BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                  Consumer Complaint No. 388 of 2013

                                Date of institution:             20.09.2013

                                                 Date of Decision:             25.03.2015

Kamaljit Kaur wife of Jagjit Singh, resident of House No.15122, Kothe Amarpura, Joganand Road, Near Thermal Colony, Bathinda.

    ……..Complainant

                                        Versus

1.     Fortis Hospital, Phase-8, Sector 62, Mohali through its Director Department of CVT Surgery.

2.     Dr. T.S. Mahant, M.S. M.ch. Executive Director, Department of CVT Surgery, Fortis Hospital, Phase-8, Sector 62, Mohali.

3.     Dr. Ambuj Chaudhary, M.S. M.ch. Sr. Consultant, Department of CVT Surgery, Fortis Hospital, Phase-8, Sector 62, Mohali.

4.     Dr. Sanjay Gandhi, M.S. M.ch. Consultant, Department of CVT Surgery, Fortis Hospital, Phase-8, Sector 62, Mohali.

5.     Jindal Heart Institute & Infertility Center (A unit of Bathinda Healthcare Pvt. Ltd. Bathinda) near Electricity Office, Power House Road, Bathinda through its Proprietor Dr.R.K. Jindal, Consultant Cardiologist.

6.     Metro Hospital & Heart Institute, Cardiology Wing, X-1, Sector 12, NOIDA 20301 through its Managing Director.

………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri A.B. Aggarwal, Member.

Present:     Shri Y.S. Dhillon, counsel for the complainant.

                Shri Munish Kapila, counsel for OP Nos.1 to 4.

None for OP No.5.

OP No.6 ex-parte.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant suffered heart attack at late night on 02.04.2011 and she was taken to Opposite Party (for short ‘the OP’) No.5 on 03.04.2011 where she was admitted and remained in ICU till 05.04.2011.  The complainant got done angiography from OP No.5 on 06.04.2011 and after perusal of the report OP No.5 informed the complainant and her husband that her condition is serious and requires immediate surgical operation of heart and advised her husband to take the complainant to OP No.1 for further management and care.  The complainant was admitted to OP No.1 on 07.04.2011 where her all previous medical records were perused by OP Nos.2 to 4. The complainant was diagnosed as Coronary Artery Disease, Triple Vessel Disease, Diabetes Mellitus and Essential Hypertension and the complainant and her husband was informed by the doctors of OP No.1 that Coronary Artery Bypass Grafting (CABG) of LIMA LED and RSVG OM is to be conducted. The doctors also assured them that the complainant would have no further problem and asked her husband to deposit necessary fee with OP No.1.  The complainant was surgically operated on 08.04.2011 by OP Nos.2 to 4 and was discharged on 15.04.2011.  The complainant took necessary post operation care as advised by OP Nos.2 to 4. The complainant suffered chest pain after the operation. The complainant alongwith her husband visited OP No.5 on 04.05.2011 who prescribed some medicines. The complainant also visited OP No.1 where after conducting various tests, some medicines were prescribed by the doctors but the complainant did not get any relief.  The complainant visited OP No.5 on 02.07.2011 and 03.07.2011 who also prescribed some medicines but the complainant got no relief.  The complainant visited OP No.1 on 20.08.2011 and 02.11.2011 when some medicines were prescribed by the doctors but without any relief to the complainant.  The complainant was admitted to OP No.5 on 11.12.2011 and she was put on ventilator where she remained till 16.12.2011. Various tests were conducted during this period but after discharge the complainant had again pain in the chest. The complainant again visited OP No.5 on 20.12.2011, 31.12.2011, 14.01.2012 and 21.02.2012. The complainant visited OP No.1 on 23.02.2012, 25.02.2012 and 03.03.2012 but did not get any relief.  On 21.07.2012 angiography was done on the complainant by OP No.5. the correlation of angiography reports dated 06.04.2011 and 21.07.2012 reveal that even after conducting Coronary Artery Bypass Grafting (CABG) of LIMA LED and RSVG OM by OP No.2 to 4 on 08.04.2011 the condition of the complainant deteriorated which suggest that they did not conduct CABG properly and efficiently.  As the complainant was continuously suffering from chest pain she alongwith her husband visited OP No.6 where she was admitted on 15.08.2012 and on 16.08.2012 PTCA with by using stunting to LAD (by using two bare mental stunts) and LCX (by using Drug Eluting Stent) was conducted and she was discharged on 21.08.2012 and since then she is not suffering from chest pain and her health condition has improved a lot.  Thus, due to the deficient services rendered by OP No.1 to 4 she has suffered from physical and mental agony.

