| ORDER | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR. Consumer Complaint No. 244 of 2014 Date of Institution: 05-05-2014 Date of Decision: 15-09-2015 Gurpreet Singh son of Mohinder Singh, resident of Pashia, Tehsil: Ajnala, District Amritsar. Complainant Versus - Dr.Sudarshan Sharma, Owner and Incharge of Badrinath Hospital, Opposite Pioneer School, Fatehgarh Churian Road, Nangali, Amritsar.
- National Insurance Company Limited, 20, Batala Road, Near Gagan Cinema (now Celebration Mall), Amritsar.
Opposite Parties Complaint under section 11, 12, 13 and 14 of the Consumer Protection Act. Present: For the Complainant: Sh. M.S.Dhillon, Advocate For the Opposite Party No.1: Sh.S.K.Sharma, Advocate. For the Opposite Party No.2: Sh.S.S.Randhawa, Advocate Quorum: Sh.Bhupinder Singh, President Ms.Kulwant Kaur Bajwa, Member Mr.Anoop Sharma, Member Order dictated by: Sh.Bhupinder Singh, President. - Present complaint has been filed by Sh.Gurpreet Singh under the provisions of the Consumer Protection Act alleging therein that on account of accident, the Femur of right leg of the complainant was fractured and he was admitted on 7.2.2012 in the hospital of Opposite Party No.1. The Opposite Party No.1 operated upon the right leg of the complainant and DFLP fixation was affixed in the right leg of the complainant as a result of which, the mobility of the right knee of the complainant was totally restricted and he was to keep his leg straight. The Opposite Party No.1 received Rs.2 lacs from the complainant for the said treatment without issuing any bill of the same. At the time of admission, the complainant was assured by Opposite Party No.1 that his leg will be completely recuperated after 3-4 months from the date of operation. Thereafter, the complainant regularly visited the hospital of Opposite Party No.1 for follow up treatment for about a year, but despite that there was no movement of the right knee of his leg. Then the complainant approached Guru Nanak Dev Hospital, Orthopedic Unit-2, Amritsar and there, the complainant showed his medical record to Dr.Randhir Singh Boparai, who after going through the medical record advised the complainant that the fixation is to be removed and only then there will be movement in the right knee of the complainant. Thereafter, the complainant again visited the hospital of the Opposite Party No.1 and apprised him regarding the advice given by the doctor of Guru Nanak Dev Hospital, Orthopedic Unit-2, Amritsar, but the Opposite Party No.1 did not pay any heed towards the same and flatly refused to remove the fixation. Ultimately, the complainant got himself admitted on 19.2.2013 in Guru Nanak Dev Hospital, Orthopedic Unit-2, Amritsar where the doctors again did surgery on 21.2.2013 and removed fixation affixed by the Opposite Party No.1, as a result of which the knee of right leg of the complainant started to move as earlier. The complainant has remained under mental agony for about a year on account of non-movement of his right knee, which is result of deficiency of service and negligence on the part of the Opposite Party No.1. Alleging the same to be deficiency in service, complaint was filed seeking directions to the opposite parties to refund Rs.2 lac received from the complainant. Compensation and litigation expenses were also demanded.
- On notice, Opposite Party No. 1 appeared and filed written version in which it was submitted that the complainant has not annexed any proof of consideration paid to the Opposite Party No.1 for any service hired by it, which is the condition precedent and basic element of invoking the provisions of the Act, when missing the complaint can’t be entertained, as such, the present complaint merits dismissal on this score only. The Opposite Party No.1 has not committed any act of deficiency in service, rather there are laches on the part of the complainant. The complainant has not followed up the medical advice as is apparent from the medical record annexed with the complaint itself. The Opposite Party No.1 has adopted the standard line of treatment as per international practices and adopted internationally by the orthopedic surgeons and well known line of treatment. The complainant was admitted in the hospital of Opposite Party No.1 on 7.2.2012. The allegations of the complainant that right knee was totally restricted and has to keep it straight is totally against the true facts as per observation made in discharge summary of Department of Orthopedics Guru Nanak Dev Hospital, Amritsar. The complainant was advised certain exercises and treatment which he did not stick to the post surgery and further had not followed up with the Opposite Party No.1. The complainant was lastly advised X-Ray on 6.7.2012, but he did not report back with the X-Ray report and for further treatment with the Opposite Party No.1. The factum of taking Rs.2 lacs as treatment charges is absolutely false and denied. While denying and controverting other allegations, dismissal of complaint was prayed.
- Opposite Party No. 2 appeared and filed written version in which it was submitted that there is no privity of contract between the complainant and Opposite Party No.2-Insurance Company and hence the present complaint filed by the complainant against Opposite Party No.2 is not legally maintainable. No such policy with terms and conditions has been placed on the file nor supplied to the Opposite Party No.2. Even otherwise this Forum can not fix any direct liability qua the Opposite Party No.2 because jurisdiction of this Forum is only to determine liability against Opposite Party No.1 and if any such liability is fixed, the same is to be considered by the competent authority of Opposite Party No.2 as per terms and conditions of the alleged policy. While denying and controverting other allegations, dismissal of complaint was prayed.
