Order by:

Sh.Amrinder Singh Sidhu, President

1.       The complainants have filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (now under section 35 of the Consumer Protection Act, 2019)  on the allegations that in the year complainant No.1 conceived pregnancy and met with Opposite Party No.1 doctor who advised to start tablets of supplement vitamins and accordingly started the treatment of complainant No.1. On 21.09.2012 as per the advice of Opposite Party No.1-doctor,   the complainant No.1 had elective for L.S.C.S (Lower Segment Caesarian Section) at the said hospital of Opposite Parties No.1 and 2 which was done by the team of doctors including Dr.Rajesh Gupta, (Opposite Party No.3) as Surgeon and Dr.Santosh Aggarwal, (Opposite Party No.1) as Assistant Surgeon, Dr.Ajay Bagai as Anesthetist and Dr.Surinder Kumar Aggarwal (Opposite Party No.2) as Pediatrician and the complainant No.1 gave birth to twin children and ultimately, complainant No.1 discharged from the hospital on 27.09.2012. For this, complainant No.2 paid Rs.22,000/- to Opposite Party No.1 as medical and cesarean section charges. After passing day to day, complainant No.1 recovers from the delivery sickness and started her daily routine and household works, within six months from the delivery. In the month of August, 2016, complainant No.1 felt pain in the stitches of L.S.C.S and on 20.08.2016, she met with Opposite Party No.1 and after medically examination of the complainant No.1, then Opposite Party No.1 told her that there are some clotted pus due to some bacterial infection and she recommended some medicine and assured the complainant No.1 that the same will cured the infection, but complainant No.1 could not get relief despite repeated visits to the hospital of Opposite Party No.1 and despite taking long treatment. Ultimately, Opposite Party No.1 disclosed to the complainants that she has some doubt that during surgery, while closing the abdomen at rectus sheeth, the suture needle got broken by Dr.Rajesh Gupta and this infection may be cause due to said needle. In this regard, Opposite Party No.1 gave in writing dated 21.03.2017 admittedly stating that “while closing the abdomen at rectus sheeth, the suture needle got broken by Dr.Rajesh Gupta and they tried to search it, but could not locate it. And she further undertakes that re-surgery if needed, to removed the broken needle, I will bear the expenses as compensation money.”  Thereafter, complainant No.1 continuously taken the medicines as per the advice of Opposite Party No.1, but to no affect.  In the month of August, 2017 complainant No.1 again suffered from pus in her abdomen at the stitches of L.S.C.S and she visited the hospital of Opposite Party No.1, but at that time, Opposite Party No.1 was not present  as she had gone to Delhi and in the asnece of Opposite Party No.1, the complainants  meet with Dr.Satish Kaura at Kaura Hospital, G.T.Road, Moga and told them the entire history who advised to get x-ray report of her abdomen and accordingly, the complainant got x-ray report from Jaswal Diagnostic Centre and after going through said X-ray report of the complainant, he told the complainant that there is a needle in the level of upper margin of symphysis pubis and he given the medicines for curing puss and he further advised the complainant to get surgery to remove the same as the same could not be cured with the medicines. Only then, the complainant has discovered the fact of the presence of needle in her abdomen and ultimately, she got surgery from Fortis Hospital, Ludhiana on 04.09.2017 and also borne more than Rs.2 lakhs for her treatment, transport ion and attendants etc.  Hence, there is serious deficiency on the part of the Opposite Parties as the Opposite Parties acted negligently and carelessly in dealing with the case of the complainant  and as such, the Complainant is left with no other alternative but to file the present complaint.  Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Parties may be directed to pay Rs.2.50 lakhs on account of costs of re-surgery, and Rs.3 lakhs on account of loss of income and Rs.5 lakhs as compensation on account of pain and sufferings and Rs.5 lakhs on account of mental agony, physical stress and harassment and Rs.22,000/- as costs of the complaint or  any other relief to which this District Consumer Commission may deem fit be also granted.

