Haryana

StateCommission

A/997/2018

M/S ARTEMIS HEALTH INSTITUTE AND OTHERS - Complainant(s)

Versus

MANVIKA BANSWAL AND OTHES - Opp.Party(s)

ROHIT GOSWAMI

09 Dec 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,PANCHKULA

 

First Appeal No.997 of 2018

Date of Institution: 23.08.2018

                                                          Date of Decision: 09.12.2021

 

1.      M/s Artemis Health Institute, C/o Artemis Medicare Services Ltd., At: Artemis Hospital, Sector 51, Gurugram, through its Authorised Representative Sh.Naveneet Goel.

2.      Dr.Asha Sharma, Artemis Hospital, Sector 51, Gurugram.

3.      Dr. Priyanka, Artemis Hospital, Sector 51, Gurugram.

…..Appellants

Versus

1.      Smt. Manvika Banswal W/o Sh.Sachin  Yadav R/o H.No.217, Sector 3, Part 1, Rewari, Haryana, at present posted as Judicial Magistrate 1^st class cum Civil Judge (Junior Division) in District Ambala, Haryana.

2.      Dr. Vivek Gupta, r/o 330-31, Sector 31, Gurgaon, Haryana 122001, Also at: R/o Jagdish St ores, AOC Road, Bongaigaon, Assam-783380.

3.      The Oriental Insurance Company Limited, Issuing Office (CBU-3, Mumbai), Oriental House, 3^rd Floor, 7 J Tata Road, Churchgate, Mumbai-40020.  Also at: Regd.office-Oriental House, P.B.No.737, A-25/27, Asaf Ali Road, New Delhi-110002 (Insurer of OP No.1).

4.      The United India Insurance Company Limited, Issuing office: 42-C, 3^rd Floor Moolchand Commercial Complex, New Delhi-110024, Also at: 24, Whites Road, Chennai-60014 (Insurer of OP No.3).

5.      The New India Assurance Co. Ltd., Issuing office: (Azadpur DO), A-2/3, Lusa Tower, Azadpur, New Delhi 110033 Also at: Regd. Head Office: New India Assurance Building, 87, M.G. Road, Fort, Mumbai 400001 (insurer of OP No.4).

…..Respondents

First Appeal No.453 of 2019

Date of institution:- 08.05.2019

Date of Decision:- 09.12.2021

Smt. Manvika Banswal W/o Sh.Sachin  Yadav R/o H.No.217, Sector 3, Part 1, Rewari, Haryana, at present posted as Civil Judge (Senior Division) Sonipat, Haryana.

…..Appellants

Versus

1.      M/s Artemis Health Institute, Artemis Hospitals, Sector-51 Gurgaon, Haryana registered office at Artemis Health Institute 414/1, 4^th Floor, DDA Commercial Complex, District Centre, Janakpuri, New Delhi-110058.

2.      Dr. Vivek Gupta, Artemis Hospitals, Sector 51, Gurgaon, Haryana, also at r/o 330-31, Sector 31, Gurgaon, Haryana 122001, Permanent R/o Jagdish Stores, AOC Road, Bonggaigaon, Assam-783380.

3.      Dr.Asha Sharma, Artemis Hospital, Sector 51, Gurgaon, Haryana

4.      Dr. Priyanka, Artemis Hospital, Sector 51, Gurugram, Haryana.

5.      The Oriental Insurance Company Limited, Issuing Office (CBU-3, Mumbai), Oriental House, 3^rd Floor, 7 J Tata Road, Churchgate, Mumbai-40020.  Also at: Regd. office-Oriental House, P.B.No.737, A-25/27, Asaf Ali Road, New Delhi-110002 (Insurer of OP No.1 hospital vide policy no.111200/48/2014/189 valid from 12.06.2013 to 11.06.2014).

6.      The United India Insurance Company Limited, Issuing office: 42-C, 3^rd Floor Moolchand Commercial Complex, New Delhi-110024, Also at: Regd. And head office:24, Whites Road, Chennai-60014 (Insurer of OP No.3 vide policy No.041200/46/12/35/00001861 valid from 24.02.2013 to 28.02.2014).

