Complainant Kahan Singh had filed the present complaint U/s 12 of the Consumer Protection Act against the opposite parties and praying that the opposite parties may be ordered to pay Rs.10,00,000/- as damages due to illegal act of the opposite parties No.1 and 2 which affected his capacity to earn his livelihood and to meet future expenses on further treatment as the cancer in his body developed and he was near to his death bed. Complainant further prayed that opposite parties may be directed to pay compensation and litigation expenses to the tune of Rs.2,00,000/- for unnecessary harassment and trauma suffered by him due to negligency and deficiency in service on the part of opposite parties.

2.       The case of the complainant in brief is that he was working as bus conductor and was suffering from mole piles disease with severe pain and he had to gone to K.J. Hospital i.e. opposite party No.1 where he was checked up by Dr.Kanwaljit Singh i.e. opposite party No.2 and admitted him in his hospital on 15.07.2016 and conducted his operation and sent 2 gms. piece of one grey white tissue for histopathological examination and report came feature were suggestive of henign inflammatory pathology. It was pleaded that operation of Fissure in Ano was conducted which was not successful as bleeding did not stop and pain also remained. Dr. admitted the complainant on 15.07.2016 and discharged on 17.07.2026 but complication arose and complainant again came to the above said hospital and met the doctor as he did not feel any relief and he remained under treatment from 15.07.2016 to 07.09.2016 where he was checked by the doctor on 18.07.2016, 20.07.2016, 21.07.2016, 22.07.2016, 26.07.2016, 30.07.2016, 01.09.2016 and ultimately on 07.09.2016 and complainant was told by the opposite party No.2 that his operation was not successful and referred him to Guru Nanak Medical College Amritsar. It was further pleaded that the advance fee of Rs.18,000/- was taken by opposite parties for operation and total fee of Rs.60,000/- for operation was taken  by the opposite parties and at the time of admission opposite parties No.1 and 2 said to the complainant that operation would be conducted by Dr.Mahesh Kumar MBBS HPHS-I (Ex.) i.e. opposite party No.3 and fee would also be taken to him but operation was conducted by Dr.Kanwaljit Singh i.e. opposite party No.2 who was not specialized for such type of operation and condition of the complainant become worst. It was also pleaded that after referring to Guru Nanak Medical College Amritsar, complainant was admitted in the surgical ward No.1 vide CR No.5806 in department of surgery of the hospital and it was stated by the doctors of the hospital that complainant had to be operated for hemmehoidectary as due to previous wrong operation he had numerous problems and he was operated for the same. Complainant also gone to Postgraduate Institute of Medical Education and Research, Chandigarh for treatment as outdoor patient vide outdoor patient card CR No.2016 0601 3724 dated 25.11.2016 alongwith provisional Diagnosis Fissure in Ano as complainant suffered from pain and bleeding regularly. It was pleaded that complainant had to go to various places and hospitals had gone for his treatment and spend Rs.2,00,000/- on his treatment and the same will continue for whole of his remaining life as doctor told that the cancer has developed in his body due to wrong operation conducted by opposite parties and due to gross negligence of the opposite parties the life of the complainant had become hell and he was not deprived of his work and he cannot to do any manual work as his capacity of earning had totally been stopped. It was pleaded that opposite parties did not give correct advice to the complainant or his family members who were present there as there was no urgency for immediate operation, hence this complaint.