2.       Opposite Parties No.1, 2 and 5 (Opposite Party No.2 since expired)  appeared through counsel and contested the complaint by filing  the written version  on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Parties. The complainants have concealed and misrepresented the facts. Opposite Party No.1 is practicing as gynaecologist and obstetrician and also MD Medicine. Admittedly, complainant No.1 admitted  in her hospital on 21.09.2012 for her delivery purpose and she had twin children in her womb and she elected Lower Segment Caesarean Section (LSCS). Opposite Party No.1 called Dr.Rajesh Gupta Surgeon (MBBS M.S.) to perform the surgery for delivery of complainant No.1. Moreover, Opposite Party No.2  has made a party in this complaint unnecessarily as he was a paediatrician and he was present to look after the children and he was got no role to play in the performance of surgery. The surgery on the person of complainant was performed by Dr.Rajesh Gupta, and while stitching the rectus sheeth near public symphysis the needle was broken and Dr.Rajesh Gupta made efforts and tried to locate the broken part of needle but as the patient was obese her rectus muscles were thick  and eadmatous and due to the high vascultarity of the area and due to the twin pregnancy, he could not trace the needle. Other possibility was that broken part of needle might have fallen in the operation throatier and lost in the blood and might be found lateron. Dr.Rajesh Gupta and choose to stitch the  rectus sheet and the patient was fully conscious  became of spinal aesthesia and she had come out of sedation and was hearing the talks of Dr.Rajesh Gupta. Moreover, her husband Nachhtar Singh was immediately  explained about the fact of broken of needle, but he suggested Dr.Rajesh Gupta that rectus sheet of abdomen be immediately stitched and lateron it will be seen if any problem occurs. As such, the patient was discharged on 27.09.2012. It is also not denied that Dr.Jaiswal reported a foreign body i.e. broken part of the needle at the level of upper margin of symphysis public. X-ray and its report was handed over to the complainant and her husband. However, the complainant No.1 was also informed that he will do his best services and get the needle removed, but the patient was kept on postponing the matter. As such, there is no deficiency and negligence on the part of the answering Opposite Parties. On merits, Opposite Parties No.1, 2 and 5  took up the same and similar pleas as taken up by them in the preliminary objections.   Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.

3.       Opposite Party No.3  appeared through his representative and contested the complaint by filing  the written version  on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of Opposite Party No.3. Further alleges that Opposite Party No.3 is a surgeon (M.S.General Surgery) by medical profession and is running his own hospital under the name and style of Hans Raj Hospital at Amritsar Road, Moga. Moreover, Opposite Party No.3 is insured by United India Insurance Company i.e. Opposite Party No.4 for “Professional Indemnity Dr .(Other) Policy vide policy No.201200/46/11/35/ 00000119. Moreover,  the complainant No.1 never met  with  answering Opposite Party for any problem till today, neither he ever operated or treated her for the said problem. The allegations’ stated therein regarding operation and broken needle during surgery are false and frivolous. The complainant No.1 had no role in her surgery whatsoever. The letter dated 21.03.2017 stating that Dr.Rajesh Gupta is the prime surgeon is false and frivolous. Moreover, Opposite Party No.1 doctor is a specialist in Obstetrics and Gynecology, authorized for performing the caesarian section on her own. The answering Opposite Party neither provided nor agreed to provide any service to the complainant. Moreover, no documentary proof of either any service provided nor any fee paid by the complainant to the answering Opposite Party is on record. On merits, Opposite Party No.3  took up the same and similar pleas as taken up by them in the preliminary objections.   Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.

4.       Opposite Party No.4  appeared through counsel and contested the complaint by filing  the written version  on the ground inter alia that the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure  under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court. The complainant has not approached this District Consumer Commission with clean hands, rather he has wilfully concealed the material and patent facts from this District Consumer Commission which ipso-facto disentitles the complainant to seek any relief against the answering Opposite Party. No intimation  in wring has been given by Opposite Party No.3 insured as per the terms and conditions of the policy, therefore, the Opposite Party No.4 is not liable to indemnify the Opposite Party No.3 against any claim or compensation. Moreover, Opposite Party No.4 is liable to indemnify the Opposite Party No.3 only if he has acted with utmost care and devotion to the medical profession and has treated the patient as per rules of the medical practice. On merits, Opposite Party No4  took up the same and similar pleas as taken up by them in the preliminary objections.   Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.

5.       In order to  prove  their  case, the complainants have tendered into evidence  affidavit Ex.C1/A alongwith copies of documents Ex.C1 to Ex.C67 and closed the evidence.