7.      The New India Assurance Co. Ltd., Issuing office: (Azadpur DO), A-2/3, Lusa Tower, Azadpur, New Delhi 110033 Also at: Regd. And Head Office: New India Assurance Building, 87, M.G. Road, Fort, Mumbai 400001 (insurer of OP No.4 vide policy No.320100361B04000000022 valid from 20.09.2013 to 19.09.2014).

…..Respondents

CORAM:    Mr.Ram Singh Chaudhary, Judicial  Member

                             

Present:-    Mr.Rohit Goswami,  Advocate counsel for appellant in appeal No.997 of 2018 and respondent Nos.1, 3 and 4 in appeal No.453 of 2019.

          Mr.Vishal Yadav, Advocate counsel for respondent No.1 in appeal No.997 of 2018 and appellant in appeal No.453 of 2019.

          Service of respondent No.2 already waited off in both  appeals.

Mr. S.S.Sidhu, Advocate, for the respondent No.3 in appeal No.997 of 2018 and respondent No.5 in appeal No.453 of 2019.

Mr.D.P.Gupta, Advocate for the respondent No.4 in appeal No.997 of 2018 and respondent No.6 in appeal No.453 of 2019.

Mr. J.P. Nahar, Advocate counsel for respondent No.5 in appeal No.997 of 2018 and respondent No.7 in appeal No.453 of 2019.

 

                                                 ORDER

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

Vide this common order above mentioned two appeals bearing No.997 of 2018 and 453 of 2019 will be disposed of as both the appeals have been preferred against the order dated 12.07.2018 passed by the District Consumer Disputes Redressal Forum, Gurugram (in short ‘District Forum’).

2.      Alongwith the present appeal bearing No.453 of 2019, there is a delay of 258 days in filing of the appeal, the condonation of which has been sought by the appellant by moving an application under Section 5 of the Limitation Act which is supported with an affidavit of complainant-Smt. Manvika Banswal. The ground taken in the application on behalf of the complainant-appellant in appeal No.453 of 2019 was that after receipt of the certified copy of impugned order the complainant remained busy in consulting with the counsels regarding filing of appeal. The complainant being judicial officer could hardly spare the time for consultation. During consultation exercise, the complainant-appellant was transferred from one station to another and it took much time in shifting process. Thus, delay of 258 days in filing of the present appeal be condoned.

3.      Only Opposite party-respondent No.6 filed reply to the application for condonation of delay stated that complainant is a judicial officer, is not a ground for condonation of delay.  She knows the limitation period prescribed for filing of the appeal. Even the complainant has not disclosed as on which date the certified copy of the order of the ld. Forum was received by her. There was no sufficient ground for not filing the appeal within time.

4.      Arguments Heard. File perused.

5.      Learned counsel for the appellant vehemently argued that as per facts mentioned above, it is clear that delay in filing appeal is not intentional.   Being a judicial officer, the complainant-appellant was transferred from one station to another, so the delay be condoned

6.      Learned counsel for the opposite party No.6 vehemently argued that she knows the limitation period prescribed for filing of the appeal.  She has not disclosed on which date certified copy of the order was received by her. There is no sufficient ground to condone the delay, so delay cannot be condoned.

7.      While dealing with the prayer for condonation of delay, reference may be made to the observation made by the Hon’ble Supreme wherein it has been held that when the substantial justice and technical approach are pitted against each other, the former has to be performed. It has further been held that the words “Sufficient Cause” have to be interpreted to advance the cause of justice. The Hon’ble Apex Court in case cited as State of Nagaland Vs. Lipok A.O. and others, 2005(3) SCC 752 has held as under:-

“11.What constitutes sufficient cause cannot be held down by hard and fast rules. In New India Assurance Co. Ltd. Vs. Shanti Misra (1975)(2) SCC (840) this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression “sufficient cause” should receive a liberal construction. In Brij Inder Singh Vs. Kanshi  Ram (ILR) (1918) 45 Cal. 94 (PC) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari (AIR 1969 SC 575) a Bench of three-Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.”

 

In view of the matter, we think it a fit case to condone the delay. Hence, the delay of 258 days in filing of the present appeal bearing No.453 of 2019 is condoned.

