BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.29 of 2021
Date of Instt. 22.01.2021
Date of Decision: 09.08.2023
Amandeep Singh son of Late S. Gurbachan Singh, resident of H. No.14, Near New Guru Teg Bahadur Nagar, Jalandhar.
..........Complainant
Versus
1. M/s Deep Nursing Home & Children Hospital, 481-R, Model Town, Ludhiana, through Sh. Baldeep Singh, authorized person/signatory. Phone no.0161-5299999, Mob. No. 9888880005.
2. Baldeep Singh, authorized person/signatory M/s Deep Nursing Home & Children Hospital, 481-R, Model Town, Ludhiana. Phone No.0161-5299999, Mob. No.9888880005.
3. National Insurance Company, Office Address: Branch X Rajeshwar Bhavan, First Floor, Above Canara Bank, 51, Ranade Road, Dadar West, Mumbai - 400028.
4. ICICI Lombard General Insurance Company Limited, Registered Address: ICICI Lombard House, 414, Veer Savarkar Marg, Near Siddhivinayak Temple, Prabhadevi, Mumbai - 400-025.
5. Apex Insurance Consultants Ltd. (AICL), 54, Vinobapuri, Lajpat Nagar-2 , 9811428222, Delhi 110024.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Present: Complainant in Person.
Sh. Manuj Aggarwal, Adv. Counsel for OPs No.1 & 2.
Sh. A. K. Arora, Adv. Counsel for OP No.3.
Sh. R. K. Sharma, Adv. Counsel for OP No.4.
OP No.5 deleted.
Order
Dr. Harveen Bhardwaj (President)
1. This complaint has been filed by the complainant, wherein alleged that on 26.09.2020, the father of the complainant namely Sh. Gurbachan Singh, who was aged 61 years, had started feeling shortness in breathing for which, he was firstly taken to Capitol Hospital, Jalandhar by the complainant, but due to the lack of medical facilities in the said Hospital, the father of the complainant was taken to K. Deep Hospital, situated near Samrala Chowk, Ludhiana. In K. Deep Hospital, the father of the complainant was medically examined and thereafter, various medical tests and an X-ray were also conducted upon the father of the complainant. From the X-ray report, it was figured out that the father of the complainant had been suffering from 'Chest infection' and due to said infection, the father of the complainant could not able to breathe properly. It was told by the Doctors of the said Hospital that they have an apprehension that the father of the complainant is suffering from Covid-19 virus, but due to the want of medical facilities being a non-Covid Care Centre, the father of the complainant was referred to Deep Nursing Home & Children Hospital, situated at 481-R, Model Town, Ludhiana i.e. OP, being one of the Covid Care Centers of Ludhiana. Thereafter, the complainant had taken his father S. Gurbachan Singh to Deep Nursing Home & Children Hospital on the reference of the Doctor of K. Deep Hospital. S. Gurbachan Singh was admitted in the General Ward in the aforesaid hospital on 26.09.2020 at about 09:55 pm as Indoor Patient having IPD No.39427. No Covid-19 test had been conducted upon the father of the complainant for two days, despite going through all the medical and X-ray reports of the father of the complainant by the earlier Hospital referred to above, nor any proper treatment had been given to the father of the complainant by the Doctors and staff of the OP No.1 resulted into, the health of the father of the complainant started becoming deteriorated. After great persuasions made by the complainant, Covid-19 test had been conducted upon the father of the complainant on 28.09.2020 by the staff of the Hospital after two days of his admission and upon receiving the report, the Doctors had declared the status of the father of the complainant as a patient of 'Corona Virus positive'. Thereafter, the staff of the aforesaid Hospital started treatment of the father of the complainant. While starting the treatment of the father of the complainant, the Doctors of the OP had assured the complainant that they will provide the best of medical treatment to his father and he will become hale and hearty soon. On 27.09.2020, the complainant had engaged the services of two care takers namely Ms. Mandeep Kaur and Ms. Sandeep Kaur for looking after his father in the said Hospital. Ms. Mandeep Kaur was appointed for evening and night hours and Ms. Sandeep Kaur was appointed for day times and one of the care takers appointed by the complainant had informed the complainant that his father was not breathing properly and later on, it discovered that the supply of the Oxygen through the cylindrical pipe, was blocked and due to that the father of the complainant started facing problem in breathing properly. During the treatment of the father of the complainant, the staff of the aforesaid Hospital had worked in very unprofessional manner including the Doctors who were on duty in the said Covid Centre. The behavior of the staff members of the Hospital was not good towards the patients admitted in the Hospital in Covid I.C.U. Ward including the father of the complainant. Their behavior was insulting and even abusing towards the Covid patients and as well as their family members who used to visit their patients during visiting hours. On 07.10,2020, during the treatment of S. Gurbachan Singh, when he was going through the shortness in breathing, Dr. Sakshi of the said Hospital was not