Delhi

North East

CC/362/2015

Heera Lal Arya - Complainant(s)

Versus

Dr. Suresh Vats M/s ENT Hospital - Opp.Party(s)

12 Jun 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.  362/15

In the matter of:

 

	Shri Hira Lal Arya S/o Late Shri Prem Sagar R/o:- H.No. D1/73, Gali no. 2 Ashok Nagar, Behind MIG Flats Delhi-110093	Complainant
	Versus
1           2	Dr. Suresh Vats M/s Vats ENT Centre 698/5, Yamuna Vihar Road (Road no. 66) Maujpur, Delhi-110053   Oriental Insurance Co. Ltd. DO-3, 4E/14 Azad Bhawan Jhandewalan Extension New Delhi-110055	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

24.09.2015 12.06.2020 12.06.2020

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Grievance of the complainant made out against OPs in the present complaint is that on 09.08.2015, he felt suddenly sick and in unconscious like state in which he was taken to OP by his son. OP on seeing the complainant diagnosed high blood pressure problem and prescribed medication for next two-three days which medicine as prescribed were purchased by the complainant costing Rs. 385 from Vats Medicos. However, the complainant was again in very critical condition the next day on 20.08.2015 and again contacted OP on which OP changed one medicine and ask complainant to continue with other medication. But the condition of  complainant worsened around midnight of 20.08.2015 and was immediately rushed to Swami Dayanand Hospital Shahdara, Delhi in the wee hours of 21.08.2015 and was immediately admitted in emergency ward where the attending doctor treating him and the complainant was discharged with advice to visit its OPD ward after taking prescribe medication. The complainant issued a legal notice dated 01.09.2015 through its counsel on the OP alleging wrong diagnosis and treatment demanding damages / compensation. OP vide reply dated 18.09.2015 denied the allegation. Therefore, complainant alleging, medical negligence against the OP filed the present complaint praying for issuance of direction against OP to pay a compensation of Rs. 5,00,000/- for mental and physical harassment.
2. Complainant has filed copy of prescription dated 17.08.2015 by OP with respect to complainant visit, copy of Rs. 385 issued by Vats Medicos, copy of medical documents issued by Swami Dayanand Hospital, Delhi for complainant treatment on 21.08.2015 alongwith copy of ECG report, copy of legal notice alongwith postal receipt date 01.09.2015 and reply thereto dated 18.09.2015 by OP to complainant’s counsel. The complainant filed an application under Order 6 Rule 17 of amendment of typographical error in complaint for mistake in date written as 19.08.2015 instead of 17.08.2015.
3. Notice was issued to the OP on 20.10.2015. OP entered appearance on 16.02.2016 and was handed over copy of complaint alongwith amended application. OP moved an application for impleadment   of United Insurance Company Ltd., as OP2 in view of having            obtained Professional Indemnity Dr. (other) policy no. 041200/46/14/35/00003131 w.e.f. 09.08.2014 to 08.08.2015 from United Insurance Company Ltd., and placed reliance on judgment of Hon’ble NCDRC in Dr. C.C. Choubal Vs. Pankaj Srivastava.
4. The Forum after hearing both parties on application filed by complainant on amendment of complaint as well as filed by OP for impleadment of insurance company United Insurance Company Ltd., allowed both applications and issued notice to OP2 i.e. United Insurance Company Ltd.
5. The OP filed its written statement vide which it took the preliminary objection of complaint being wholly misconceived, groundless, frivolous, vexatious and scurrilous and that there is  no deficiency of service or negligence on the part of OP in providing medical service to complainant and also complainant has failed to prove the allegation leveled. OP resisted the complaint on grounds that the same is bad for non-joinder of necessary party i.e. United Insurance Company Ltd., with which OP had Professional Indemnity Policy. On merits, OP submitted that per-contra, there are no records pertaining to complainant’s treatment for the date on 19.08.2015 or 20.08.2015 and moreover the OP does not treat patient for blood pressure problem since he is an ENT surgeon. OP only admitted to having seen the complainant on 17.08.2015 with problem relating to ear i.e. chronic suppurative otitis media with tinnitus in the right ear for which the medicine as mentioned in the prescription were prescribed to the complainant. OP objected to the authenticity of ECG issued by Schiller Health Care Media Pvt. Ltd., since it pertains to some other patient whose name was cancelled and complainant’s name written thereafter. OP further objected to the document dated 21.08.2011 issued by Swami Dayanand Hospital, Delhi relied upon by complainant where he has complaint of anxiety as the same does not concern with treatment given by OP for ringing in the ear of complainant due to chronic ear infection. OP further denied having any records of complainant for 19.08.2015 and 20.08.2015 and put complainant to strict prove of furnishing the same. Therefore, OP prayed for dismissal of the complaint for no deficiency of service on medical negligence.
6. OP1 did not appear thereafter and therefore proceeded against  ex-parte vide order dated 20.09.2016.
7.  Rejoinder and evidence by way of affidavit was filed by the complainant in which complainant submitted that United Insurance Company Ltd., cannot be impleaded as a necessary party since OP was insured with it from 09.08.2014 to 08.08.2015 whereas complainant visited the OP after the expiry of the policy period        i.e. 19.08.2015. in so far as objection taken by OP regarding authenticity of ECG and medical record dated 21.08.2015 is concerned complainant placed on record application dated 06.05.2016 written by him to Medical Superintendent of Swami Dayanand Hospital, Delhi for verification of his record vide OPD no. 61665 dated 21.08.2015 and name on ECG in reply to which, Swami Dayanand Hospital, Delhi vide reply dated 07.05.2016 submitted that as per casualty record, the complainant attended casualty on 21.08.2015 and not 21.08.2011 as mentioned inadvertently in the casualty card and attached copy of casualty register encircling the records pertaining to complainant and also submitted that the subject ECG pertained to complainant, thereby attaching copy of ECG register as well. The complainant exhibited documents relied upon / filed by him as Ex C/W 1/1 to C/W 1/11.
