DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 29th day of July 2024
Filed on: 01/08/2019
PRESENT
Shri. D.B. Binu, President
Shri. V. Ramachandran, Member
Smt. Sreevidhia T.N., Member
C.C. No: 299/2019
Complainant:
Nishad Hameed, Pullayikkattu House, Udumbannoor Village, Thodupuzha Taluk.
(By Adv.C.Dilip, Adv.R Pradeep, Adv.Anushka Vijaya Kumar, 67/2646, Amulya Street, Providence Road, Ernakulam-682 018)
Opposite Parties:
- The Superintendent, M/s.Govt. District Hospital, Aluva.
- Dr. Sudheer K S, Ortho Surgeon, M/s.Govt. District Hospital,
Aluva.
(op2 rep. by Adv. George Cherian Karipparambil, Karipparambil Associates, H.B. 48, Panampilly Nagar, Kochi 682 036)
- Dr. Gopakumar, Anesthetist, M/s.Govt. District Hospital, Aluva.
F I N A L O R D E R
D.B. Binu, President:
1. A brief statement of facts of this complaint is as follows:
This complaint was filed under Section 12 of the Consumer Protection Act, 1986. The complainant, an Assistant State Tax Officer with the State Goods and Services Tax Department, has filed this complaint under Section 12 of the Consumer Protection Act, 1986, alleging medical negligence by the opposite parties. The first opposite party is the Superintendent of Government District Hospital, Aluva. The second and third opposite parties are doctors at the same hospital.
In November 2018, the complainant consulted Dr. Satheesh Warrior, an Ayurveda doctor at the District Government Ayurveda Hospital, Thodupuzha, for knee pain. Dr. Warrior recommended an MRI scan, which indicated the need for urgent meniscus surgery. He referred the complainant to Dr. Sudheer, an orthosurgeon at District Government Hospital, Aluva.
On November 16, 2018, Dr. Sudheer confirmed the necessity for immediate surgery and scheduled it for November 29, 2018. The complainant was admitted on November 28, 2018, paid an advance of Rs. 2,500/-, and underwent pre-surgery preparations. However, on the scheduled day, November 29, 2018, the second opposite party informed the complainant that the surgery could not proceed because the third opposite party had not come to work. The complainant was advised to seek treatment elsewhere.
The complainant then consulted an orthosurgeon at St. Mary's Hospital, Thodupuzha, and underwent surgery on December 4, 2018, incurring expenses of Rs. 1,00,000/-. This caused the complainant to take 45 days of leave from work, resulting in significant inconvenience and financial loss.
2. Notice:
The Commission sent notices to the opposite parties. The first opposite party did not file their version and was set ex-parte. The second opposite party filed their version.
- VERSION OF THE SECOND OPPOSITE PARTY:
The second opposite party contends that the consumer complaint is not maintainable against him, arguing that there is no privity of contract or consideration between him and the complainant, thus challenging the complainant’s status as a consumer.
Nevertheless, the second opposite party provided a detailed account of the treatment process. The complainant consulted him on November 16, 2018, with an MRI scan revealing a medial meniscal injury. After diagnosing the condition, he recommended arthroscopic meniscal repair or partial meniscectomy under spinal anesthesia. Pre-operative tests and a pre-operative anesthesia check-up were advised, and the surgery was scheduled for November 29, 2018.
On the scheduled day, the second opposite party was ready to perform the surgery, but a previous surgery extended until 1 PM, beyond the third opposite party anesthesiologist’s duty time. Following hospital protocol, no elective surgery could start after 1 PM, leading to the rescheduling of the complainant’s surgery. The complainant was informed and subsequently discharged at his own request, failing to return for follow-up.
The second opposite party denies all allegations of negligence, asserting that standard pre-operative investigations and care were provided. He claims that the complainant's decision to undergo surgery at a private hospital was unnecessary, as the surgery could have been performed free of cost at nearby government hospitals.
He asserts that the complainant’s claims for treatment expenses, pain and suffering, and other damages are false and unsubstantiated. Emphasizing his qualifications and standard practice, the second opposite party concludes that the consumer complaint lacks merit and should be dismissed with costs.
- Evidence:
The complainant did not submit a proof affidavit and argument notes but filed one document:
Exhibit A1: Copy of the O.P ticket issued by the First Opposite Party on 16-01-2018.
