DISTRICT CONSUMERDISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 21 of 15.1.2008 Decided on : 21.5.2008 <br /> <br /> Amit Yadav S/o Sh. Krishan Yadav, R/o House No. 4962, Opposite Sunder Lal Sraf, Sadar Bazar, Bathinda.<br /> .... Complainant<br /> Versus<br /> <br /> 1.Dr. Sanjay Garg (M.S Surgeon), C/o Delhi Nursing Home/Delhi Color Doppler & Scan Centre, Bibi Wala Road, Near Old Bus Stand, Bathinda.<br /> 2.Dr. Lovely Garg (Radiologist), Delhi Nursing Home/Delhi Color Doppler & Scan Centre, Bibi Wala Road, Near Old Bus Stand, Bathinda.<br /> 3.The New India Assurance Company Ltd., The Mall, Bathinda.<br /> ..... Opposite parties<br /> <br /> Complaint Under Section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Gursewak Singh Chugh, Advocate<br /> For the opposite parties : Sh. Sanjay Goyal, counsel for opposite parties No. 1&2<br /> : Sh. Jaideep Nayyar, counsel for opposite party No.3 <br /> <br /> O R D E R. <br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Instant one is a complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) which has been preferred by the complainant seeking direction from this Forum to the opposite parties to pay him Rs.5,00,000/- i.e. Rs. 2,00,000/- on account of monetary loss for his not attending the construction work including operation charges, laboratory fees, medical expenses etc.; Rs.3,00,000/- as compensation for mental tension, agony etc. alongwith interest @ 18% P.A from the date of operation till realization and Rs. 5,500/- as litigation expenses.<br /> 2. Version of the complainant as emanates from the complaint itself leading to its filling may be epitomized as under :-<br /> Opposite parties No. 1 & 2 are jointly running Delhi Nursing Home/Delhi Color Doppler & Scan Centre, Bibi Wala Road, Near Old Bus Stand, Bathinda. He (complainant) had acute pain in his Kidney and other parts of the body. On 29.6.2007, he was brought to opposite party No. 2 where he was medically examined. His laboratory tests and Ultrasound etc. were conducted by opposite party No. 1 on the same day. Matter was discussed by opposite parties No. 1 & 2 and pain was diagnosed on account of Lt. Ureteric stone. He was informed that operation was required to be performed immediately. Delay in operation could deteriorate his condition and develop complications. Consent for the operation was given by him. After operation, he was discharged on 30.6.2007 after charging Rs. 12,880/- towards operation, Anesthesia and lab tests fee, besides room charges vide bill/receipt No. 432 dated 30.6.2007. Opposite parties No. 1 & 2 had confirmed to him and other relatives that all the stone pieces were removed. Despite this, he was feeling mild pain. On 5.7.2007, he was having unbearable pain. Accordingly, he came to opposite parties No. 1 & 2 for immediate check up. After check-up and tests, he was informed that pain was due to right Kidney stone and another operation was necessary for which he agreed. Operation was performed and he was discharged on 6.7.2007. A sum of Rs. 12,380/- was paid to opposite parties No. 1 & 2 vide bill/receipt No. 440 dated 6.7.2007. Assurance was given that all the stone pieces were removed and he would have no pain due to stone problem. Even after the second operation, he was having continuous pain. Again he paid visit to opposite parties No. 1 & 2. After Ultrasound, they had declared that there were no more stones and there were no complications of the operations. Pain was increasing day by day. On 6.8.2007, he was brought to Dr. J. S Romana who is running Romana Ultrasound, Echo & Colour Doppler Centre at The Mall, Bathinda. After conducting Ultrasound, Dr. Romana opined as under :-<br /> “13x8 mm bilobed stone in upper part of Rt. Ureter, 12mm from Pu Junction. Lt. Upper is dilated & shows two 9x4 mm and 8x5 mm stones at level of pelvic BRIM”<br /> Due to the fact that he was not recovered after two operations, he could not continue construction work which he was doing as a result of which he incurred monetary loss to the tune of Rs. 2,00,000/- including expenditure of operations, Ultrasounds, laboratory tests and medicines etc. He was kept in dark even after two operations that there were no stone pieces and all the stones were removed. In these circumstances, he alleges deficiency in service and unfair trade practice on the part of opposite parties no. 1 & 2.