BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.117 of 2019

      Date of Instt. 16.04.2019

      Date of Decision: 25.04.2023

Satish S/o Dila Ram aged about 33 years resident of Village Rampur Sunra, Tehsil Phagwara, District Kapurthala.

..........Complainant

Versus

1.       Lajwanti Hospital and Nursing Home, Near Bus Stand, Jalandhar      City, through its Dr. Shagun Sikka, M. S., M. Ch. (Urology),     Mobile No.98140-61201.

2.       The Oriental Insurance Company Limited, CBO-III Jalandhar,           First Floor, Rattan Tower Namdev Chowk, Jalandhar City,      Punjab 144001 through its Branch Manager.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)                                

Present:       Sh. Kuldeep Singh, Adv. Counsel for the Complainant.

                   Sh. Umesh Dhingra, Adv. Counsel for OP No.1.

                   Sh. Brijesh Bakshi, Adv. Counsel for OP No.2.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant was taking regularly medicines from Lajwanti Hospital, Jalandhar City. The complainant was suffering from relevant disease of Gaduda and feeling not good and it is creating problems in his daily routine works. The complainant has been admitted on 13.09.2018 for medical examination under the treatment of relevant disease of Gaduda’s operation in the Lajwanti Hospital & Nursing Home Jalandhar City, but the concerned doctor has wrongly operated the complainant to Castrate with negligence without the knowledge/consent of complainant. A few days ago when complainant parents, relatives talking about his marriage then complainant felt unable to consummation, wedlock of marriage, in this way complainant hesitate to disclose this bad facts in the locality, society and now he is suffering from mentally and physically illness and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay a compensation of Rs.10,00,000/- to the complainant..

2.                Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that the present complaint is liable to be dismissed out rightly because the complaint is totally vague, imaginary, hypothetical and ambiguous. The complainant is not the consumer as required under Law. Therefore the present complaint is liable to be dismissed with special compensatory cost. It is further averred that the present complaint is baseless and flagrant abuse of process of law to harass and blackmail the answering OP. The complainant has filed the complaint with some ulterior motive. The complainant has no locus-standi to initiate the present proceedings. It is further averred that the complainant has no cause of action against the answering OP, as such the complaint is liable to be dismissed. It is further averred that it is settled principle of law that a medical practitioner can't be held negligent without expert opinion. In the present complaint there is no expert opinion. The complainant has not placed on record any expert opinion either from a specialist of similar branch or from the medical board constituted by the Government or from the Government Institute in order to substantiate the allegations made in the complaint. It is further averred that the complainant dragged the answering OP into unnecessary, uncalled and unwarranted litigation. The answering OP is known in the medical fraternity for its services to the humanity, with the present complaint and the complainant wants to tarnish the name of the answering OP. The answering OP is entitled for special damages from the complainant. It is further averred that the complaint is false and frivolous, as such the complainant is liable to be penalized under section-26 of the Consumer Protection Act. It is further averred that the present complaint is not maintainable under Law. The dispute raised by the complainant in the present complaint is manifestly outside the purview of the Act. The controversy involved in the present complaint is not a consumer dispute. The proceedings initiated by the complainant under the Act are nonest, null and void and without jurisdiction. The present complaint is wholly misconceived, groundless and unsustainable and untenable in law, besides being extraneous and irrelevant having regard to the facts and circumstances of the matter under reference. Thus is liable to be dismissed. On merits, the factum with regard to visiting the OP’s hospital with the symptoms of pain off by the complainant is admitted and it is also admitted that the treatment was given to the complainant by the OP, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                OP No.2 filed its separate written reply and contested the complaint by taking preliminary objections that the above noted complaint is not maintainable under the law against the OP No.2 in the present form. The complainant is not a consumer qua the answering respondent as such the complaint is liable to be dismissed. It is further averred that there is no privity of contract between the complainant Satish and the OP No.2. The OP No.2/Oriental Insurance Co. Ltd is thus not a necessary party in the present complaint and as such the complaint is liable to be dismissed on this short score alone. It is further averred that without admitting any liability, it is submitted that the issuance of policy to Dr V. K. Vasudev MD under the Professional Indemnity Policy for Doctors subject to the respective policy conditions is a matter of record. However in the present case, there is no error, omission or negligence on the part of the insured viz a viz the risk covered. There is no intimation of any claim or complaint by the OP No.1 to the OP No.2 and the present complaint is liable to be dismissed qua the answering respondent. Even otherwise there is no insurance or indemnity policy by the OP No.2 qua the OP No.1 /Dr Shagun Sikka MS MCh Urology. It is further averred that no liability qua the answering respondent can be fixed in the present complaint proceedings. The matter interse the insured and the insurer is to be decided by the insurance company by determining whether any alleged claim is raised as per law/policy and whether the same is covered under the respective policy obtained by the concerned doctor or Hospital and as to whether the insured has breached the Policy Terms And Conditions and thereafter the liability of the insurance company, if any, is to be determined by the competent authority of the company, as per the terms and conditions/ exclusion clauses of the Policy. As such, no relief can be granted to the complainant in the present complaint proceedings against the answering respondent. On merits, all the allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

