Punjab

StateCommission

CC/359/2016

Pardeep Singh - Complainant(s)

Versus

Fortis Hospital - Opp.Party(s)

Vipul Sabharwal

25 Oct 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,         PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   Consumer Complaint No.359 of 2016

 

 

                                                          Date of Institution   : 18.11.2016           

                                                           Order Reserved on : 11.10.2018

                                                          Date of Decision     : 25.10.2018

 

 

Pradeep Singh s/o Sh. Rameshwar, r/o residing at Allaudinpur, Tehsil Loharu, District Bhiwani.

 

                                                                                      ….Complainant

 

                   Versus

 

 

1.      Fortis Hospital, Shalimar Bagh, A-Block, Shalimar Bagh, Delhi 110088

 

2.      Dr.Ashish Jain, Fortis Hospital, Shalimar Bagh, A-Block, Shalimar Bagh, Delhi 110088

 

3.      Fortis Hospital, Sector 62, Phase-VIII, SAS Nagar, Mohali.

 

4.      National Insurance Company Limited through its Divisional Manager/Branch Manager, Divisional Office V, 7^th Floor, Hemkunt House, Rajendra Place, New Delhi 110008

 

 

                                                                        ….Opposite parties

 

 

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Kiran Sibal, Member.

 

Present:-

 

          For the complainant                   :  Sh. Pradeep Singh, complainant in

                                                             person.

          For opposite parties no.1-3        :  Sh. Munish Kapila, Advocate

          For opposite party no.4             :  Sh. Satpal Dhamija, Advocate

 

 

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                     The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that on account of his accident on 23.09.2013, he got treatment from OP no.1 through OP no.2 on 24.09.2013. OP no.2 diagnosed him suffering from fracture in his mid shaft to tibia and in the upper shaft of fibula in the right leg, apart from other injuries. OP no.2 recommended him to undergo surgery for fixation of titanium plates and 10 screws and he underwent the procedure accordingly. The post operative x-ray report disclosed the fracture mid shaft to tibia with fixation plate and screws in situ. In the post operative   x-ray ,11 instead of 10 screws could be seen. He was prescribed various medicines as well as physiotherapy and other treatments therefor and was discharged on 27.09.2013 from the hospital of OP no.1. He paid an amount of Rs.1,28,581/- to OP no.1, as medical expenses. The hole in his fractured leg was not healing and he experienced extreme pain in his operated leg. He alleged medical negligence on the part of OPs in this case with the allegations as stated in complaint in detail. He sought a direction to OPs to pay the compensation of Rs.48,03,803/- as detailed in the prayer clause for their medical negligence and consequentional loss caused to him.

2.                Upon notice, OP no.1 appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that this commission has no territorial jurisdiction to decide the complaint. The complaint is barred by limitation. On merits, it was averred that complainant had met with  a road traffic accident on 23.09.2013. He was initially taken to Sanjay Gandhi Memorial Hospital and then he was brought to emergency of Fortis Hospital Shalimar Bagh Delhi/OP no.1. He had suffered fracture in his right leg and of nasal bone. Considering the nature and severity of his fracture, right leg reduction and internal fixation (ORIF) of tibia was planned. After his consent, surgery was undertaken on 24.09.2013 by team of doctors headed by OP no.2 on him. The surgery was conducted, as per standard medical protocols and he was discharged from the hospital on 27.09.2013.  As per discharge card, he was advised non-weight bearing,  walking and was advised to follow up with OP no.2 at OP no.1/hospital. Thereafter on follow up, a POP was applied for three months on the fractured portion. No other prescription of any other follow up with OP no.2 at OP no.1 has been attached by complainant with his complaint. Thereafter, he was admitted in hospital of OP no.1 on 27.05.2014. His implant removal surgery was conducted and he was discharged therefrom on 28.05.2014. OP no.2 had conducted the surgery upon complainant on 24.09.2013 and then on 28.05.2014. The surgery was conducted as per standard medical protocol only. Rest of the averments of the complainant were denied by OP no.1 and it prayed for dismissal of the complaint.

3.                OP no.2 appeared and filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that this Commission has no territorial jurisdiction to file the complaint. The complaint is barred by limitation. On merits, it was averred that complainant had met with a road traffic accident on 23.09.2013. He was initially taken to Sanjay Gandhi Memorial Hospital and then he was brought to emergency ward of OP no1/Fortis Hospital Shalimar Bagh Delhi. He had suffered fracture in his right leg and of nasal bone. Considering the nature and severity of his fracture right leg reduction and internal fixation (ORIF) of tibia was planned for him. After his consent, the surgery was undertaken on 24.09.2013 by team of doctors headed by OP no.2 on him. During the course of surgery, the fracture was reduced by using 10 hole locking compression plate and 9 screws were inserted. An additional screw was inserted to hold the ends of fractured tibia. The complainant was admitted in OP no.1 hospital on 27.05.2014. His surgery was conducted and at his request, he was discharged on 28.05.2014. The surgery was conducted, as per standard medical protocols and he was discharged from the hospital on 27.09.2013.  As per discharge card, he was advised non-weight bearing, walking and was advised to follow up with OP no.2 at OP no.1. Thereafter on follow up, a POP was applied for three months. On 5^th March 2014, when complainant consulted OP no.2 that there was gaping of the wound and serous fluid was noticed hence treatment of prophylactic antibiotics were started to prevent infection from setting in. The same was initially prescribed for seven days. His surgery was conducted and at his request, he was discharged from the hospital of OP no.1 on 28.05.2014. The surgery was conducted, as per the standard medical protocol. Rest of the averments of the complainant were denied by OP no.2 and it prayed for dismissal of the complaint.