<br /> 3. Opposite parties No. 1 & 2 filed their version taking legal objections that complaint is not maintainable in the present form; complainant has no locus-standi and cause of action; complaint is false and frivolous; complainant has not come with clean hands and intricate questions of law and facts are involved for which matter is required to be adjudicated by the civil court. Inter-alia, their plea is that opposite party no. 1 is the Surgeon and Proprietor of Delhi Nursing Home whereas opposite party No. 2 is the Radiologist and Sole Proprietor of Delhi Color Doppler and Scan Centre, Bathinda. As per history narrated by the complainant, he was suffering from stones problem for the past many years. There were multi stones in his Kidneys and Ureters. When his condition had become aggravated, he had approached opposite party No.1. He was checked and diagnosed with multiple stones. He was told that multiple stones can be removed in parts. There was also stone in Lt. Ureter due to which he was feeling pain. So he was advised to get it operated first. Complainant had asked for immediate operation. He had come with pre-determined mind and was admitted on 29.6.2007. Left Ureteric stone was cleared endoscopically (URS) and stent was inserted as per universal standard procedure. They deny that complainant and his relatives were told that all the stone pieces were removed. Only the stone/calculus of about 7 mm in upper ureter 2 cms below PUJ was removed. He was feeling relief. Accordingly, he was discharged on 30.6.2007. As he was suffering from multiple stone problems, he had again come to them on 5.7.2007 for removal of right Kidney stone for which he was aware. There are three methods for removal of Kidney stones i.e. open surgery, key hole surgery (PCNL) and Lithotripsy. Complainant was apprised of them and he opted for Lithotripsy which is conducted without any cut with rays. He was told that removal of Kidney stone by Lithotripsy may require more than one sitting and he had agreed to it. Thereafter, Lithotripsy was done. He was feeling relief from pain and was discharged on 6.7.2007. He was asked to revisit after some time for more sittings. Stent inserted in Lt. Ureteric was removed after about three weeks. He did not make complaint of any type at that time. He did not come for more sittings as per advice. Kidney stones may have come down in the Ureter or new stones may have developed. On 29.6.2007, only one stone was removed. As per report attached with the complaint, two more stones were there. The report obtained by the complainant may be incorrect. They could not insert the stones. Their allegation is that on 12.8.2007, complainant had come to their hospital with some unsocial elements and threat of dire consequences was extended. Money was demanded. Matter was reported to the Police. Complaint has been filed to blackmail them and just to extract money. They have shown readiness and willingness to check the complainant and conduct more sittings for removal of the stones. It is further added by them that even otherwise, they have taken out Doctor's Indemnity Policy from opposite party No. 3 covering legal liabilities arising from or in the course of profession to the tune of Rs. 15,00,000/- for opposite party No. 1 and to the tune of Rs. 7,00,000/- for opposite party no.2 and the liability, if any, is to be borne by opposite party no.3. They deny deficiency in service and the remaining averments in the complaint. <br /> 4. On being put to notice, opposite party no. 3 filed separate reply of the complaint taking legal objections that complaint is not maintainable in the present form; complainant has no cause of action to file the complaint against it; this Forum has got no jurisdiction to entertain and try the complaint; complaint is false and frivolous; complainant is not consumer; he is estopped from filing the complaint by his act and conduct and intricate questions of law and facts are