Haryana

Karnal

CC/389/2020

Ravinder - Complainant(s)

Versus

Kirandeep Ultrasound & Radio-Diagnostic Centre, Virk Hospital Private Limited - Opp.Party(s)

Kavinder ingh

07 Nov 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 389 of 2020

                                                        Date of instt. 25.09.2020

                                                        Date of Decision: 07.11.2023

 

Ravinder son of Shri Mange Ram, resident of Village Arainpura, Tehsil Gharaunda, District Karnal.

 

                                               …….Complainant.

                                              Versus

 

1.     Kirandeep Ultrasound and Radio diagnostic Centre, Virk Hospital, Private Limited, Randhir Lane, Near Dyal Singh College, Karnal, through Dr.Kiran Mann.

2.     Virk Hospital Private Limited, 363-364, Randir Lane, Near Dyal Singh College, Karnal, through Dr.Pardeep Tinna.

3.     Dr.Pardeep Tinna C/o Virk Hospital Private Limited, 363-364, Randhir Lane, Near Dyal Singh College, Karnal.

4.     National Insurance Company Limited, through its Divisional Manager, Opposite Old Bus Stand, Old G.T. Road, Karnal.

5.     ICICI Lombard General Insurance Company Limited, through its Divisional Manager, 2^nd Floor, Sector-8, SCO No.3, HUDA Market, Karnal.

6.     The Oriental Insurance Company Limited, through its Divisional Manager, Karnal.

                                                                      …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Suman Singh……Member

          

Argued by: Shri Naresh Kumar Sharma, counsel for

                  complainant.

                    Shri Mohit Verma,, counsel for the OPs no.1 to 3.

                    Shri Ashok Vohra, counsel for the OP no.4.

                    Shri Naveen Khetarpal, counsel for the OP no.5.

                    Shri R.M. Sharma, counsel for OP No.6.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that the complainant was suffering from pain in abdomen and on 11.07.2020, the complainant approached Virk Hospital, Karnal for treatment and disclosed all the problems. The complainant was remained admitted in the hospital. Op No.2 advised the complainant for ultrasound, the ultrasound was performed at Kirandeep Ultrasound and Radio Diagnostic Centre, Virk Hospital, Karnal, and the OP No.1opined Gall Bladder: is well distended and shows very minimal echogenic sludge (tiny nocular sludge foci average size measuring approx 3-6mm). the wall thickness measuring approx 5.8 mm. Thereafter, the OP No.2 advised the complainant that sludge will be discharge from the medicines and  gave medicines and charged  more than Rs.20,000/- towards treatment, medicines, room, nursing charging etc. Ultrasound was performed at Dhawan Ultrasound Centre on 14.07.2020, wherein the doctor concerned opined Calculi largest measuring 7.3MM in lumen whereas the OP No.1 has not opined the same rather given wrong report. The Op No.2 after the second ultrasound advised the complainant for surgery but the complainant refused to do so. OP No.1 given wrong report of ultrasound and shows sludge instead of stone/calculi and the OP failed to detect actual problem and OP No.2 provided wrong treatment to the complainant and charged huge amount.  In this way there is deficiency in service and negligence on the part of the OPs. Hence this complaint.

