Karnataka

Kolar

CC/65/2019

Gangadharachari - Complainant(s)

Versus

Dr.Nipun - Opp.Party(s)

B.S.Sadaivachari

05 Jul 2022

ORDER

                          Date of Filing: 21.11.2019

Date of Disposal: 05.07.2022

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, OLD D.C. OFFICE PREMISES, KOLAR – 563 101.

 

Dated: 05^TH DAY OF JULY 2022

PRESENT

SRI. SYED ANSER KALEEM, B.Sc., B.Ed., LL.B., …… PRESIDENT

SMT. SAVITHA AIRANI,B.A.L., LL.M., …..LADY MEMBER

 

CONSUMER COMPLAINT NO. 65 OF 2019

Gangadharachari,

S/o. Nanjachari,

Aged About 45 Years,

Hennuru Village,

Jangamakote Hobli,

Shidlagatta Taluk,

Chikkaballapur District.                                                ….  COMPLAINANT.

(Rep. by Sri. B. Sadasivachari, Advocate)

- V/s –

1) Dr. Nipun

(OP No.1 Deleted as per order

Dated: 29.09.2020)

 

2) Dr. Harish

3) Dr. Aravind

(OP Nos.2 & 3 are Represented by

Sri. A. Lakshminarayana, Advocate)

 

4) Secretary

(Exparte)

 

OP Nos.1 to 4 are working at

R.L. Jalappa Hospital &

Research Center, Tamaka Post,

Kolar.

 

5) The District Health Officer,

Sanitorium, Kolar.

(Exparte)                                                                   …. OPPOSITE PARTIES.

ORDER

BY SRI. SYED ANSER KALEEM, PRESIDENT

01.   The complainant has filed this consumer complaint Under Section 12 of the Consumer Protection Act against the OPs alleging deficiency in service and pray for direction to the OP Nos. 1 to 4 to refund the amount of Rs.60,000/- towards the said amount spent for operation due to the negligent act of the Ops.

02.   The brief facts of the complainant’s case is that, the complainant due to Urethral Dilation problem was admitted to OP No.4 Hospital on 03.07.2019.  That on the advice of the Doctors i.e., OP Nos.1 to 3, the complainant underwent operation on 04.07.2019.  It is alleged that, the said operation was not successful due to the negligent act of the Surgeons. Further stated that, the complainant incurred medical expenditure to an extent of Rs.50,000/-. Whereas the Medical Advisory Committee consisting of OP Nos.1 to 3 advised the complainant to undergo operation once again, but the complainant did not accept the advice of the OP Nos. 1 to 3 Doctors. Thereafter the complainant went to Apollo Hospital and the doctors of Apollo hospital reviewed the treatment given by the R.L. Jalappa Hospital and advised the complainant to undergo operation once again. It is stated that on 28.08.2019 the complainant underwent second operation and incurred medical expenditure of Rs.60,000/-.  Hence the complainant alleges that, the second operation is only due the negligent act of the OPs and hence complainant alleging deficiency in service has filed this complaint.

03.   On issuance of notice from this Commission OP No.4 and 5 remained absent and accordingly OP Nos. 4 and 5 placed exparte.  However OP Nos. 2 and 3 appeared through their counsel and OP No.2 filed the version and other OP Nos. 3 and 4 by filing Memo adopts the version filed by the OP No.2. Whereas complainant despite giving sufficient opportunity failed to take steps against OP No.1 in order to serve notice and hence complaint against OP No.1 is dismissed as per the orders dated 29-09-2020 shown in the order sheet.