involved due to which matter can only be decided by the civil court. It avers that opposite parties No. 1 & 2 are well qualified doctors. There is no deficiency in service on the part of any of the opposite parties. Insured did not comply with the terms and conditions under which policy was issued and as such, liability cannot be fastened upon it. Dr. Romana has not been made a party to the complaint. There was no unfair medical practice in this case. It does not admit the remaining averments in the complaint. <br /> 5. In support of his allegations and averments in the complaint, Amit Yadav complainant tendered into evidence his own affidavits (Ex.C.1 & Ex.C.2), photocopy of Discharge Cards (Ex.C.3, Ex.C.4 & Ex.C.11), photocopies of bills (Ex.C.5, Ex.C.7 & Ex.C.12), photocopy of prescription slip (Ex.C.6), photocopies of receipts dated 30.6.2007 & 6.7.2007 (Ex.C.8 & Ex.C.13), photocopy of Cash memos dated 29.6.2007 & 31.7.2007 (Ex.C.9 & Ex.C.16), photocopies of Ultrasound reports (Ex.C.10 & Ex.C.18) & photocopies of Lab Test Reports (Ex.C.14, Ex.C.15 & Ex.C17). <br /> 6. On behalf of the opposite parties, reliance is placed on affidavits (Ex.R.1 & Ex.R.28) of S/Sh. P.K Jain, Senior Divisional Manager & Dr. Sanjay Garg, opposite party No.1 respectively , photocopy of policy (Ex.R.2), photocopy of Doctor's Indemnity Insurance (D.I.I Clause), photocopies of Discharge Cards alongwith Indoor Files (Ex.R.4 to Ex.R.13), photocopy of Ultrasound report (Ex.R.14), photocopy of Progress Sheet (Ex.C.15), photocopy of X-ray Report (Ex.R.16), photocopies of letters dated 11.9.2007 & 14.8.2007 (Ex.R.17 & Ex.R.18), photocopies of statements of Dr. Sanjay Garg, Dr. Lovely Garg, S/Sh. Hari Om, Anil Kumar & Amit Yadav (Ex.R.19 to Ex.R.23) respectively, photocopies of Insurance Policies (Ex.R.24 & Ex.R.25) & photocopies of two C.R.s of one page each of AIIMS (Ex.R.26 & Ex.R.27). <br /> 7. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered written arguments submitted by the complainant.<br /> 8. One of the objections taken by the opposite parties is that intricate questions are involved in this case for which detailed evidence is required and as such, matter in controversy can only be decided by the civil court. Opposite parties have closed their evidence of their own. It was not brought to the notice of this Forum by the opposite parties that some other evidence which was to be led could not be led by them before this Forum. Matter has already been set at rest by their Lordships of the Hon'ble Supreme Court in the case of CCI Chambers Co-operative Housing Society Ltd. Vs. Development Credit Bank Ltd.-III(2003)CPJ-9(SC) by holding that merely because recording of evidence is required or some questions of law and facts arise which need to be investigated and determined, cannot be a ground for shutting the door of any Forum under the Act to the person aggrieved. Similar view has been held by their Lordships of the Hon'ble Apex Court in the case of J.J. Merchants Vs. Shrinath Chaturvedi-III(2002)CPJ-8 (S.C.). Hence this objection of the opposite parties cannot be sustained.<br /> 9. Admittedly, complainant had come to the opposite parties on 29.6.2007. Opposite party No. 2 had conducted Ultrasound K.U.B Area. Right Kidney was showing a calculus of about 11 mm size. Ureter was dilated due to calculus of about 7 mm in upper ureter 2 Cms below PUJ. She opined Left Ureteric Calculus and Right Renal Stone as is evident from Ex.C.10 and Ex. R.5. Three courses are open for removal of stones. They are open surgery, key hole surgery and Lithotripsy. On 29.6.2007, left ureteric stone was cleared and stent was inserted. Complainant was discharged on 30.6.2007 as is clear from Ex.C.3, Ex.C.4 & Ex.R.7. As per complainant, a sum of Rs. 12,880/- was charged. Copy of the bill is Ex.C.5. Again complainant came on 5.7.2007 with severe pain. He was informed that pain was due to right Kidney stone and operation was advised for which he had agreed. In support of it, there are copies of the statements of opposite parties No. 1 & 2 which are Ex.R.19 and Ex.R.20. Copy of the admission and discharge card is Ex.R.10. For removal of right Kidney stone