able to control the situation and she under nervousness, had admitted an injection known as "Solu Medrol' to the father of the complainant, however, thereafter, it was discovered that in actual, the oxygen mask which was put on the mouth of the father of the complainant for breathing, was not fit and for this reason, the father of the complainant was unable to breathe properly and it was Dr. Sakshi, who herself disclosed this fact to the complainant. Not only this, Dr. Kiran who was the Incharge of Covid-19 special ward in the said Hospital, was very abusive and insulting towards the Covid-19 patients and as well as towards the two care takers who appointed by the complainant. Even Dr. Kiran had insulted the complainant and as well as his other family members when they visited the hospital to ask about the well being of the patient. When the complainant had made a complaint regarding the said incident to Dr. Kanwalpreet Sodhi, she assured the complainant that she will look after the matter, but not to result. Moreover, on 12.10.2020, when the complainant was come to the hospital to see and meet his father, in his presence, the oxygen pipe connected to the machine was not functioning properly due to which the father of the complainant started losing his breathes and with great difficulty, the situation was come under control. When the complainant made a complaint in this regard to Dr. Kanwalpreet Sodhi and told her that he is going to shift his father to other hospital, then Dr. Kanwalpreet Sodhi assured the complainant that she will take cognizance into this matter personally. She further assured the complainant that his father will be provided with best of medical treatment, but the situation remains same. On 13.10.2020, the complainant was informed by the Hospital staff that his father has died. Due to the completely ignorance of the Doctors and staff of the said Hospital, the father of the complainant has died. It is well established in medical science that a person suffering from Corona Virus, is a patient of High Risk and as such, is required to be under constant medical checkups and care, which had not been provided to the father of the complainant during his treatment aforesaid Hospital. Moreover, the aforesaid incidents clearly show the negligence, ignorance and malpractice on the part of the Doctors and Staff of the aforesaid Hospital on account of which, the complainant along with his two other brothers has lost their father as such, a love loss is being caused to complainant and as well as the other family members of the complainant. Even after the death of his father, the complainant had visited the aforesaid hospital a number of times for getting copies of the medical record of his late father, but the staff members have refused to give the same to the complainant and only a formal copy of the bill has been given to the complainant without the signatures of the competent/responsible. The perusal of the said bill shows that the complainant has been overcharged by the said hospital and that too without giving any clarification, though the complainant has already taken the health insurance from HDFC known as ‘HDFC Ergo General Insurance Company’. Even the complainant has also overcharged with misc. charges and when the complainant asked the staff of the hospital regarding the said misc charges, no response had been given to the complainant. Moreover, the CCTV cameras are installed in the ICU ward where the father of the complainant was admitted during his treatment and after the death of his father, the complainant had also requested the doctors of the said hospital to allow him to see the clippings of his father during his last breathings which are duly recorded in the CCTV footage, but the hospital authority had refused to disposed of so. The Legal Metrology Department cracking down on several private hospitals, aware the public of malpractices of overcharging patients by hospitals. Moreover, prices of several medicines have been fixed under the National List of Essential Medicines 2015 to make it more affordable for the people of India. The Medical Devices Rules of 2017 have also brought various regulations to control the price and make it more affordable for patients in India. In cases, any such victim person/s find himself/themselves being overcharged by the hospital, he/they you can initiate a complaint against the hospital. Due to the harassment caused to the complainant during the treatment of his father and as well as after the death of his father, the complainant had suffered mental and physical agony 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 the amount incurred by way of expenditure for treatment of the deceased in the hospital of the OPs Rs.8,00,000/-. Further, OPs be directed to pay Rs.40,00,000/- as his father was earning Rs.20,000/- per months. Further, OPs be directed to pay Rs.20,00,000/- as compensation for causing mental tension and harassment to the complainant and Rs.10,00,000/- as compensation on account of deprivation of love and affection with the deceased and Rs.2,00,000/- for repeated visits to the hospital after travelling from Jalandhar to Ludhiana and legal expenses of Rs.1,00,000/-.