- Complainant tendered into evidence his affidavit Ex.C1 alongwith documents Ex.C2 to Ex.C9 and closed the evidence on behalf of the complainant.
- Opposite Party No.1 tendered into evidence affidavit of Dr.Sudarshan Sharma, Ex.OP1/1 and copy of discharge slip Ex.OP1/2 and closed the evidence on behalf of the Opposite Party No.1
- Opposite Party No.2 tendered into evidence affidavit of Sh.M.S.Bhatia, Divisional Manager Ex.OP2/1, copy of policy Ex.OP2/2 and closed the evidence on behalf of the complainant.
- We have carefully gone through the pleadings of the parties; arguments advanced by the ld.counsel for the parties and have appreciated the evidence produced on record by both the parties with the valuable assistance of the ld.counsel for both the parties.
- From the record i.e. pleadings of the parties and the evidence produced on record by the parties, it is clear that the complainant suffered accident, as a result, the Femur of right leg of the complainant was fractured and he was admitted in Badrinath Hospital, Opposite Pioneer School, Fatehgarh Churian Road, Nangali, Amritsar, owned and managed by Dr.Sudarshan Sharma on 7.2.2012. The complainant was operated upon by Opposite Party No.1-Dr.Sudarshan Sharma and DFLP fixation was affixed in the right leg of the complainant. Complainant alleges that due to the aforesaid DFLP fixation, the mobility of the right knee of the complainant was totally restricted and he had to keep his leg straight. The Opposite Party No.1 received Rs.2 lacs from the complainant for the said treatment. The complainant was assured by Opposite Party No.1 that his leg would be completely recuperated after 3-4 months from the date of operation. The complainant was discharged on 17.2.2012. The complainant regularly visited Opposite Party No.1 for follow up treatment for about a year, but there was no movement of right knee of leg of the complainant. Thereafter, the complainant approached Guru Nanak Dev Hospital, Orthopedic Unit-2, Amritsar where Dr.Randhir Singh Boparai, examined the previous medical record of the complainant and advised the complainant that the fixation is to be removed and only thereafter, there will be movement in the right knee of the complainant. The complainant got himself admitted in Guru Nanak Dev Hospital, Orthopedic Unit-2, Amritsar on 19.2.2013 where the complainant was operated upon on 21.2.2013 and the fixation was removed. Then the knee of right leg of the complainant started moving. Ld.counsel for the complainant submitted that Opposite Party No.1 did not remove the fixation affixed at the right knee of the complainant despite the fact that the movement of the right knee of the complainant was totally restricted and Opposite Party No.1 did not pay any heed to the complaint of the complainant regarding non movement of right knee of the complainant due to aforesaid fixation and the complainant had to get operated at Guru Nanak Dev Hospital, Orthopedic Unit-2, Amritsar for the removal of the affixation fixed by Opposite Party No.1. Ld.counsel for the complainant submitted that all this amounts to deficiency of service on the part of the opposite party No.1
- Whereas the case of the Opposite Party No.1 is that the complainant was admitted in the hospital of Opposite Party No.1 on 7.2.2012. The complainant was operated upon and plate was affixed with nails in the right leg of the complainant. Opposite Party No.1 has adopted the standard line of treatment as per international practices being adopted by the orthopedic surgeons and well known line of treatment. The complainant was discharged on 17.2.2012 in quite satisfactory condition. The complainant was advised certain exercises and treatment which he did not stick to the post surgery and further had not follow up with the Opposite Party No.1. The Opposite Party No.1 denied the allegations that the complainant paid/ spent about Rs.2 lacs on his treatment. Opposite Party No.1 also did not give any assurance to the complainant that his leg will be ccompletely recuperated after 3-4 months from the date of operation. The complainant was lastly advised X-Ray on 6.7.2012 vide prescription slip Ex.C6, but he did not report back with the X-Ray report. Thereafter, the complainant did not turn up to Opposite Party No.1 for follow up. The complainant was advised certain exercises as well as treatment, but he did not get the same. Had the complainant approached Opposite Party No.1 properly and regularly in follow up, the problem of the complainant, if any, could have been solved. The Opposite Party No.1 further submitted that the allegation of the complainant that his right knee was totally restricted and he has to keep it straight, is totally against the true facts as per observation made in discharge summary Ex.C9 of Department of Orthopaedic Unit-2, Guru Nanak Dev Hospital, Amritsar, produced by the complainant himself. Ld.counsel for the Opposite Party No.1 submitted that the complainant has failed to produce on record any evidence to prove that there was any negligence or deficiency in the medical treatment of the complainant at the hospital of Opposite Party No.1 nor the complainant had examined Dr.Randhir Singh Boparai to prove that he find out any deficiency of service or medical negligence on the part of Opposite Party No.1 for the operation of right leg of the complainant at the hospital of Opposite Party No.1. Ld.counsel for Opposite Party No.1 submitted that the present complaint is nothing but misuse of the process of the court and has been filed only to harass the Opposite Party No.1.