Lithotripsy was done. Extracorporeal Shock Wave Lithotripsy (FSWL) is the scientific name of Lithotripsy. It provides a lower stone-free rate than other more invasive treatment methods. The passage of stone fragments may take a few days or a week and may cause mild pain. In order to dislodge fragments of the stone and carry them out of the kidney, patients may be subjected to repeated vigorous blows to the kidney while in a head-downward position for a week after the procedure, as well as instructed to drink as much water as is practicable. Hence, treatment by way of Lithotripsy procedure may require more sittings than one. Complainant after Lithotripsy was discharged on 6.7.2007 as is clear from Ex.R.10. As per Ex.R.12, he was advised second sitting from two weeks. By way of Lithotripsy method, stone is crushed/broken and it may come in the ureter.<br /> 10. On 12.7.2007, opposite party No. 2 had conducted ultrasound KUB. As per opinion, there was stone in the right Kidney and stent in the left ureteric. Ex.R.15 is the copy of the Progress Sheet. The date on it as readable is 17.7.2007. According to it, opposite party No. 1 declared no stone in the left ureteric and stent was removed under sedation. <br /> 11. Allegation of the complainant is that pain was increasing day by day and he was taken to Dr. J.S. Romana on 6.8.2007 as he is running Romana Ultra Sound, Echo & Colour Doppler Centre, The Mall, Bathinda. Dr. Romana is Sonologist. His Ultrasonography report reads as under :-<br /> “ Liver is normal in shape & size. It shows homogenous echopattern. I.H bile ducts are not dilated. Hepatic veins are normal. No SOL detected in it. Gall bladder is contracted. It shows normal wall thickness. No stone or SOL detected in it. Biliary convergence & CBD are normal. Pancreas is normal in shape, size and echopattern. Spleen is normal in shape, size & echopattern. Both kidneys are normal in shape & size. Palvicalyceal system is mildly dilated in both kidneys. No stone or SOL detected in either of the kidneys. There is 13x8mm bilobed stone in upper part of Rt. Ureter, 12mm from PU junction. Lt. Upper is dilated & shows two 9x4mm & 8x5mm stones at the level of pelvic brim. No peritoneal effusion detected. Para aortic lymph nodes are not enlarged. Urinary bladder is normal in shape & size. No stone or SOL detected in it. Prostate is normal in shape & size. It shows homogenous echopattern.<br /> IMP: Findings are suggestive of B/L ureteric stone with B/L hydronephrosis.”<br /> 12. Arguments pressed into service by the learned counsel for the complainant are that opposite parties No. 1&2 had assured after second operation that all the stone pieces had been removed. Despite this, complainant was having persistent pain. Opposite parties no. 1 & 2 kept the complainant in dark even after two operations by assuring that there were no more stone pieces. He further argued that complainant got himself checked from various laboratories and consumed prescribed medicines as is evident from Ex.C.14 to Ex.C.17. At the time of second operation, a sum of Rs. 12,380/- was charged by the opposite parties. <br /> 13. Mr. Goyal, learned counsel for the opposite parties No. 1 & 2 argued that no assurance was given by opposite parties No. 1 & 2 that all the stone pieces were removed. Kidney stones may come down in ureter after lithotripsy and new stones may also develop. Cent percent success in clearance of stones is not possible. For this, he drew our attention to the authority Sultan Ram Vs. B. K Chawla (Dr.) & Anr.-2006(2)CPC-420.