6.       On the other hand,  to rebut the evidence of the complainant,  Opposite Parties No.1 and 5 tendered into evidence affidavit of Dr.Santosh Aggarwal Ex.Ops1,5/1 alongwith copies of documents Ex.Ops1,5/2, copy of receipt Ex.Ops1,5/3 and closed their evidence.  Opposite Party No.3 tendered in to evidence his affidavit Ex.P3/1 and closed his evidence. Similarly, Opposite Party No.4 tendered into evidence copy of policy Ex.OLP4/1, affidavit of Sh.R.N.Bansal Ex.OP4/2, terms and conditions Ex.OP4/3 and closed the evidence.

7.       We have heard the arguments of the parties at length and also gone through the documents placed  on record.

8.       During the course of arguments of the parties ld.counsel for the Complainant as well as Opposite Parties  have mainly reiterated the facts as narrated in the complaint as well as in written reply respectively.   

9.       Ld.counsel for the complainant has mainly contended that in the year complainant No.1 conceived pregnancy and met with Opposite Party No.1 doctor who advised to start tablets of supplement vitamins and accordingly started the treatment of complainant No.1. On 21.09.2012 as per the advice of Opposite Party No.1-doctor,   the complainant No.1 had elective for L.S.C.S (Lower Segment Caesarian Section) at the said hospital of Opposite Parties No.1 and 2 which was done by the team of doctors including Dr.Rajesh Gupta, (Opposite Party No.3) as Surgeon and Dr.Santosh Aggarwal, (Opposite Party No.1) as Assistant Surgeon, Dr.Ajay Bagai as Anesthetist and Dr.Surinder Kumar Aggarwal (Opposite Party No.2) as Pediatrician and the complainant No.1 gave birth to twin children and ultimately, complainant No.1 discharged from the hospital on 27.09.2012. For this, complainant No.2 paid Rs.22,000/- to Opposite Party No.1 as medical and cesarean section charges. After passing day to day, complainant No.1 recovers from the delivery sickness and started her daily routine and household works, within six months from the delivery. In the month of August, 2016, complainant No.1 felt pain in the stitches of L.S.C.S and on 20.08.2016, she met with Opposite Party No.1 and after medically examination of the complainant No.1, then Opposite Party No.1 told her that there are some clotted pus due to some bacterial infection and she recommended some medicine and assured the complainant No.1 that the same will cured the infection, but complainant No.1 could not get relief despite repeated visits to the hospital of Opposite Party No.1 and despite taking long treatment. Ultimately, Opposite Party No.1 disclosed to the complainants that she has some doubt that during surgery, while closing the abdomen at rectus sheeth, the suture needle got broken by Dr.Rajesh Gupta and this infection may be cause due to said needle. In this regard, Opposite Party No.1 gave in writing dated 21.03.2017 admittedly stating that “while closing the abdomen at rectus sheeth, the suture needle got broken by Dr.Rajesh Gupta and they tried to search it, but could not locate it. And she further undertakes that re-surgery if needed, to removed the broken needle, I will bear the expenses as compensation money.”  Thereafter, complainant No.1 continuously taken the medicines as per the advice of Opposite Party No.1, but to no affect.  In the month of August, 2017 complainant No.1 again suffered from pus in her abdomen at the stitches of L.S.C.S and she visited the hospital of Opposite Party No.1, but at that time, Opposite Party No.1 was not present  as she had gone to Delhi and in the absence of Opposite Party No.1, the complainants  meet with Dr.Satish Kaura at Kaura Hospital, G.T.Road, Moga and told them the entire history who advised to get x-ray report of her abdomen and accordingly, the complainant got x-ray report from Jaswal Diagnostic Centre and after going through said X-ray report of the complainant, he told the complainant that there is a needle in the level of upper margin of symphysis pubis and he given the medicines for curing puss and he further advised the complainant to get surgery to remove the same as the same could not be cured with the medicines. Only then, the complainant has discovered the fact of the presence of needle in her abdomen and ultimately, she got surgery from Fortis Hospital, Ludhiana on 04.09.2017 and also borne more than Rs.2 lakhs for her treatment, transport ion and attendants etc.  Hence, there is serious deficiency on the part of the Opposite Parties as the Opposite Parties acted negligently and carelessly in dealing with the case of the complainant.

