Deepak Kumar 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.8,00,000/-  as compensation on account of mental tension, physical agony, harassment and suffering from acute pain etc. Opposite parties be further directed to pay Rs.2,69,790/- being spent by him on his treatment, due to the sheer negligence of the opposite parties alongwith Rs.20,000/- as litigation expenses, in the interest of justice.

2.           The case of the complainant in brief is that he is skilled mechanic of ATM machines. Unfortunately he met with road accident on 2.2.2015 at Pathankot and his two bones of right leg had fractured. He was shifted to the opposite party no.1 Hospital by his parents. Thereafter the opposite party no.2 who is serving as M.B.B.S. M.S. (Ortho) in the Hospital of the opposite party no.1 have made thoroughly check up and thereafter he asked to his parents that for providing proper treatment to him, there is need of insertion of Steel Road in his right leg and for this purpose, he has to undergo for operation. He further asked that he has to charge a um of Rs.60,000/- from them and after the said operation he will become perfectly well. They deposited Rs.60,000/- with the opposite parties and he conducted the operation on 3.2.2015 and he was discharged on 5.2.2015 from the hospital. After the insertion of the said Steel Rod in his right leg he feeling some pain in the leg and also started feeling  some problem of breathlessness. He contacted the opposite party no.2 and got aware him about the said problems but opposite party no.2 told that he should not be worried about it as the said problems would be rectified with the passage of time if he will take the medicines regularly. But on 17.2.2015 he started feeling acute pain in his leg and serious breathlessness as such he was again admitted in the Hospital of the opposite party no.1 where the opposite party no.2 started his treatment and 1 Unit of Blood was transfused into his body. Thereafter the opposite party no.2 has referred him to Star Pathology Lab, Dr.Ashneet M.D. Pathology  D.M.C. (Ludhiana) for conducting Tests and he has given his blood for reports of Test on 18.2.20154 and after getting reports of Tests, it came into the notice that there is some serious problems and infection in his body. He has next pleaded that on 19.2.2015 he referred to D.M.C. Ludhiana and the doctors of D.M.C. Ludhiana, diagnoses as “ EIGHTEEN DAYS OF OLD FRACTURE MID SHAFT TIBIA RIGHT SIDE WITH INFECTED METAL WORK (INTRAMEDULLARY INTERLOCKING NAIL) IN SITU WITH DISCHARGING SINUS”  The doctor of the D.M.C. Ludhiana Hospital has clearly stated that the opposite party no.2 has done the operation in negligent manner and put the Steel Road in his right leg, which was tied with rust, just after few days of its insertion and the said Rod was also oversize. They further advised for removal of the said Rod. Ultimately on 23.2.2015 an operation was done, whereby the defective rusted Rod was removed and they have inserted Anti Biotic Rod. Even they have also given in its report “Removal of Metal Work and Stabilization of Fracture with External Fixation Across leg and insertion of Antibiotic Rod”. He has earlier spent Rs.60,000/- on his treatment in the Hospital of the opposite parties which the opposite parties have done wrong operation and remained negligent in his work. He also remained bed ridden for long period and he has also suffered acute pain due to wrong diagnose and operation and he has been compelled to spent another amount of Rs.2,69,790/- in the D.M.C. Hospital Ludhiana due to wrong operation. Due to the illegal act of the opposite parties, he has suffered huge momentary loss and suffered mental and physical agony from the hands of the opposite parties. Thus, there is deficiency in service on the part of the opposite parties. A legal notice dated 3.9.2015 was served through his counsel to the opposite parties but they have not given any reply of the said notice. Hence this complaint.

