District Consumer Disputes Redressal Forum, Near FCI Godowns, Muradpura, Tarn Taran (Punjab)
Consumer Complaint No : 68 of 2014
Date of Institution : 1.10.2014
Date of Decision : 21.6.2016
Kuldeep Kaur w/o Kulwant Singh resident of village Johal Dhai Wala Tehsil and District Tarn Taran.
…Complainant
Versus
- Dr. Sachin Gupta, M.S. MCH Orthopedics, Arthroscopy and sports Medicine Specialist at Gupta Hospital 12-F, Race Course Road Amritsar.
- Gupta Hospital, Wadi Mandi Patti Tarn Taran through Dr. Sham Lal Gupta M.B.S.S., MS former CMO Patti.
- United India Insurance Company Ltd. Branch through its Branch Manager # 345, 1st Floor, near Canera Bank B-Block, B.R.S. Nagar Ludhiana, Tel-0161-4617717.
- National Insurance company Ltd. Registered Office: 3 Middleton Street, Kolkata 700071 having its Registered Office SCO. 332-334, Sector 34-A Chandigarh.
…Opposite Parties.
Complaint Under Section 12 & 13 of the Consumer Protection Act, 1986.
Present:
Quorum: Sh. A.K. Mehta, President
Ms. Jaswinder Kaur, Member
For the complainant Sh. S.S. Cheema Advocate
For Opposite parties No. 1, 2 Sh. Jagdeep Mehta Advocate
For Opposite Party No. 3 Exparte on 24.3.2015
For opposite party No. 4 Sh. P.N. Khanna Advocate
A.K. Mehta, President
1 Complainant Smt. Kuldeep Kaur has filed the present complaint under Section 12 & 13 of the Consumer Protection Act, 1986 (herein-after called as ‘the Act’) against Dr. Sachin Gupta etc opposite parties (O.Ps.) on the allegation of negligence and deficiency in service while performing operation of complainant with further prayer to direct the opposite parties to pay compensation and litigation expenses as mentioned in the complaint.
2 The case of the complainant in brief is that, complainant is middle aged woman and has three children who are dependent upon her; that on 3.12.2013, the complainant went to Opposite Party No. 2-Gupta Hospital Patti for removal of her uterus and she was admitted in hospital vide Adm No. 2/12 and she was treated/ operated by opposite parties and opposite parties in a negligent manner operated the uterus and also gave an injection on the left back side which resulted in severe pain to the complainant and when complainant informed about it to the doctor, then she told to the complainant that it will be fine after some days and then complainant was discharged from hospital on 6.12.2013; that after some days, the complainant again informed Opposite Party that she is suffering from severe pain and stitches also gives a lot of pain and her left foot has become senseless and she has become unable to complete her daily routine work and she is also feeling pain in uterus but the Opposite party told the complainant that he is not responsible for any such problem and complainant will have to spend her life in this way; that the problem of the complainant occurred due to negligence and carelessness in the performance of operation by Opposite Parties and complainant approached the Opposite Parties many a times with the request to recheck the complainant but the opposite parties lingered on the matter on one pretext or the other and now has finally refused to look in to the genuine request of the complainant. Hence complaint was filed.
3 After formal admission of the complaint, notice was issued to the Opposite Parties. Opposite Parties No. 1 and 2 appeared through counsel and filed the written reply contesting the complaint on the preliminary objections that complaint is bad for mis-joinder of necessary parties and cause of action because Dr. Sachin Gupta-Opposite Party No. 1 has nothing to do with Opposite Party No. 2-Gupta Hospital Patti and has nothing to do with this case because he was never on the panel of Opposite Party No. 2-Gupta Hospital Patti and never performed the alleged operation nor he is connected with said operation or said hospital in any manner and as such, the complaint is liable to be dismissed on this ground; that complaint is bad for non-joinder of necessary parties because Opposite Party No. 2-Gupta Hospital Patti is insured with United India Insurance Company Ltd. through its Professional Indemnity Policy No. 041200/46/13/32/00000524 effective from 19.4.2013 to 18.4.2014; that complaint is false, fabricated, wrong, baseless and is based on conjectures, assumptions and surmises and there is no negligence either in form of commission or omission committed by Opposite Party No. 2-Gupta Hospital Patti though Gupta Hospital Patti is owned and is being run by Dr. Sham Lal Gupta who is well qualified, respected and reputed doctor and retired as S.M.O from Civil Hospital Patti; that complaint is misconceived, groundless, frivolous, vexatious and is unsustainable in the eyes of law and has been filed