Complaint No: 571 of 2017.
Date of Institution: 07.11.2017.
Date of order:05.10.2023
Harjinder Kaur aged about 35 years wife of Kashmir Singh, resident of Village Chur Chack Colony, Tehsil and District Gurdaspur.
…....Complainant.
VERSUS
1. M/s Walia Diagnose Centre, Office at # 11/500, Shastri Nagar, Near Hansli Bridge, Jalandhar Road, Batala, through its Proprietor/Owner.
2. Dr. Gurmeet Singh, Radiologist at M/s Walia Diagnose Centre, Office at # 11/500, Shastri Nagar, Near Hansli Bridge, Jalandhar Road, Batala.
3. M/s Laxmi CT Scans & Diagnostic Centre, # 116, Leak Wala Talab, Near Bus Stand, Jalandhar Road, Batala (PB), through its Proprietor/Owner.
4. Dr. Mohit Preet Singh, M.D. (Radio diagnosis) at M/s Laxmi CT Scans & Diagnostic Centre, # 116, Leak Wala Talab, Near Bus Stand, Jalandhar Road, Batala (PB).
5. The Oriental India Insurance Company Lid at 4E/14 Azad Bhawan, Tirath Nagar, jhandewalen Ext, New Delhi – 110055, through its Authorized Signatory.
….Opposite parties.
Complaint Under section 12 of Consumer Protection Act.
Present: For the Complainant: Sh.U.R.Sharma, Advocate.
For the Opposite Party No.1: Sh.Inderjit Vaid, Advocate.
For the Opposite Party No.2: Sh.S.J.S.Bajwa, Advocate.
For the Opposite Parties No.3 and 4: Sh.Ranjan Chohan, Advocate
For the Opposite Party No.5: Sh.H.S.Kahnuwania, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Harjinder Kaur, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against M/s Walia Diagnose Centre etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant was having problem in her stomach and as such she has approached to Dr. Kuljit Singh at Naushehra Majha Singh and the said Doctor has recommended for Ultrasonography of the stomach and as such as per the directions of above said Doctor, the complainant has approached to the OP No.1 on 06.05.2016 for Ultrasonography and after Ultrasonography, it was mentioned in the report given by OP No.2 that "Liver is normal in size and position, Margins are smooth and regular, Echogenicity appears normal, Intrahepatic tubular structures appears normal, No pathology detected in porta hepatis". It is alleged that thereafter the complainant in the month of October, 2017 has suffered with same problem in the stomach and she approached to Dr. R.S. Kalsi at Batala. It is further pleaded that said Doctor has directed the complainant to undergo Ultrasonography. It is further pleaded that then on the directions of above said Doctor, the complainant approached to OP.No.1 again for her Ultrasonography on dated 27.10.2017 and OP.No.2 gave its report that "Liver is normal in size and shape, Intrahepatic. Biliary radicles are normal. A small echogenic mass measuring 8 x 8 mm is seen in posterior segment of right lobe of liver". It is further alleged that then the complainant were shocked to see the report dated 27.10.2017 of the OP.No.2 and OP.No.2 told the complainant that operation of complainant is necessary and also recommended their own Doctor at Amritsar and asked the complainant and her husband to bring Rs.50,000/- for the same as soon as possible, otherwise the problem of the complainant might be increased and in will lead danger to the life of complainant. It is further pleaded that thereafter the complainant and her husband went to their home and when they have disclosed to the other family members that operation of complainant is necessary for removing the liver defect, and then entire family members of the complainant were in shock. It is further pleaded that even none of the family member has eaten food or drink water for whole day on 27.10.2017 as they were having tension about the operation of the complainant. It is further pleaded that complainant remained in tension and complainant does not sleep for whole night. It is further pleaded that complainant and her husband were also facing tension to arrange such a huge amount for the operation of the complainant. It is further alleged that thereafter the complainant and her husband approached to the above said Dr. R S Kalsi as they intended get the complainant examined again from the said Doctor and the said Doctor disclosed and told to the complainant to show her previous Ultrasonography report dated 06.05.2016 and after seeing both the reports of Ultrasonography of the complainant dated 06.05.2016 and 27.10.2017, the said Doctor again told the complainant to get her Ultrasonography from other Diagnostic Centre, because the said Doctor has suspicion that the report dated 27.10.2017 might be wrong as it is quite imaginary that from such a short period i.e. from 06.05.2016 to 27.10.2017, the problem mentioned in the report dated 27.10.2017 in the Liver cannot be exist/happen. It is further alleged that thereafter on the directions of above said Doctor, the complainant against conducted her Ultrasonography from OP.No.3 on 01.11.2017, where the OP.No.4 gave its report that "Liver is normal in size and shows normal hepatic parenchymal echo pattern. The portal vein is within normal