Haryana

Charkhi Dadri

cc/134/2019

Surender Kumar - Complainant(s)

Versus

Dr. Sanjeev Kumar - Opp.Party(s)

Sh. Rahul Kumar

25 Sep 2024

ORDER

 

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHARKHI DADRI

 

                                      Original Complaint No.: 11 of 2018 at Bhiwani.

                                       Date of Institution:  18.01.2018.

                                       RBT CC No.            134 of 30.09.2019

                                       Date of Decision:    25.09.2024        

 

Surender Kumar son of Maman Ram Saini, resident of Mohalla Saini Ganj, Charkhi Dadri, District Charkhi Dadri

 

….…. Complainant.

                                      Versus

 

1. Dr. Sanjeev Kumar C/o Ortho Care Hospital, old Jhajjar Road, Charkhi Dadri now Ortho Care Hospital, Near Jai Shiv Shankar Dharam Kanta, Shankar Colony, Charkhi Dadri.
2. United India Insurance Company Limited, Red Cross Building, Zoo Road Bhiwani. (Policy No. 1112022715P108120648 Valid from 12.10.2015 to 11.10.2016).

                                                              …….Opposite Parties.

 

              COMPLAINT UNDER THE CONSUMER PROTECTION ACT.

 

Before:        Shri Manjit Singh Naryal, President.

                    Shri Dharam Pal Rauhilla, Member.

 

Present:       Shri Gourav Jain, Adv. for the complainant.

                    Shri Rajender Verma, Adv. for the OP No. 1.

                   Shri Anil Kumar Gahlawat, Adv. for the OP No. 2.

 

ORDER

                   The case of the complainant, in brief, is that he was 35 years of age at the time of accident and was running small scale industry for manufacturing soap and detergent powder at Charkhi Dadri. He mentioned that he slipped down from the stairs and got severe pain in the left elbow on 25.01.2016 and was taken to Dr. Sanjeev Kumar C/o Ortho Care Hospital and was admitted. Upon the advice of OP no.1 surgical operation was conducted on 25.01.2016. Plaster was fixed for a period of 50 days and the complainant was advised to give complete rest. It is alleged that after completion of the period OP no.1 removed the plaster from the left hand/elbow but there was tremendous pain and suffering still persisting in the left hand/elbow. Opposite party no.1 negligently said without examining properly that such complaints are normal and usual and this pain will be over after regular exercises under supervision of some Physiotherapist. Following his advice, he underwent 45 days session of regular exercises but all in vain. The OP no.1 took X-ray films again on 4.6.2016 for the left elbow/hand and then the OP no.1 was surprised  to find that he had negligently left one fracture injury unrepaired during the surgical operation. Consequently the unrepaired fractured bone had got elongated in wrong direction and proportion leading to hindrance in proper rotator movement which was the cause of pain and suffering. Realizing the wrong treatment and advice given by the OP no.1 during this post operational period of about 5 months, the OP no.1 referred the  complainant to PGIMS Rohtak and advised to seek treatment from Dr. Kundu. He visited Dr. Kundu at PGIMS Rohtak but he gave long date for surgical operation  i.e. 31.10.2016. He was unable to wait for so long as he was having lot of pain. Thereafter he was taken to Raj Hospital and Fracture Clinic, Singhana, where surgical operation was conducted on 18.06.2016 for the same injury only because of negligence of OP no.1 who did not operate properly. Plaster was fixed for 25 days. When the plaster was removed hand got proper movement but due to such a long ill treatment on the part of OP no.1 during the initial period of about 5 months, the complainant’s hand has become very weak and for this reason he is now not able to perform properly in the conduct of his business leading of huge losses every month.  It is further alleged that a Legal Notice was sent to respondent No.1 but the OP no.1 did not pay any heed. Hence this complaint.