8.      Briefly stated, the facts narrated in the complaint are that  complainant-(Smt. Manvika Banswal) took treatment from opposite party No.1 since August 2013. Dr. Priyanka, Gynaecologist i.e. OP No.4 was her consulting doctor.  During treatment, OP No.4 advised various tests for her treatment of infertility. The test conducted by the treating doctors reported that complainant was having a right ovarian cyst with PCOD; and on HSF and MRI, a complex right ovarian cyst was diagnosed. The OP No.4 advised laparoscopy and thereafter advised CA-125 test, the report of CA-125 was positive and thereafter OP No.4 advised laparotomy surgery.  On 18.02.2014, she got herself admitted in the hospital of OP No.1 on the advice of OP No.4 for surgery of her Right Ovarian Cyst. On 19.02.2014, the OP No.4 performed surgery with the assistance of OP No.2 to 4 and Dr. Prem. During surgery, the doctors decided to go for getting the biopsy done of the right ovarian cyst. The biopsy of the cyst was conducted in between the operation and it was found that the cyst was having ‘borderline papillary serous tumour’.  After operation, she discharged on 21.02.2014 with following notes on the discharge summary in respect to the examination, procedure done and course in the hospital:

On Examination At Admission:

          Pallor                             : Nil

          Pedal Oedema   :Nil

          PR                       :82/Min

          BP (Systolic)       : 120mm Hg

          BP (Diastolic)      : 70 mm Hg

          Respiratory Rate         :22/min

          Chest                   : Bilateral clear

          CVS                     : S1 S2 Normal

          Per Speculum    : Cervix healthy

          Per Vaginum      : Uterus A/V. NS, Cystic Mass In RT Fornix

Course in the Hhospital:

Patient was admitted in view of complex right ovarian cyst.  There was strong suspicion of malignancy in view of solid papillary projections on MRI and rising titres of CA 125.  After discussionwith oncosurgeon (Dr. Vivek and Dr. Gosh), patient counseled regarding plan of management (laparotomy right ooprectomy/cystectomy frozen section, and proceed for staging surgery for ovarian cancer if frozen comes positive) informed written consent taken. Surgery performed alongwith onconsurgeons, laparotomy, right oophrectomy, frozen section and endometrial biopsy done, frozen section report came as borderline serous tumour. There were no intraoperative complications.   Post operatively she had an episode of fever. She received antibiotics reflin, metrogyl and amikacin. She is now being discharged from the hospital in a stable condition.

Procedure:          Laparotomy, Right Oophrectomky, frozen section, and endometrial biopsy.

Anaesthesia:      General

Date                     19.02.2014

Indication            Primary infertility with complex right ovarian cyst with PCOD.

Findings:             Right ovarian enlarged, cystic approx. 6-7 cm, cystectomy done, sent for frozen section which reported borderline serous.  Left ovary polycystic, drilling done (4 puntures)
Right Tube convoluted and congested

                             Left tube normal looking

                             Uterus normal, shape and size

                             Abdominal cavity exploration done, no evidence of any enlarged lymph nodes, no evidence of any deposits.

                             Endometrial curettage done specimen sent for HPE and TB PCR

Condition at discharge                   Stable

Physical exam at discharge:

                             Pulse Rate:         84/min

                                      BP (Systolic)       : 120mm of Hg

                                      BP (Diastolic)      : 70 mm of Hg

                                      Respiratory Rate         :  22/min

                                      Chest                   : Bilateral clear

                                      CVS                     : S1S2 Normal

                                      P/A                       : Soft Stitchline Healthy

Medications Advised                      : Tab. Ceftum 500 mg twice daily x 5 days

Tab. Pan 40 mg twice daily x 5 days

Tab. Combiflam thrice daily x 5 days

Cap vizylac one daily for 5 days

Syp Looz 30 ml at bedtime sos for constipation

Special instructions                        :         Avoid heavy weight lifting, straining at stools, coughing collect histopathology

Follow up  advise                            :         Review with Dr. Asha Sharma after 1 week earlier sos in case of fever/pain/bleeding.