2. Notice of the complaint was sent to the OPs and accordingly, OPs No.1 and 2 appeared through its counsel and filed joint written reply and contested the complaint by taking preliminary objections that from the perusal of the complaint, no deficiency of any kind can be spelt out in rendering the services to the complainant in his treatment. In the absence of any such assertions, the complaint is not maintainable and is liable to be dismissed with special costs. It is further averred that the complaint is bad for non-joinder of the doctors of Capitol Hospital, Jallandhar where the patient was initially admitted and also the doctors K. Deep Hospital Situated near Samrala Chowk, Ludhiana where the patient was subsequently admitted. No document has been filed by the complainant to show as to what test/treatment was given to the patient during the course of admission in those hospitals. In the absence of any such record, the OPs are not in a position to give proper and effective reply to the false allegations made in the complaint besides the Commission will also feel handicap to decide about the merits of the complaint. Thus, the complaint is liable to be dismissed on this short score. It is further averred that mere ipse-dixit of the complainant is not sufficient to prove medical negligence. The complaint is not supported any medical reference or opinion of any competent doctor to support the alleged charges of negligence or deficiency in services. A heavy onus lies on the shoulder of the complainant to substantiate the said fact. The complainant is a lay man and does not know about the basics of medical science. He is nobody to comment upon the treatment given by the opposite parties to the patient. It is further averred that the OP No.2 and the other doctors working in the hospital work on the principle "I Treat, He cures". The OP had treated the patient to the best of their professional ability and expertise. No one can predict the outcome of the treatment given to the patient. The pandemic of corona has spread its tentacles in the entire world community. It is a disease of novel origin for which the treatment is yet in the process of being evolved. Unfortunate deaths have occurred on account of Covid-19. Moreover, the complainant has failed to disclose as to what ought to have been done and what has not been done while treatment the patient in the hospital of the opposite parties. A team of expert doctors had been treating the patient to the best of their ability and at the risk of being getting infected with Covid-19. In these circumstances, the complaint is liable to be dismissed. It is further averred that the complainant has not come to the commission with clean hands and is guilty of suppression of material facts from the commission. It is further averred that the complaint has been filed by the complainant only as a pressure tactic to extract money from the opposite party by dragging him into false and frivolous litigation which has no basis at all. The complaint is frivolous, lacks bonafides besides being an abuse and misuse of the process of law. It deserves to be dismissed with special costs. It is further averred that the complainant has failed to disclose the basis for the calculation of the alleged damages or deficiency in service. It is settled principle of law that the basis of the damages has to be disclosed. Since the consumer complaint is a simple remedy in which no court fees is required to be fixed and is a cheap remedy. This cheap remedy has been made cheaper by the complainant by is frivolous allegations. The claim of the damages is highly exaggerated, inflated and imaginary as no court fees is payable on the amount of the damages as is payable before the Civil Court. The OP No.1 is insured with the National Insurance, Mumbai DA Branch x Rajeshwar Bahvan, First Floor, Above Canara Bank, 51 Ranade Road, Dadar West, Mumbai- 400028 while OP No.2 is insured with ICICI Lombard General Insurance, ICICI Lombard House, 414, Veer Savarkar Marg. Near Siddhivinayak Temple, Prabhadevi, Mumbai- 400025 which was obtained through agent Apex Insurance Consultant Limited, Office No.5, 4th Sodhi Complex Millar Ganj, floor Sodhi Opp. Ramgarhia College, Ludhiana, Punjab 141003 who are necessary and proper parties to the present complaint. A separate application in this regard is being filed. It is further averred that perusal of the complaint shows that it is based on incorrect and concocted facts guided by a fertile brain with a view to harm the prestige and