon notice, OP no.1 appeared and filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that there is no deficiency or negligence in service. The complaint is absolutely wrong and incorrect. The OP no.1 denied all the averments of the complainant made in complaint even on merits and prayed for dismissal of the complaint.
3. OP no.2 appeared and filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that complainant has concealed several vital facts. The complainant is barred by limitation. On merits, OP no.2 had got insured itself from New India Assurance Co. Ltd. by purchasing Profession Indemnity Insurance. The policy no. 36090436150200000010 for the period 27.10.2016 to 26.10.2017 and policy no. 36090436180200000006 for the period 27.10.2018 to 26.10.2019. As per record, right leg below knee of the complainant was already amputated before 13.12.2016. On 13.12.2016 complainant came to OP no.2 for treatment and he remained up to 18.12.2016 and after proper conservative symptomatic treatment by giving antibiotic and painkiller discharged when symptoms of discharge, pain and infection in the right thigh disappeared on 18.12.2016 and charged only Rs.1660/- from the complainant. No operation was suggested during 13.12.2016 to 18.12.2016 when complainant was with OP no.2. During 13.12.2016 to 18.12.2016 OP no.1 never advised him for operation and never assured him that rod shall be inserted in left leg. The artificial leg cannot be implanted due to several reasons and infection might be one of the reasons for the same. No surgery was conducted at the person during 13.12.2016 to 18.12.2016. Rest of averments made by complainant was denied by OP no.2 and it prayed for dismissal of the complaint.
4. OP no.3 filed its separate written reply and contested the complaint of the complainant by averring that OP no.3 has insured the OP no.2 vide policy no.36090436160200000006 for the period 27.10.2016 to 26.10.2017 under Professional Indemnity Insurance for indemnifying the issued. The insured and insurance company by determining whether there is any carelessness /negligence and whether the same is covered under the policy obtained by the concerned doctor or concerned hospital. Till date no claim has been preferred by the concerned hospital. No intimation was given or claim lodged or notice given nor forwarded the summons or process received by OP no.2 to OP no.3 at any point of time. The OP no.3 denied all the averments made in the complaint even on merits and it prayed for dismissal of the complaint.
5. The complainant has tendered in evidence his affidavit Ex.C-A in support of his case along with copies of documents Ex.C-1 to Ex.C-7. On the other hand, OP no.1 tendered in evidence affidavit of Dr. Piyush Sharma as Ex.OP-1/A and close the evidence. OP no.2 tendered in evidence affidavit as Ex.OP-2/A and Ex.OP-2/B and OP no.3 tendered in evidence affidavit of Poonam Sharma Deputy Manager as Ex.O-A along with copy of document Ex.OP-3/1 and close the evidence.
6. We have heard learned counsel for the parties and have gone through the record very carefully as well as written arguments filed by complainant.
7. The glance at evidence is required by us to settle the controversy in this case. The complainant has tendered in evidence his affidavit Ex.CW-1/A on the record in support of his case. He alleged deficiency in service and unfair trade practice on the part of OPs. Ex.C-A is additional affidavit of complainant Rajesh. Ex.C-1 is copy of document of Guru Nanak Mission Hospital. Ex.C-2 is patient card of Bone & Joint Replacement Accident & Trauma Care Center, Ex.C-3 is copy of letter dated 15.07.2015 regarding price quotation for knee prosthesis. Ex.C-4 is patient card of Orthonova Hospital. Ex.C-5 and Ex.C-6 x-ray report. Ex.C-7 is copy of Ayushman Card.
8. To refute this evidence, OPs relied upon affidavit of Dr. Piyush Sharma as Ex.OP-1/A on the record. This doctor stated that complainant was admitted in Charitable Hospital being run by OP no.2 on 13.12.2016 but amputation of right leg of the complainant was already taken place before 13.12.2016. The complainant came for treatment for discharge i.e. oozing of the wound and pain and infection in the right thigh where nailing had already been done earlier before 13.12.2016. Ex.OP-2/A is affidavit of Dr. Rajesh Saini Medical Superintendent. Ex.OP-2/1 and Ex.OP-2/2 copies of policy schedule. Ex.OP-2/3 is copy of document issued by Guru Nanak Mission Hospital Ex.OP-2/4 is copy of resolution dated 03.04.2019.