2.                OP no. 1 on appearance filed his contested written statement and took preliminary objections qua maintainability; locus standi and cause of action. In averment, it is alleged that complainant came on 21.01.2016 with badly fractured in left wrist. His x-ray of wrist was done and he was diagnosed to have fracture in lower end radius. Complainant was treated for the said fracture according to standard protocol with close reduction of fracture and plaster of paris was done. In post reduction x-ray, fracture was well reduced. Cast was removed after 1.5 months and re x-ray was done which showed facture well united. Complainant was pain free at 1.5 month and again came in June 2016 with complaint of pain and decreased movement elbow. Again x-ray was done. Complainant was found to have osteochondral fracture of radial head. Complainant was advised radial head excision and second opinion from PGIMs Rohtak. Complainant consulted Dr. Zile Singh Kundu who also advised excision of radial head. However the complainant did not follow the advice of OP no.1 and suffer because of his own negligence So, there is no deficiency in service on the part of OP no.1 and if any deficiency is found, in that eventuality his hospital is insured with United India insurance Co.  Ltd. and the United India insurance Co.  Ltd. is responsible for compensation, if any.  Therefore, there is no deficiency in service on the part of answering OP and complaint of the complainant is liable to be dismissed with costs.

3.                During the pendency of this complaint an application for impleading the UIIC Ltd. as OP was moved by OP-1 and the counsel for complainant has appended his “No Objection” to allow the application. So, UIIC Ltd. was impleaded as OP no.2 vide order dated 14.10.2019 by the then Forum.

4.                The OP No.2 filed contested written statement and took preliminary objections qua; maintainability; cause of action; jurisdiction; collusion between complainant and OP No.1 and concealment of true and material facts. On merits, it is alleged that  OP no.1 has purchased  the Professional Indemnity Doctors Policy vide Policy No. Policy No. 1112022715P108120648 Valid from 12.10.2015 to 11.10.2016 and as per the Indemnity Policy Limits, the same is covered for Rs. 15,00,000/- only for any one accident. It is specifically averred that the doctor i.e. OP no.1 treated the complainant as per the norms of medical jurisprudence and it was the complainant himself who was at fault, since he did not follow the proper medical prescriptions as per the instructions of the doctor. Hence, in view of the facts and circumstances mentioned above, there is no deficiency in service on the part of answering respondents and as such, the complaint of the complainant is liable to be dismissed with special costs.

5.                The complainant has tendered affidavit Ex.CW-1/A & Ex.CW-2/A and documents Ex.C1 to Ex.C-42 and closed the evidence on 20.07.2022.

6.                The counsel for the OP no.1 has tendered affidavit Ex.RA and documents Ex.R2 to Ex.R5 and closed the evidence on 11.01.2023. The counsel for the OP no.2 has tendered into evidence document  marked Ex.R1 and failed to tender any further evidence.

7.                We have heard the learned counsel for the parties besides going through the case file very carefully.

8.                Learned counsel for OP No.1 contended that treatment/plaster administered by OP No.1 to the injured was correct and there was no negligence, carelessness or deficiency in service of any kind on his part in relation to the said treatment given to him. The complainant has miserably failed to produce any cogent or convincing evidence to prove deficiency in service on the part of OP No.1 and in the absence of such evidence the complainant has failed to prove his allegations. The counsel for the OP No.2 contended that there is collusion between complainant and OP No.1 and complainant has concealed the true and material facts from the Commission. So, the complaint of the complainant is liable to be dismissed with heavy costs.

9.                In our view, the arguments of counsel for the respondents has no substance at all and we are of the considered view that the complaint of the complainant deserve acceptance as he has established the negligence and carelessness of the OP No.1 at the time of conducting his operation and applying plaster. Now question arises whether respondent was negligent at the time of conducting operation/plastering? The answer is “Yes”. The negligence has been defined as failure to act in accordance with the standards of reasonably competent medical man at the time and there may be one or more perfectly proper standards and if he does not conforms one of these proper standards i.e. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give and duty of care in the administrative or that treatment. So, breach of any of these above duties may give a cause of action for negligence and the patient may on that basis recover damages from the doctor. There is no doubt that it is settled proposition of law that a doctor is not to be held negligent simply because something went wrong and he is only liable when he fell below the standards of reasonably competent practitioner in his field. In this case it is no doubt that the complainant viz. Mr. Suresh Kumar was brought in the Hospital of OP No.1 with fracture in left elbow on 25.1.2016 and the operation was conducted on the same day.