LAB                                                  :HAS on 11/1/14-Normal Parameters \

                                                          HSG on 01.02.14-RT Cornual block

HB Electrophoresis normal TSH- 3.52

Rubella Immune

CA 125 on 14/02/2014-40.90

Blood Group/RH B+VE

HBSAG/HCV/HIV Non Reactive

HB 11.4

Platelets 362

TLC 10

Coagulation Profile WNL

Urine Routine  WNL

BS Random 87

BUN 6.7

S. Creatinine 0.48

Radiology                               :         MRI finding reveals 15/02/2014-

1. Complex cystic lesion right adnexa with enhancing solid components likely right ovarian origin. 5.5cm (AP) x 6.0cm (Tr) x 5.8cm (CC) sized cystic lesion in right adexa.
2. Polycystic pattern of ovaries.
3. Small uterine fibroid.

TVS ON 22/08/13- UTERUS A/V, MEASURE 73 X 49 X 42 MM, ET 12.5 MM LEFT OVARIES- LEFT OVARIES

CYSTIC LESION SHOWNING SOFT TISSUE COMPONENT 60 X 53 MM, SEEN IN RT ADNEXA

TVS ON 14/11/13- LEFT OVARY POLYCYSTIC RT OVARY NOT SEEN SEPARATELY, A CYSTIC LESIOIN SHOWNING SOFT TISSUE COMPONENT 57 X 50 MM SEEN IN RIGHT ADNEXA.

She paid entire medical treatment bill to OP No.1.  After discharge, she got complication in her operative parts and visited again for checkup in the hospital of OP No.1 on 23.02.2014. The check up was done by Dr. Monika Chaudhary-treating doctor, it was observed that there was “pus collection and induration at stitch line”.  OP Nos.2 and 4 recommended and orally advised to follow up with chemotherapy.  She consulted two oncologists in two renowned hospitals namely Max Super Speciality Hospital and Raheja Hospital, Mumbai.  On consultation with two doctors, both doctors advised not to get chemotherapy treatment and another surgery was recommended immediately.  It was found that first surgery was not conducted by the OPs  properly as fellopine tubes of the right ovary were not removed, which was mandatory as per the international guidelines. The proper treatment, as per international guidelines, to be followed in case of borderline serous papillary tumor is staging, which was not done by OP Nos.1 to 4 and due to the negligence act of the OP Nos.1 to 4-treating doctors, she was put to a risk of another surgery and immense mental and physical pain. When she was admitted by OP Nos. 1 to 4 for the surgery of Complex Right Ovarian Cyst and as mentioned in their discharge summary that there was a tumour, but OP Nos.1 to 4 did act in a rash and negligent manner removed the right ovary but did not remove the fellopine tubes and due to the negligent act by the OP Nos.1 to 4, she was suffering and was still at a risk of developing ovarian cancer.  She sent a legal notice dated 01.07.2015 through his counsel to the opposite party Nos.1 to 4 demanding refund of the bill amount and rupees one crore compensation. She received reply to the legal notice dated 01.07.2015, wherein the OPs denied any kind of medical negligence.  Thus there was deficiency and negligence in service on the part of the OP Nos.1 to 4.