3.       Upon notice opposite parties No.1,2 and 3 appeared through their same counsel and filed two separate written replies one on behalf of opposite parties no.1 and 2 and other on behalf of opposite party no.3 by taking almost same preliminary objections and pleas that the complainant has not come with clean hands and suppressed true facts relating to the matter in question and thus not entitled to any discretionary relief and as such complaint is not maintainable and that the opposite party no.3 had no role in the operation of the complainant and had been made as unnecessary part in this case and thus entitled to special costs for this unwanted litigation from the complainant as opposite party No.3 had been working as a medical officer with the opposite party No.1 and had no concern with the operation of the complainant and he had been dragged in this litigation for none of his involvement in any manner. Moreover, now opposite party No.3 has left the job from the hospital of opposite party No.1. On merits, it was admitted that complainant was admitted in the hospital of opposite party and was treated with the best of ability, experience and qualification of Dr.Kamaljit who is a qualified surgeon and had been performing surgeries for the last about more than 16 years with good results and his operation was successful but as per report obtained by the opposite party keeping in view the facts and circumstances of the patient revealed that there was histopathology benign inflammatory pathology and as per said report the post operatively antibiotic along with anti inflammatory and laxatives were given to the patient as per his condition. It was stated that as and when the patient felt pain he used to visit the hospital and required treatment was given to him and when he was not satisfied, he was referred to Amritsar for his satisfaction and there was no fault in the operation conducted by the opposite party and opposite party did not charge total operation fee of Rs.60,000/- as alleged by the complainant and he only paid Rs.11,000/- as operation theatre charges, surgical fee, operative and post operative medicines alongwith hospital charges. Moreover, Dr.Mahesh Kumar was a medical officer of the hospital and there was no occasion for him to go for operation and opposite party No.2 is a qualified surgeon since 2000 and had been posted in various government hospitals and conducted thousands of surgeries with better results. It was further stated that patient was suffering from a disease known as Fissure in Ano with hemorrhoids and in such like disease there are chances of recurrences in spite of best treatment as mentioned in the number of medical books and in the case of the complainant such recurrence could have occurred without any fault in the operation. It was admitted that complainant is performing his duty as a bus conductor regularly and filed this complaint with an intent to harass the opposite parties just to extract money from them whereas proper and best advice was given by the opposite parties to the complainant and was referred to Guru Nanak Dev Hospital Amritsar for better treatment if any. All other averments made in the complaint have been denied and lastly prayed for dismissal of complaint with costs.

4.       Counsel for the complaint had tendered into evidence affidavit of complainant Ex.C1, discharge slip Ex.C2, OPD slips dated 21.07.2016, 18.07.2016, 01.09.2016 and 07.09.2016 Ex.C3 to  Ex.C6, Lab. report Ex.C7, certificate Ex.C8 and OPD Card Ex.C9 and closed the evidence of complainant.

5.       Counsel for the opposite parties had tendered into evidence affidavit of Dr.Kamaljit Singh Prop. of K.J. Hospital Ex.OP-1 and affidavit of Dr.Mahesh Kumar MBBS HP-HS-1 Ex.OP-2 and closed the evidence on behalf of opposite parties.

6.       Written arguments filed by the complainant but not filed by opposite parties.

7.       We have carefully examined all the documents/evidence produced on record for its contained statutory merit and have also judiciously considered and perused the arguments duly put forth by the learned counsels for the parties.

8.       Counsel for the complainant has argued that complainant  suffered from mole piles with severe pain and had gone to hospital of opposite parties No.1 and 2 where he remained admitted from 15.07.2016 to 17.07.2016 but due to complications and repeated bleeding complainant did not get any relief and had gone to the opposite parties No.1 and 2 repeatedly and on 07.09.2016 opposite party No.2 had referred the complainant to Guru Nanak Medical College Amritsar. Opposite parties No.1 and 2 took advance amount of Rs.18,000/- and thereafter took total Rs.60,000/- from the complainant. It is further argued that the complainant was told that operation shall be conducted by opposite party No.3. It is further argued that on being referred to Guru Nanak Medical College Amritsar complainant was again operated upon for the same problem and thereafter complainant had to visit PGI Chandigarh and he was still undergoing treatment on various hospitals and had spent more than Rs.2,00,000/- on his treatment. It is further argued that due to negligence of opposite parties No.1 and 2 operation was not successful and cancer developed in the body of the complainant and complainant could do any work and in the end has prayed for compensation of Rs.10,00,000/- and Rs.2,00,000/- as litigation costs.