10.              The negligency and carelessness on the part of OP no.1 is proved with the fact that, the complainant was examined by Dr. Ranveer Singh, Consultant Orthopedic Surgeon, Raj Hospital, Singhana as Ex. C15 who categorically stated that on 18.06.2016 the complainant was brought to his hospital as he was suffering from five month old fracture in left elbow. The X-rays were got done in which fracture in left elbow was visible. Meaning thereby the operation done by OP no.1 was not done perfectly. The OP no.1 in one of his prescription (Ex.C2) has mentioned “missed radial heat” which contains that doctor has missed something during operation. The patient compelled to seek treatment of another doctor/hospital at Raj Hospital & Fracture Clinic, Singhana (Rajasthan) where he was again operated. Hence, it is evident that OP No.1 was careless and negligent in treating/operating the complainant, Otherwise another doctor should not operated the complainant again. This point was highlighted by Dr. Ranveer Singh, Consultant Orthopedic Surgeon, Raj Hospital, Singhana by performing his second operation. Moreover, no record has been brought on file by the respondents to prove that no negligence has ever been committed by the OP No.1 who operated the complainant, whereas it was the bounden duty of the OP No.1 to bring on record cogent and convincing evidence  in his favour but he failed in doing so.  Therefore, all these facts suggest that OP no.1 did not give due care at the time of conducting operation. So, operation performed on left elbow was wrong and it was due to negligence of the respondent No.1. So, the doctor did not applied a reasonable degree of skill and knowledge which was to be exercised by him and as such doctor did not perform his duty in view of the duties assigned to him as mentioned above. Therefore, all these facts mentioned above suggest that the OP No.1 did not care while the operation was conducted and he was negligent in carrying out operation of the complainant

11.               It is pertinent to mention here that the medical profession is one of the oldest professions of the world and is the most humanitarian. There is no better service than to serve the suffering, wounded and sick. Inherent in the concept of any profession is a code of conduct, containing the basic ethics that underlines the moral values that govern professional practice and it aimed at upholding its dignity. Medical Ethics underpins the values at the heart of the practitioner-client relationship. In the recent times, professionals are developing in tendency to forget that the self regulation which is prime concern of their profession is a privilege and not a right and a profession obtains this privilege in return for an implicit contract with society to provide good, competent and accountable service to the public. It must always be kept in mind that doctor’s is a noble profession and the aim must be to serve humanity, otherwise this dignified profession will done its true worth.

12.              As per case of OP No.1, Dr. Sanjeev Kumar C/o Ortho Care Hospital was insured with the United India Insurance Company Ltd. vide Policy bearing No. 1112022715P108120648 Valid from 12.10.2015 to 11.10.2016. As per record the incident had taken place on 25.01.2016 and injured complainant was admitted in the Hospital of OP no.1 on 25.01.2016 and operated on the same day. The operation was conducted during the subsistence of the insurance policy by OP No.1. There is no evidence on record on behalf of OP No.2 proving that there was any collusion between complainant and OP No.1. Moreover, such incidents/accidents in nature cannot be done in connivance of each other. May God save all of us from such incidents/accidents. So, it cannot be said that complainant has filed the present complaint with ulterior motive to extort money unauthorizedly. In view of the circumstances, the hospital of OP No.1 was insured with OP No.2, so the liability to pay compensation to the complainant, if any, is imposed upon OP No.2 being insurer.

13.               The complainant was running a small scale unit for manufacturing of soap and detergent powder for earning livelihood. Due to this accident and subsequent treatment given by the OP-1 negligently  he suffered  business for about 1 years from January 2016 to December 2016 and accident took place in January 2016 and the complainant’s elbow was reoperated in October 2016 and further two months to recover for smooth functioning. The loss cannot be quantified in absolute terms as elbow of the complainant has become disabled to work as originally given by the Almighty. Apart from business the complainant had to incur additional expenditure on taking fresh treatment and reoperation from another doctor/hospital viz. Raj Hospital and Fracture Clinic.         Hence, in view of the circumstances mentioned above, the complaint of the complainant is allowed with costs and the respondent No.2 i.e. United India Insurance Company Ltd. is directed :-

1. To pay Rs. 5,00,000/- towards compensation for business loss caused to the complainant and additional amount incurred on fresh treatment alongwith interest @ 9% per annum from the date of operation i.e. 25.01.2016.
2.  To pay Rs.50,000/- (Rs.Fifty Thousand only) as compensation on account of mental pain, agony and physical harassment.
3. To pay Rs. 5000/- as litigation charges.

                   The compliance of the order shall be made within 45 days from the date of receipt of the certified copy of the order.  In case of default, the complainant is entitled to get interest @ 12% p.a. on the above awarded amount from the date of default till its payment. Copy of the order be supplied to the parties free of cost. File be consigned to the record room, after due compliance.