New Complaint No.190 of 2023.
Date of Institution: 25.10.2023.
Old Complaint No: 22 of 2018
Date of Institution: 10.01.2018
Date of order:22.11.2023.
Smt. Sonia Wife of Sh. Ram Raj Son of Sh. Tirath Ram, resident of Village Hardobathwala Tehsil and District Gurdaspur.
….......Complainant.
VERSUS
1. Dr.Jyoti Mahajan Medical Superintendent and Gynae, Civil Hospital, Gurdaspur. (Regd No. 31452 (Punjab).
2. Dr.Vidya Bharti MBBS, Rural Medical Officer, S.H.C. Hemrajpur, Gurdaspur.
3. The Chief Medical Officer, Civil Hospital, Gurdaspur.
….Opposite parties.
Complaint Under section 12 of the Consumer Protection Act, 1986.
Present: For the Complainant: Sh. Avinash Chander, Advocate.
For the Opposite Party No.1: Sh. Aseem Mahajan, Advocate.
For the Opposite Party No.2: Sh. Mukesh Sharma, Advocate.
Opposite Party No.3 exparte.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Smt. Sonia, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Dr. Jyoti Mahajan Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant got married on 24.02.2017 with Ram Raj son of Sh. Tirath Ram resident of Village Hardobathwala Tehsil and District Gurdaspur. It is further pleaded that after the marriage the complainant has been pregnant and got her pregnancy treatment in Civil Hospital Gurdaspur by the OP’s No. 1 and 2 under the supervision of the OP No. 3. It is pleaded that the OP No. 3 being Chief Medical Officer of the Civil Hospital Gurdaspur, the OP No.1 being doctor as Ganye specialist and posted in the Civil Hospital Grasper and the OP No. 2 being doctor as MBBS doctor and posted in the Civil Dispensary Hemrajpur Tehsil and District Gurdaspur. It is further pleaded that firstly, the complainant checked her pregnancy test from the OP No. 2 on dated 07.06.2017 and know her positive pregnancy report and after that the OP No. 2 referred the complainant to the OP No. 1 for scanning and others treatment. It is further pleaded that on dated 12.07.2017 the complainant visited to OP No. 1 for her pregnancy test and treatment and the OP No. 1 checked of pregnancy condition of the complainant and told her that your health is good and you take some medicines under the supervision of the OP No. 1. After this the complainant regularly consulted and got her pregnancy treatment by the OP’s No. 1 and 2 under the supervision of the OP No. 3. It is further pleaded that on 09.10.2017 the health of the complainant was not good and due to illness health, the complainant met the OP No. 2 at S.H.C. Hemrajpur, Grasper and the OP No. 2 referred the complainant to the OP No. 1. It is further pleaded that complainant visited and contact the OP No. 1 on the same day for pregnancy check-up and the OP No. 1 injected injection to the complainant and issued some medicines to complainant. It is further pleaded that complainant got some relief and the OP No. 1 suggested the complainant go back home and take rest. It is further pleaded that after few days on 14.10.2017 the health of the complainant was not good. The complainant contacted the OP No. 2 for medical check-up and OP No. 2 gave some medicines and told complainant this is normal pain and suggested the complainant to take rest. It is further pleaded that again on 06.11.2017 the health of the complainant was not good and the complainant was not well and was serious and suffered pain. It is further pleaded that due to seriousness, the complainant with her husband and family members visited or consulted the OP No. 2 and the OP No. 2 checked condition of the complainant and referred to the OP No. 1. It is further pleaded that complainant with her relatives visited or contacted the OP No. 1 for treatment of seriousness of the complainant and the OP No. 1 gave treatment the complainant till evening. It is further pleaded that OP No. 1 clearly told the complainant that OP No. 1 cannot gave treatment and OP No. 1 also referred the complainant to Bebe Nanaki Hospital Amritsar. It is further pleaded that on 07.11.2017 the complainant was admitted to Bebe Nanaki Hospital Amritsar and on next day 08.11.2017 under the supervision of doctors the Department of OBST. & GYNAE Unit-II of Bebe Nanaki Hospital Amritsar, the complainant delivered an un-matured dead male child. It is further pleaded that according to the reports of doctor the Department of OBST. & GYNAE Unit-II of Bebe Nanaki Hospital Amritsar an un-matured dead male child was dead in mother's womb at the