Punjab

Sangrur

CC/254/2017

Pushpa Rani - Complainant(s)

Versus

Max Supper Specialist Hospital - Opp.Party(s)

Sh.Amit Aggarwal

06 Nov 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.

 

                                                               

                                                Complaint No.  254

                                                Instituted on:    01.06.2017

                                                Decided on:       06.11.2017

 

 

 

Pushpa Rani wife of Shri Dhani Ram, resident of B-285, Guru Nanak Colony, Sangrur.

                                                        …Complainant

                                Versus

1.             Max Supper Specialist Hospital C/o Garcha’s Orthopaedics and Dental Care, Lane-2, Dashmesh Avenue, Sangrur through Dr. Manuj Wadhwa;

2.             Max Supper Specialist Hospital, Near Civil Hospital, Phase-6, Mohali through its Managing Director.

3.             Max Elite Institute of Orthopaedics and Joint Replacement, C/o Max Supper Specialist Hospital, Near Civil Hospital, Phase-6, Mohali through Dr. Manuj Wadhwa.

4.             Dr. Manuj Wadhwa, M.S. M.CH (UK) Director and Head Max Elite Institute of Orthopaedics and Joint Replacement C/o Max Supper Specialist Hospital, Near Civil Hospital, Phase-6, Mohali.

                                                        …Opposite parties

 

For the complainant  :               Shri Amit Aggarwal, Adv.

For OPs                    :               Shri Vinay Jindal, Adv.

 

 

Quorum:   Sukhpal Singh Gill, President

                Sarita Garg, Member

                Vinod Kumar Gulati, Member

 

 

Order by : Sukhpal Singh Gill, President.

 

1.             Smt. Pushpa Rani, complainant (referred to as complainant in short) has preferred the present complaint against the opposite parties (referred to as OPs in short) on the ground that the complainant was suffering from knee problem of both the legs. The case of the complainant is that the doctors of the OPs used to visit OP number 1 at Sangrur on 1^st Saturday of every month, as such on 1.8.2015 the complainant visited Garcha’s Hospital to consult the doctors of the OPs and she met Dr. Sujit and he checked the complainant and advised her that operation is required for replacement of both the knees and further advised to visit OP number 2 on 20.8.2015.  Further case of the complainant is that she visited the OP number 2 on 20.8.2015 and operation was conducted on 24.8.2015 and the complainant was discharged on 30.8.2015 and the complainant followed the treatment strictly, but she could not walk properly and there was severe pain in both the knees.  The complainant remained on bed upto 30.11.2015 as there was no improvement in her condition of the complainant.  The complainant again approached the OP number 2, but nothing happened.   Further case of the complainant is that in April 2016, she got fever and she consulted Dr. Gaurv Mittal at Sangrur, who after conducting some tests told the complainant that there is infection in the knee and the fever is the result of the same.   Thereafter the complainant visited the OPs and apprised the whole position.  The OP number 2 again conducted an operation on 12.9.2016 and removed the left knee, but the condition of the complainant did not improvement.  Thereafter the complainant also consulted Dr. Sumeet Aggarwal at Jalandhar, who told that the infection is due to the negligence of the OPs, as such the complainant approached OPs  to pay compensation for the same, but all in vain. Thus, alleging deficiency in service on the part of the Ops, the complainant has prayed that the Ops be directed to pay to the complainant an amount of Rs.8,00,000/- spent on the operation and treatment post operation and on transportation charges and further claimed compensation of Rs.10.00 Lacs and litigation expenses.

 

2.             In reply filed by OPs, preliminary objections are taken up on the grounds that the present complaint is very technical in nature, but the complainant has not produced on record both the OPs and IPD documents.  Apart from that legal objections have been taken up on the grounds that the complaint is not maintainable, that the complainant has no locus standi to file the present complaint, that the complainant has not come to the Forum with clean hands and that no expert evidence has been placed on record which could prove that the Ops were negligent in any manner in providing treatment.  It is further stated that the Forum at Sangrur has got no territorial jurisdiction to hear and try the present complaint, as such has prayed for dismissal of the complaint with special costs.  On merits, it is stated that Garcha Orthopaedics and Dental care is the peripheral OPD of Max Elite Institute of Orthopaedics and Joint Replacement of Max Super Speciality Hospital, Mohali and the complainant visited the OPD of Max Elite Institute of Orthopaedics and Joint Replacement on 1.8.2015 and was seen by Dr. Sujit and diagnosed the illness of the patient as “bilateral Osteoarthritis knee with varus deformity” and she was advised for the operation for replacement of both the knees and the complainant was further advised to visit the hospital of the OPs at Mohali.  It is admitted that the operation was conducted by OP number 4 on 24.8.2015 and she was discharged from the hospital on 30.8.2015 in stable condition. It is stated further that the complainant visited the OPs on 7.9.2015 and her suture were removed and was next seen on follow up OPD visits on 26.9.2015, 7.11.2015, 2.1.2016, 23.3.2016 and 11.6.2015, but the complainant never brought to the knowledge of the OPs any problem regarding pain in the knee rather she was normal during the aforesaid visits.  However, it is stated further in the reply that infection rate in joint replacement globally is 0.5to 2.0% and in every patient, infection is sorted in different ways.   The other allegations levelled in the complaint have been denied in toto.