- Points for Consideration:
The main points to be analyzed in this case are as follows: i) Whether the complaint is maintainable or not? ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant? iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party? iv) Costs of the proceedings if any?
- Analysis and Legal Reasoning:
The issues mentioned above are considered together and are answered as follows:
A.Maintainability of the Complaint:
The complainant failed to prove the maintainability of the complaint despite ample opportunities provided by the commission. From the initial filing on 01.08.2019, the complainant was continuously absent from hearings, and despite specific directions to submit a proof affidavit and multiple reminders, including a phone call on August 24, 2023, the complainant did not comply. The absence of any substantial evidence or response to the challenges raised by the opposite party regarding privity of contract and consideration further undermines the complainant's position. Consequently, the commission finds that the complainant did not establish the maintainability of the complaint within the given timeframe.
B. Deficiency in Service and Negligence:
The facts of the case indicate no deficiency in service or negligence by the opposite parties. The delay in surgery was due to unavoidable circumstances and adherence to hospital protocol, which does not constitute negligence. The medical negligence is to be judged by the standard of ordinary skilled persons exercising and professing to have that special skill. Here, the conduct of the second opposite party aligns with standard medical practices.
The case of Indian Medical Association vs. V.P. Shantha & Ors. (1995 AIR 550) highlighted that failure to perform a duty with due care and skill results in deficiency in service. However, in this case, the opposite parties adhered to due care and hospital protocol, and there was no willful negligence.
The complainant did not appear before the commission from the date of filing this complaint on 01.08.2019. The complainant was continually absent from that day. On 13.12.2021, the commission issued a notice for the complainant to appear before the commission, but the complainant did not attend. The complainant appeared before the commission only on December 06, 2022. However, starting from September 03, 2019, the complainant repeatedly failed to attend subsequent hearings. The opposite party challenged the maintainability of the complaint, arguing that there was no privity of contract or consideration between him and the complainant, thus questioning the complainant’s status as a ‘consumer’. The Commission registered notice to the complainant to appear and adduce evidence before the Commission on 03.12.2021. However, the complainant has not appeared before the Commission. The complainant did not respond to this challenge. The commission issued directions for the complainant to appear and submit a proof affidavit. Additionally, on August 24, 2023, the commission's office contacted the complainant by phone to inform them of the forthcoming hearing date, yet the complainant failed to attend this hearing as well. Given the complainant's continuous absence and failure to submit the required evidence, the commission is compelled to proceed with resolving the complaint based on the evidence currently available. Despite multiple opportunities, the complainant has neither provided the necessary proof affidavit nor made further appearances before the commission, showing a lack of interest in advancing the case. The complainant did not provide sufficient evidence to substantiate claims of deficiency in service or negligence. The Commission notes the complainant's repeated absence from hearings and failure to submit necessary proof, indicating a lack of interest in advancing the case.
In the case of SGS India Ltd Vs. Dolphin International Ltd (2021 AIR SC 4849), it was held that:
“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a Judgement of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr., this court held that the burden of proving the deficiency in service is upon the person who alleges it.”
In a series of decisions, it has been established that the burden of proof lies with the complainant to demonstrate negligence or deficiency in service by presenting evidence before the commission. Mere allegations of negligence are insufficient to support the complainant's case. As stated in the case of SGS India Ltd Vs. Dolphin International Ltd (2021 AIR SC 4849), "the onus of proof of deficiency in service is on the complainant in complaints under the Consumer Protection Act." It is the complainant who approached the Commission, and without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.
- Liability of the Opposite Parties:
The opposite parties are not liable for the financial and emotional distress claimed by the complainant, as there is no proven deficiency in service or negligence.
We have decided not in favour of the complainant on all the issues mentioned above. After careful consideration, we found that the case presented by the complainant is meritless. As a result, the following orders have been issued.
The Commission finds that the complainant failed to provide sufficient evidence to substantiate their claims of deficiency in service or negligence by the opposite party. Therefore, the complaint is dismissed, and no relief is granted to the complainant.
ORDER:
Based on the aforementioned circumstances, the Commission has determined that the contentions raised by the complainant lack merit. As a result, the complaint is dismissed. No cost.
Pronounced in the open Commission on this the 29th day of July 2024.
Sd/-
D.B.Binu, President
Sd/-
V. Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s Evidence
Exhibit A1: Copy of the O.P ticket issued by the First Opposite Party on 16-01-2018.
Date of dispatch:
By Hand : By Post
uk/
