Chander Shekhar complainant has filed this complaint U/s 12 of the Consumer Protection Act of 1986 against the opposite parties praying that opposite parties be directed to make the payment of Rs.2,00,000/-  which was spent by him on his treatment, diet, transport and compensation on account of mental agony, physical harassment and deficiency in service on the part of the opposite parties alongwith Rs.5,000/- as litigation expenses, in the interest of justice.

2.       The case of the complainant in brief is that he was suffering from stomach disease/ache in kidney, so he got himself checked up from Chaoudhary MRI, CT, Ultra Sound and X Ray Scanning Centre, Pathankot on 25.9.2015. He went to the hospital of the opposite parties on 19.10.2015 where both the opposite parties met and seen the report and told him that both kidneys cannot be operated at one time and advised him that the calculus in the left kidney especially big calculus which is damaging the kidney is necessary to be removed, so he asked him to get left kidney operated first and all the Calculus will be removed with the operation. He has further pleaded that the opposite party no.2 and 3 received Rs.20,000/- from him on 19.10.2015 for the purpose of operation. They took him to operation theater alone and brought him back after sometime and told that he has been operated and received Rs.10,000/- more for medicines. The opposite parties no.2 and 3 told that stunt has been placed and the same will be removed after four weeks and received Rs.5000/- more on 21.10.2015, he was discharged from the hospital and told him that now he is fully okay and the stones have been removed but he was suffering from ache. The opposite parties received Rs.2000/- more from him for medicines and instead of removing stunt after month, removed the same after about two months and received Rs.5000/- more but pain increased. Then his condition became more critical he got himself checked up from some other doctor, who opined that the ache was of big calculus which seems  as if not removed and advised for retest. On 28.12.2015, he got himself checked up from Choudhary MRI, CT, Ultra Sound and X Ray Scanning Centre Pathankot. He approached the opposite parties and showed them the fresh report dated 28.12.2015 and requested them to remove the stones as the same have not been removed by them but both the opposite parties insulted him and did not listen to him. He has next pleaded that he approached doctors of Mokha Hospital Amritsar where the doctors advised him for operation immediately because on account of delay in operation there was also swelling in the kidney. So he got himself operated from Mokha Hospital Amritsar on 1.1.2016, wherefrom he was discharged on 9.1.2016 and stones were removed which were earlier not removed by the opposite parties. He spent about Rs.1,00,000/- on operation, medicines, extra diet, transport etc. After discharged, he again approached the opposite parties and requested them to refund the amount so far he has spent on his treatment i.e. amount spent at Dinanagar in their hospital as well as money spent at Amritsar but they did not listen him rather the opposite party no.2 and 3 threatened him to keep mum. Thus, there is deficiency in service on the part of the opposite parties. Hence this comlaint.

3.        Notice of the complaint was issued to opposite parties. Opposite party no.1 and 2 appeared and filed its written reply by taking certain preliminary objections. On merits, it was submitted that the opposite party no.2 Dr.Rakesh Wassan operated this 32 year male patient for left upper 3rd ureter stone. Operation of ureteroscopic lithotripsy meant for removal of left ureteric stone only under spinal anesthesia given by Dr.Raj Rani. No other stone was to be removed. Consent was taken for the removal of ureteric stone only. On 19.10.15 stone was partially removed. The patient was left with a few small pieces which were moved up into the kidney. For removal of those pieces by natural drainage, DJ stunt was put in the ureter. Basically the patient was having three stones in the kidney also. Opposite party no.2 had taken the consent that he will remove the ureter stone only. On 9.12.2015 the opposite party no.2 removed the stunt. On 28.12.2015 the USG reports showed multiple calculi in middle calyx and same size stone in the ureter.  It has further submitted that everything was done diligently, prudently, with utmost due care and caution in treating the said patient. There is no negligence, deficiency of service or unfair trade practice on the part of the opposite party no.2. The patient was having multiple stones on both sides of kidney out of which the opposite party no.2 promised to remove the left ureteric stone only since it was creating more trouble and damage at that time on 19.10.2015 and the same was removed diligently. Other stones were told to be removed afterwards but the patient did not agree for the removal of other stones. The patient spent the alleged amount for getting other stones at Mokha Hopsital. The opposite party no.2 has not introduced any new stones during prior surgery. The only left ureteric stone was promised to remove and the same was removed diligently. Hence the opposite party no.2 is not liable to pay anything to the complainant. No doctor at anywhere pointed out any negligence on the part of the opposite party. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.       