limits. The hepatic veins display normal sonographic anatomical distribution and average caliber. No focal lesions or dilated bile ducts are seen". It is further alleged that then the OP. No.4 told the complainant that the report of Ultrasonography conducted by the OP.No.2 is totally wrong and liver of the complainant is absolutely OK in functioning. It is further submitted that the complainant and her husband were so happy to listen these words from the mouth of OP. No.4, but for their better satisfaction, they had also approached to the above said Dr.R.S. Kalsi and show their report dated 01.11.20 1 7 given by OP. No.4 and the said Doctor has also told the same wording as told by the OP.No.4. It is further alleged that the OP.No.2 intentionally, deliberately and knowingly had given false and wrong report of Ultrasonography to the complainant dated 27.10.2017, only to extract the money from the complainant in illegal manner as when they give the above said wrong report, they also recommended the complainant to bring Rs.50,000/- for her treatment from their own Doctor at Amritsar. It is further pleaded that this is clear cut unfair trade practice on the part of the OP.No.2. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in services on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in services and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties No.1 and 2 to pay compensation to the tune of Rs.2,00,000/- and the opposite parties No.1 and 2 may be further directed to pay litigation expenses to the complainant to the tune of Rs.10,000/-, in the interest of justice.
3. Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint is not maintainable in the present form; that the complainant is estopped by her own act and conduct. It is further pleaded that the complainant has suppressed the material and vital facts from this Hon’ble Commission. It is further pleaded that the complainant has not come to the Hon’ble Commission with clean hands and that the present complaint is malafide motivated and is a gross misuse of process of law. It is pleaded that it is wrong that the OP No.2 ever told the complainant on 27.10.2017 that the alleged operation of the complainant is necessary and for this purpose, they will recommend their own doctor at Amritsar as alleged. It is further wrong that the complainant and her husband were ever asked to bring Rs.50,000/- for the said alleged operation as soon as possible otherwise the problem of the complainant might be increased and will lead danger to life of the complainant as alleged. It is pleaded that the story as propounded by the complainant in this complaint is baseless, imaginary, concocted and without any force and just to grab the money from OP. No.1 as the OP. No.2 is the employee of the OP. No.1 and the OP. No.1 has kept the OP. No. 2 as a radiologist for ultrasonography of patients and the OP. No. 1 has been paying Rs.20 Lacs p.a. to OP No. 2 for his services rendered by the OP No. 2 to the OP No. 1 as a qualified radiologist for ultrasonography. It is further pleaded that the OP No. 2 is the qualified radiologist for ultrasonography and has been working under the OP No. 1 since April 1994 and at the time of appointment of OP No. 1, the OP No. 1 also obtained the requisite certificates/testimonials i.e. Diploma in Medical Radio Diagnosis (DMRD) issued by Guru Nanak Dev University, Amritsar on 04.08.1993. It is further pleaded that Later on, the certificate or registration duly issued by Appropriate Authority-cum- Senior Medical Officer, Civil Hospital Batala on 13.09.2()16, wherein, the OP No. 1 has been shown as genetic clinic and OP No. 2 has been shown as applicant for registration and the said certificate is valid from 13.09.2016 to 12.09.2021. It is further pleaded that besides above, the OP No. 1 also obtained the certificate of renewal from the OP No. 2 which is valid upto 18.02.2019 issued by Punjab Medical Council and since the date of joining of OP No. 2 with the OP No. 1, there is no cause of any complaint from any corner from the society at large. It is further pleaded that OP No. 2 always rendered his good services to the society at large particularly to the person/patients who come for their ultrasonography with due diligently and carefully upto the full satisfaction of the patients. It is further pleaded that the reports dated 06.05.2016 and 27.10.2017 given by the OP No. 2 are legal, valid and binding on the complainant and the said reports are based on actual and factual position of the complainant at the relevant times between one year and five months. It is further pleaded that neither the complainant has made any such request nor has she got any right to ask as such. It is further pleaded that refusal of the OP’s No. 1 & 2 are still justified. It is further pleaded that complainant has got no cause of action and the complainant is not entitled to any relief in the form of alleged compensation and alleged litigation expenses as prayed for in the complaint.
