STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
HARYANA PANCHKULA
Date of Institution: 01.02.2011
Date of Final hearing: 13.08.2024
Date of Pronouncement: 16.10.2024
Appeal No.189 of 2023 in
First Appeal No.150 of 2011
IN THE MATTER OF:
Kishori Lal S/o Late Shri Bihari Lal, presently resident of G-7/158, Sector-16, Rohini, Delhi-110085. ….Appellant.
Versus
Employees State Insurance Corporation through its Chairman/Director/Chief Medical Officer/ Senior Medical Officer, ESI Dispensary No.1, near Button Factory, Sonepat. …..Respondent
CORAM: Sh. Naresh Katyal, Judicial Member.
Sh. S.C. Kaushik, Member.
Argued By:- Mr. Kishori Lal-appellant-complainant, in person through Video Conferencing.
Mr. Pankaj, proxy counsel for Mr. B.S. Negi, Main counsel for respondent, through Video Conferencing.
NARESH KATYAL, JUDICIAL MEMBER
Note: That earlier Consumer Complaint (CC No. 185 of 1994) titled as Kishori Lal Vs. Employees State Insurance Corporation etc. was filed on 10.12.1993. It was dismissed on 14.09.1994 by the then learned District Consumer Forum-Sonepat by holding that complainant does not come within the ambit of definition of ‘consumer’. Appeal was preferred before Haryana, State Consumer Disputes Redressal Commission which had upheld order of learned District Consumer Forum. Thereafter, Revision Petition was filed before Hon’ble National Consumer Disputes Redressal Commission and said revision was also dismissed ‘in limini’ and ultimately matter went before Hon’ble Apex Court through Civil Appeal No. 4965 of 2000 titled as “Kishore Lal Vs. Chairman, Employees State Insurance Corporation”. That Civil Appeal was allowed by Hon’ble Apex Court vide judgment dated 08.05.2007 by observing that appellant is a consumer within the ambit of Section 2(1)(d) of Consumer Protection Act, 1986 and medical services rendered in ESI Hospital/Dispensary by respondent Corporation falls within Section 2(1)(o) of consumer Protection Act and therefore, the Consumer Forum has jurisdiction to adjudicate upon the case of appellant. Accordingly, the matter was remitted to learned District Consumer Forum-Sonepat for decision in accordance with law. It was then that complainant filed amended complaint No. 379 of 2007.
2. Amended Consumer Complaint No.379 of 2007 titled as “Kishore Lal Vs. Employees State Insurance Corporation” was decided on 21.09.2010 by learned District Consumer Disputes Redressal Commission, Sonepat and same was again dismissed. Order dated 21.09.2010 was challenged by complainant in Appeal No.150 of 2011 before this Commission. Said First Appeal No.150 of 2011 too was dismissed vide order dated 25.07.2012 of this Commission on the ground of limitation, as well as, on merits. Complainant further resorted his remedy by filing Revision Petition No.988 of 2013 before Hon’ble National Consumer Disputes Redressal Commission, New Delhi. Said Revision Petition was partly allowed vide order dated 28.12.2022 passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi. Order dated 25.07.2012 of this State Commission passed in First Appeal No.150 of 2011 has been set aside and matter has been remanded back to this Commission for deciding the appeal on merits. It has been observed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in para 8 of its order dated 28.12.2022 that: “It was not open for State Consumer Disputes Redressal Commission to consider the appeal on merits when it has been disallowed on the ground of limitation and for this reason; order (dated 25.07.2012) is liable to be set-aside.” This is how, present appeal, on its remand has been re-registered as First Appeal No.189 of 2023 and same is now being disposed off.
3. As per complainant’s case; he is/was an employee of Atlus Cycle Industries and insured with Employees State Insurance Corporation (ESIC). He is/was entitled to medical treatment and medicines from ESIC. His wife Raj Rani was getting treatment of ‘diabetes’ from doctors of ESIC dispensary since February-1993. In spite of getting regular treatment from ESIC dispensary; on 06.03.1993; Raj Rani became nervous and weak and he got her admitted in Mukhi Hospital-Sonepat and spend about Rs.1,500/- within two days to save her life.