age of 23 weeks and 1 day (i.e. 15.09.2017) from the date of its conceive i.e. 06.04.2017. It is further pleaded that doctor of Bebe Nanaki Hospital Amritsar told the relatives of the complainant if the patient (Complainant) had not reached at this stage she will definitely die and the complainant and her family are under shocked. It is further pleaded that the OP’s No. 1, 2 and 3 being doctor and public servant are duty bound to care and gave pregnancy medical treatment to the complainant. It is alleged that OP’s No. 1 and 2 failed to check the pregnancy conditions of the complainant and not properly gave medical pregnancy check-up or treatment under the supervision of the OP No.3 from dated 09.10.2017 to 06.11.2017 and have also indulged in unfair Trade Practices. It is further pleaded that due to act caused the complainant delivered a first un-matured dead male child. It is further alleged that according to the reports of doctor the Department of OBST. & GYNAE Unit-II of Bebe Nanaki Hospital, Amritsar an un-matured dead male child was dead in mother's womb for last 54 days from the date of its abort i.e. 08.11.2017 and also the act of the OP’s caused mental harassment and pecuniary loss to the complainant and her family. It is further alleged that the complainant has been harassed by the opposite parties by not providing proper treatment and the complainant was also shocked for lost her first male child. It is further pleaded that due to this illegal act and conduct or medical negligence of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in services on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in services and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to pay the amount of Rs.10,00,000/- as damages for physical and mental suffering and lost her first male child, Rs.1,00,000/- as expenses incurred by the complainant and her family members in the treatment, Rs.50,000/- as expenses incurred by him in transport, etc. Total amount of Rs.11,50,000/- for medical negligence, carelessness and mistake committed by the opposite parties and along with 12 % interest per annum as damages and expenses to the complainant. The opposite parties may also be directed to pay Rs.15,000/- as cost of litigation expenses along with interest @ 18 % per annum in the ends of justice and fair play, to the complainant.
3. Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply, stating therein that the complainant came to Civil Hospital Gurdaspur on 06.11.2017 as OPD patient and was examined by the OP No. 1 and OP No. 2 is not posted at Civil Hospital, Gurdaspur rather she is posted at SHC Hamrajpur. It is pleaded that the OP No. 2 did not refer the complainant to the OP No. 1 for scanning and other treatment, furthermore the OP No. 1 is not radiologist as such the question of referring her by the OP No. 2 does not arise at all. It is further pleaded that as already submitted the complainant came to civil hospital, Gurdaspur and due to her pregnancy she was sent to the OP No. 1 by the office of Civil Hospital, Gurdaspur on 06.11.2017 and it was reported that she was having LMP (last menstrual period) on 06.04.2017 and was already pregnant and the said patient was duly sent for required test for pathology department of Civil Hospital, Gurdaspur and radiologist department on next date complainant again came to civil hospital Gurdaspur alongwith her reports, but as per the ultrasound report show Intrauterine death with severe Oligohybraminos and with Spaulding sign positive and as such although complainant was admitted in civil hospital Gurdaspur, but she was referred to Bebe Nanki hospital Amritsar for further investigation that is for the purpose of coagulation profile which is a special investigation test for such type of patient to detect further complication so that necessary treatment be given which is available at Amritsar and not at civil hospital, Gurdaspur. It is further pleaded that the OP No. 1 has got no knowledge about the treatment given to the complainant at Bebe Nanki Hospital, Amritsar and furthermore as per records produced by the complainant of said hospital, it is nowhere mentioned about the time of death of fetus it is only in the ultrasound report and it seems that the complainant has filed her complaint only on the basis of said report. However it is wrong interpretation that she was not given proper medical advice or medical care.