9.      O.Ps. on being served with the notice of the consumer complaint filed separate written statements, wherein  O.P.Nos.1, 3 and 4, it was pleaded that complainant was admitted in the hospital on 18.02.2014 at 02.32 p.m. under Dr.Asha Sharma with treatment of Complex right Ovarian Cyst, was discharged on 21.02.2014 at 01.20 p.m. after taking laparotomy right oophorectomy, frozen section and endometrial biopsy.  All the necessary information were discussed with husband of the complainant.  The complainant attended OPD on 23.08.2013 of Dr. Priyanka alongwith a TVS report, which was obtained from outside diagnostic centre on 22.08.2013. It has been alleged that complainant was attended by Dr. Priyanka who noted-uterus A/V measure 73x49x42 mm, ET 12.5mm, Left Ovary Poly Cystic, Cystic Lesion showing soft tissue component 60x53 mm seen in the right adnexa on the card.  She was also enquired about family history of cancer.  The complainant was advised for CA125 and hormonal test alongwith pre conception diagnostics and was advised to go with the requisite reports post menstruation. The complainant visited the hospital on 08.01.2014 alongwith TVS report dated 14.11.2013 and attended the OPD of Dr.Veena Bhat   and treating doctor advised hysteronsalpingography post menstruation. On 23.08.2013 complainant informed to Dr. Priyanka Singh  that she was planning for conception since past 6-7 months and on 08.01.2014 complainant informed Dr. Veena Bhat that she was taking  tablet crimson since past 5 cycles for the treatment of ovarian cyst and she was keen to plan conception. The complainant was advised HSG post periods, which was performed on 01.02.2014  suggestive of right corneal block and thereafter Dr. Priyanka Singh advised to go for hysteroscopy EB + Laparoscopic Ovarian Cystectomy after MRI lower abdomen with contrast and repeat CA 125.  Her CA 125 test was performed on 14.02.2014, which reveals cancer marker as 40.90 ratio. MRI was performed on 15.02.2014, which reveals complex cystic lesion right adnexa with enhancing solid components likely right ovarian origin.  Thereafter, treating doctor advised laparotomy to the complainant. The first biopsy report vary from Frozen section report. After written consent, the complainant was taken up the laparotomy on 19.02.2014. Cyst was occupying the whole right ovary and specimen was sent for frozen section, which reported papillary serous borderline tumour.  She was discharged on 21.02.2014. The complainant complained Dr. Priyanka over the phone on 23.02.2014 of some discharge on dressing.  On physical examination at Emergency services by Dr. Monkia Choudhary, she observed some pus collection and induration at stitch line. The complainant visited OPD of Dr. Priyanka for post operative follow up on 03.03.2014 and  the complainant disclosed that she was getting the ovarian pathology treatment from Dr. Harit of Max Hospital and also disclosed that complainant was having conception. The complainant visited to Dr. Priyanka on 01.05.2014, 03.05.2014 with follicular monitoring report,  intro-uterine insemination was done on 04.05.2014 but failed.  She again come to Dr. Priyanka on 22.05.2014 for another Intra-uterine insemination and she was referred to Dr.IIa Gupta, Senior Consultant IVF for further management. The complainant visited the hospital after operation and also took infertility treatment but no complaint was raised about medical negligence.    The clinical practice staging can be performed on the complainant basis post final biopsy result and not on the basis of frozen section report of ovarian cyst.  It was absolutely medically valid decision for the patient on the part of once surgeon to only do a oophorectomy i.e. only removal of the affected organ and not insult her other organs of reproduction as the  capsule was totally intact and there was no spillage of any kind during the surgery and the decision taken by treating doctors considering the given circumstances and findings of the patient on the OT table as well as her inclination or planning conception and  it was decided to not proceed further with the complete staging process of removal of tube, lymph nodes, omentum appendix etc.  OPs have denied all the allegations regarding negligence. Thus there was no negligence and deficiency in service on the part of the treating doctors.  OP No.2 failed to appear despite service, hence he was proceeded ex parte vide order dated 09.04.2018.

10.    O.P.No.5 filed separate reply stated that the complaint was not maintainable and this forum has no jurisdiction and there was no negligence on the part of treating doctor.  It has been contended that in the absence of any findings by Medical Board regarding negligence, the complaint was not maintainable.  The OPs have not intimated the Oriental Insurance company.  Preliminary objections about cause of action, jurisdiction, concealment of material facts,  maintainability etc. have also raised and requested to dismiss the complaint

11.    O.P.No.6 filed separate reply.  It has been contended that no expert report of medical negligence has been placed on the file.  The complaint has been filed just to extort the money.  It was denied for want of knowledge that OP No.4 advised laparoscopy and after that another test was advised by OP No.4 i.e. CA 125 test and report was positive and OP NO.4 thereafter advised laparotomy surgery.   OP No.6 have raised preliminary objections about concealment of material facts, cause of action, maintainability etc. and requested to dismiss the complaint.

12.    OP No.7  filed separate reply.  The complainant did not produce any expert opinion as per citation of the Hon’ble Supreme Court  of India in the case titled “Martin F.d. Souza Vs. Mohd. Ishfaq, 1 (2009) CPJ-2 (S.C.)” . The complainant is a Govt. Servant and she has already claimed the amount of bills and that is why she has not filed the original bills alongwith the complaint. OP NO.7 have raised preliminary objections about concealment of material facts, cause of action, maintainability, jurisdiction, deficiency in service etc. and requested to dismiss the complaint.

13.    After hearing both the parties the learned District Forum allowed the complaint and ordered as under:-

“We direct the OPs no.1 to 4 to pay a sum of Rs.2,50,000/- on account of mental agony, harassment, economic loss, expenses of future treatment as well as litigation expenses.  Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to recover interest at the rate of 9% per annum for the defaulting period. It is ordered that after final attainment of this order OPs No.2 to 4 shall be entitled to get the amount reimbursed, if any, from their respective insurer as per law.”