4. Being poor person; he again started getting treatment of his wife from ESIC dispensary, but there was no improvement. Ultimately, he got her checked from doctor of Shri Janki Dass Kapoor Memorial Hospital-Sonepat, where required tests were conducted. From these tests report; it was revealed that tests carried out in laboratory of ESIC dispensary were not correct and reports were far away from correctness. Due to wrong reports; doctors prescribed medicines, which were far away from required standard/degree and which ultimately did not have any effect in respect of improvement of condition of his wife (Raj Rani).
5. On his complaint to respondents; Dr. Love Dutta-Medical Officer, ESIC dispensary conducted enquiry. Complainant submitted to him that: as per receipt dated 16.04.1993; of Janki Dass Kapoor Memorial Hospital-Sonepat Laboratory; blood sugar at random in respect of his wife was 215, whereas as per test report dated 22.04.1993 of ESIC Lab; blood sugar at PP was 125. Blood sugar report of ESIC Lab dated 05.05.1993 showed fastening at 100, PP at 179, while test report of Hari Pathology Laboratory, Geeta Bhawan-Sonepat dated 05.05.1993 showed fastening at 158 and PP at 276. Test reports dated 05.05.1993 both of ESIC Lab and of Hari Pathology Laboratory were of same time and circumstances. Difference of results is considerable which, as per plea, proves that instruments/ machinery/technicians of the ESIC Laboratory were not sufficient up to required standard for which respondents are liable.
6. In further part of his complaint; complainants has alleged inter-alia that: mostly medicines were found not available in stocks of ESIC; procedure to procure medicines which are not available in stock of ESIC but recommended by doctors of ESIC is very defective and impracticable; procedure for reimbursement of medical bills is very defective. Procedure for procurement of medicines for those patients/complainant who are referred to Civil Hospital-Sonepat by doctors of ESIC is defective, painful, uneconomical and illegal. Timings for opening of ESIC dispensary is from 8:00 A.M. but the doctors do not come on time. Doctors of ESIC dispensary having qualification, expertise, medicines, instruments always prefers to refer patient to Civil Hospital even for simple disease/reasons which proves that either they are inefficient or deficient or they wants to harass the patient.
7. Due to negligence and deficiency on the part of doctors of ESIC; his (complainant’s) wife became regular patient of blood sugar which increased so high that she suffered brain hemorrhage and remained admitted in St. Stephens Hospital-Delhi where she ultimately expired on 11.08.2006. On these facts, complainant has filed amended complaint for seeking directions against respondents to pay him compensation of Rs.10,00,000/- for mental agony, harassment, physical torture, pains, suffering and monitory loss. He has also prayed that respondent be directed pay interest @ 24% on amount of reimbursement of bills.
NOTE: In earlier filed complaint (CC 185 of 1994) dated 10.11.1994; complainant had claimed compensation of Rs.20,000/-. In proceedings of that complaint; Dr. Indu Bala, Senior Medical Officer, ESI Dispensary-Sonepat had submitted reply dated 12.04.1994 by denying allegations of said complaint to the effect that medical instruments/machinery/technicians are of low standard and defective. It had been pleaded that wife of complainant was treated at ESI Dispensary at Sonepat which is a Government Dispensary and hence complainant cannot be treated as consumer. It is/was pleaded that it is only the presumption of complainant that test conducted by laboratory of ESI Dispensary were not correct. As per plea in defence; blood sugar examination and its test reports depend upon number of factors i.e. time of testing, amount of food taken, time elapsed between blood sample taken and meal taken, it also depend upon medicine taken by patient, complainant being a non-technical person is not conversant with factors governing test reports and also the treatment. It is/was pleaded that indents of medicines are regularly sent and medicines are received from time to time by dispensary. However, availability of all medicines at all times is practically not possible. Procedure adopted for procurement of medicine is according to instructions of government and respondents/OP(s) have no jurisdiction to alter or disobey the instructions. This procedure is adopted in all ESI Dispensary throughout the State. It is/was pleaded that all insured persons and their family members are treated in ESI Dispensary-Sonepat. General Hospital-Sonepat and Medical College and Hospital-Rohtak are the referral hospitals of ESI Dispensary. Patients are referred there for specialized treatment only and not in general. All doctors reach in time for duty. There is battery of high officers who used to check the punctuality from time to time by surprise visit at ESI Dispensary.