reputation of Deep Hospital with the sole motive to extract money by leveling false and frivolous facts. It is pertinent to mention here that the complainant, his associates, well-wishers and others had left no stone unturned to malign the reputation of the respondents by involving them in multifarious proceedings at the behest of certain disgruntled elements. It is further averred that answering OP No.2 did not treat the patient Gurbachan Singh in the Hospital. He has been unnecessarily impleaded as a party to the present complaint. The complaint is bad for mis-joinder of OP No.2. It is further averred that the patient Gurbachan Singh was admitted under Dr. Kamalpreet Sodhi who had treated the patient with the help of Dr. Sakshi and Dr. Kiran who is incharge of Covid Care Centre at the relevant time. The complaint is bad for non-joinder of the said doctors who are in a position to answer all the queries relating to patient Gurbachan Singh. It is further averred that after failing to get desired result, the complainant has filed the present false, frivolous, concocted complaint based on distorted allegations before this commission just to entangle the respondents and in roping them in a false case which has no semblance of truth. The complainant has concealed and misstated the vital facts regarding the treatment received by Gurbachan Singh prior to his admission in Deep Hospital. The father of the complainant was earlier admitted in Capitol Hospital in Jalandhar on 22/09/2020. The complainant got his father discharged from the said hospital against medical advice on 24/09/2020. From 24/09/2020 afternoon to 26/9/2020 night (9:50PM)- There is no record of any hospital admission which implies that patient was kept at home and when condition worsened, Thereafter, the complainant got admitted his father Ludhiana from here he was referred to Deep Hospital. The doctors of Deep Hospital (OPs) do not induce the patients to get the treatment from the doctors employed therein. However, the patients do visit and get treatment from the doctors of Deep Hospital when they are satisfied about the expertise, quality and the best treatment being given to the patients. When the patient did not get the desired results, they approached the respondent for his treatment fully knowing well about the facilities and expertise available in the hospital. On merits, it is admitted that the patient presented in the hospital on 22.09.2020 with complaint of cough, fever and breathlessness from one week. The patient was remained in the said hospital upto 24.09.2020, 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. 3 filed its separate written reply and contested the complaint by taking preliminary objections that the complainant is not the consumer of the answering OP and that being so the present complaint is liable to be dismissed against the answering OP. It is further averred that there is no privity of contract between the complainant and the answering OP. It is further averred that there is no deficiency of service or unfair trade practices on the part of the answering OP and that being so, the present complaint is liable to be dismissed. It is further averred that without admitting any liability, it is submitted that the answering OP had issued Professional Indemnity Doctor Policy bearing no.240401492010000002 to M/s Deep Nursing Home & Children Hospital, 481-R, Model Town, Ludhiana for the period 30.04.2020 to midnight of 29.04.2021 for a sum of Rs.10000000/- subject to terms and conditions of the policy of insurance and so also the Master Policy of Insurance issued to Apex Insurance Consultant Limited. It is further averred that answering OP is not liable to make payment of any claim to the complainant as per terms and conditions of policy of insurance. The intimation of the claim was received by the answering OP after the expiry of policy i.e. on 29.04.2021. Thus, the claim is not tenable as per condition no.10.1 of the policy of insurance, which reads as under:-
10.1 The Insured shall give written notice to the Company as soon as reasonably practicable of any claims made against the Insured (or any specific event or circumstances that may give rise to a claim being made against the Insured) and which forms the subject of indemnity under this policy and shall give all such additional information as the Company may require. Every claim, writ, summons or process and all documents relating to the event shall be forwarded to the Company immediately they are received by the Insured.