3.       Notice of the complaint was issued to opposite parties. Opposite party no.1 and 2 appeared through their counsel and filed their joint 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 allegations of negligence to the Hon’ble Forum; no cause of action arose against the opposite party in this case, no negligence or deficiency in services  has been made and the present complaint is totally false, fabricated, wrong and baseless. On merits, it was submitted that the patient Deepak Kumar met with a serious road traffic accident on 2.2.2015, which was responsible for the breaking of the bones. The patient has sustained fracture mid shaft right leg tibia and fibula bones. The patient was operated on 3.02.2015. Opposite party used ISO approved Pitkar branded nail for intra medullary nailing. The opposite party did IMN with distal locking. Post operative period were uneventful. First post operative dressing was dry on 5.2.2015 hence the patient was discharged on 5.2.2015. On 16.2.2015 third dressing was done where the patient had a slight discharge with history of fever and anemia. On 17.2.2015 the patient was readmitted with raised WBC counts for which antibiotics were started and a blood transfusion was given to which the patient started feeling better. Then the opposite parties got test done from the star path lab for reconfirmation. As raised WBC did not correlate with the patient symptomatology so opposite parties referred the patient to a physician Dr.Manish Goyal who diagnosed that it was leukemoid reaction and the same will be all right within 2 days. The patient also had occult blood positive in the stool and a peripheral blood report showed haemolysis causing anemia due to sepsis. Opposite party stated that any implant insertion is like foreign body insertion and sometimes the patient’s body would not accept this foreign material inserted that does not mean there is any negligence on the part of the treating doctor. The patient was advised removal of the plant, but the patient party refused. Reactions to foreign material in the implanted nails are a known complication and not negligence. Patient party got panicky hence the patient was referred to DMC where all initial blood tests were found normal.  No doctor at DMC Ludhiana pointed out any negligence on the part of the opposite parties. No doctor at DMC Ludhiana pointed out any removal of rusted rod put by the opposite parties. It was a normal foreign body reaction with sometimes forces medical fraternity to remove the rod and put external fixators same was done in this patient by DMC Ludhiana not because of negligence by the opposite party but because of the peculiar nature of the patient’s body not able to carry forward the metal rod inserted. No doctor at DMC Ludhiana pointed out that the rod was rusted, over sized and hence needed removal. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs.       

4.        Opposite party 3 has appeared and filed its written reply by taking the preliminary objections that the present complaint is not maintainable against the opposite party  and is not liable to pay compensation to the complainant as under the terms and conditions of the Professional Indemnity Dr.(other) Policy the insured opposite party no.1 and 2 did not give written intimation to the company regarding the present claim filed by the complainant against the opposite party no.1 and 2 nor other required  document i.e. Medical treatment record of the complainant, Admission and Discharge Certificate of the complainant etc. Supplied by the opposite party no.1 and 2 to the insurance company. Hence in absence of the required documents, the insurance company is not in a position to investigate the matter and to give the proper and complete reply of the complaint. Hence, the present complaint is liable to be dismissed on this ground only. The policy in question is the reimbursement benefit policy for the inured i.e. Mahesh Mahajan Multi Specialty Hospital, if any omission or negligence is committed by the opposite party no.1 during the treatment of the complainant, even in that case, the insurance company is not liable to pay the claim until it is covered under the term and conditions of the policy. Hence, the liability of the insurance company is fastened only subject to the terms and conditions of the policy.

5.       Complainant tendered into evidence his own affidavit Ex.C1, alongwith other documents Ex.C2 to Ex.C200 and closed the evidence.

6.       Opposite party no.1 tendered into evidence affidavit of Dr.Mahesh Mahajan and Dr.Munish Mahajan Ex.OP-1,2/1, alongwith other documents Ex.OP-1,2/2 to Ex.OP-1,2/5 and closed the evidence.

7.     Counsel for the opposite party no.3 tendered into evidence affidavit of Sh.Satish Kumar Sharma Assistant Manager Ex.OP-3/1, alongwith other document Ex.OP-3/2 and  closed the evidence.

8.           We have carefully examined all the documents/evidence produced on record and have also intently heard and perused the arguments as duly put forth by the learned counsels along with the incidental scope of adverse inference for some of the vital documents that have been somehow ignored to be produced by the contesting litigants. We find that the prime dispute has erupted at the failed orthopedic surgery conducted to insert metal-nail fixator inside the complainant’s fractured Mid-Shaft Tibia (Right Leg) by the OP2 Surgeon at the OP1 Hospital that had to be subsequently removed through surgery in order to be replaced with an antibiotic insert-rod at the DMC, Ludhiana by the orthopedic-surgery team, there.  

