Jammu and Kashmir

Jammu

CC/305/2017

VK TANDON - Complainant(s)

Versus

FORTIS ESCORTS - Opp.Party(s)

RK JAIN

24 Oct 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No.                09/DFJ           

 Date of  Institution   :  05-04-2013

 Date of Decision      :    06  -11-2017

 

 

V.K.Tondon,

S/O Late Sh.Jai Lal Tandon,

R/O Near Shopping Complex,

Bakshi Nagar,Jammu Managing Director

Of M/S Kamakhia Finance & Leasing Ltd.

United House,Moti Bazar,Jammu.

                                                                                                                       Complainant

            V/S

1.Fortis Escorts Heart Institute &

Research Centre Ltd.Okhla Road,

New Dlehi-110025 through its Managing Director.

2. Fortis Escorts Heart Institute having its

Registered Office at OPD City Centre,SCO-56-58

Sector 9 Chandigarh-160 009.

3.The Regional Director, Patient Welfare Deptt.

Fortis Escorts Heart Institute &

Research Centre Ltd.Okhla Road,

New Dlehi.

                                                                                                                                            Opposite parties

 

CORAM:-

                           Mr.Khalil Choudha(Distt,& Sessions JudgePresident

                           Ms.Vijay Angral                                                    Member

                           Mr.Ghulam Sarwar Chauhan                             Member

 

In the matter of: Complaint under section 10 of J&K Consumer Protection Act 1987.

 M/S R.K.Jain , Advocate for complainant, present .

Mr.M.K.Sharma,Advocate for OPs,present.

 

 

                                                                     ORDER

                  

                                       Facts relevant for the disposal of complaint on hand are that complainant in the month of August,2012 was registered as patient vide Registration No.00384857 with OP1 and after thorough examination by the Ops,complainant was advised for Angiography, which was done by Dr.T.S.Kler on,13-08-2012 and after Angiography the complainant was advised to have immediate surgery and was advised for Robotic Surgery. According to complainant he enquired about the cost of Robotic Surgery from the Ops and was provided an estimate of Rs.4.50 lacs to Rs.5.00 lacs for the said surgery inclusive of all tests, room rent and disposables and in view of estimate given by Ops,complainant agreed for Robotic Surgery and date of surgery was fixed on,17-08-2012 and in the meanwhile the complainant and his wife arranged tentamount of Rs.5.00 lacs for the surgery and other misc.expenses.Thereafter the complainant was operated on,17-08-2012 and immediately after surgery, the family members of the complainant were directed by Ops to pay an amount of Rs.8,10,072/-against an estimate of Rs.4.50 lacs given by Dr.Sudhir P.Srivastava and Dr.T.S.Kler,the concerned doctors of OP1 Hospital. The complainant and his family members were left with no other option but to arrange money from their relatives and finally deposited an amount of Rs.8.10,072/-under protest in order to save the complainant from further harassment and mental torture. It is pertinent to mention here that apart from issuance of inflated bill to the extent of Rs.3.50 lacs than the estimate given to the complainant, there was total carelessness and negligence on the part of surgical team of Ops ,which failed to take necessary precaution during and post surgery care of complainant, which led to radial nerve palsy of right hand of complainant, which resulted into crippling of the right hand function of complainant  reducing him to be a cripple and since he is a right handed person,he cannot even sign his name or to do any other work being a right handed person.Complainant further submitted that on,07-11-2012 he wrote a letter to Ops for his three monthly check up and requested he be informed to whom to meet regarding excess billing and causing injury due to the negligence,upon which while in the hospital on,15-11-2012,complainant was contacted by the Patients Welfare Deptt.Executive Mr.Kritika and Ms.Fatima to come and meet Dr.V.R.Gupta,the Medical Superintendent and brought to his knowledge about excess billing and over charging and injury to the complainant’s right hand Radial Nerve and about numerous letters written to which no reply has been tendered. There were number of doctors sitting in that room,Dr.V.R.Gupta,Medical Superintendent was apologetic and said that he will go through the entire matter, but when the complainant started enquiring about the said fate and investigation by the Medical Superintendent suddenly the telephone calls were not responded and no reply to the letters sent. Again on,22-12-2012 in a letter discrepancies in the billing under the head “Room Rent “were pointed out but again no reply has been received and complainant when asked reasons for such negligence and carelessness, the team of the doctors of OP2 failed to give any cogent explanation and advised him for physiotherapy of few days will normalize the function of his radial nerve. The complainant repeatedly approached to all higher officials, concerned doctors and OP3 apprising them of charging of inflated bill and damage of radial nerve of right hand of complainant, but all communications failed to yield any result, copies of communications annexed as Annexure A to M.The Ops instead of giving any reply to numerous communications of complainant admitted the receipt of inflated bill, as well as, negligence of their part and by implied terms, addressed undated  communication alongwith a cheque dated 19-10-2012  bearing No.697250 for an  amount of Rs.40,000/-to the complainant and same was received by the complainant at Jammu and the issuance of said cheque by the Ops is itself a proof of excess charging, but no reason of any kind was given in the said undated letter attached with the cheque to the effect that under what head an amount of Rs.40,000/-was reimbursed to the complainant instead of overcharging of about Rs.3.50 lacs against the estimated cost of surgery given to him. Constrained by the act of Ops,complainant sent a legal notice through his counsel on,14-10-2013 under regd.cover to Ops calling upon them to pay balance amount of Rs.3.10 lacs on account of inflated bill raised by Ops in respect of surgery conducted on the complainant and Rs.5.00 lacs on account of damages due to sheer negligence on the part of Ops resulting radial nerve palsy of right hand of complainant and further claimed an amount of Rs.60,000/-.Complainant further submitted that from the date of discharge from the hospital i.e.26-08-2012, he has been spending a sum of Rs.500/-every day on the physiotherapy of his right hand which has not resulted into any improvement so far even despite visits to various Neurologists. It is further submitted that due to loss of function of right hand, complainant who is Managing Director of the Non-banking Finance Company is seriously facing acute difficulty in running his business, as he is not a position to sign the cheques,correspondence and other daily important official functions and the loss of right hand had badly affected his morale and is constant source of mental torture and physical pain and trauma, he has spent now more than Rs.1.00 lacs on physiotherapy and additional fee for further check up on doctors and this act of Ops constitutes un fair trade practice and deficiency in service on the part of Ops.Hence the complaint. In the final analysis complainant prays for reimbursement of Rs.3.10 lacs and in additional also prays for compensation of Rs.6.50 lacs including litigation charges alongwith interest.