8. Respondents sent letter dated 08.05.2010 (sent by Senior Medical Officer, ESI Dispensary-Sonepat) which recites that contents of reply filed by respondent No. 1 to 3 through Dr. Mrs. Indu Bala Kapoor, SMO, I/C of ESI Dispensary in Complaint No. 185 of 1994 in the year 1994, may be read as part of reply to the amended complaint.
9. Parties led evidence. Written arguments were also placed on record. Learned District Consumer Forum vide order dated 21.09.2010 dismissed the complaint which has given rise to filing of this appeal (F.A. No. 150 of 2011) by complainant.
10. On 13.08.2024; post remand of this matter from Hon’ble National Consumer Commission; we have heard arguments addressed by complainant appearing in person (through V.C.) and also heard arguments addressed by learned counsel for respondents (through V.C.) at considerable length. With their able assistance; we have also minutely perused the record.
11. Appellant while appearing on V.C. has urged that his wife had suffered death on 08.08.2006 (incorrectly stated in complaint as 11.08.2006). She was a regular patient of Blood Sugar. She was regularly getting treatment of ‘diabetes’ from doctors of ESI Dispensary at Sonepat since 1993. It is a case of sheer medical negligence and deficiency in service on the part of doctors of ESI-Sonepat, in process of providing her medical treatment. To stimulate his contention of medical negligence; complainant has urged that he got treatment of his wife from Dr. Janki Dass Kapur Memorial Hospital-Sonepat where required tests were conducted. Reports of these tests were in variance to tests reports conducted at ESI laboratory. In this regard, it is urged that blood sugar random report of ESI lab at PP was 125 whereas it was 215 at per test of laboratory of Janki Dass Kapur Memorial Hospital-Sonepat. Further, it is urged that on 05.05.1993; blood sugar report of ESI lab showed fasting at 100 and PP at 179, whereas test report of Hari Pathology Laboratory of same date (05.05.1993) showed fasting at 158 and PP at 276. It is contended that this abnormal variance in test reports proves deficiency in service of ESI Laboratory and consequently medical negligence on part of doctors of ESI Dispensary. Dr. Love Dutta conducted enquiry and his enquiry report has not been provided to him (complainant). Further, it is urged that most of times; medicines were not available in the stock of ESI dispensary and procedure to procure medicines recommended by the doctors of ESI is defective, impracticable and cumbersome. Complainant’s wife became victim of these unfortunate circumstances. Eventually, her blood sugar level had increased high which led her to suffer brain hemorrhage to which she ultimately succumbed/expired on 08.08.2006 at St. Stephon’s Hospital-New Delhi.
12. Per Contra, learned counsel appearing on behalf of respondents has supported the impugned order dated 21.09.2010 by urging that it is the outcome of proper appreciation of facts and evidence by learned District Consumer Commission and same warrants no interference.
13. Discharge summary report Ex.C-13 reflects that complainant’s wife (Raj Rani) was having history of ‘diabetes mellitus type-2’ since 20 years with ‘hypertension’ since 20 years. Complainant has himself pleaded in his amended complaint (CC No. 379 of 16.11.2007) that his wife was getting treatment of diabetes from doctors of ESI Dispensary since 1993. He has alleged that her condition continued to deteriorate and on 06.03.1993; she became nervous and weak. Primarily, complainant has relied upon blood sugar test reports of his wife, in his attempt to prove medical negligence occasioned by wrong medical treatment provided to his wife by doctors of ESI dispensary. As a matter of fact; blood sample of his wife underwent testing on 05.05.1993 from two separate laboratories viz: ESI laboratory-Sonepat and Hari Pathology Lab, Geeta Bhawan-Sonepat. ESI lab showed blood sugar fasting at 100 and PP at 179 whereas Hari Pathology Lab showed blood sugar fasting at 158 and PP at 276.