14.    Feeling aggrieved therefrom opposite party Nos.1, 3 and 4 as well as complainant have filed the separate appeals as mentioned above.

15.    This argument have been advanced by Mr.Rohit Goswami,  Advocate counsel for appellant in appeal No.997 of 2018 and respondent Nos.1, 3 and 4 in appeal No.453 of 2019 as well as Mr.Vishal Yadav, Advocate counsel for respondent No.1 in appeal No.997 of 2018 and appellant in appeal No.453 of 2019,  Mr. S.S.Sidhu, Advocate, for the respondent No.3 in appeal No.997 of 2018 and respondent No.5 in appeal No.453 of 2019, Mr.D.P.Gupta, Advocate for the respondent No.4 in appeal No.997 of 2018 and respondent No.6 in appeal No.453 of 2019 and Mr. J.P. Nahar, Advocate counsel for respondent No.5 in appeal No.997 of 2018 and respondent No.7 in appeal No.453 of 2019.  With their kind assistance the entire records as well as the original record of the District Forum including whatever the evidence has been led on behalf of  both the parties had also been properly perused and examined.

16.    It has been alleged by Sh. Rohit Goswami, the learned counsel for the appellants in appeal No.997 of 2018, respondent No.1, 3 and 4 in appeal No.453 of 2019 that as per the facts, complainant took the treatment of fertility from treating doctors and various tests alongwith MRI and CA 125 were done by the hospital, the report shows the diagnoses of right ovarian border line papillary serous tumour with left PCOD. The surgery was performed. The biopsy was also done at the time of surgery. As per the report of biopsy, there was borderline serous tumour.  OP No.1 to 4 advised her to go for chemotherapy after cystectomy of ovary, but, she instead of going for chemotherapy consulted next Super Speciality Hospital, New Delhi and Dr. S.L.Saluja of Mumbai.    Without medical expert report, the learned District Forum has wrongly allowed the complaint and prayed that the impugned order be set aside and appeal No.997 of 2018 be allowed, complaint be dismissed and appeal No. 453 of 2019 be dismissed. In support of these contentions, the learned counsel for the contesting appellant  as well as respondent in another appeal has also placed reliance upon an authority of Hon’b’le Supreme Court of India titled as Kusum Sharma Vs. Batra Hospital and Medical Research Centre & others 161 (2) RCR (Civil), it has been observed by the Hon’ble Supreme Court of India while dealing with the provisions  of Sections 21 and 2 (i) (a) dealing with the medical negligence or deficiency in service, when a patient is operated upon for abdomen and surgical operation was carried out for removal of abdominal tumor and tumor was removed by qualified doctor by adopting best procedure, the pancreas of the patient was slightly damaged. The death of the patient was after six months cannot be termed to be medical negligent.

16.    It has been alleged by Sh. Vishal Yadav, the learned counsel for the appellant in appeal No.453 of 2019, respondent No.1 in appeal No.997 of 2018 that as per the facts, complainant took the treatment of fertility from OPs. Various tests were done by the hospital  alongwith MRI and CA-125 test. The test reports reported that she was diagnosed with right ovarian border line papillary serous tumour with left PCOD. Surgery  of complex right ovarian cyst was conducted by the OP Nos.1 to 4 on 19.02.2014, which was not successful. After operation, there was pus in the area of surgery.  Counsel further submitted that it was necessary by the treating doctors to remove the fallopian tube in the body.  When the right ovary is removed then there was no purpose to keep the right fallopian tube in the body as fallopian tube had become non functional organs. It was found that first surgery was not conducted by the OPs  properly as fellopine tubes of the right ovary were not removed, which was mandatory as per the international guidelines. The proper treatment, as per international guidelines, to be followed in case of borderline serous papillary tumor was staging, which was not done by OP Nos.1 to 4 and due to the negligence act of the OP Nos.1 to 4-treating doctors, she was put to a risk of another surgery and immense mental and physical pain and as such, the learned District Forum rightly concluded that it is a case of medical negligence.  Counsel further prayed that the impugned order be modified and an amount of Rs.16,00,000/- (Sixteen Lacs only) be awarded as compensation in addition to refund of amount charged from the complainant along with interest @ 18% p.a. from the date of initial treatment.