 

3.             The learned counsel for the complainant has produced Ex.C-1 to Ex.C-40 copies of documents and affidavit and closed evidence. On the other hand, the learned counsel for OPs  has produced  Ex.OP/1 to Ex.OP/11 copies of the documents and affidavit and closed evidence.

 

4.             We have carefully perused the complaint, version of the opposite parties and heard the arguments of the learned counsel for the parties. In our opinion, the complaint merits dismissal, for these reasons.

 

5.             At the outset, it is an admitted fact between the parties that the complainant availed the services of the OPs by getting replaced her both the knee and she remained admitted in the hospital of the OPs for the period from 24.8.2015 o 30.8.2015 where he spent sufficient amount on the treatment.  The grievance of the complainant is that the Ops did not conduct the operation of the knees properly and as such the infection developed due to operation of the  knees by the OPs and due to that the complainant suffered heavy mental tension, agony and harassment as well as removal of the knee by the OP number 2.   On the other hand, the allegations levelled in the complaint have been denied in toto and has further contended vehemently by the learned counsel for the OPs that this Forum has got no territorial jurisdiction to hear and try the present complaint.

 

6.             Admittedly, the complainant was operated by the Ops at the hospital of the OPs at Mohali on 24.8.2015, where she remained admitted after operation till 30.8.2015.  The complainant has not produced on record any documentary evidence to show that she was given any treatment at Sangrur or at Garcha Hospital, Sangrur, but the complainant has taken treatment at the hospital of the OPs at Mohali, as mentioned above. Ex.C-3 to Ex.C-12 are the copies of the documents of the bills as well as treatment record which clearly shows that the treatment was taken at Max Hospital Mohali.

 

7.             Section 11 of the Consumer Protection Act, 1986 read as under:-

Jurisdiction of the District Forum (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs.

(2)            A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction.

(3)            the opposite party or each of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or

(b)            any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution, or

( c )  the cause of action, wholly or in part arises”

         In clause 11(2)(a) and (b), the words used are ‘at the time of institution of the complaint’. Whatsoever happened before the ‘institution of the complaint’ is immaterial. There is no pleading that at the time of institution of the present complaint, the OPs were carrying on business or had branch office within the jurisdiction of this Forum. There is no pleading in the complaint that cause of action or part of cause of action arose within the territorial jurisdiction of this Forum.      

 

8.             It is worth mentioning here that there is not even a single documentary evidence on record to show that the complainant was operated upon within the territorial jurisdiction of District Sangrur, as the Ops have no hospital nor the OPs are carrying any business within District Sangrur. As such, the learned counsel for Ops number 2 and 3 has also contended that this Forum has got no territorial jurisdiction to hear and try the present complaint.    On the other hand, the stand of the complainant is that the doctors of the Ops used to visit at Garcha Orthopedic and Dental Care, Sangrur on 1^st Saturday of every month, as such she availed the services of the Ops there and the complainant was advised to visit at Mohali for further treatment and as such has contended that this Forum has got the territorial jurisdiction to hear and try the present complaint as a part cause of action has arisen within the territorial jurisdiction of this Forum.  The learned counsel for the complainant has further cited Sadhu Vaswani Mission versus Sanjay Kedia and others 2015(1) CLT 521 (NC), wherein in para 7 it is mentioned that “apparently, the Op numbers 1 and 2 neither resides nor have branch office within territorial jurisdiction of State Commission but OP Number 3 – Chandulal Chandrakar Memorial Hospital is within territorial jurisdiction of State Commission. Complainant specifically alleged in para 29 of the complaint that OP number 3 is also responsible because OP number 3 referred complainant number 1 to OP number 1 and 2 and in the prayer clause of the complaint he has claimed compensation of Rs.25.00 Lacs jointly and severally against all the opposite parties including opposite party number 3 though main negligence has been imputed against OP number 1 and 2. As complainant has claimed compensation against all the opposite parties including OP number 3 whose hospital is within territorial jurisdiction of State Commission, learned State Commission has jurisdiction to entertain complaint against all the opposite parties irrespective of the fact that OP numbers 1 and 2 neither resides nor have branch office within territorial jurisdiction of State Commission.”  But in the present case, there are no such circumstances in the case, as such we find that this citation is not at all helpful to the case of the complainant. In the circumstances, we feel that this Forum lacks territorial jurisdiction to hear and try the present complaint. Accordingly, we are of the considered opinion that the complaint should be filed within the territorial jurisdiction of SAS Nagar Mohali.

 

9.             In view of our above discussion, we dismiss the complaint of the complainant only on the ground that this Forum has got no territorial jurisdiction to try and decide the present complaint. Further in the circumstances of the case, the complaint deserves to be returned to the complainant. Office is directed to return the complaint (Complaint number 254/1.6.2017) to the complainant or his counsel along with his documents.  The office is also directed to endorse date of institution and date of return of the complaint. 

10.            A copy of this order be issued to the parties free of cost. File be consigned to records.

 

                Pronounced.

                November 6, 2017.

                                                (Sukhpal Singh Gill)

                                                     President

                               

 

                                       

                                                    (Sarita Garg)

                                                       Member

 

 

                                                (Vinod Kumar Gulati)

                                                        Member