9. OP no.3 tendered in evidence affidavit of Punam Sharma Deputy Manager New India Assurance Co. Ltd as Ex.O-A on the record. Ex.OP-3/1 is copy of policy schedule for professional indemnity insurance.
10. The complainant alleged in the present complaint that he sustained injuries in a road accident and his right leg below knee was amputated. On 13.12.2016 he was admitted in the Guru Nanak Hospital Jalandhar where OP no.2 was serving in Ortho Department and OP no.1 was the incharge. The complainant has not produced on record any valid document to prove that he has admitted in the hospital of OP no.1. He has only produced Ex.C-1 in which date of admission mentioned as 13.12.2016 and date of discharge mentioned as 18.12.2016. Ex.C-3 is document dated 15.07.2015 for quotation of keen joints and foots. The Orthonova Hospital already refund the amount of operation to complainant, which is clear from Ex.C-4 document of Orthonova Joint & Trauma Hospital P. Ltd. This document of complainant himself and he cannot discard the same. The complainant has not produced on record bills or discharge summary of hospital from the treatment was given to him. The diagnosis of the doctor has also not produced on record. If the complainant received his all dues from the Orthonova Hospital then on what basis he filed the present complaint. Ex.C-2 is card of Bone & Joint Replacement Accident & Trauma Care Centre. This card is totally blank card, there is nowhere mentioned about diagnosis given by concerned doctor and no prescrption slip was mentioend inside. Ex.C-2 and Ex.C-4 are very authenticated and valid documents for adjudication of the present case. There is no expert body's report on the file by the complainant to prove any medical negligence against OPs. The complainant has not proved by means of any expert doctor that OPs prescribed this treatment against medical protocoal. The complainant has also not prodcued the bills of expenditure which he spent on his treatment. There is simple oral evidence of the complainant, which is not sufficient in our opinion to charge the Ops with civil liability for compensation on account of their alleged medical negligence. Even Apex Court has also held in "Kusum Sharma and others versus Batra Hospital & Medical Research Centre and others," reported in 2010(2) CLT that doctor who performed the operation had reasonable degree of skill and knowledge and hence no medical negligence is proved against him. The Apex Court has held in this authority has held that the Negligence is the breach of a duty exercised by omission to do something, which a reasonable man, guided by those considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. A medical practitioner would be liable only, where his conduct fell below that of the standards of a reasonably competent practitioner in his field. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. It would not be conducive to the efficiency of the medical profession, if no doctor could administer medicine without a halter round his neck. There is nothing on the record that OPs were not qualified doctors or they have not followed the medical protocol, while prescribing the treatment of tuberculosis to life assured In the absence of expert doctor's report, we are unable to rely upon the bald submissions of complainant in this regard, who is not an medical expert person in the medical science, attributing medical negligence to OPs. Once the complainant received all the dues from the Orthonova Hospital Jalandhar then no other valid question arise in the complaint.
11. The learned counsel for complainant has relied upon citation in support of his case i.e. Juddasai Venkata Versus Muddasani Sarojana reported in 2016(12) SCC 288. This citation is not applicable in the case in hand.
12. In the light of our above discussion, we do not find any substance in the submissions of the complainant and same is hereby dismissed. Parties are left to bear their own costs.
13. Copies of the order be sent to the parties, as permissible, under the rules. This complaint could not be decided within stipulated time frame due to rush of work. File be indexed and consigned to the record room after due compliance.
Announced in open Commission
28th of September 2021
Kuljit Singh
(President)
Jyotsna
(Member)
Jaswant Singh Dhillon
(Member)