4.        Opposite party 3 has appeared and filed its written reply by taking the preliminary objections that the present complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous which is unsustainable in the eyes of law; the complainant has filed this complaint with false allegation and the present complaint is totally false, fabricated, wrong and baseless with respect to opposite party no.3 and hence the complaint is liable to be dismissed. On merits, it was submitted that the opposite party no.3 never ever treated the patient hence there is no question of any negligence. The complainant may please be ordered by this Hon'ble forum to remove the name of the opposite party no.3 from the arrays of the opposite parties since the opposite party no.3 never ever treated the patient and lastly prayed that complaint may kindly be dismissed.

5.       Opposite party no.4 has appeared and filed its written reply by taking certain preliminary objections that copy of the policy has not  been supplied and nor the particulars of insurance have been supplied and therefore, in the absence of the same, the insurance of the complainant no.1 to 3 with the opposite party Insurance Company is denied. The opposite party no.1 to 3 was not insured with the company and therefore, the company is not liable to pay any compensation. On merits, all averments made in the complaint have been vehemently denied and prayed that the complaint may kindly be dismissed with costs.

6.      Complainant tendered into evidence his own affidavit Ex.C1 and of Raj father of complainant Ex.C-2 alongwith other documents Ex.C3 to Ex.C8 and closed the evidence.

7.       Opposite party no.1 to 3 tendered into evidence affidavit of Dr.Rakesh Wassan and Dr.Harkiran Wassan Ex.OP-1to 3/1 and closed the evidence.

8.     Counsel for the opposite party no.4 tendered into evidence affidavit of Sh.Karam Singh Divisional Manager Ex.OP4/1 alongwith other document Ex.OP-4/2 and closed the evidence.

9.         We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for of some of the evidentiary documents that have been somehow ignored to be produced by the contesting litigants. We observe that the prime dispute did prompt at the OP conducted surgery’s failure to provide relief to the patient complainant who was suffering on account of accumulation of many a calculus-mass stones in both of his kidneys. The OP2 Surgeon has admittedly operated for removal of the one ‘ureteric’ stone only but he has failed to produce any cogently acceptable medical-science based logic as to why he decided/chose to remove the ‘one’ major stone-mass only out of the ‘many’ whereas the other Surgeon at the Amritsar Hospital has removed all these in one ‘go’ only, as a total relief measure.

 10.    Somehow, the OP2 Surgeon Doctor has also stated that the other calculus-mass stones were to be removed subsequently but the patient complainant did not turn-up for the same. So, where has been the necessity of opting one preliminary surgery when it was known and established that the entire calculi-mass needs an urgent removal through surgery. The first experimental/adventurous surgery sans med-science based logic (not available on records) did surely amounts to an infringement of the patient complainant’s consumer rights and that entitles him to a favorable statutory award. The complainant through his affidavit and other exhibited documents has somewhat satisfactorily proved his contented allegations although he has not produced any documentary evidence of medical-expenses incurred at OP1 Hospital but the same has not been contested/rebutted by the OPs here, either. However, the medical expenses incurred at the Amritsar Hospital shall have to be borne by the patient complainant himself only since it has been for the treatment of his own ‘ailment’.

11.     The titled OPs here have simply put forth their respective depositions through affidavits with no other cogent evidence to support the same and as such these lose their authenticity/evidentiary value being ‘bald’ statements only, in legal parlance. We, further find that there were no pleadings of ‘urgency’ favoring the first ‘surgery’ at the OP1 Hospital and it did not provide any relief rather the removed ‘calculus’ was replaced by its another counterpart as exhibited in the subsequent US scan report and the same need to have been understood by the OP2 Surgeon being a medical-man. To sum it up all, the OPs have failed to produce any cogent evidence to support their defense and in its absence these shall amount to ‘bald’ statements, only.

12.     In the light of the all above, we partly allow the present complaint and thus ORDER the tiled opposite parties 1 to 3 to pay Rs.50,000/- to the complainant as a lump su.m compensation (for harassment inflicted) and another Rs.5,000/- as cost (of litigation) within 30 days of the receipt of the copy of these orders otherwise the aggregate awarded amount shall attract interest @ 9% PA form the date of the orders till actual payment. The OPs here shall however be at liberty to recover the awarded amount from their insurers in terms of the related insurance policy. 

13.     Copy of the order be communicated to the parties free of cost. After compliance, file be consigned to records.

                 (Naveen Puri)

                                                                                President   

Announced:                                                       (Jagdeep Kaur)

August, 04 2017                                                        Member

*MK*