Jammu and Kashmir

Jammu

CC/112/2017

VAISHNO DEVI - Complainant(s)

Versus

JAMMU HEALTH CARE - Opp.Party(s)

PAWAN KUMAR

03 Sep 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

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

                                                          .

 Case File  No                  60/DFJ           

 Date of  Institution       25-05-2017

 Date of Decision           08 -08-2018

Vaishno Devi

W/O Vinod Kumar,

R/O Vasak Dera Bhaderwah,

Distt.Doda A/P 103/6 Vikas Nagar,

Patoli,Jammu.

                                                                                                                                                                Complainant

                              V/S

1.Jammu Health Care & Diagnostic Pvt.Ltd.

Through its Proprietor 12-Bakshi Nagar,

(Opp.PNB), Jammu.

2.Dr.Nidhi Sharma,I/C Ultrasonagraphy

Jammu Health Care and Diagnostic,

C/O 12-Bakshi Nagar,Opp.PNB,Jammu.

                                                                                                                                                     Opposite parties

CORAM

                  Khalil Choudhary              (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                                Member

                  Mr.Ghulam Sarwar Chouhan                                       Member

 

In the matter o: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

      

 M/S Pawan K.Khajuria & Associates,Advocate for complainant, present.

Mr.K.K.Jandial,Advocate for OP1,present.

Mr.Anil Khajuria,Advocate for OP2,present.

 

                                                                           ORDER

                        Facts relevant for the disposal of complaint on hand are that complainant was suffering from some ailment and on the advise of doctor the gall-bladder of complainant was removed on,04-01-2015 in B.N.Hospital Talab Tillo,Jammu and she was discharged on,06-01-2015(copy of discharge record is annexed as Annexure-A).According to complainant, on 04-03-2017 due to sickness/ailment ,she approached OP1 for ultrasonography and on,05-03-2017 OP2 conducted ultrasonography after receiving consideration fee  and as per report prepared by OP2 the gall-bladder of complainant was normally distended and transonic etc.and the gall-bladder as per report is intact(copy of ultrasound report is annexed as Annexure-B).Allegation of complainant is that she was surprised to see the report and immediately approached her doctor, namely Ishfaq Choudhary on,05-03-2017 and on the advise of her doctor once again conducted ultrasonography test from diagnostic centre Bakshi Nagar,Jammu and as per test report dated 07-02-2017 from diagnostic centre the gall bladder cholecystetomy was done i.e. gall-bladder of complainant was removed through surgery in the 2^nd test of ultrasonography conducted by diagnostic centre 41-A,Lane Opp.Gurudwara Bakshi Nagar Jammu,(Copy of ultrasonography report is annexed as Annexure-C).Thereafter complainant approached OPs to know the basis of ultrasonography test conducted by OP2,but OP2 started misbehaving with her publically and threatened for dire consequences. Complainant further submitted that Ops have received Rs.700/-fee for conducting test ,therefore,Ops are jointly liable to pay services to complainant, as OP2 has conducted test in hush-hush manner and due to such negligent act on the part of OP2 complainant has suffered mental shock. Constrained by the act of OP2 complainant served legal notice to OP for grant of compensation, but till date nothing has been done by the OPs.Hence the present complaint. In the final analysis, complainant prays for compensation of Rs.2,00,000/-for causing unnecessary harassment and mental agony and in addition also prays for litigation charges of Rs.15,000/-.

                             On the other hand,OP1 filed written version and resisted the complaint on the ground that there is no valid dispute as envisaged under J&K Consumer Act has arisen requiring any adjudication by the Forum. That the present complaint involves complicated question of facts requiring detailed and prolonged trial by this Forum. It is submitted that the complaint is misconceived as the complainant has not come to the Forum with clean hands. It is however, submitted that no doubt complainant approached to the OP’s centre for getting ultra sonography which was duly performed by OP2 after having detailed history of disease and after examining the complainant, she was made aware that her gall bladder has already been removed, which too she agreed but some symptoms in the body were noticed and were shown to the attendant, as well as,complainant.The complainant took the ultrasonography for further advised from the concerned doctor under whose treatment she is. The Op1 further submitted that it was due to inadvertence the report has reflected otherwise, she was explained and made aware of everything but this is all a cooked story put forth by the complainant in her complaint as there is no question of misbehaving with the complainant, as the complainant after getting the ultrasonography never approached to OP nor to the doctor, rather it is bounden duty and obligation of the Civil Society that the medical professional are not unnecessarily blamed, harassed so that they can perform their professional duties with reasonable skill and competence in the interest of patient. It is further submitted that no loss has occurred to complainant while performing ultrasonography since no surgery is performed and nothing happens which warrants deficiency in service. Lastly it is prayed that complaint be dismissed.

                          At the same time,OP2 filed written version and resisted the  complaint on the ground that instant complaint is liable to be dismissed as the same fails to disclose any defect in goods or the deficiency in service, which is an indispensable requirement for maintaining a complaint under Consumer Protection Act. That from perusal of complaint it transpires that the complainant has approached Forum with unclean hands and that too in order to take an undue advantage of a typographical error, that had crept in the written version of ultrasonography report provided to complainant. More especially, when the pictorial representations of ultrasonography provided to the complainant alongwith written report supra unflinchingly reveals absence of Gallbladder, which can be very easily noticed by any medical practitioner having knowledge of understanding the pictorials of ultrasonography and thereby conclude that it was nothing but an inadvertent typographical error that anything else. It is admitted that complainant was fully aware about the removal of Gallbladder of complainant on 04-01-2015.It is further submitted that complainant approached OP1 for conducting ultrasonography which was infact conducted on 05-03-2017.However,it is respectfully submitted that at the time of conducting ultrasonography,Op2 had duly informed complainant in respect of absence of Gallbladder,which the complainant had endorsed at the time of conducting ultrasonography and she had even narrated the history of her previous surgery.