04.   In the version of OP No.2 it is admitted that, the complainant suffering from urinary issue and hence approached the Ops for treatment.  On evaluation it was found that, the complainant was having prostate problem and hence he was advised to TURP surgery and it was applied under Ayushman Bharath Arogya Karnataka Scheme.  It is contended that, complainant was taken for TURP surgery intra/co-operatively patient had urethral narrowing (urethral stricture), hence surgery plan was changed to VIU surgery.  It is contended that, complainant was discharged after the surgery in good condition and patient was not charged any amount from hospital side, due to the surgery was covered under the Ayushman Bharath Arogya Karantaka Scheme.  The patient also given declaration undersigned that, he had taken course treatment under the scheme and the refund voucher for amount he has spent for treatment.  It is contended that, the complainant has spent Rs.50,000/- towards treatment is false.  It is also contended that, complainant came to OP hospital as OPD with Urinary issue he was treated on OPD basis for a couple of times and the OP authorities have not advised the complainant patient need for 2^nd surgery as alleged by the complainant.  Further contended that, complainant/patient has not attended for follow up treatment in the hospital.  It is also contention of Ops that, they have taken maximum care and caution while treating the patient and there is negligence from their part.  Further contended that, complainant is suffering from chronic disease (urethral stricture) which needs repeated treatment and also long follow up treatment, but the complainant had not taken follow up treatment in OP hospital.  Hence contended that there is no deficiency in their service.  Further the Ops denied all the allegations made in the complaint with the above grounds and Ops prays to dismiss the complaint. 

05.   In order to prove the case of the complainant, the complainant filed his affidavit evidence along with the documents, however for the reasons best known to the Ops, the Ops have failed to file their affidavit evidence. 

06.   Heard the arguments of the complainant, whereas despite opportunity given to the Ops, Ops have failed to submit their arguments and hence arguments of Ops taken as heard.

07.   On the basis of the pleadings and the evidence placed on record the following points arise for our consideration:-

1. Whether the complainant has proved deficiency in service on the part of the OP Nos.2 to 5?

 

2. Whether the complainant is entitled for relief as sought in the complaint?

 

3. What order?

 

08.   Our findings on the above points are:-

                POINT No.(1):-         In the Affirmative as against

                                                OP Nos.2 to 4 & in the

                                                Negative as against OP No.5

 

                POINT No.(2):-         Partly in the Affirmative

 

        POINT No.(3):-         As per the final order

                for the following:-

 

 

REASONS

POINT NO.(1):-

09.   On perusing the complaint and the contention put forth by the OP No.2 to 4 in their version it is an admitted fact that, the complainant approached the OP No.4 hospital due to Urethral Dilation problem and underwent surgery.  It is also not disputed that, the complainant underwent 2^nd surgery for the above said same cause in the Apollo Hospital, Bangalore. 

 

10.   The specific allegation of the complainant is that, the Doctors of OP Nos.1 to 4 hospital conducted the first surgery to cure Urethral problem but the complainant ailment is not cured due to their negligent surgery, hence the complainant approached the Apollo Hospital in Bangalore and underwent 2^nd surgery for the same cause and incurred expenditure of Rs.60,000/-. 

 

11.   In order to substantiate the case of the complainant the complainant has produced the Discharge Summary issued by the Dr. Nipun - OP No.1 of Department of Urology of R.L. Jalappa Hospital and Research Centre, this document discloses that, the hospital authorities on diagnosis they found that, complainant was suffering from Urethral Stricture and also discloses that, VIU surgery done on 04.07.2019, wherein which it is also advised the patient/ complainant “review after one week in urology OPD”.  In the version Ops contended that, long term follow-up of treatment required to the complainant, but in the discharge summary it is mentioned that, review after one week in urology OPD, but regarding long term treatment nothing is mentioned.  Hence the contention of the OPs raised in the version that, the complainant had not taken any follow-up treatment in the hospital and he himself is a negligent, cannot be acceptable one.   Further on perusing the various bills dated: 30.07.2019, 02.08.2019, 02.08.2019, 14.08.2019 and all these bills discloses that, subsequent to 1^st operation complainant perhaps followed the instructions of the OP Nos.1 to 4 hospital and incurred medical expenditure, hence it is not possible to believe that, the complainant has not taken follow-up treatment. 

 

12.   On perusing Annexure-C the Discharge Summary issued by the Apollo Hospital, Bangalore, it discloses that, the complainant was admitted to Apollo Hospital on 28.08.2019 and discharged on 29.08.2019 for the treatment of Urethral Stricture with Meatal Stenosis and for that cause once again complainant underwent surgery.  On perusing Annexure-D it discloses that, in order to meet the medical expenditure the complainant has deposited Rs.10,000/- and Rs.14,000/- on the date of admission as well as on the date of discharge as stated supra.

 

13.   Whereas the complainant has failed to show that, how the OP No.5 had caused deficiency in treating the complainant and in our opinion, OP No.5 has no role in the alleged treatment.  Hence the complainant has failed to prove the deficiency in service on the part of the OP No.5.