10.     On the other hand, ld.counsel for Opposite Party No.1 and 5 has repelled the aforesaid contention of the ld.counsel for the complainants and contended that  aadmittedly, complainant No.1 admitted  in her hospital on 21.09.2012 for her delivery purpose and she had twin children in her womb and she elected Lower Segment Caesarean Section (LSCS). Opposite Party No.1 called Dr.Rajesh Gupta Surgeon (MBBS M.S.) to perform the surgery for delivery of complainant No.1. Moreover, Opposite Party No.2  has made a party in this complaint unnecessarily as he was a paediatrician and he was present to look after the children and he was got no role to play in the performance of surgery. The surgery on the person of complainant was performed by Dr.Rajesh Gupta, and while stitching the rectus sheeth near public symphysis the needle was broken and Dr.Rajesh Gupta made efforts and tried to locate the broken part of needle but as the patient was obese her rectus muscles were thick  and eadmatous and due to the high vascultarity of the area and due to the twin pregnancy, he could not trace the needle. Other possibility was that broken part of needle might have fallen in the operation throatier and lost in the blood and might be found lateron.

11.     The authorised person appeared on behalf of Dr.Rajesh Gupta-Opposite Party No.3 has vehemently denied the averments of the complainants that contended that   complainant No.1 never met  with  answering Opposite Party for any problem till today, neither he ever operated or treated her for the said problem. The allegations’ stated therein regarding operation and broken needle during surgery are false and frivolous. The complainant No.1 had no role in her surgery whatsoever. The letter dated 21.03.2017 stating that Dr.Rajesh Gupta is the prime surgeon is false and frivolous. Moreover, Opposite Party No.1 doctor is a specialist in Obstetrics and Gynecology, authorized for performing the caesarian section on her own. The answering Opposite Party neither provided nor agreed to provide any service to the complainant. Moreover, no documentary proof of either any service provided nor any fee paid by the complainant to the answering Opposite Party is on record.

12.     The main grouse of the case is that there is no denial of the parties that at the time of surgery conducted upon Opposite Party No.1 Harpreet Kaur in the hospital of Opposite Parties No.1, 2 and 5,  while closing the abdomen at rectus sheeth, the suture needle got broken by Dr.Rajesh Gupta and they tried to search it, but could not locate it and at that time, Opposite Party No.1 doctor has admittedly undertaken that re-surgery if needed, to removed the broken needle,  and she will bear the expenses as compensation money. Opposite Party No.1 has specifically admitted the broken needl in the abdomen at rectus sheeth of the complainant No.1 and she further admittedly that complainant No.1 admitted  in her hospital on 21.09.2012 for her delivery purpose and she had twin children in her womb and she elected Lower Segment Caesarean Section (LSCS) and for this purpose,  Opposite Party No.1 called Dr.Rajesh Gupta Surgeon (MBBS M.S.) to perform the surgery for delivery of complainant No.1. The surgery on the person of complainant was performed by Dr.Rajesh Gupta, and while stitching the rectus sheeth near public symphysis the needle was broken and Dr.Rajesh Gupta made efforts and tried to locate the broken part of needle but as the patient was obese her rectus muscles were thick  and eadmatous and due to the high vascultarity of the area and due to the twin pregnancy, he could not trace the needle.

13.     Now the question is this that who was the responsible for such negligence occurred at the time of surgery upon the complainant No.1.  However, Opposite Party No.3 has vehemently denied that   complainant No.1 never met  with  answering Opposite Party for any problem till today, neither he ever operated or treated her for the said problem. The allegations’ stated therein regarding operation and broken needle during surgery are false and frivolous. The complainant No.1 had no role in her surgery whatsoever. In this regard, Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal no. 625 of 2006 decided on 25.02.2008 in case Bombay Hospital & Medical Research Centre Vs. Sharifabi Ismail Syed & Ors. held that the primary liability in case of  deficiency in service is that  of hospital- Doctors working in hospital are its employees- Senior Resident Doctor (Radiologist) appointed by the hospital committed blunder which resulted in wrong interpretation of MRI Scan. The relevant para No.26 of the judgement is reproduced as under:-

“It is the patient or the complainant who approaches the hospital for treatment and hence the primary liability in ccse of deficiency in service is that of the hospital. Doctors working in the hospital are its employees. Further from the record it is apparent that the Senior Resident Doctor (Radiologist) appointed by the Hospital committed a blunder which resulted in wrong reporting by the consultant. Therefore, if there is deficiency in the doctor, then it would be the joint and several liability of the hospital and the doctor.” 