                   On the other hand,Ops filed written version and resisted the complaint on the ground that complaint of the complainant is not maintainable due to the fact that complainant is not a consumer and does not fall within the definition of Consumer Protection Act, the same is required to be dismissed. That the complaint is liable to the dismissed as the complainant is guilty of concealment of material facts and particulars about the case and has not come to the Forum with clean hands, as such, complaint filed by the complainant is required to be dismissed. It is submitted that complainant who was suffering from severe ailment, approached OP1 and after thorough examination by the doctors of Ops,the complainant was advised for Angiography and after said test, complainant was advised to have surgery. The doctors of OP1 hospital briefed the complainant and family about all treatment options, including conservative method of surgery, as well as, Robotic Surgery and every other thing with respect to the operation/surgery, charges, as well as other charges. The complainant after completely satisfying himself decided to opt for Robotic Surgery and gave his consent and signed the consent form after carefully going through the same which was also witnesses by his wife. The doctors of the Ops also successfully performed surgery of the complainant. It is vehemently denied that Ops gave an estimate of Rs.4.50 lacs to Rs.5.00 lacs as total expenses for the Robotic Surgery. It is further submitted that the Robotic Surgery is the latest advancement in the field of minimally invasive or laparoscopic surgery which enables the surgeons to perform precise, minimally invasive surgery by integrating computer-enhanced technology with the surgeon’s skill that enhances healing and promotes well-being. The Robotic Surgery involves high expenditure costs and high costs for Robotic instruments and thus it is a costlier process and hence by no stretch of imagination, complainant could have been given an estimate of Rs.4.50 lacs to Rs.5.00 lacs for the said surgery. That complainant himself decided to opt for Robotic Surgery and after all the things were settled with the complainant, the doctors had performed the surgery but being a matter of great concern, when the final bill was issued to the tune of Rs.8,10,072/-the complainant, as well as, his family members instead of making the payment, started harassing and pressuring the Ops for the reasons best known to them. After thorough examination and considering the medical condition of the patient, the doctors of OP1 advised the complainant to undergo surgery and complainant agreed for the same  and for that purpose authorization for and consent to operation and administration of Anesthesia was also given by the complainant to Ops after he carefully read and understood the contents thereof which was also witnessed by his wife, copy of record is annexed as Annexure-C1.It is vehemently denied that the patient had deposited an amount of Rs.8,10,072/-.It is further submitted that the patient was insured with National Insurance Company and the total bill amount of the patient was Rs.8,51,572/-,out of this amount insurance company/TPA had paid Rs.1,29,000/-and the patient share came to be Rs.7,22,572/-only and the patient was give a discount to the tune of Rs.41,500/-.Hence the amount which was actually paid by the complainant at the time of discharge came to be Rs.6,81,072/-only.However,it is stated that no inflated bill to the tune of Rs.8.10 lacs was given to the complainant in fact no estimate cost of the robotic surgery was given to the complainant and before conducting the said surgery, all the things were cleared by the Ops to complainant and thereafter complainant agreed for the surgery. There was no carelessness and negligence on the part of Ops and it is stated that all the things as well as post consequence of the surgery was made clear to the complainant. It is further submitted that Ops while operating the complainant, adopted all precautionary measures and the surgery was successfully done by the doctors. There was no direct injury of the nerve during surgery no neurotoxin material was injected, no event predisposing to nerve palsy (Hypertension Hypoxia, Electrolyte disturbances) occurred during or after anesthesia. No malposition of the right arm on the operating table or later on the intensive care unit bed that may cause ischemic nerve injury was documented and no stretch of the brachial plexus could have occurred since the right arm was comfortably attached with patient body it was therefore, external compression was the causative factor for the radial nerve  palsy of the right hand of the complainant which is rare but known consequence of the coronary Artery Surgery,therefore,the cause of radial nerve palsy is not the carelessness or any negligence on the part of doctor of Ops,but due to the external compression, which is the common phenomena attached with the coronary Artery Surgery, as such, no negligence has been committed on the part of Ops while performing surgery to the complainant. The Ops further submitted that when after getting discharged, complainant followed up with the Ops and made repeated requests in respect of bill amount, the Ops keeping in view their goodwill, as well as,goowill gesture toward the recovery of complainant gave a further discount of Rs.40,000/-which was dispatched at the address of complainant. Lastly it is prayed that complaint filed by the complainant is liable to be dismissed.