<br /> 14. We have given our thoughtful consideration to the rival contentions. So far as second operation through Lithotripsy procedure is concerned, no medical negligence or deficiency in service on the part of opposite parties No. 1 & 2 can be inferred. Dr. Romana on 6.8.2007 found 13x8mm bilobed stone in upper part of right ureter, 12mm from PU junction. Lithotripsy procedure is such a procedure through which stone is crushed/broken. The passage of stone fragments may take a few days or a week and may cause mild pain. In order to dislodge fragments of the stone and carry them out of the kidney, patients may be subjected to repeated vigorous blows to the kidney while in a head downward position for a week after the procedure. Removal of kidney stone may require more than one sittings. Fragments of stone with Lithotripsy may come to ureter. Even if Dr. Romana in his report dated 6.8.2007 found bilobed stone in upper part of right ureter, no deficiency in service on the part of opposite parties No. 1 & 2 can be inferred because fragments of stone could come from the right kidney after second operation to the right ureter. Opposite party No. 1 had advised second sitting from two weeks as is evident from Ex.R.2. There is no evidence that complainant came for complete cure from the stone which was in the right kidney.<br /> 15. In para no. 5 of the reply of the complaint, specific stance has been taken by opposite parties No. 1 & 2 that left ureteric stone was cleared endoscopically (URS) and stent was inserted. They have mentioned in so many words that only the stone/calculus of about 7 mm in left upper ureter 2cms below PUJ was removed. In para no. 8 of the reply of the complaint, their plea is that stent inserted in left ureteric was removed after about three weeks. It was declared through Progress Report Ex.R.15 that there is no stone in the left ureteric and stent has been removed. Despite this, on 6.8.2007 left upper was found dilated and was showing 9x4mm and 8x5mm stones at the level of pelvic brim. Learned counsel for opposite parties No. 1 & 2 failed to show us any medical literature that such stones could develop in the left upper and could come from any other side to this side. In these circumstances, opposite parties No. 1 & 2 kept the complainant in dark by declaring that stent has been removed and there was no stone in the left ureter. Due to this wrong declaration, complainant has to suffer. Had opposite parties No. 1 & 2 diagnosed the case of the complainant correctly regarding the left ureter on the day the stent was removed, they could give treatment to the complainant or the complainant could get treatment for the same from some other doctors. Due to the wrong declaration, complainant has to undergo pain, mental tension and agony. What ought to be done by opposite parties No. 1 & 2, has not been done and what has been done ought not to have been done. Accordingly, medical negligence and deficiency in service on the part of opposite parties No. 1 & 2 is proved. With utmost regard and humility to the authority relied upon by opposite parties No. 1 & 2 which has been referred to above, is distinguishable on facts.<br /> 16. Opposite party no. 1 had purchased Doctor's Indemnity Policy from opposite party No. 3 for the period from 20.9.2006 to 19.9.2007. Similarly, opposite party No. 2 had purchased this type of policy from opposite party No. 3. All this is evident from Ex.R.24 & Ex.R.25 respectively. Complainant is claiming Rs.5,00,000/- as compensation in the manner stated above. Due to the deficiency in service, medical negligence and act and conduct of opposite parties, direction deserves to be given to the opposite parties to pay some compensation in lumpsum on all the counts. Accordingly, opposite parties are ordered to pay Rs. 25,000/- as compensation. Their liability to pay it is joint as well as several. Liability of opposite party No. 3 to pay the amount is made joint as well as several on account of the fact that opposite parties No. 1 & 2 had purchased Doctor's Indemnity Policies from it.<br /> 17. No other point was urged before us at the time of arguments.<br /> 18. In the result, complaint is partly allowed against opposite parties No. 1 & 2 with costs of Rs. 1,000/-. Opposite parties are directed to do as under: -<br /> ( i ) Pay to the complainant Rs. 25,000/- as compensation under section 14 (1)(d) of the Act.<br /> ( ii ) Compliance within 30 days from the date of receipt of copy of this order, failing which amount of compensation would carry interest @ 9% P.A till payment.<br /> 19. Copy of this order be sent to the parties concerned free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 21.5.2008 President<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> 'bsg' <br />