- Whereas the case of the Opposite Party No.2 is that there was no privity of contract between the complainant and Opposite Party No.2-Insurance Company. The liability of Opposite Party No.2 shall arise and could only be determined only, if any such liability is fixed on Opposite Party No.1 and that too is to be determined by Opposite Party No.2 as per terms and conditions of the insurance policy. Ld.counsel for Opposite Party No.2 submitted that there is no deficiency of service on the part of Opposite Party No.2 qua the complainant.
- From the entire above discussion, we have come to the conclusion that the complainant suffered accident as a result of which, his right leg was fractured and he was admitted in Badrinath Hospital, Opposite Pioneer School, Fatehgarh Churian Road, Nangali, Amritsar owned and managed by Opposite Party No.1-Dr.Sudarshan Sharma. Opposite Party No.1 operated upon the right leg of the complainant and plate ( DFLP fixation) was affixed with nails in the right leg of the complainant which was properly fixed as is evident from X-Ray film produced by he complainant himself Ex.C8. As per the record of the hospital of Opposite Party No.1, there was no complaint from the complainant. The complainant was discharged in satisfactory condition on 17.2.2012 as per record Ex.C4 and the complainant was advised certain exercises and treatment. He was also advised to follow up with the treating doctor. Thereafter, the complainant followed up on 26.4.2012 vide prescription slip Ex.C7 with Opposite Party No.1. He was advised X-Ray, but the complainant neither got the X-Ray of his leg done nor followed up the advice given by Opposite Party No.1-Doctor. Thereafter, the complainant came to the hospital of Opposite Party No.1 on 6.7.2012 vide prescription slip Ex.C6. He was again advised X-Ray, but the complainant neither got done X-ray of femur of his right leg nor came to the hospital of Opposite Party No.1 after 6.7.2012 for follow up. So, it is the complainant who is at fault for not following up, getting X-ray of his right leg conducted, as advised by Opposite Party No.1 nor underwent the treatment as advised by Opposite Party No.1 nor he did physical exercise as advised by Opposite Party No.1. Thereafter, the complainant approached Guru Nanak Dev Hospital, Orthopaedic Unit-2, Amritsar where he was admitted on 19.2.2013 i.e. after a lapse of a period of more than 7 months. The complainant could not produce any medical record to prove that he followed up medical treatment, advice given by Opposite Party No.1 during this period from 6.7.2012 to 19.2.2013 when he approached Guru Nanak Dev Hospital, Orthopaedic Unit-2, Amritsar where he remained admitted upto 6.3.2013 and during this period, the plate affixed in the right leg of the complainant was removed, but the authorities of Guru Nanak Dev Hospital, Orthopaedic Unit-2, Amritsar did not point out any negligence or deficiency of service on the part of Opposite Party No.1 in conducting the surgery and medical treatment of the complainant nor complainant could examine any medical expert nor he filed any affidavit of Dr.Randhir Singh Boparai who operated upon the complainant at Guru Nanak Dev Hospital, Orthopaedic Unit-2, Amritsar, to prove that there was any negligence or deficiency of service on the part of Opposite Party No.1 qua the complainant at the time of surgery or in the medical treatment of the complainant undergone at Badrinath Hospital, Opposite Pioneer School, Fatehgarh Churian Road, Nangali, Amritsar under the administration of Dr.Sudarshan Sharma-Opposite Party No.1.
- Moreover, the complainant could not produce any evidence that he paid a sum of Rs.2 lacs to Opposite Party No.1 as alleged by the complainant. The complainant could not produce any medical bills or receipts issued by Opposite Party No.1 or Badrinath Hospital, Opposite Pioneer School, Fatehgarh Churian Road, Nangali, Amritsar controlled and managed by Opposite Party No.1-Dr.Sudarshan Sharma. It has been held by Hon’ble National Commission in case Indira Kartha and others Vs. Dr.Mathew Samuel Kalarickal and another in 2002(2) CLT page 314 that burden of proving that the doctor/ Opposite Party was negligent rests with the complainant and it is not for the doctor to show that he was not negligent. Here in this case, the complainant has failed to prove on record any negligence or deficiency of service on the part of Opposite Party No.1 qua the complainant.
- Resultantly, we hold that the complaint is without merit and the same is hereby dismissed with no order as to cost. Copies of the order be furnished to the parties free of cost. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Dated: 15-09-2015. (Bhupinder Singh) President hrg (Anoop Sharma) (Kulwant Kaur Bajwa) Member Member | |