                With these allegations, the complainant has sought directions to OP Nos.1 to 4 to refund her the amount of Rs.1,75,000/- as medical expenses; to pay her Rs.18.00 lacs as compensation for mental and physical sufferings and Rs.10,000/- as costs of litigation.

2.             OP Nos.1 to 4 in the preliminary objections of their written statement have pleaded that this Forum does not have the pecuniary jurisdiction to entertain the present complaint as the relief claimed is beyond Rs.20.00 lacs. The complaint is also barred by limitation as the complainant was admitted to them on 07.04.0211 and was discharged on 15.04.2011.  After explaining all risks and complications of surgery a High Risk Consent was obtained from the complainant on 08.04.2011 and thereafter the complainant underwent off Pump Coronary Artery Bypass Grafting with two grafts to the blocked arteries i.e. LAD and OM. After CABG the complainant had no post operative complications. There were no fresh changes in ECG after surgery and complainant remained hemodynamically stable. She was discharged on 15.04.2011 with the specific advice to follow up after one month with prior appointment. However, she consulted Dr. G.S. Kalra on 10.05.2011 and her blood investigation and ECHO were normal which denotes that the surgery was successful.  The complainant booked appointment with OP No.2 on 16.08.2011 and 17.08.2011 but cancelled both times. On 20.08.2011 she came and complained of pain in upper limb and was prescribed medication. The complainant then came on 02.11.2011 and on complaint on pain in left upper limb despite medication, she was advised angiography, however, she chose not to get it done.  The complainant came on 23.02.2012 with complaint of uncontrolled diabetes and on investigation she was found to be suffering from UTI infection. As per the Angiography conducted from OP No.5 on 21.07.2012 there was progression of disease in the native vessles with occlusion of grafts. There are many factors which lead to occlusion of grafts after successful surgery. The rate of occlusion is variable and depends on several modifiable and non modifiable risk factors.  The complainant has failed to show as to how the OPs have been negligent in any manner. The complainant has not produced any documentary evidence or expert evidence to prove that the CABG was not properly conducted or occlusion in the grafts was because of negligence.  On merits, it is pleaded that the entire stay of the complainant in OP No. 1 was uneventful. The complainant had uncontrolled blood sugar both pre surgery and in follow up as well as high sugar in urine test  which shows that she did not strictly comply with the treatment and instructions of the treating doctors. She was also hypertensive patient. There were no fresh changes in the ECG after surgery and the complainant remained hemodynamically stable. Thus denying any deficiency in service on their part, OP Nos. 1 to 4 have sought dismissal of the complaint.

3.             OP No.5 in its separate written statement has pleaded that it has been impleaded only on the ground that the complainant remained admitted with it initially from where she was referred but no relief has been claimed against it nor any deficiency in service has been alleged on the part of OP No.5. The matter requires elaborate oral evidence as well as cross examination which can only be done by the civil court.  The complainant was admitted with it on 04.04.2011 and angiography was done after getting written consent from husband of the complainant. The complainant was advised immediate surgical operation and was referred for surgery but was not referred specifically to OP No.1.  OP No.5 has also sought dismissal of the complaint against it.

4.             Registered notices issued to OP No.6 not received back served or unserved. Presuming its due service and none having appeared for it, OP No.6 was proceeded against exparte on 20.12.2013.

5.             Evidence of the complainant consists of her affidavit Ex.CW1/1 and copies of documents Ex C-1 and C-8.

6.             Evidence of OP Nos. 1 to 4 consists of affidavits of Dr. Sanjay Gandhi Ex.OP-1/1; Dr. Ambuj Chaudhary Ex.OP-1/2; Abhijit Singh Ex.OP-1/3; of Ms. Ajninder kaur Ex.OP-1/4; Dr. T.S. Mahant Ex.OP-1/5 and copies of documents Ex.OP-1 to Ex.OP-13.