Further clause 5 (b) of the policy of insurance reads as under:-
EXTENDED CLAIM RFEPORTING CLAUSE
In the event of non-renewal or cancellation of this Policy either by the Company or by the Insured, the Company will allow a time limit not exceeding 90 days from the date of expiry or cancellation of the policy, provided no insurance is in force during this extended reporting period for the same interest, for notification of claims for accidents which had taken place during the period of insurance but could not be made during the Policy period, provided however, all claims made during the extended reporting period shall be handled as if they were made on the last day of the expiring policy period and subject to the limits of indemnity and the terms, conditions and exceptions of the policy.
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. OP No.4 filed its separate written reply and contested the complaint by taking preliminary objections that the complaint is not maintainable against the answering OP No.4/ICICI Lombard General Insurance Co. Ltd., as the complainant is not a consumer qua the OP No.4, as such the complaint against the answering OP No.4 is liable to be dismissed. It is further averred that there is no privity of contract between the complainant and the OP No.4/ICICI Lombard General Insurance Co. Ltd. The OP No.4 is not a necessary party in the present complaint, as such the complaint against the OP No.4 is liable to be dismissed. It is further averred that without admitting any liability it is submitted that issuance of policy bearing No.4021/195939311/00/000 for the period 29-04-2020 to 28-04-2021 under the Professional Indemnity for Doctors and Medical Practitioners in the name of OP No.2/Dr. Baldeep Singh produced on record is not denied for indemnifying the insured in the claims arising out of bodily injury and/or death of any patient caused by or alleged to have been caused by error, Omission, or negligence in professional service rendered or which should had been rendered by the insured. In the present case, there is neither any error nor any omission or negligence on the part of OP No.2, as such there is no liability of the OP No.4 and the complaint is liable to be dismissed. It is further averred that this Commission has no jurisdiction to fix any liability qua the answering OP No. 4. In this regard, it is submitted that this Commission has only to see whether the concerned doctor is liable to pay any compensation or not. As far as the insured and the insurance company are concerned, the matter between them is to be decided by the insurance company by determining whether there is any alleged carelessness/negligence and whether the same is covered under the policy obtained by the concerned doctor and thereafter, the liability of the insurance company is to be determined by the competent authority as per terms, conditions and exclusion clauses of the policy, however no relief can be granted directly in favour of the complainant against the replying OP No.4. It is further averred that till date, no claim has been intimated by the OP No.2 with the replying OP No.4. It is the condition of the insurance policy that the insured shall give written notice to the company as soon as reasonably practicable of any claim made against the insured (or any specific event or circumstances that may give rise to a claim being made against the insured) and which forms the subject of indemnity under this policy and shall give all such additional information as the company may require. Every Claim, writ, summons or process and all documents relating to the event shall be forwarded to the company immediately they are received by the insured. No intimation given or claim lodged or notice given nor forwarded the summons or process received by the OP No.2 to the answering OP No.4 at any point of time. As no claim has been lodged by the OP No.2 with the answering OP No.4 as per policy terms and conditions, as such answering OP No.4 cannot be made liable in any circumstances. 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.
5. OP No.5 also filed its separate written reply and contested the complaint by taking preliminary objections that the complainants, without any rational basis or justification, have claimed an exorbitant amount of Rs.80 Lakh as compensation, in his complaint, more so when there is nothing on record to prove that there is any medical negligence or deficiency on the part of the answering respondent (OP No.3). Since the OP No.3 is neither a doctor, nor a hospital nor an Insurer of the respondent hospitals or doctors, it has no role in the present case and has been wrongly impleaded as respondent No.5. It deserves to be deleted from the array of parties. It is further averred that the present complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous which is unsustainable in the eyes of law as the same has been cooked up and has been filed without justified reason/cause against the answering respondent just to harass, defame and extort illegal sum from him, hence the complaint is liable to be dismissed qua OP No.5. It is further averred that no allegation, much less any specific, scientific and justified allegation in regard to negligence or deficiency in providing