2.             On notice, OPs appeared and filed their separate written version. OP No.1 in its written version has raised preliminary objections with regard to cause of action; concealment of true and material facts, etc. On merits, it is pleaded that the complainant was brought to Virk Hospital, Karnal, on 11.07.2020 with complaint of pain in the abodomen specifically at the epigastric region alongwith Nausea and vomiting since 3 days. On examination, it was found that tenderness was present at epigastric region. The aforesaid symption may arise due to any pathology related to the Liver, Gall Bladder, Pancreas or stocmach. Thereafter, symptomatic treatment was started and USG abdomen revealed that Hepatosplenomegaly with Cholecystitis. Thereafter, conservative treatment was provided by the OP No.2. Again on 14.07.2020, USG was performed at Dhawan Ultrasound Centre, which revealed presence of Calculi. Conservative Treatment Protocol is the same for acute cholecystitis and Biliary Colic where it may occur due to sludge or small Calculi or without Calculus. Moreover, the sludge is the initial stage towards the formation of Calculi and the same may solidify within a short time and Calculi may be formed from the sludge material. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OPs No.2 & 3 filed their separate written version while raising preliminary objections with regard to cause of action, concealment of true and material facts, etc. On merits, it is pleaded that the complainant was brought to Virk Hospital, Karnal, on 11.07.2020 with complaint of pain in the abodomen specifically at the epigastric region alongwith Nausea and vomiting since 3 days. On examination, it was found that tenderness was present at epigastric region. The aforesaid symption may arise due to any pathology related to the Liver, Gall Bladder, Pancreas or stocmach. Thereafter, symptomatic treatment was started and USG abdomen revealed that Hepatosplenomegaly with Cholecystitis. Thereafter, conservative treatment was provided. Again on 14.07.2020, USG was performed at Dhawan Ultrasound Centre, which revealed presence of Calculi. Conservative Treatment Protocol is the same for acute cholecystitis and Biliary Colic where it may occur due to sludge or small Calculi or without Calculus. Moreover, the sludge is the initial stage towards the formation of Calculi and the same may solidify within a short time and Calculi may be formed from the sludge material. The utmost care and diligence was exercised by the OP while providing treatment to the complainant, and reasonable care was taken as is expected from any treating doctor. The treatment which was expected to produce the best results given the complainant’s condition and ultrasound reports was provided to him by the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OP no.4 in its reply has raised preliminary objections regarding maintainability, concealment of true and material facts, etc. On merits, it has been alleged that the insurance in question is based on utmost good faith and both the parties i.e. insured as well as the insurer are bound by the terms and conditions of the contract of insurance. The liability of the insurance company has to be within the four corners of the contract of insurance alone. Till date the answering OP has not received any claim intimation under the Master Policy issued for covering various medical establishments as listed on the policy. It is not out of place to mention here that the policy is subject to production of valid registration certificate and its validity. Moreover, the single master policy has been issued for the purpose of administration convenience only with the purpose of professional indemnity. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             OP no.5 in its reply has raised preliminary objections regarding maintainability, concealment of true and material facts, bad for mis-joinder and non-joinder of necessary parties, jurisdiction etc. On merits, it has been alleged that in the corresponding para, it has been alleged that there is deficiency in service on the part of OPs No.1 & 2 and same are insured with OP No.4 i.e. National Insurance Company Limited and not with the OP No.5. No relief has been sought from OP No.3 and OP No.5, so no liability can be fastened on the shoulders of the answering OP. No claim is reported/intimated by the OP No.3, so present complaint deserves dismissal qua the answering OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

6.             OP no.6 in its reply has raised preliminary objections regarding maintainability, concealment of true and material facts, cause of action, etc. On merits, it has been alleged that the complainant be put strict proof of the same and the negligence of the treating doctor is yet to be proved which requires detailed evidence on the part of the complainant and the OPs needs to be granted opportunity of cross examination. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

7.             Parties then led their respective evidence.

8.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of report of Dhawan Ultrasound Ex.C1, copy of report of Kirandeep Ultrasound Ex.C2, copy of treatment record Ex.C3, copy of report Mehla Chemical Lab Ex.C4, copy of legal notice Ex.C5, copy of postal receipt Ex.C6 and copy of reply to legal notice Ex.C7, copy of ultrasound whole abdomen Ex.C8, copies of test reports Ex.C9 to Ex.C28 and copies of medical bills Ex.C29 to Ex.C36 and closed the evidence on 07.09.2022 by suffering separate statement.

9.             On the other hand, learned counsel for OPs No.1 to 3 has tendered into evidence affidavit of Dr.Kiran Mann, Virk Hospital, Private Limited, Karnal Ex.OP1/A and affidavit of Dr.Pardeep Tinna, Virk Hospital Private Limited, Karnal as Ex.OP2/A and copy of ultrasound reports Ex.OP1 and Ex.OP2, copy of literature Ex.OP3, copy of insurance policy Ex.OP4, copy of admission form Ex.OP5, copy of treatment record Ex.OP6, copy of report of Dhawan Ultraound Ex.OP7, copies of insurance policies Ex.OP8 and Ex.OP9  and copy of policy Ex.OP10 and closed evidence on 06.06.2023.

10.           Learned counsel for OP No.4 tendered into evidence affidavit of Reena Basak, representative of National Insurance Company as Ex.OP4 and copy of policy Ex.O1 and closed its evidence on 16.11.2022.

11.           Learned counsel for OP No.5 tendered into evidence affidavit of Shri Rohan Mishra, Legal Manager, ICICI Lombard General Insurance Company Limited as Ex.OP5/A and closed its evidence on 16.11.2022.

12.           Learned counsel for OP No.6 tendered into evidence affidavit of Shri Ramesh Kumar, Manager, Legal HUB, Oriental Insurance Company as Ex.OP6/A and coy of insurance policy as Ex.OP6/1 and copy of terms and conditions of the policy Ex.OP6/2 and closed its evidence on 12.01.2023.