On merits, the opposite party No.1 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Upon notice, the opposite party No.2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the Complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous which is unsustainable in the eyes of law and has been filed without any justified reason/cause against the OP No. 2 just to harass defame and extort illegal sum of money from the OP No. 2, hence the Complaint is liable to be dismissed. It is further pleaded that no specific, scientific and justified allegations in regard to negligence or deficiency in providing services has been made by the Complainant against the OP No. 2 and the Complainant has totally failed to explain "as to how he is involved and OP No. 2 were negligent", hence the Complainant has miserably failing to explain the cause or action against the OP No. 2. It is further pleaded that complaint is liable to be dismissed outright and the Complainant has filed this Complaint with false allegations of negligence to the Hon'ble Commission by claiming exorbitant amount without any basis, just to waste the valuable time, harass and defame the
OP No. 2. It is further pleaded that although it is a fact that the OP No. 2 has not committed any negligence in this case, while providing the said treatment, hence Complaint is liable to be dismissed. It is further pleaded that as such no cause of action arose against the OP No. 2 in this case, no negligence or deficiency in services have been made/provided by the OP No. 2 to the patient while providing the said services in question, and hence this Complaint is not maintainable in present form and is liable to be dismissed outright and the present Complaint is totally false, fabricated, wrong and baseless Which is synthesized on the basis of unscientific laymen conjectures, assumptions and presumptions and that in this case no negligence has been committed by the OP No. 2 and hence the Complaint is liable to be dismissed. It is further pleaded that this complaint is bad for non-arraignment and mis-arraignment of parties. It is further pleaded that OP No. 2 is insured with "Oriental Insurance Co. Ltd." through its Professional Indemnity Policy No. 272200/48/2018/13722 effective from 03.10.2017 to 02.10.2018 and that the OP No. 2 is a well-qualified and reputed doctor, with substantial good will and experience of long standing successful medical practice since 1994. It is further pleaded that this Complaint is full of concocted facts, defamatory language, derogatory word, sprit and tenure. It is pleaded that the complainant/patient Harjinder Kaur wife of Kashmir Singh came to Walia Diagnostic Centre on 27.10.2017 for USG abdomen and on USG, OP No. 2 found as small echogenic lesion measuring 8 mm x 8 mm in right lobe of liver. It is further pleaded that small echogenic mass in marked by an arrow inferior to right dome of diaphragm. It is further pleaded that echogenic shadow of the small mass is clearly visualized even on photocopy placed on file by the complainant. It is further pleaded that description of the haemangioma is given in textbook of clinical ultrasound by David Cosgrove vol - 1 on Page no. 261. It is further pleaded that period between first USG scan i.e. 06.05.2016 and 2nd scan i.e. 27.10.2017 is one year and five month. It is further pleaded that in the opinion of OP No. 2 such small lesion can grow during this long period. It is further pleaded that the diagnosis given by OP NO. 2 and description of haemangioma given in this international book are exactly the same and the image given on page no. 261 (Fig 17) exactly corresponds with the print copy given by OP No. 2 along with the report. It is further pleaded that Haemangioma is most common being tumor of liver and required no treatment. In other international book of diagnostic ultrasound 4th and 5th edition by Karol M. Rumac and S.R. Wilson describes the Haemangioma in the same manner. This is on Page no. 116 to 118 of the said Book. It is further pleaded that this is mentioned in this book (cosgrove) and also in book on internal medicine by Harrison. It is further pleaded that the OP No. 2 never referred this patient to any doctor in Amritsar or anywhere else for getting any surgery as alleged by the patient. It is further pleaded that as OP No. 2 has not referred the patient to any other doctor so any reference slip written by the OP No. 2 is not attached with the complaint copy. It is further pleaded that by not attaching any written proof of OP No. 2 referring her any other doctor it is clear that there is no scope any suggestion of surgery. It is further pleaded that patient has not attached any proof that doctor of Amritsar recommending surgery for this small benign tumor which does require any treatment. It is further pleaded that after this patient never came back. It is further pleaded that everything the OP No. 2 has done was done diligently, prudently, with utmost due care and caution in treating the said patient. It is further pleaded that OP No. 2 say there was no negligence at least from their side.