without any fault of Opposite Party No. 2-Gupta Hospital Patti and just to harass, defame and extract money from Opposite Party No. 2-Gupta Hospital Patti; that no specific and justified allegations with regard to negligence and deficiency in service has been made by the complainant against Opposite Party No. 2-Gupta Hospital Patti and complainant has failed to explain as to how Opposite Party No. 2-Gupta Hospital Patti was negligent in providing the service to the complainant and as such, complaint is without any cause of action against the Opposite Party No. 2-Gupta Hospital Patti. On merits, it was asserted that Dr. Sachin Gupta has nothing to do with Opposite Party No. 2-Gupta Hospital Patti and he was not on the panel of Opposite Party No. 2-Gupta Hospital Patti nor he performed the alleged operation nor he is connected with the alleged operation and hospital. It was asserted that actually on 15.10.2013, the complainant got her USG examination from Bibi Kaulan Ji Charitable Hospital and she was diagnosed with pelvic inflammatory disease, left ovarian cyst and patient also complained of Menorrhagia and she got treatment from Mata Kaulan Hospital. On 26.11.2013, she got her examined from Bebe Nanki mother and child care centre Govt. Medical college Amritsar and she was again diagnosed with pelvic inflammatory disease and left ovarian cyst and was advised for operation for which she got examined her blood, urine and other required investigations and then she came to Opposite Party No. 2-Gupta Hospital Patti for abdominal hysterectomy operation; that on 3..12.2013 vide CR No. 2/12, the complainant was admitted as a case of Menorrhagia pelvic inflammatory disease and left ovarian cyst. All required investigations had been done and patient was fit for operation and indoor file was prepared and proper consent, risk and responsibility of the patient and family members was taken and then patient paid Rs. 8,000/- for operation which includes operation fee, anesthesia fee, admission fee, charges of medicine, nursing charges, OT, indoor and Doctor visiting fee. Dr. Surinder Gupta who is M.S. General Surgery and retired Professor and head of the Govt. Medical College Amritsar examined the complainant on 3.12.2013 and successfully operated the complainant under spinal anesthesia; that doctor Asha Gupta M.S. Anesthesia who is retired Professor and Head Medical College Amritsar examined the B.P. Pulse, temperature of complainant and she has given anesthesia to thousands of persons in her service and she gave anesthesia to the complainant and operation was successfully performed; that the complainant was shifted to ward in good condition and was advised to continue intravenous fluid and medicine and on 3rd day of operation, the complainant was put on oral fluid diet, intravenous fluid was not given though intravenous cannula remained fitted in the arm to give all injections intravenously. The dressing of the patient was changed and urinary catheter was removed and she was put on food and she also started going to toilet, bathroom herself and was taking semisolid diet and fluid and as complainant was doing all her daily routine work in normal condition and accordingly she was discharged from the hospital on 6.12.2013 after taking her written consent when she was not feeling any complaint and thereafter, complainant did not come to the hospital for follow up; that Opposite Party No. 2-Gupta Hospital Patti did everything diligently, prudently, with utmost due care and caution in treating the complainant. All other allegations mentioned in the complaint were denied being false and baseless and a prayer was made for dismissal of the complaint with costs.
4 During the pendency of the complaint, an application was filed by Opposite Party No. 2-Gupta Hospital Patti for impleading United India Insurance Company Ltd. as party because Opposite Party No. 2-Gupta Hospital Patti was professionally insured with United India Insurance Company for the relevant period and after hearing the parties, United India Insurance Company was impleaded as Opposite Party No. 3. Likewise Opposite Party No. 1 filed an application for impleading National Insurance Company Ltd. as party in the complaint as Opposite Party No. 1 was professionally insured with National Insurance Company Ltd. and after hearing the parties, National Insurance Company Ltd. was impleaded as Opposite Party No. 4 and notice was issued to Opposite Party No. 3 and Opposite Party No. 4. Opposite Party No. 3 was declared to have been duly served through registered cover but none appeared on behalf of opposite party No. 3 and consequently Opposite Party No. 3 was proceeded against exparte vide detailed order dated 24.3.2015.