17.    It has been argued on behalf of Mr. S.S.Sidhu, Advocate, for the respondent No.3 in appeal No.997 of 2018 and respondent No.5 in appeal No.453 of 2019 that the OP No.1 is a specialized hospital and fleet of doctors used to treat the patients with utmost care and with modern techniques.  There is no evidence whatsoever regarding the alleged deficiency or willful and deliberate negligence on the part of the treating doctors. The complainant is not entitled for any compensation. The learned District Forum has wrongly allowed the complaint and prayed that the impugned order be set aside and appeal No.997 of 2018 be allowed, complaint be dismissed and appeal No. 453 of 2019 also be dismissed.  In support of these contentions, the learned counsel for the contesting respondent in both the appeals has also placed reliance upon an authority of Hon’b’le Supreme Court of India in Civil Appeal No.2067 of 2002 titled as State Bank of India Vs. B.S.Agricultural Industries decided on 20.03.2009.

18.     It has been argued on behalf of Mr.D.P.Gupta, Advocate for the respondent No.4 in appeal No.997 of 2018 and respondent No.6 in appeal No.453 of 2019 and Mr. J.P. Nahar, Advocate counsel for respondent No.5 in appeal No.997 of 2018 and respondent No.7 in appeal No.453 of 2019 that the insurance company is not liable to pay the amount of compensation as insured did not intimate the insurance company within time.  There is no deficiency in service or negligence on the part of the treating doctors. The learned District Forum has wrongly allowed the complaint and prayed that the impugned order be set aside and appeal No.997 of 2018 be allowed and complaint be dismissed and appeal No. 453 of 2019 be also dismissed.

19.    It is not disputed that complainant took the treatment of fertility from opposite party No.1.  All tests including MRI and CA1125 were performed by the OP Nos.1 to 4.  It is not disputed that she was admitted in the hospital of OP No.1 on 18.02.2014 with diagnosis of right ovarian  cyst with PCOD and treating doctors advised her for CA 125 tests.    It is not disputed that on 19.02.2014 the treating doctors conducted surgery and during surgery treating doctors decided to go for getting the biopsy done of the right ovarian cyst.  It is not disputed that as per the report of biopsy, it was found that cyst was having borderline papillary serous tumour.  It is not disputed that she consulted two oncologists in renowned hospitals namely Max Super Speciality Hospital and Raheja Hospital.  It is not disputed that no medical report from the medical board about the negligence on the part of treating doctors.    After surgery, the regular check up was conducted by the treating doctors and they advised her for chemotherapy. The complainant consulted two renowned hospitals namely Max Super Speciality Hospital and Raheja Hospital, Mumbai, they advised not to get chemotherapy treatment and advised for another surgery immediately. The District Forum rightly opined that there is no necessity to refer the case to the medical board.  As per the international standards, if borderline papillary serous tumour was found in the report why treating doctors keep the right fallopian tube in the body at the time of surgery as right fallopian tube is become non functional organ in the body.  Non removal of fallopian tube at the time of surgery of systectomy of right ovary is negligent act on the part of treating doctors.   As such, since the patient had suffered for huge mental pain and agony, the learned District Commission had not committed any irregularity or illegality while allowing the complaint and compensation had also been legally allowed. Placing reliance upon celebrated authority of Kusum Batra’s case (supra) and  State Bank of India’s case (supra) are not relevant in the present case because the facts and circumstances of the case referred are different.

20.    The learned District Forum has taken into consideration each and every aspect from every angle. Findings of learned District Forum are well reasoned based on law and facts and cannot be disturbed.   Resultantly, both appeal bearing No.997 of 2018 and 453 of 2019 fails and the same are hereby dismissed.

21.    The statutory amount of Rs.25,000/- deposited at the time of filing of the present appeal  bearing No.997 of 2018 be refunded to the appellant against proper receipt and due verification.

22.    The original judgement be attached with appeal No.997 of 2018 and certified copies be attached with appeal Nos.453 of 2019.

 

December  9th, 2021                                                 Ram Singh Chaudhary                                                                                                        Judicial Member                                                                                                                   Addl.Bench               

S.K.