9.       The learned counsel for the complainant, in order to prove his allegations, has produced sufficient documentary evidence on proceedings’ record including the ‘Discharge-Summary’ (Ex.C18) indicating the material ‘scope & potential’ of the complainant’s ‘allegations’ at the hands of another Hospital D.M.C., Ludhiana (where the complainant received corrective surgery treatment) reporting under the head: Diagnosis as: ‘Eighteen days old fracture mid-shaft tibia right-side with infected metal work (intra medullar interlocking nail) in situ with discharging sinus’; and again under the head: Operation: Done on 23.02.2015: ‘Removal of metal work and stabilization of fracture with external fixator across leg and insertion of antibiotic rod’. Further, the complainant produced exhibits (DMC, Ludhiana’s Discharge Summary) of 22/23.10.2015 (Ex.C144 & Ex.C145) for sure indicates continuous post-surgery complications and the need of its continuing management. Taken together, the above goes well to collectively prove that the complainant has suffered a lot through non-acceptance of foreign body matter by his system on account of clear-cut ‘medical negligence’ (along with other initials) on part of the OP2 Doctor and going by the principles of ‘Res Ipsa Loquitur’ in law the ‘onus of proof’ gets shifted to the opposite parties to repel/rebut the charge of negligence. We find that in their written reply and through the accompanying affidavit, the opposite parties did operate the complainant on 03.02.2015 having inserted one ISO approved Pitkar Brand Nail for intra-medullar joining and distal locking etc. However, no evidence of ISO approval & use of Pitkar Brand stand produced. The patient complainant was discharged on 05.02.2016 but he had reported pain & discomfort during his subsequent ‘3’ visits for bandage-dressing up to 16.02.2016 but was re-admitted to administer/provide medical-treatment only on 17.02.2015 with high fever and raised WBC counts. It sufficiently proves ‘negligence’ on the OP’s part since had they exercised even a moderate caution in time the complainant could have been saved from the subsequent ‘surgery’ and the associated collateral discomfort and expense. It also speaks of the poor post-surgery infection and recovery management at the hands of the opposite parties.   

10.     On the other hand the OP2 doctor has placed before us one explanatory but un-supported logic infirmly founded/placed upon alleged ‘scientific’ factum that the complainant’s body system somehow attracted ‘leukemoid’ reaction coupled with ‘haemolysis’ since sometimes the human body does not accept foreign matter. The statement in the absence of any cogent evidence cannot be judicially accepted although it may somehow go un-rebutted and un-contested by the complainant side. Also, as per the settled law, not even an ‘expert opinion’ shall be mandatory in the case of medical negligence governed by the principles of ‘Res Ipsa Loquitur’ in law while determining civil/consumer liability as per the statute law. By the time, it has been a settled law that an averment/allegation in the absence of ‘evidence’ shall amount to a bald statement only; and, going by the secondary evidence coupled with collateral multi-shot efforts/petitions, even if, we admit the above assertion in its presumed probability, we do find sufficient and satisfactory ‘evidence’ on record indicating the statutory infringement of consumer rights of the present complainant. Further, it is indeed sad as to learn that a qualified and experienced OP2 doctor could have negligently used an ‘insert’ later turned to be an infected ‘steel rod’ in a serious orthopedic surgery. The depositions in the absence of supporting evidence amount to nothing more than ‘bald’ statements and do not qualify for favorable statutory awards.      

11.     In the light of the all above, we hold the OP1 Hospital and the OP2 Surgeon guilty of ‘deficiency in service’ coupled with ‘exploitation’ of the subservient status/role of the patient  complainant and thus ORDER them to pay him Rs.3.0 Lac each as compensation for causing him financial loss, physical and mental pain etc besides Rs.5,000/- each as litigation cost within 30 days of the receipt of the copy of these orders, otherwise the aggregate awarded amount shall become payable with interest @ 9% PA form the date of the orders till actually paid. However, the opposite party medical service providers shall be at liberty to claim the amount of present adverse award from their insurers as per the applicable terms of the related insurance policy with the applicable inter-se arrangement.  

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

                           (Naveen Puri)

                                                                                    President.

ANNOUNCED:                                                            (Jagdeep Kaur)

December 08,2016.                                                     Member                

*MK*