7.             Evidence of OP No.5 consists of affidavit Dr.R.K. Jindal, its Prop. Ex.OP-5/1.

8.             In view of decision of Hon’ble Uttrakhand State Consumer Disputes Redressal Commission in case titled as Consoritum Securities Pvt. Ltd. & Ors. Vs. Smt. Anjana Tyagi,  2013(3) CLT 570 by relying upon the judgment of Hon’ble National Commission in case titled as  Mathura Mahto Mistry Vs. Bindeshwar Jha (Dr.) & another,   2008 (I) CLT 566,  OP No.6 was given three opportunities to rebut the evidence of the complainant.  However, none appeared for it to rebut the evidence of the complainant.

9.             We have heard learned counsel for the parties and also gone through the written arguments filed by the complainant and OP Nos.1 to 4.

10.            The main issue in the present complaint is that once the complainant was referred by OP No.5 to OP No.1 to 4 with the symptoms of heart problem, she remained admitted in the ICU from 07.04.2011 to 15.04.2011. During her admission in the hospital she was given the treatment after examining all her parameters and previous angiography report conducted by OP No.5 on 06.04.2011. The complainant being a patient of hypertension and high risk diabetes was given proper counseling and with due consent from her was given the Coronary Artery Bypass Grafting (bypass surgery) and was discharged from the hospital satisfactory. However, the condition of the complainant did not improve as is evident from another angiography conducted on 21.07.2012 Ex.C-5 by OP No.5 and subsequently she was to undergo another heart treatment i.e. angioplasty by OP No.6 as indoor patient from 15.08.2012 to 21.08.2012. thus, the complainant has alleged medical negligence on the part of OP Nos.1 to 4 for not giving her proper and effective treatment resulting into deterioration of her condition subsequently necessitating her for undergoing another medical intervention.

11.            Before we look into the merits of the case, it will be appropriate to address the preliminary issue/objections raised by the OP Nos.1 to 4 which are as follows:

        (i)     Objection regarding pecuniary jurisdiction:

                The complainant has in the prayer clause prayed for relief of refund of Rs.1,75,000/- alongwith interest @ 18% per annum from the date of deposit with OP Nos.1 to 4 i.e. 07.04.2011 to 15.04.2011 till the date of realization; compensation to the tune of Rs.18.00 lacs and litigation expenses of Rs.10,000/-. The sum total of the amount claimed goes beyond Rs.20.00 lacs. Therefore, the complaint is beyond the pecuniary jurisdiction of this Forum and sought the rejection of the complaint on this ground.

                In this regard it will be appropriate to refer Section 11 (1) of the Consumer Protection Act, 1996 where the pecuniary jurisdiction of the District Forum is provided. The perusal of the provisions i.e. Section 11 (1) of the CPA clearly shows that the Forum shall have the jurisdiction to entertain complaints where the value of goods or services and the compensation, if any, claimed does not exceed Rs.20.00 lacs. In the present complaint as stated above, the sum total of the claimed amount goes beyond Rs.20.00 lacs and thus we are in full agreement with the contention of the OP Nos.1 to 4 regarding want of pecuniary jurisdiction of this Forum to entertain and adjudicate the complaint.  The complainant has failed to rebut the objection so raised by the OP Nos.1 to 4.  Therefore, we are of the opinion that the complaint is beyond the pecuniary jurisdiction of this Forum and cannot be adjudicated upon by this Forum for want of jurisdiction and is hereby returned to the complainant. There is no discussion on the other preliminary issues and on merits of the cases

12.            Therefore, without going into merits of the complaint, since the complaint is beyond pecuniary jurisdiction of this Forum, as explained above, the complaint is not maintainable in this Forum and is returned to the complainant with endorsement of date of institution and date of return with liberty to approach the appropriate authority/forum for redressal of her grievance. Photocopies of the complaint and documents be retained by the Forum for office record.  Certified copies of orders be sent to the parties free of costs and thereafter the file be consigned to the record room.

Pronounced.                           

March 25, 2015                                       

                                       (Mrs. Madhu P. Singh)

                                                                        President

                                                        (A.B. Aggarwal)

Member