services have been made by the Complainants against the answering respondent and the Complainant have totally failed to explain as to what for the OP No. 5 is being impleaded as a party. It is a mis-joinder and OP No.5 needs be deleted from memorandum of parties. It is further averred that the Complainants have approached the Forum without support of any document in evidence against OP No. 5 or even to show any role of OP No. 5 in the treatment of the patient. So the complaint deserves dismissal qua OP No.5. It is further averred that as such, no cause of action arose against the answering respondent in this case, no allegation has been leveled against OP No.5. Also there is no nexus between the patient party and the OP No. 3. Hence this complaint is not maintainable in present form and is liable to be dismissed outright qua OP No.5. There is no allegation in the complaint against OP No.5. It is further averred that the present complaint is baseless and flagrant abuse of process of law which has been made intentionally to harass and blackmail the answering respondent, merely because only small statutory amount needs to be paid for lodging a complaint before the Consumer Forum and the Complainants want to misuse the provisions of CP Act. It is further averred that the present complaint is a futile attempt of the complainants to implicate the answering respondent, knowing fully well that OP No.5 is not the insurer company of OP No. 1, 2 and it is only an Insurance Consultant Company and advised the hospitals and doctors for appropriate Insurance Policy (to be issued by any of the General Insurance Companies). It is further averred that the complaint under reply is bad for mis-joinder of the answering respondent as a party, having no relation with this matter. The complainants have made M/s Apex Insurance Consultant Ltd., 54 Vinoba Puri, Lajpat Nagar - II, New Delhi - 110024 as OP No. 5, whereas the said company is an Insurance Consultant only and is not the Insurer of any of the treating doctors or the hospitals. The Insurance policies have been issued by respondent No. 3 i.e. National Insurance, Mumbai DA Branch X Rajeshwar Bahvan, First Floor, Above Canara Bank, 51 Ranade Road, Dadar West, Mumbai-400028. (Insurance of OP No.1) & R-4 ICICI Lombard General Insurance, ICICI Lombard House, 414, Veer Savarkar Marg. Near Siddhivinayak Temple, Prabhadevi, Mumbai-400025. (Insurance of OP No.2). Inclusion of M/s Apex Insurance Consultant Ltd., 54 Vinoba Puri, Lajpat Nagar-II, New Delhi-110024 is mis-joinder of party. 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.
6. The OP No.5 was deleted from the array of the parties, vide order dated 21.09.2022.
7. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
8. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
9. It is admitted that the father of the complainant namely S. Gurbachan Singh was admitted in the hospital of the OP on 26.09.2020. It is also not disputed that he died on 13.10.2020 in the hospital only. The complainant has alleged that there was gross negligence on the part of the OP while treating the father of the complainant and the conduct of the hospital in treating the patients admitted in the hospital is also very bad. He has alleged the nurses and doctors used to abuse the patients and their relatives. He has further alleged that wrong injection was given by the doctor to the complainant’s father and the nurses did not care to see that the Oxygen Pipe (Cannula) was not fixed properly, therefore, this clearly shows the medical negligence and negligence on the part of the staff of hospital.
10. The complainant in his complaint has raised number of allegations against the OP. He has alleged that his father was admitted in the hospital of OP on 26.09.2009, but his Covid Test was conducted on 28.09.2020, whereas the defence of the OP is that the father of the complainant was admitted on 26.09.2020 at 09:30 pm and it was Saturday. His Covid test was conducted on Monday i.e. 28.09.2020 and the report was also received on the same day. He was found Covid-19 positive. The next allegation of the complainant is that the complainant had engaged the services of two care takers namely Miss Mandeep Kaur and Miss Sandeep Kaur for looking after his father in the said hospital. Miss Mandeep Kaur was appointed for evening and night hours and Miss Sandeep Kaur was appointed for day times. One of the care taker appointed by the complainant had informed him that his father was not breathing properly and it was discovered that the supply of the oxygen through the cylindrical pipe was locked due to that the condition of his father started deteriorating. The complainant has not examined Miss Mandeep Kaur and Miss Sandeep Kaur allegedly engaged by him, but during arguments, he has submitted that these two care takers were from the hospital itself. No record has been produced to show that these care takers were from the hospital and they were deputed by the hospital when the covid patient was used to be kept in isolation during the Covid-19 pandemic. The next allegation of the complainant is that the behavior of the staff members of the hospital was not good towards the patient and it was insulting and abusing. All these are facts alleged by the complainant.