9. On the other hand counsel for the opposite parties has argued that opposite party No.3 has no role in the operation of the complainant. However, it is admitted that complainant was operated by opposite parties No.1 and 2. It is further argued that after operation it was revealed that there was histopathology benign inflammatory pathology and as per the said report the post operatively antibiotic along with anti inflammatory and laxatives were given to the patient as per his condition. It is further argued that opposite parties No.1 and 2 only charged Rs.11,000/- for operation theatre charges, surgical fee, operative and post operative medicines. It is further argued that the patient was suffering from disease known as Fissure in Ano with hemorrhoids and in such like disease there are chances of recurrences in spite of best treatment as mentioned in the number of medical books and in the case of the complainant such recurrence could have occurred without any fault in the operation. There is no deficiency in service on the part of opposite parties No.1 and 2 and complaint should be dismissed. It is further argued that opposite party No.3 has no role to play in the said surgery and unnecessary impleaded as party in the present complaint.

10.     We have heard the Ld. counsels for the parties and gone through the record. It is admitted fact that complainant was suffering from Fissure in Ano hemorrhoids. It is further admitted fact that complainant remained admitted in the hospital of opposite parties No.1 and 2 w.e.f. 15.07.2016 to 17.07.2016 and operation was conducted by the opposite party No.2 and thereafter complainant again visited the opposite parties No.1 and 2 on 21.07.2016 and thereafter on 18.07.2016 and 01.09.2016 meaning thereby that inspite of having been operated upon and prolonged medication upto 07.09.2016, complainant had not recovered completely from the deceased for which he was operated upon and given medicines as per treatment record and medical prescriptions Ex.C2 to Ex.C6.

11.     We have gone through the certificate of Guru Nanak Dev Hospital Amritsar Ex.C8  as per which operating surgeon has clearly mentioned that patient has been operated for the same problem for which he was earlier operated upon and thereafter complainant had even took treatment form PGI Chandigarh as per Ex.C9.

12.     We are of view that admission on part of opposite parties No.1 and 2 of having admittedly received Rs.11,000/- from the complainant for operating him in respect of Fissure in Ano hemorrhoids and Hon'ble Supreme  Court of India has held that admission is the best evidence that an opposing party can rely upon it which is reported in 1960 SC Page 100. Since the opposite parties No.1 and 2 have admitted this fact that disease from which complainant was suffering there are chances of recurrences inspite of best treatment but in the present case treatment record shows that the complainant never cured from the disease from which he was suffering as he was continuously under treatment of opposite parties No.1 and 2 upto 16.07.2016 as per Ex.C2 to Ex.C7 and thereafter had to get operated upon from Guru Nanak Dev Hospital Amritsar for the same problem meaning thereby that since the opposite parties No.1 and 2 admittedly charged Rs.11,000/- from the complainant for the operation of disease i.e. Fissure in Ano hemorrhoids which  could not be cured and the only plea of opposite parties No.1 and 2 is that the disease can reoccur without any fault in the operation, but opposite parties No.1 and 2 have not disclosed as to what is time gap of recurrence of disease. Accordingly, record in the present complaint shows that complainant never got cured after receiving treatment from opposite parties No.1 and 2.

13.     As far as plea of the complainant regarding having spent an amount of Rs.10,00,000/- on his treatment is concerned, the complainant has not placed any such record to prove this fact that such amount was spent on the treatment . The complainant has further alleged to have paid Rs.60,000/- to the opposite parties but again no bill, receipt or proof of payment has been placed on record. Even the complainant has not placed on record any document or treatment record in respect of his having allegedly suffered from cancer on account of wrong treatment given by the opposite parties.

14.     Accordingly, this Commission is of the view that the deficiency in service on the part of opposite parties No.1 and 2 is fully proved from the evidence on record coupled with admission on the part of opposite parties No.1 and 2. Accordingly, present complaint is partly allowed and opposite parties No.1 and 2 are directed to refund Rs.11,000/- which was received from the complainant alongwith interest @ 9% P.A. from the date of filing of the complaint till realization. Opposite parties No.1 and 2 are further directed to pay Rs.10,000/- as compensation to the complainant on account mental tension, harassment, pain suffered by him during operation, treatment and thereafter. Entire exercise will be completed within 30 days from the date of receipt of copy of this order.

15.      The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

16.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room. 

                               (Lalit Mohan Dogra)

                                                                        President  

Announced:                                          (B.S.Matharu)

July 26, 2023                                                Member

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