5 Opposite party No. 4- National Insurance Company appeared through counsel and filed written reply contesting the complaint on the preliminary objections that there is no privity of contract between the complainant and Opposite Party No. 4- Insurance Company and as such, complaint against Opposite Party No. 4- Insurance Company is not legally maintainable; that answering insurance company has been impleaded at the instance of Opposite Party No. 1-Dr.Sachin Gupta on the ground that he has obtained Professional Indemnity Policy but no such policy with terms and conditions has been placed on the file nor supplied to the answering opposite party and even otherwise this Forum cannot fix any direct liability qua Opposite Party No. 4- Insurance Company because jurisdiction of this Forum is only to determine the 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. 4- Insurance Company as per terms and conditions of the Policy; that as per written reply filed by Opposite Party No. 1, it is clear that there was no medical negligence on the part of Opposite Party No. 1. The said reply be also considered as part of reply filed by Opposite Party No. 4- Insurance Company; that complainant was treated in Gupta Hospital Patti, which is impleaded as Opposite Party No. 2 and hospital authorities stated to have obtained medical Indemnity Policy from Opposite Party No. 3- Insurance Company and in case any liability is to be fixed then same can be fixed against Opposite Party No. 2 and right can be given to Opposite Party No. 2 to raise their claim against Opposite Party No. 3- United India Insurance Company and as per written version filed by Opposite Party No. 1, he has no concern with the present case because he has neither operated nor treated the patient and as such has been impleaded unnecessarily as a party in the present case, though if at all any liability is fixed against Opposite Party No. 1, even then the same can’t be ordered to be paid by Opposite Party No. 4- Insurance Company directly because initially the concerned doctors are liable to pay compensation and thereafter they can approach the insurance company for getting reimbursement on the basis of doctors indemnity policy and Insurance Company is to decide the same in the light of terms and conditions of the policy; that the complainant has demanded Rs. 10,00,000/- but without any detail as to how he has quantified the compensation and likewise the complainant has demanded Rs. 15,000/- as litigation expenses which is against the provisions of the Consumer Protection Act and moreover, there is no clause in the policy to pay any such relief. On merits, the complaint has been contested on the same lines as were taken in the preliminary objections and it was asserted that as per provisions of the Consumer Protection Act, claim is not to be paid unless any deficiency in service is proved and as the allegations of deficiency in service is not existing in the present complaint, therefore, complaint is not legally maintainable under the Act and relief cannot be granted by this Forum. All other allegations mentioned in the complaint is denied with a prayer to dismiss the complaint with costs.
6 Sufficient opportunities were granted to the parties to lead evidence in order to prove their respective case. The complainant tendered in to evidence her affidavit Ex.C-1 alongwith following documents
Ex. C-2 Copy of birth certificate
Ex. C-3 Discharge card
Ex. C-4 Prescription slip
Ex. C-5 Prescription slip
and closed her evidence.
7 After joining of Opposite Party No. 4- Insurance Company, the complainant was again given opportunity to lead evidence but complainant did not produce any evidence in the case.
8 In order to rebut the evidence of the complainant, the Opposite Parties No. 1 and 2 tendered in to evidence affidavit of Dr. Sachin Gupta Ex. OP1, 2/1, affidavit of Dr. Asha Gupta Ex. OP1, 2/2, affidavit of Dr. Sham Lal Gupta Ex. OP1, 2/3, affidavit of Dr. Surinder Gupta Ex. OP1,2/4 alongwith following documents:-
Ex. OP1,2/5 Insurance policy
Ex. OP1,2/6 Insurance Policy
Ex. OP1,2/7 Insurance Policy.
Ex. OP1,2/8 Insurance Policy
Ex. OP1,2/9 Insurance Policy
Ex. OP1,2/10 Cover Note of Admission Record
Ex. OP1,2/11 Prescription Slip of Gupta Hospital Patti
Ex. OP1,2/12 Treatment record of Gupta Hospital
Ex. OP1,2/13 Certificate of Gupta Hospital for fitness of
complainant
Ex. OP1,2/14 ECG
Ex. OP1,2/15 Investigation of Laboratory
Ex. OP1,2/16 Treatment record and continuity note regarding
anesthesia by Dr. Asha Gupta
Ex. OP1,2/17 Surgery note by Dr. Surinder Gupta
Ex. OP1,2/18 Previous investigation of the complainant of ECG
from Bibi Kaulan Ji Charitable Hospital Amritsar produced before Gupta Hospital
Ex. OP1,2/19 Ultra/scanogram report
Ex. OP1,2/20 Ultra sound report of Bibi Kaulan Ji
Charitable Hospital
Ex. OP1,2/21 Treatment record/ prescription slip of Bibi Kaulan
Ji Charitable Hospital
Ex. OP1,2/22 Treatment record/ prescription slip of Bibi Kaulan
Ji Charitable Hospital
Ex. OP1,2/23 Receipt regarding the purchase of Medicine
Ex. OP1,2/24 Receipt regarding the purchase of Medicine
Ex. OP1,2/25 Investigation report of Laboratory of Bibi Kaulan
Ji Charitable Hospital
Ex. OP1,2/26 OPD Slip of Govt. Medical college Amritsar
Ex. OP1,2/27 Perception slip of Bibi Kaulan Ji Charitable
Hospital
Ex. OP1,2/28 ECG By Bibi Kaulan Ji Charitable Hospital
and closed the evidence.