On merits, the opposite party No.1 denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Upon notice, the opposite party No.2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint of the complainant is not maintainable in the present form. It is further pleaded that the complainant has no cause of action to file the present complaint against the answering opposite party, that the complainant has not come to the Ld. Commission with clean hands and has suppressed the true and material facts from this Hon’ble Commission. It is pleaded that the complainant was got treated medically from some private doctors at her own sweet will, due to wrong treatment by some Private Doctors, the complainant when came to the OP No. 2 i.e. on 09.10.2017 at that time her B.P. was very high, that was about 160/90 and she was facing vomiting and headache from few days, due to her serious condition the OP No. 2 referred her to OP No. 1 after giving her first aid, because better health facilities, better indoor services, laboratory for such kind of risky patients like complainant were only available at the posting place of the OP No. 1. It is further pleaded that the complainant had come to SHC Hemrajpur on dated 09.10.2017 after a gap of 2 months from her last visit with complaint of headache and she told that she is getting treatment/prescriptions from some private doctors also and from the date she is taking prescription from private doctors, she is facing headache, high blood pressure and problem of vomiting regularly. It is further pleaded that after listening her problems, OP No. 2 checked her blood pressure which was on high scale i.e. about 160/90 and OP No. 2 got surprised after checking her blood pressure and after giving first aid, OP No. 2 referred her to working place of the OP No. 1 i.e. Department of Gynae, Civil Hospital, Gurdaspur, for treatment because better health facilities, better indoor services, laboratory and medicines of such risky patients are available there only. It is further pleaded that this was the last visit of the complainant to SHC Hemrajpur (work place of the OP No. 2). It is further pleaded that the OP No. 2 has performed her duties in proper manner and there was absolutely no negligence whatsoever on her part, as such the question of any compensation does not arises.
5. Upon notice, the opposite party No.3 appeared through Sh.Tarsem Pal, Clerk and filing their written reply by taking the preliminary objection that the present complaint of the complainant is not maintainable against the OP No. 3, so the same may be dismissed. It is pleaded that the complainant was admitted in Civil Hospital Gurdaspur vide admission No. 17068 on dated 07.11.2017 at about 7.30 A.M. and she was referred/discharged on the same day by Dr. Jyoti Mahajan i.e. OP No. 1. It is further pleaded that it is wrong that the OP’s No. 1 and 2 failed to check the Pregnancy conditions of the complainant and not properly gave medical pregnancy checkup or treatment under the supervision of the OP No. 3 from the date 09.10.2017 to 06.11.2017. It is further pleaded that in fact, the OP No. 3 is only supervisor of the OP No. 1 and they are liable to any act not for the OP No. 3 as per record. It is further pleaded that all the treatment was given by the OP’s No. 1 and 2 not by the OP No.3 as per record. It is further pleaded that the OP No. 3 is not liable to any negligence, carelessness and treatment. The OP No. 3 is only supervision of the above said OP No. 1 and the complainant is not liable to any compensation from the OP No. 3.
On merits, the opposite party No.3 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
6. After filing reply to the main complaint none had appeared on behalf of opposite party No.3 and opposite party No.3 was ordered to be proceeded as exparte vide order dated 06.07.2018.
7. Learned counsel for the complainant has tendered into evidence affidavit of Sonia, (Complainant) as Ex.C-1 alongwith other documents as Ex.C-2 to Ex.C-17.
8. Learned counsel for the opposite party No.1 has tendered into evidence affidavit of Dr. Jyoti Mahajan, (M.O, Gynae, Civil Hospital, Gurdaspur) as Ex.OP-1/1 alongwith other document as Ex.OP-1/2.
9. Learned counsel for the opposite party No.2 has tendered into evidence affidavit of Dr. Vidya Bharti, (MBBS, Rural Medical Officer, S.H.C. Hemrajpur, Gurdaspur) as Ex.OP-2/1 alongwith reply.