14. Simply on the basis of variance in range of blood sugar test repots of two different laboratories so mentioned above; complainant’s allegations of medical negligence/deficiency in providing medical treatment to his wife for diabetes ailment by doctors of ESI Dispensary-Sonepat are far-fetched and same does not sound any credence at legal pedestal. Reasons in this regard are obvious. Firstly, there is no allegation at all anywhere in the entire phraseology of text of complaint that ESI doctors who were treating his wife for diabetes since 1993 had deviated from the prescribed medical standard of treatment meant for diabetes ailment. Secondly, complaint was filed on 16.11.2007. Complainant’s wife had expired on 08.08.2006 as per Discharge Summary dated 08.08.2006. Admittedly, as per pleaded facts in complaint; from year 1993, till 08.08.2006 i.e. for about 13 long years complainant’s wife Raj Rani continued to obtain treatment from doctors of ESI Dispensary for diabetes. This circumstance is clearly indicative that complainant was always satisfied with the quality of treatment provided to her wife for diabetic ailment by doctors of ESI Dispensary during this tenure of about 13 years. It is very hard to swallow that on the one hand he is leveling allegations against doctors of ESI Dispensary and on the other hand his wife had continuously obtained treatment from doctors of ESI Dispensary since 1993 for diabetic ailment. Complainant cannot be allowed to blow hot and cold at same breath. He cannot approbate and reprobate at same time. Had, there been any adverse medical treatment provided to her wife during this long tenure of about 13 years, then nothing stopped complainant to get his wife treated from any specialized medical institute. However, there is no such plea even in this regard. Thirdly, Discharge summary dated 08.08.2016 of St. Stephons Hospital does not contain any recital that treatment provided to complainant’s wife for diabetic mellitus type-2 and hypertension for which she was suffered since 20 years, was not as per prescribed medical norms and standard meant for that ailments. From bare and bald allegations that blood sugar level of his wife had increased so high and she suffered brain hemorrhage will not bring this case within the scope and domain of medical negligence, simply on foundation of almost 13 years old two blood sugar reports (both dated 05.05.1993) of ESI Laboratory-Sonepat and Hari Pathology Lab-Sonepat. There is no denying fact that complainant’s wife had managed to live her life for more than a decade after 05.05.1993. This would legally imply that two blood sugar reports (both dated 05.05.1993) have already become stale and same pale into insignificance because of expiry of too long time (more than a decade) thereafter.
15. In the wake of above discussion, just because complainant’s wife had unfortunately left the world on 08.08.2006, it cannot be automatically presumed and concluded even remotely that treating doctors of ESI Dispensary-Sonepat are liable for any medical negligence or there was any lack of medical care on their part for the reason that diabetic mellitus type-2 treatment and hypertension had eventually failed on 08.08.2006. Hospitals and doctors cannot be put at fault if critical patients could not be saved. Consumer Protection Act ought not be used as a halter around the neck of doctors on the basis of specious pleas which are apparently unjust and lack specific/express allegations qua medical negligence, as it is so in the present case. In the present case, the ESI Dispensary-Sonepat is an instrumentality of the State. Obviously, doctors serving therein are on pay roll of State, as such they cannot be vindictive towards patients, with no exception to complainant’s late wife. Death of complainant’s wife is, without doubt an unfortunate circumstance. This Commission has total sympathy with him on that score. However, sympathies have no place in law. Complainant’s unsuccessful legal battle has spanned over three decades on bare foundation of his allied contention that he has not been supplied enquiry report of Dr. Love Dutta. This contention of complainant too appears to be superfluous in wake of above discussion and stood repelled. There is no fallacy on the part of learned District Consumer Commission-Sonepat in its order dated 21.09.2010 (impugned herein). Complainant/appellant has been rightly non-suited.
16. On the basis of above discussion on relevant facets of this case, this Commission has arrived at an inescapable conclusion that this appeal lacks substance and is devoid of any merit. Impugned order dated 21.09.2010 passed by learned District Consumer Commission-Sonepat in Consumer Complaint No. 379 of 2007 titled as Kishori Lal Vs. Employees State Insurance Corporation is legally correct. All parameters surrounding this case have been appropriately appreciated and correctly evaluated. Impugned order dated 21.09.2010 is accordingly maintained and upheld. Present appeal is hereby dismissed.
17. Application(s) pending, if any stands disposed of in terms of the aforesaid judgment.
18. Copy of this judgment/order be provided to all parties, free of cost, as mandated by the Consumer Protection Act, 1986/2019. This judgment/order be also uploaded forthwith on website of this Commission for perusal of parties.
19. File of this appeal be consigned to record room.
Pronounced on: 16th October, 2024
S.C Kaushik Naresh Katyal
Member Judicial Member
Addl. Bench Addl. Bench