Not only this, in case Dr.Krishna Mohan Bhattacharjee Vs. Bombay Hospital Medical Research rep;orted in CC No. 221 of 2000 decided on 05.01.2015 by Hon’ble National Consumer Disputes Redressal Commission, New Delhi has held under the head Medical Negligence- Vicarious liability of hospital- hospital authorities are not only responsibly for their nursing and other staff, doctors, etc. but also for the anaesthetists and surgeons, who practice independently, but admit/ operate a case. It does not matter whether they are permanent or temporary, residents or visiting consultants, whole or part time. The hospital authorities are usually held liable for the negligence occurring at the level of any of such personnel- where an operation is being performed in a hospital by a consultant surgeon who was not in employment of the hospital and negligence occurred, it has been held that it was the hospital that was offering medical services. The patients go and get themselves admitted in the hospital relying on the hospital to provide tem the medical service for which they pay the necessary fee. It is expected from the hospital to provide such medical service and in case where there is deficiency of service or in cases like this, where the operation has been done negligently, without bestowing normal care and caution, the hospital- Also must be held liable and it can not be allowed to escape from the liability due to reason of non existing of master –servant relationship between the hospital and the surgeon- and hence, the hospital is vicariously liable.  In  the present case, the Opposite Party No.5 Anand Nursing Home has admittedly received the fee on account of surgery charges etc. amounting to Rs.22,000/- from complainants as Ex.C9 and it is also not the denial that the surgery was conducted in Opposite Party No.5 hospital, and it is also not denied that at the time of surgery conducted upon Opposite Party No.1 Harpreet Kaur in the hospital of Opposite Parties No.1, 2 and 5,  while closing the abdomen at rectus sheeth, the suture needle got broken by Dr.Rajesh Gupta and they tried to search it, but could not locate it, but on the other hand, as stated above, Opposite Party No.3-Doctor has specifically denied  that   complainant No.1 never met  with  answering Opposite Party for any problem till today, neither he ever operated or treated her for the said problem. The allegations’ stated therein regarding operation and broken needle during surgery are false and frivolous. The complainant No.1 had no role in her surgery whatsoever. In such a case, Opposite Party No.5- Nursing Home is responsible for admitted negligent service while conducting surgery upon complainant No.1 in its hospital.

14.     Now come to the quantum of compensation.  The complainants in complaint has prayed before this District Consumer Commission to direct the Opposite Parties to pay Rs.15,50,000/- i.e. Rs.2.50 lakhs on account of costs of re-surgery, and Rs.3 lakhs on account of loss of income and Rs.5 lakhs as compensation on account of pain and sufferings and Rs.5 lakhs on account of mental agony, physical stress and harassment and Rs.22,000/- as costs of the complaint or  any other relief to which this District Consumer Commission may deem fit be also granted and to prove the medical expenses, the complainants also placed on record the  copies of medical bills, tests and hospitalization charges, but we are of the view that the claim for total compensation to the tune of Rs.15,50,000/- appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. Undisputedly, the complainant No.1 must have suffered physically, mentally and financially and such loss can not be compensated in the shape of money. Hence, in our considered view, ends of justice would  be fully met if the complainant is awarded the lump-sum compensation as under:-

a)       Rs. 4,50,000/- on account of compensation for causing physical, mental harassment and agony to the complainants.

b)      Rs.2,80,000/- as hospitalization, medical expenses, tests etc. in all the hospitals during the treatment. 

c)       Rs.20,000/-  on account of litigation expenses.

Total amounting to Rs.7,50,000/- alongwith interest. 

15.     In view of the aforesaid facts and circumstances of the case, we allow the complaint of the complainant against  Opposite Party No. 5-Anand Nursing Home and Opposite Party No. 5-Anand Nursing Home is directed to make the payment of Rs.7,50,000/- (Rupees seven lakh fifty thousands only) as detailed above  to the complainants alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 27.03.2018 till its actual realization. Compliance of this order be made by Opposite Party No. 5-Anand Nursing Home within 45 days from the date of receipt of the copy of this order, failing which the Complainant shall be at liberty to  get the order enforced through the indulgence of this Commission.   Copies of the orders be furnished to the parties free of cost. File is ordered to be consigned to the record room.  

16.     Reason for delay in deciding the complaint.

          This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.

Announced in Open Commission.

Dated:09.05.2022.