                              Complainant adduced evidence by way of duly sworn affidavit and affidavit of Sonu Nigam .Complainant has placed on record copy of discharge record, copies of ultrasonography reports and copy of legal notice.

                        On the other hand,OP adduced evidence by way of duly sworn evidence affidavit s of Manav Gupta Director Health Care & Diagnosis Pvt.Ltd.Irshad Hussain respectively.

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

                       Briefly stated facts of the case are that complainant was suffering from some ailment and on the advise of doctor the gall-bladder of complainant was removed on,04-01-2015 in B.N.Hospital Talab Tillo,Jammu and she was discharged on,06-01-2015 and  on 04-03-2017 due to sickness/ailment ,she approached OP1 for ultrasonography and on,05-03-2017 OP2 conducted ultrasonography after receiving consideration fee  and as per report prepared by OP2 the gall-bladder of complainant was normally distended and transonic etc.and the gall-bladder as per report is intact. Allegation of complainant is that she was surprised to see the report and immediately approached her doctor,namely Ishfaq Choudhary on,05-03-2017 and on the advise of her doctor once again conducted ultrasonography test from diagnostic centre Bakshi Nagar,Jammu and as per test report dated 07-02-2017 from diagnostic centre the gall bladder cholecystetomy was done i.e. gall-bladder of complainant was removed through surgery in the 2^nd test of ultrasonography conducted by diagnostic centre 41-A,Lane Opp.Gurudwara Bakshi Nagar Jammu. Thereafter complainant approached OPs to know the basis of ultrasonography test conducted by OP2,but OP2 started misbehaving with her publically and threatened for dire consequences. Complainant further submitted that Ops have received Rs.700/-fee for conducting test ,therefore,Ops are jointly liable to pay services to complainant, as OP2 has conducted test in hush-hush manner and due to such negligent act on the part of OP2 complainant has suffered mental shock.

                   On the other hand, stand of OP1 is that no doubt complainant approached to the OP’s centre for getting ultra sonography which was duly performed by OP2 after having detailed history of disease and after examining the complainant, she was made aware that her gall bladder has already been removed, which too she agreed but some symptoms in the body were noticed and were shown to the attendant, as well as,complainant.The complainant took the ultrasonography for further advised from the concerned doctor under whose treatment she is. The Op1 further submitted that it was due to inadvertence the report has reflected otherwise, she was explained and made aware of everything but this is all a cooked story put forth by the complainant in her complaint as there is no question of misbehaving with the complainant, as the complainant after getting the ultrasonography never approached to OP nor to the doctor, rather it is bounden duty and obligation of the Civil Society that the medical professional are not unnecessarily blamed, harassed so that they can perform their professional duties with reasonable skill and competence in the interest of patient.

                          At the same time,defence of OP2 is  that in order to take an undue advantage of a typographical error, that had crept in the written version of ultrasonography report provided to complainant. More especially, when the pictorial representations of ultrasonography provided to the complainant alongwith written report supra unflinchingly reveals absence of Gallbladder, which can be very easily noticed by any medical practitioner having knowledge of understanding the pictorials of ultrasonography and thereby conclude that it was nothing but an inadvertent typographical error that anything else.

 

                    In order to substantiate her assertions, complainant relied upon evidence affidavits. At the same time, complainant also relied upon Ultrasonography report issued by Jammu Health Care and Diagnostic Pvt. Ltd wherein it is clearly mentioned that Gall Bladder is normally distended & transonic. No calculus or mass lesion seen.GB wall thickness is normal. There is no rebuttal to the documentary proof filed by complainant in support of her allegations. It is also to be noted that complainant supported her allegation by duly sworn her own affidavit and affidavit of Sonu Nigam,therefore,we have no reason to disbelieve the allegations of complainant.

                  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 OP2 while giving his professional service to the consumer which should have been without any fault,short-coming,imperfection and inadequacy in quality .

                              Therefore, in view of the foregoing reasons the complaint filed by the complainants for redressal of his grievance is allowed and OP2 is directed to pay to the complainant an amount of Rs.20,000/-as compensation for causing unnecessary harassment and mental agony and litigation charges of Rs.10000/-.The OP2 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

 08-08-2018                                                  District Consumer Forum

Agreed by                                                                Jammu.

 

Ms.Vijay Angral          

Member        

 

Mr.Ghulam Sarwar Chauhan,

Member                                                                                      

 

 

 

                                 Therefore, in view of the aforesaid discussion and after perusing the record of the case, complaint is accordingly allowed and we direct the OPs to pay Rs.20,000/-as compensation on account of harassment and mental agony meted out to complainant. Sum of Rs.5000/-quantified towards litigation charges. This order shall be complied with by OPs within one month from date of receipt of this order, failing which awarded amount shall carry interest @ 12% from the date of default till its realization. Copy of this order be provided to the parties free of charge. The complaint is accordingly disposed of and file be consigned to records after its due compilation.