            Complainant adduced evidence by way of duly sworn affidavit and affidavit of Aseem Tandon.Complainant has placed on record copies of communications exchanged between the parties, copy of legal notice, copy of letter alongwith cheque for an amount of Rs.40,000/-issued by Fortis Escorts.

              On the other hand,Ops adduced evidence by way of duly sworn affidavit of Dr.Sunay Mahesh,Medical Superintendent of Fortis Hospital.Ops have placed on record copy of consent form, copy of authorization form, copy of admission and discharge record, copy of payment document check list, copy of operation notes, copy of admission slip, copy of patient discharge order, copy of discharge summary, copy of bill and copy of case report.

               We have perused case file and heard L/Cs appearing for the parties at length.

               To be brief, case of the complainant is that in the month of August,2012 he was registered as patient with OP1 and after going through medical examination, complainant was advised for Angiography which was performed by Dr.T.S.Kler on,13-08-2012 and after the said test, complainant was advised to undergo Robotic Surgery for treatment of his heart ailment. The estimate of the said surgery as per Ops was from  Rs.4.50 lacs to Rs.5.00 lacs, inclusive of all tests, room rent and in view of estimate given by Ops,complainant agreed for the said surgery.The complainant and his wife arranged the amount of Rs.5.00 lacs for the surgery and other misc.expenses.Thereafter the complainant was operated on,17-08-2012 by the doctors of Ops,but after operation,the complainant was asked by the Ops to pay an amount of Rs.8,10,072/-against the estimate expenses of Rs.4.50 lacs  to 5.00 lacs and the family members of the complainant were harassed by Ops for payment of such a huge amount and ultimately the relatives of complainant arranged the said amount and paid to Ops,but after surgery there is also some allegation made by the complainant about the negligence on the art of surgical team of the doctors of the hospital  for taking necessary precautions during and after surgery of the complainant, as a result of which the complainant’s right hand developed some problem. After discharge from the hospital, complainant made many representations to the doctors of hospital who performed surgery and even the hospital administration for excess charging from the complainant and ultimately, the Ops sent a communication dated nil alongwith cheque for an amount of Rs.40,000/-to the complainant at his residential address and the issuance of said cheque by the Ops is itself a proof of over charging by OP1 and Ops are liable to pay the same to the complainant.