10. Written arguments filed by the complainant but not filed by the opposite parties.
11. Counsel for the complainant has argued that complainant got married on 24.02.2017 and on 07.06.2017 came to know about her pregnancy. It is further argued that opposite party No.2 referred to the complainant to opposite party No.1 for scanning and on having undergone test she was told to be in good health and thereafter she visited the opposite parties No.1 and 2 number of times under supervision of opposite party No.3. It is further argued that on 09.10.2017 health of the complainant deteriorated and complainant had consulted opposite party No.2 who referred the complainant to opposite party No.1 and opposite party No.1 gave some injections and advised rest to the complainant. It is further argued that on 14.10.2017 health of complainant further deteriorated and was advised by opposite party No.2 and again on 06.11.2017 due to further deterioration complainant visited opposite party No.2. However, opposite party No.1 referred the complainant to Bebe Nanaki Hospital Amritsar. It is further argued that complainant got admitted in the said hospital on 07.11.2017 and on 08.11.2017 a dead premature child was born. It is further argued by the counsel for the complainant that child of the complainant died due to wrong treatment given by opposite parties No.1 and 2 under the supervision of opposite party No.3 which amounts to deficiency in service. It is further argued that as per report of Bebe Nanaki Hospital Amritsar child was already dead when complainant was under treatment of opposite parties.
12. On the and counsel for the opposite parties No.1 and 2 have argued that all the opposite parties are working in one or the other capacity in government hospitals and primary health centre and free of charge service was provided to the complainant and as such complaint does not fall under the definition of consumer under the Consumer Protection Act. On merits, it is argued that the complainant was provided treatment and since case of the complainant was complicated one and as such she was referred to Amritsar for better treatment as the Civil Hospital Gurdaspur is not having the facilities as such she was referred to Bebe Nanaki Hospital Amritsar for further investigation for the purpose of coagulation profile which is a special type of test for such of patient to detect further complication.
13. Opposite party No.3 remained exparte.
14. We have heard the Ld. counsel for the complainant and opposite parties No.1 and 2 and gone through the record.
15. It is admitted case of the parties that complainant took treatment from opposite parties who are employees of Punjab Health System Corporation i.e. Civil Hospital Gurdaspur. It is further admitted fact that opposite parties had not charged any amount from the complainant for whatever treatment the complainant had undergone.
16. We have also relied upon judgment of Hon'b le Supreme Court of India in case titled as Indian Medical Association Vs. V.P. Shantha & Ors. Report in 1996 AIR 550 wherein it was held by the Hon'ble Supreme Court of India that the "Service having been provided free of charge as such the service cannot be treated as service under section 2(1)(0) for the reasons tht it has been rendered by medical officer in the hospital who receives salary for the employment in the hospital. There is no contract between payment of salary to the medical officer by the hospital authorities and the person who whom service rendered".
"At this stage, it would be appropriate to refer to certain statutory provisions of the Consumer Protection Act, 1986. 'Consumer' is defined in clause (d) and 'service' in clause (o) of Section 2(1) of the CP Act as under":-
"2. Definitions.- (1) In this Act, unless the context otherwise requires,-
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(d) "consumer" means any person who,-
(i) buys any goods for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
Explanation.- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment".
xxxxxxxxx "(o) "Service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
17. With out going into the merits of the case from the above discussion and case law cited above and definition as given above we have no hesitation in holding that since the opposite parties No.1 to 3 are employees of Punjab Government under Punjab Health System Corporation and no amount has been charged from the complainant in respect of alleged treatment undergone by her. As such we are of the view that this Commission has no jurisdiction to entertain the present complaint and as such the complaint is disposed off with the directions to the complainant to approach appropriate court of law for redressal of her grievances. Complainant can avail benefit of Section 14 of Limitation Act if so advised.
18. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
19. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Nov. 22, 2023 Member
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