11. The next allegation of the complainant is that the complainant’s father was given the injection ‘Solu Medrol’, which was given under nervousness by the Dr. Sakshi. Dr. Sakshi has not been impleaded as party, therefore, no finding can be given against her without giving her opportunity of being heard. It has been alleged that Dr. Sakshi has admitted before the complainant that the oxygen mask put on the mouth of the father of the complainant for breathing was not fit, therefore, his father was unable to breath. This fact also cannot be decided merely on the allegations of the complainant unless Dr. Sakshi is summoned in witness box.
12. With regard to Solu Medrol injection, it has been admitted by the OPs in their written statement that this injection is the part of their treatment as the condition of the father of the complainant was very critical, therefore, this steroid was being used for Covid patients. In his complaint and vide separate application the complainant has alleged that the oxygen pipe connected to the machine was not functioning properly as the same was not fit properly. The side of the pipe was wrongly fixed as shown in the video submitted by the complainant alongwith application for additional evidence, but no expert opinion has been filed nor any medical term or guidelines have been produced to show as to whether it should be towards right side or towards left side. However, it is the factual position as to whether the oxygen pipe connected to the machine was functioning properly or not or this wrong fixation of the pipe was the reason for not breathing properly for the complainant’s father.
13. The complainant has further alleged that his witness, whose affidavit has been filed in additional evidence, namely Jaswinder Singh was also admitted in ICU on 26.09.2020, when his father was admitted. He has deposed that the oxygen mask was not properly put on his mouth as he was not getting oxygen. No record has been produced by the complainant to show that when he was admitted in the hospital in ICU and when he was discharged. It is to be established as to whether the witness Ekaspreet Singh was in the same room, where the father of the complainant was being treated or the father of the complainant was kept in a separate isolation room being Covid-19 patient, therefore, this is also fact to be gone through by way of thorough cross-examination of this witness. He has further alleged that the OP has overcharged and have not given any clarification, but he has only produced on record the bill alleging that the OP have overcharged with misc. charges and the record of the father of the complainant has not been supplied to the complainant. He has also challenged the price of the medicines and has referred the National List of Essential Medicines, 2015, in which the price of the medicine has been made more affordable, but he has not produced on record any such list. The complainant has further alleged that he had made complaints before the police also to take action against the OP for the negligence. Copy of the complaints filed on record by the complainant show that these complaints have been filed before the police and civil surgeon only after the filing of the present complaint.
14. The OP has produced on record the patient record showing the day to day treatment given by the doctors to the patient i.e. the father of the complainant, but the complainant has alleged that negligence and abusive behavior on the part of the Dr. Kiran and the staff and nurses of the hospital, negligence on the part of the nurses for not taking proper care of the patient and not checking as to whether the oxygen has been supplied or not.
15. The issues and the facts raised in the complaint involves intricate question of law and facts and matter involves is complex and complicated as it is not purely based on the medical negligence nor exclusive medical jurisprudence is involved rather the matter involves the facts and conduct of the staff and doctor of the hospital, which require extensive evidence and cross-examination of the witnesses examined by the complainant and same cannot be decided in a summary proceedings before this Commission. Only Civil Court is competent to decide such like complicated issues. It has been held by the Hon’ble Supreme Court, in Civil Appeal No.4091 of 2006, decided on 12.09.2006, titled as ‘Oriental Insurance Company Ltd. Vs. Munimahesh Patel’ that ‘Proceedings before the Commission are essentially summary in nature and issue which involve disputed factual questions should not be adjudicated by the Commission – State Commission was right in its view that complex factual position requires that matter should be examined by an appropriate Court of law and not by the Commission.’ So, in such circumstances, the complaint of the complainant requires a detailed examination and cross examination of the witnesses, therefore, the matter cannot be appropriately adjudicated before this Commission rather this should be got decided from the Civil Court and accordingly, the same is disposed of. This complaint could not be decided within stipulated time frame due to rush of work.
16. Copies of the order be sent to the parties, as permissible, under the rules. File be indexed and consigned to the record room.
Dated Jyotsna Dr. Harveen Bhardwaj
09.08.2023 Member President