9 The opposite party No. 4 also tendered in evidence affidavit of Dheeraj Seth Divisional Manager Ex. OP 4/1 alongwith following document
Ex. OP 4/2 Certified copy of Policy alongwith terms and
conditions.
and closed the evidence.
10 We have heard Ld. counsel for complainant as well as Ld. counsel for opposite parties No. 1, 2 and Opposite Party No. 4 and have gone through the file.
11 Ld. counsel for the complainant contended that the complainant went to Opposite Party No. 2-Gupta Hospital Patti on 3.12.2013 for removal of her uterus and Opposite Party No. 2-Gupta Hospital Patti acted in a haste as the complainant was admitted and operated on the same day without any previous routine investigation and without any test or report. He contended that this act and conduct of the Opposite Parties amounts to deficiency in service as they operated the complainant without any test or report. He contended that the complainant was discharged on 6.12.2013 though he complained about pain in stitches and also her right leg has stopped functioning but inspite of that she was discharged on the ground that she will recover in due course of time. He contended that the Opposite Parties were deficient in service in performing the operation which resulted in nonfunctioning of her right leg. He contended that complainant is middle aged woman and is having three children and all are dependant upon the complainant and as such, the complainant is entitled to Rs. 10,00,000/- as compensation and Rs. 15,000/- as litigation expenses and contended that complaint is required to be allowed.
12 The ld. counsel for Opposite Parties No. 1 and 2 contended that the complaint is bad for non-joinder and mis-joinder of necessary parties. He contended that Opposite Party No. 1- Dr. Sachin Gupta is not connected with Opposite Party No. 2-Gupta Hospital Patti as Opposite Party No. 1 was not on the panel of Gupta Hospital Patti nor he was associated in the operation of the complainant and as such, complaint is bad for mis-joinder of parties. He further contended that actually the operation was performed by Dr. Surinder Gupta who is well reputed doctor and he is M.S. General Surgery and retired as Head of the Department from Medical College Amritsar but Doctor Surinder Gupta has not been joined in the instant complaint and as such, complaint is also bad for non-joinder of necessary parties. He contended that complainant has alleged negligence and deficiency in service on the part of the opposite parties and has further alleged that her leg has stopped functioning due to negligence performance of operation by Opposite parties but no evidence has been produced on the file in this regard nor any disability certificate has been produced on the record that leg of the complainant has stopped functioning and as such, complaint in hand is of no evidence case and is required to be dismissed out-rightly. He further contended that complaint has not been framed diligently as complainant has alleged negligence and deficiency in service on the part of opposite parties but have claimed Rs. 10,00,000/- as litigation charges and Rs. 15,000/- as compensation on account of mental and physical harassment, though in the body of the complaint, complainant has claimed compensation of Rs. 10,00,000/-and litigation expenses as Rs. 15,000-/ and it shows that complaint is not properly framed. He also contended that complaint has been filed with delay and it shows that complaint is after thought and is manipulated because operation was performed on 3.12.2013 and complainant was discharged on 6.12.2013, but complaint was filed only on 12.9.2014 i.e. after about 9 months and if complainant was in pain or if the leg of the complainant has become nonfunctioning then complainant would have filed the complaint immediately. He further contended that complainant had also not reported the matter to any other authority nor any report of any other doctor has been obtained to prove the negligence or deficiency in service on the part of the Opposite Parties. He contended that the complainant visited Opposite Party No. 2-Gupta Hospital Patti before date of operation and she also produced investigation reports as well as scanning reports on the day she visited the hospital and thereupon fitness report was obtained and thereafter operation was performed which was successful and no complaint was made by the complainant regarding any problem, rather she herself reported on the discharge certificate that she is being relieved satisfactorily. He contended that complainant failed to prove negligence and deficiency in service on the part of opposite parties and complaint is false and frivolous and has been filed to extract money from Opposite Parties and as such, the complaint is required to be dismissed with special costs. Ld. counsel for Opposite Party No. 4 argued the case on the plea taken in the written version.