8. Thereafter OP1 (doctor) and OP2 (insurance company) entered appearance on 22.12.2016 and placed on record copy of order dated 09.12.2016 passed by Hon’ble SCDRC in RP. No. 260/2016 setting aside ex-parte order passed by this Forum subjected to cost of Rs. 1000/- payable to complainant by OP2. OP2 filed its written statement vide which it took the preliminary objection that OP1 was not insured with it at the time of alleged cause of action i.e. 19.08.2015 since the policy already expired on 08.08.2015 and therefore has no legal liability to pay any damages or legal expenses and prayed for dismissal of complaint qua it.
9. OP1 filed it evidence by way of affidavit exhibiting copy of his certificate / qualification and copy of professional Indemnity Policy scheduled issued by Oriental Insurance Policy Ltd., vide policy no. 272200/48/2016/9267 w.e.f. 09.08.2015 to 08.08.2016 in favour of OP1 for a total sum assured Rs. 20,00,000/-. Therefore United Insurance Company Ltd., was deleted /discharged and oriental Insurance Co. Ltd., was impleaded as OP2 with direction to complainant to file amended memo of parties and notice was issued to OP2 vide order dated 13.09.2018.
10. Written arguments were filed by the complainant and OP1 in reassertion of their respective grievance / defence. OP2 entered appearance on 22.10.2018 and filed its written statement on 07.12.2018 vide which, while admitting the factum of having insured OP1 vide Professional Indemnity Policy for the period 09.08.2015 to 08.08.2016 OP2 took the preliminary objection of having no privity of contract between complainant and itself and submitted that there is no deficiency or negligence at it end for it to be impleaded in the array of parties and that to at such a belated stage. OP2 resisted the complaint on grounds that the present complaint is a frivolous one and is an abuse of process of law by the complainant to make illegal gains and therefore prayed for dismissal of complainant. OP2 has attached copy of the terms and conditions of the indemnity policy.
11. Rejoinder to the written statement filed by OP2 was filed by the complainant in rebuttal to defence taken by OP2 therein and denied having filed the complaint for any unlawful gain and that OP2 was impleaded only on the application of OP1 in view of indemnity policy obtain by OP1 from OP2 valid for the period of cause of action since earlier OP1 had wrongly impleaded United Insurance Company Ltd., and therefore no question for complainant to conceal any facts regarding impleadment of OP1 has arisen.
12. Evidence by way of affidavit and written submission were filed by OP2 to reemphasize the defence taken and prayed for deletion from array of parties.
13. During the course of oral arguments, counsel for OP1 submitted that the complainant had approached OP1 who is an ENT surgeon with qualification of MS (ENT) on 17.08.2015 not for any unconsciousness or vomiting or blood pressure related problem as averred in the complaint but with problem of ringing noise in his right ear and was diagnosed with Tinnitus which as per medical dictionary means a ringing / roaring in ear due to disturbance of auditory nerve or wax in the ear and accordingly medication was provided to him, medical history of the nature of medication prescribed to him being placed on record for consideration of this Forum.
14. We have heard the rival contentions of Ops. The counsel for complainant telephonically informed office of the Forum of his inability to appear due to COVID-19 pandemic and requested to consider the pleadings placed on record for the purpose of the arguments. We have bestowed our anxious consideration to the documentary evidence placed before us. The documents revealed that the complainant had visited OP1 on 17.08.2015 with complaint of ringing noise in right ear since past two-three days for which OP1 had prescribed the relevant medication, he being an ENT surgeon and complainant having approached him for problem relevant to his field of expertise. However, complainant could not produce any record of prescription or treatment given / taken from OP1 for 19.08.2015 and/ or 20.08.2015. The medical documents dated 21.08.2015 issued by Swami Dayanand Hospital, Delhi pertaining to complainant suffering from anxiety since 20.08.2015. It can be seen that the casualty ward documents dated 21.08.2015 issued by the said hospital pertains to complainant suffering from anxiety and no other relevant medical / surgical complaint was stated by complainant. The Blood pressure of complainant was also normal i.e. 120/80 and relevant medication was prescribed for problem reported the same. Thus the two treatments given on 17.08.2015 by OP1 and that given on 21.08.2015 by Swami Dayanand Hospital, Delhi are totally unrelated and have no bearing on each other whatsoever. The complainant could not even prove much less establish any negligence or error in diagnosis on the part of OP1 nor could he placed on record and documentary proof having allegedly gone treatment for OP1 on 19.08.2015 to 20.08.2015. .
15. After due appreciation of the facts and merits of the case in entirety we are of the considered opinion that the present complaint is frivolous and vexatious and devoid of merits and is therefore dismissed u/s 26 of CPA with cost of Rs. 2,000/- imposed on the complainant to be deposited with Consumer Legal Aid within 30 days of receipt of copy of this order.
16.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
17.   File be consigned to record room.
18.   Announced on  12.06.2020

(N.K. Sharma)     President

(Sonica Mehrotra)  Member