 

14.   The crux of the matter is to consider that, the 2^nd operation for the same cause amounts to deficiency in service?  On the basis of the evidence placed on record initially complainant was admitted to OP Nos.1 to 4 hospital on 03.07.2019 and the date of surgery is 04.07.2019 and the date of discharge is 10.07.2019 for Urethral Stricture surgery.  It is not in dispute that, the complainant once again admitted to the Apollo Hospital, Bangalore on 28.08.2019 and discharged on 29.08.2019 and underwent surgery for the same cause (Urethral Stricture).   If for the argument sake, if it is accepted that, the complainant required long follow up treatment the 2^nd operation is not necessary for the same cause and the 2^nd operation conducted by the Apollo hospital doctors to remove the ailment of the complainant and the same operation is conducted as earlier done by the Op No. 2 to 4 doctors, it clearly establishes that, the OP Nos.2 to 4 doctors not conducted the operation with due care, it obviously amounts to deficiency in service on the part of the OP Nos.2 to 4.  

 

15.   When the things itself speaks (RES IPSA LOQUITOR) the negligence alleged is glaring and thereby second surgery for the same cause was conducted, under the circumstances, the principle of RES IPSA LOQUITOR could be made applicable and not based on perception.  Hence there is no further evidence of expert required in the present case on hand.  On the basis of the above discussions we reached to the conclusion that, the OP Nos.2 to 4 are negligent in operating the complainant’s cause and hence we are of the opinion that, the complainant has proved deficiency in service on the part of the OP Nos. 2 to 4.  Accordingly we answered Point No.1 is in the Affirmative as against OP Nos.2 to 4 and in the Negative as against OP No.5.

 

POINT NO.2:-

16.   The complainant has failed to produce the final bill in respect of medical expenditure incurred on the 1^st operation conducted by the OP Nos.1 to 4 hospital as stated in the complaint, however he has produced some bills in respect of purchase of medicines.  On perusing the bills dated: 19.06.2019, 20.06.2019, 21.06.2019, 22.06.2019, 25.06.2019, 28.06.2019, 01.07.2019 and all these bills discloses that, the medical expenditure incurred by the complainant is prior to the admission to the OP Nos.1 to 4 hospital for surgery and hence the complainant is not entitled for the medical expenditure incurred during the above periods.  However on perusing the bills dated: 03.07.2019, 04.07.2019 30.07.2019, 02.08.2019, 14.08.2019 the complainant incurred medical expenditure to an extent of Rs.5,109/- on account of the surgery conducted by the OP Nos.2 to 4 hospital.  Further on perusing the discharge summary issued by the Apollo hospital and the deposit receipts it discloses that, the complainant in addition to the above said medical expenditure once again deposited Rs.10,000/- on 28.08.2019 and Rs.14,000/- on 29.08.2019 and Rs.600/- on 14.09.2019 and the complainant has incurred medical expenditure of Rs.24,600/- at the Apollo hospital, Bangalore.  Hence on the basis of the evidence placed on record the complainant incurred total medical expenditure of Rs.24,600/- + Rs.5,109/-.  Under the circumstances, we are of the opinion that, the complainant is entitled for Rs.29,709/- from the OP Nos.2 to 4 and hence OP Nos.2 to 4 are jointly and severally liable to pay a sum of Rs.29,709/- to the complainant and accordingly we answered Point No.2 is in the partly affirmative.

 

POINT (3):-

17.   On the basis of the reasons assigned while answering Points Nos. (1) & (2) we proceed to pass the following:-

 

ORDER

01.   The complaint is hereby allowed-in –part with cost.

 

02.   The OP Nos.2 to 4 jointly and severally are directed to pay to the complainant a sum of Rs.29,709/- towards the medical expenditure incurred by the complainant within 30 days from the date of the order, failing which the OP Nos.2 to 4 are liable to pay the said amount along with interest @ 9% per annum from the date of the complaint till realization.

 

03. The OP Nos.2 to 4 are directed to pay to the complainant a sum of Rs.2,000/- towards cost of the proceedings.

04.   Send a copy of this order to both parties free of costs.

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 05^th DAY OF JULY 2022)

 

 

 

LADY MEMBER                            PRESIDENT