4.                Rejoinder not filed by the complainant.

5.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

6.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the complainant very minutely.

7.                The complainant has alleged that he was suffering from the problem of Gaduda and he took the treatment and medicine from the OP. He was admitted in the hospital of the OP on 13.09.2018 for medical examination, but the doctor has wrongly operated the complainant to Castrate negligently. This has caused hindrance in the marriage of the complainant. It has been admitted by the OP that the complainant came to their hospital as outdoor patient on 12.09.2018 with the symptom of pain off and on for three months. It has been alleged that the patient was suffering from large midline prostatic cyst with difficulty in passing urine and not able to completely emptying his urine. The complainant has proved on record the medicine bills, prescriptions of the doctor, the investigations reports Ex.B-1 to Ex.B-8. Ex.B-1 is the discharge summary. Perusal of Ex.B-1/B-2 show that the complainant was diagnosed with Prostatic Cyst with significant PVRU. As per discharge summary, Transurethral Deroofing of Prostatic Cyst was done under S. A. on 13.09.20018 and the medicines were prescribed as a treatment and he was advised not to do heavy work for three weeks and follow up after one week. Ex.B2 also shows that he has been visiting the OP and he was advised medicine. Similarly, Ex.B3 shows that there is a specific mention of the fact that post Prostatic Cyst Deroofing. He approached the OP and he got the medicine for some problem. The counsel for the complainant has referred Ex.B-8 the investigation report, in which he has alleged that the total sperm count of the complainant was 36 millions/cumm on 26.03.2019, whereas as per Ex.B-5, the same was 15 millions. The OP has produced on record the medical history and the detail of the Prostate gland and the function of the prostates to produce the semen. It has been alleged by the OP that at the time of operation, the complainant was explained about the procedure of Transurethral Deroofing of Prostatic Cyst and he was also told about the side effects i.e. rectograde ejaculation, bleeding, infection associated with it and when the complainant gave the consent only then the operation of the complainant was conducted under Spinal Anaesthesia and the procedure for Transurethreral deroofing of Prostatic Cyst was done. He has denied that the OPs have conducted Castrate. From the record also it is proved that only deroofing of Prostatic Cyst was done by the OP. Castrate means removal of the testicles of a male or man. It has been held by the Hon’ble Supreme Court in a case titled as ‘State of Haryana Vs. Smt. Santra’  that ‘every doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill as a implied undertaking-Breach of any such duties may give a cause of action for negligence and the patient may be entitled to recover damages from his doctor’. The proposition of law is also clear, which has been laid down by the Hon’ble Supreme Court in ‘Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and Others’ that ‘no guarantee is given by any doctor or surgeon that the patient would be cured. The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill’.  ‘For negligence to amount to an offence, the element of mens rea must be showsn to exist’. To prove the negligence of the doctor, it is the fundamental duty of the complainant by leading cogent evidence and to show that the doctor has committed negligence medically while treating the patient. There is no expert opinion filed or proved on record by the complainant to show that the OP has operated the complainant to Castrate nor there is any evidence to show that the OP has operated the complainant to Castrate or has not acted with reasonable degree of care and skill. So, from all angles, the complainant has failed to prove any negligence and deficiency in service on the part of the OPs and thus, the complaint of the complainant is without merits and the same is dismissed with no order of costs. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

8.                Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

25.04.2023         Member                          Member           President