4.                OP no.3 appeared and filed its separate written reply and contested the complaint of the complainant vehemently by raising preliminary objections that this Commission has no territorial jurisdiction to decide the case and same is liable to dismissed on this ground alone. The complaint is bad for mis joinder and non joinder of necessary parties. The complainant is not consumer of OP no.3 and he did not receive any treatment at Fortis Hospital Mohali. On merits, it was averred that complainant has got himself treated at Fortis Hospital Mohali and has no grievance against OP no.3. Even the legal notice dated 09.06.2015 was neither addressed to OP no.3 nor any allegations of negligence qua OP no.3 has been leveled therein.  The complainant was not rendered any treatment or services by OP no.3 and no payment was received from him by OP no.3 for the treatment rendered by OP no.1 or OP no.2. Rest of the averments of the complainant were denied by OP no.3 and prayed for dismissal of the complaint.

5.                OP no.4 appeared and filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that the complainant has not approached this Commission with clean hands.  The complaint is totally false and baseless. No cause of action arose to him against OP no.4. The complaint is not maintainable. On merits, it was averred that OP no.4 should decide the claim case of insured, as per the terms and conditions of the policy, as there is no privity of contract of complainant with OP no.4. Rest of the averments of the complainant were denied by OP no.4 and it prayed for dismissal of the complaint.     

6.                The complainant has tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-16 and closed the evidence. As against it; OP no.1 tendered in evidence affidavit of Mahipal Bhanot Facility Director Fortis Hospital as Ex.OP-1/A along with copies of documents Ex.OP-1/1 to Ex.OP-1/2 and closed the evidence.  OP no.2 tendered in evidence affidavit of Dr. Ashish Jain as Ex.OP-2/A and closed the evidence. OP no.3 tendered in evidence affidavit of Sh. Abhijit Singh Facility Director Fortis Hospital as Ex.OP-3/A along with copy of documents Ex.OP-3/1 and closed the evidence. OP no.4 tendered in evidence affidavit of M.L Maini Administrative Officer as Ex.OP-4/A along with copy of terms and conditions of the policy as Ex.OP-4/1 and closed the evidence.

7.                We have heard learned counsel for the parties on the point of territorial jurisdiction of this Commission to try the complaint.

8.                The submission of counsel for complainant is that OP no.3 -Fortis Hospital  Mohali has been impleaded as party in this case, because it is the controlling hospital of OP no.1 at Delhi. On the other hand, the contention of counsel for OPs is that this Commission has territorial jurisdiction to try the complaint on the basis of pleadings of the complainant, as incorporated in the complaint only. From perusal of complaint, the complainant is found nowhere having pleaded that OP no.3 is the controlling office of OPs no.1 and 2. The pleadings of the complainant on this point are sub silentio. The complainant was treated at Delhi by OP no.2 at OP no.1 Fortis Hospital Delhi. The complainant never received any treatment from OP no.3 at Fortis Hospital Mohali. Section 17(2) of Consumer Protection Act 1986 deals with jurisdiction of State Commission to decide the complaint. Section 17(2) of Consumer Protection Act is reproduced as under :-

1. the OP or each of the OPs, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain  or;
2.  any of the OPs, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or OPs who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution or ;
3. the cause of action, wholly or in part, arises.

It, is, thus evident from perusal of this above Section of the Act (supra) that complainant can file the complaint in the State Commission within the limits of whose jurisdiction, the OP or each of the OPs, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain  or any of the OPs, where there are more than one, at the time of institution  of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or OPs who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution or the cause of action, wholly or in part, arises. Herein, OP no.3  contested the point of  territorial jurisdiction of this Commission vehemently and has no acquiesced in it. The complainant was never treated at OP no.3 at Fortis Hospital Mohali in this case. No part of cause of action accrued to complainant within the jurisdiction of this Commission in the area of Punjab. The complainant was treated by OP no.2 at OP no.1 hospital at Delhi. The cause of action to file the complaint arose to complainant at Delhi in this case. Merely impleading of OP no.3 as party, which has not treated the complainant at any time will not lead us to this conclusion that any part of cause of action of this case accrued at Mohali to file this complaint. The State Commission Delhi is competent Commission with requisite jurisdiction to try the complaint in our view.

9.                As a result our above discussion, we dismiss the complaint of the complainant by holding that this Commission has no territorial jurisdiction to try the complaint as no any part of cause of action accrued within its jurisdiction at  Mohali. The complainant is at liberty to file his complaint before State Commission Delhi. The period for which , he has been prosecuting the complaint can be sought to be condoned by him from concerned State Commission under Section 14 of the Limitation Act 1963. The registry is directed to return the complaint along with all requisite documents produced by the complainant to him against proper receipt.

10.              Arguments in this complaint were heard on 11.10.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

11.              The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                          (KIRAN SIBAL)

                                                                                MEMBER

October 25 ,  2018                                                                  

(ravi)