             On the other hand, stand of Ops is that no inflated bill to the tune of Rs.8.10 lacs was given to the complainant,infact no estimate cost of the robotic surgery was given to the complainant and before conducting the said surgery, all the things were cleared by the Ops to the complainant and thereafter the complainant agreed for the surgery. There was no carelessness and negligence on the part of Ops.Further it is submitted that the Ops while operating the complainant adopted all precautionary measures and the successfully done by the doctors. There was no direct injury of the nerve during surgery no neurotoxin material was injected, no event predisposing to nerve palsy (Hypertension Hypoxia, Electrolyte disturbances) occurred during or after anesthesia.

               L/C for OP stressed that the instant complaint is not maintainable as the cause of action and OP not reside within the jurisdiction of this Forum,L/C for OP also cited number of judgment in this regard, but from the perusal of file, it reveals that this Forum had already decided this point on,22-01-2014 that the cause of action has accrued to the complainant at Jammu in view of Section 9(2) © of Consumer Protection Act, this Forum has the jurisdiction to entertain and try the complaint.

               In order to substantiate his assertions, complainant relied upon numerous communications exchanged between the parties. At the same time, complainant also relied upon letter dated nil alongwith  cheque of Rs.40,000/-issued by Escorts Heart Institute and Research Centre Ltd.There is no rebuttal to the documentary proof filed by complainant in support of his allegations. It is also to be noted that complainant supported his allegation by duly sworn his own affidavit and affidavit of Aseem Tandon,therefore,we have no reason to disbelieve the allegations of complainant, which went unrebutted and unchallenged.

                  It is clear from Sub Sec.(1)and (2) of Sec.11 of the J&K Consumer Protection Act that the Consumer Fora have to decide the disputes under the Act on the basis of evidence brought to their notice by the parties. In the proceedings before a Consumer Forum mere preponderance of possibility suggests that a fact is said to be proved when the Forum either believes that it exists or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists. The Fora constituted under the Act for the redressal of the grievances of the consumers are not fettered or bound by the technical rules contained in the Evidence Act. The rigor of the rules of evidence contained in Evidence Act is not applicable to the proceedings before the consumer fora constituted under the Act. What is required is that they must conduct themselves in accordance with the principles of justice, equity and good conscience. They must follow the procedure laid down in S.11 of the Act. If that is done such proceedings cannot be called in question in any court on the ground that the principles of natural justice have not been complied with.

                   Adverting to the facts of the present case in hand the act of negligence is indivisible to have been committed by the OP while giving his professional service to the consumer which should have been without any fault,short-coming,imperfection and inadequacy in quality from the very beginning upto the end when the patient was in his premises.

                After going through the case file, it appears that estimate of cost of Robotic Surgery was given as Rs.4.50 lacs to Rs.5.00 lacs,while as,OPs against it, charged sum of Rs.8,10,072/-,therefore, complainant successfully bring home the point that OPs charged excess amount from him, against the estimate given by OPs and same in our opinion amounts to un-fair trade practice on the part of OPs,which requires interference.

                                    Therefore, in view of the foregoing reasons the complaint filed by the complainants for redressal of his grievance is allowed and Ops are directed to pay to the complainant an amount of Rs.3.10 lacs alongwith interest @ 7% per annum w.e.f.05-04-2013(i.e. from the date of filing of this complaint),till its realisation. The complainant is also entitled to compensation of Rs.20,000/-for causing unnecessary harassment and mental agony and litigation charges of Rs.15000/-.The OPs shall comply the order within one month from the date of receipt of this order. Copy of this order be provided to both the parties as per requirement of the Act. On deposit of the amount in this Forum, the same shall be paid to the complainant through payees account cheque.The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                              Khalil Choudhary

                                                                         (Distt.& Sessions Judge)

Announced                                                              President

 06-11-2017                                                   District Consumer Forum

Agreed by                                                                Jammu.

 

Ms.Vijay Angral          

Member        

 

Mr.Ghulam Sarwar Chauhan,

Member