13.           We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

14.           Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant was suffering from pain in abdomen, therefore, he went to the hospital of OP on 11.07.2020 and an ultrasound was performed at Kirandeep Ultrasound and Radio Diagnostic Centre, Virk Hospital, Karnal, and opined Gall Bladder. The OP No.2 advised the complainant that sludge will be discharge from the medicines and gave medicines and charged more than Rs.20,000/- towards treatment, medicines, room, nursing charging etc. Again an ultrasound was performed at Dhawan Ultrasound Centre on 14.07.2020, wherein the doctor concerned opined Calculi largest measuring 7.3MM in lumen whereas the OP No.1 has not opined the same rather given wrong report. In this way there is deficiency in service and negligence on the part of the OPs. He lastly prayed for allowing the complaint.

15.           Per contra, learned counsels for the OPs, while reiterating the contents of their respective written version, have jointly vehemently argued that complainant was brought to Virk Hospital, Karnal, on 11.07.2020 with complaint of pain in the abodomen specifically at the epigastric region alongwith Nausea and vomiting since 3 days. On examination, it was found that tenderness was present at epigastric region. The aforesaid symption may arise due to any pathology related to the Liver, Gall Bladder, Pancreas or stocmach. Thereafter, symptomatic treatment was started and USG abdomen revealed that Hepatosplenomegaly with Cholecystitis. Thereafter, conservative treatment was provided by the OP No.2. On 14.07.2020, USG was performed at Dhawan Ultrasound Centre, which revealed presence of Calculi. Conservative Treatment Protocol is the same for acute cholecystitis and Biliary Colic where it may occur due to sludge or small Calculi or without Calculus. Moreover, the sludge is the initial stage towards the formation of Calculi and the same may solidify within a short time and Calculi may be formed from the sludge material. They further argued that the liability of the insurance companies have to be within the four corners of the contract of insurance alone. Till date the OPs have not received any claim intimation under the Master Policy issued for covering various medical establishments as listed on the policy. It is not out of place to mention here that the policy is subject to production of valid registration certificate and its validity. They, lastly prayed for dismissal of the complaint. Learned counsel for OPs No.1 to 3 relied upon the case tilted as C.P.Sreekumar (Dr.) Versus S.Ramanujam (2009) 7 SCC 130, wherein the Hon’ble Apex Court has held that onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side, can by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.

16.           We have duly considered the rival contentions of the parties.

17.           Admittedly, the complainant had went to the hospital of the OP No.2 and ultrasound was got conducted by OP No.1 whereby OP No.1 opined Gall Bladder (tiny nocular sludge foci average size measuring approx 3-6) and thereafter second ultrasound was got conducted by Dhawan Ultrasound Centre and they opined Calculi largest measuring 7.3 MM.

18.           The complainant has alleged that the Ops have given wrong ultrasound report. The onus to prove his case was relied upon the complainant but the complainant has miserably failed to prove his case by leading cogent and convincing evidence. In the entire evidence led by the complainant, neither he has placed on record any expert opinion which shows that there is any negligence on the part of the OPs nor placed on file any medical literature to prove his version. Merely saying that there is any negligence on the part of OPs, does not prove his case. A mere deviation from normal professional practice is not necessarily evidence of negligence. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient, rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional repudiation of the person is at stake. We relied upon the case titled C.P.Sreekumar (Dr.) Versus S.Ramanujam (supra), wherein the Hon’ble Apex Court has held that onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side, can by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. We also relied upon the case titled as Jacob Mathew’s case 2005 6 SCC 1 wherein Hon’ble Apex Court has also held that the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence.

19.           Furthermore, in the first ultrasound the sludge was opined by the OP No.1 and in the second ultrasound the Calculi was opined by the Dhawan Ultrasound Centre and it is a common knowledge that the sludge is the initial stage towards the formation of Calculi and the same may solidify within short time and Calculi may be formed from the sludge material. Moreover, as per the OPs No.1 to 3, the treatment protocol is same for both the diseases. Hence, there is no negligence and deficiency in service on the part of the OPs.  

20.           Thus, as a sequel to abovesaid discussion, the present complaint is devoid of any merits and same deserves to be dismissed and same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance

 

Announced

Dated: 07.11.2023                                                                    

                                                                  President,

                                                    District Consumer Disputes

                                                    Redressal Commission, Karnal.

 

 (Vineet Kaushik)           (Dr. Suman Singh)                    

Member                                 Member