13 Complainant has filed the present complaint against Opposite Parties with the allegations of negligence and deficiency in service in performance of her operation and she further alleged that due to negligence and deficiency in service on the part of Opposite Parties, her right leg has stopped functioning. In order to succeed in the complaint, the complainant has to prove on file that Opposite Parties performed the operation and were negligent and deficient in performance of operation which resulted in nonfunctioning of her right leg. However, after going through the pleadings of the parties, evidence and documents produced on the file by the complainant, this Forum is of considered opinion that the complainant has utterly failed to prove her case on file. Except oral allegations regarding negligence on the part of the opposite parties, the complainant has not explained as to how Opposite Parties were negligent and as to what they were required in the performance of operation. Moreover, the complainant has not proved any expert opinion or observation of any other medical expert to prove that the Opposite Parties performed operation negligently which resulted in nonfunctioning of her right leg, rather there is no evidence on the file to show that leg of the complainant is not functioning and if so, then the same is the result of operation performed by the Opposite Parties or that Opposite Parties were deficient in performance of operation. Moreover, Opposite parties have asserted that Opposite Party No. 1-Dr. Sachin Gupta is not connected with the complaint in hand as he was not on the panel of Opposite Party No. 2-Gupta Hospital Patti and Dr. Sham Lal Gupta is only owner of Gupta Hospital Patti and the O.Ps. have not performed operation, rather operation was performed by Dr. Surinder Gupta who has not been arrayed as party to the present complaint. The complainant has not produced even an iota of evidence on file that operation was performed by Opposite Party No. 1- Dr. Sachin Gupta. Rather Opposite Parties asserted in the written reply that operation was performed by Dr. Surinder Gupta, but inspite of that, complainant has not taken trouble to join Dr. Surinder Gupta as party to the present complaint. Otherwise also, onus is on the complainant to prove that Opposite Party No. 1 performed the operation on the complainant. But the complainant has not produced any evidence in this regard. The allegation of the complainant is that Opposite Parties acted in haste as they performed the operation on the complainant on the same day when she was admitted in the hospital and without performing any investigation on her and without obtaining any report. However, Opposite Parties have asserted in the reply that complainant has obtained her U.S.G. report from Bibi Kaula Ji Hospital on 15.10.2013 and was diagnosed with pelvic inflammatory disease, left ovarian cyst and then she was again examined from Bebe Nanki mother and child care centre Govt. Medical College Amritsar on 26.11.2013 and was again diagnosed with pelvic inflammatory disease and left ovarian cyst and was advised operation. Opposite parties have proved report Ex. OPs 1,2/18 dated 15.10.2013 issued by Bibi Kaulan Ji Hospital regarding her ECG report. Opposite parties have also proved scanning report Ex. O.Ps. 1,2/19 which is dated 14.10.2013. Opposite Parties have also proved ultrasound report Ex. O.Ps. 1,2/20 dated 15.10.2013 issued by Bibi Kaulan Ji Charitable Hospital. Opposite Parties have also proved prescription slip Ex. O.Ps 1,2/21, O.Ps. 1,2/22 regarding diagnoses and treatment. Opposite Parties have also proved prescription slip dated 29.11.2013 of Gupta Hospital Patti in which different tests were advised and report of test is proved as Ex. O.Ps.1, 2/12. Opposite Parties have also proved a certificate Ex. O.Ps.1, 2/13 of Gupta Hospital Patti dated 29.11.2013 in which it is mentioned whether she is fit for operation. Moreover, her ECG was also obtained on 29.11.2013 which is Ex. O.Ps. 1, 2/14. The report of different tests is proved on the file as Ex. O.Ps. 1, 2/15 dated 29.11.2015.It all shows that a proper investigation was performed on the complainant before her operation on 3.12.2013 and there is no force in the contention of complainant that operation was performed in haste and without conducting any investigation and without taking any report. Opposite Parties have also proved admission and discharge file in which complainant gave an undertaking in her own handwriting that her uterus be removed on her own responsibility and at the time of discharge, she has given the certificate in her own hand that operation has been performed satisfactory and she is not feeling any trouble and requested for discharge from the hospital. This certificate also shows that there was no complication with the complainant at the time of discharge from the hospital. Otherwise also no report of any doctor has been proved by complainant showing that her leg is not functioning and nonfunctioning of her leg is result of negligence of the O.Ps. in the performance of operation nor there is any report by any doctor that opposite parties have not performed operation diligently or were negligent in performing the operation. As such, complainant has failed to prove that Opposite Party No. 1 performed the operation and Opposite Parties were negligent or deficient in performance of operation which resulted in nonfunctioning of her right leg. As such, the complainant has failed to prove her case on the file. Hence, considering from any corner, complainant has failed to prove her case and is not entitled to any compensation.
14 In the light of above discussion, complaint fails and same is hereby dismissed. However, keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Announced in Open Forum
Dated: 21.6.2016
(Jaswinder Kaur) (A.K. Mehta)
Member President