On merits, the opposite party No.2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
5. Upon notice, the opposite parties No.3 and 4 appeared through counsel and contested the complaint and filing their joint written reply by taking the preliminary objections that the complaint is not maintainable in the present form and the complainant have got no locus-standi to file the present complaint and present complaint filed by the complainant only to harass the answering opposite parties. It is pleaded that the OP No. 4 gave its report that “Liver is normal in size and shows normal hepatic parenchymal echo pattern. The portal vein is within normal limits. The hepatic veins display normal sonographic anatomical distribution and average caliber. No focal lesions or dilated bile ducts are seen”. It is further pleaded that the answering OP’s never told the complainant that report of Ultrasonography conducted by the OP No. 2 is totally wrong and liver of the complainant is absolutely OK in functioning. It is further wrong that the complainant and her husband were so happy to listen these words from the mouth of OP No. 4, but for their better satisfaction, they had also approached to the Dr. R S Kalsi and show their report dated 01.11.2017 given by the OP No. 4 and the said Doctor has also told the same wording as told by the OP No. 4. It is further pleaded that the infection in Liver can anytime happen and there is no any specific reason, specific period or time when the infection can occurre. Moreover, it is a part of body and due to the various reasons, any malfunctioning or infection can be occurre in lime Liver etc.
On merits, the opposite parties No.3 and 4 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
6. Upon notice, the opposite party No.5 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint filed by the complainant against the answering opposite party is not maintainable as the same is in contradiction of the terms and conditions of the Insurance policy, hence the complaint is liable to be dismissed with heavy costs. It is further pleaded that the answering opposite party is not liable for the professional act and conduct of the Opposite party No. 1 & 2 which are done intentionally, deliberately and knowingly wrong with the motive to grab money from their patients by illegal manners. It is further pleaded that therefore, the answering opposite party i.e. Insurance Company is not liable to pay any compensation to the complainant and this Ld. Commission has no jurisdiction to entertain, try and decide the present complaint as the complainant does not fall within the ambit of consumer. It is further pleaded that the complainant has not approached this Ld. Commission with clean hands and is also misleading this Ld. Commission by concealing the true facts, The whole story of the complainant is concocted one and even after thought and that there is no deficiency in service as well as no unfair trade practice on the part of the answering opposite party. It is pleaded that it is denied that the opposite party No.2 intentionally, deliberately and knowingly had given false and wrong report of Ultrasonography test to the complainant conducted on dated 27.10.2017. It is also denied that the opposite party No. 2, has recommended the complainant for treatment from his own Doctor at Amritsar only to extract the money from the complainant by illegal manner. It is further pleaded that it is also denied that there is unfair trade practice on the part of opposite party No. 2. It is further pleaded that the answering opposite party is not liable for the professional act and conduct of the Opposite party No. 1 & 2 which are done intentionally, deliberately and knowingly wrong with the motive to grab money from their patients. It is further pleaded that therefore the opposite party No. 5 i.e. Insurance Company is not liable to pay any compensation to the complainant.
On merits, the opposite party No.5 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
7. Learned counsel for the complainant has tendered into evidence affidavit of Harjinder Kaur, (Complainant) as Ex.C-1 alongwith other documents as Ex.C-2 to Ex.C-7.
8. Learned Counsel for the opposite party No.1 has tendered into evidence affidavit of Smt. Vaneet Alhuwalia, (Sole Proprietor of M/s Walia Diagnostic Centre) as Ex.OP-1/A alongwith other documents as Ex.OP-1/1 to Ex.OP-1/3.
9. Learned counsel for the opposite party No.2 has tendered into evidence affidavit of Dr. Gurmeet Singh, (Radiologist at M/s Walia Diagnose Centre) as Ex.OP-2/1 alongwith other documents as Ex.OP-2/2 to Ex.OP-2/10.
10. Learned counsel for the opposite party No.5 has tendered into evidence affidavit of Sh. Karam Singh, (Sr. Divisional Manager, Oriental Ins. Co. Ltd. Divisional Office, Pathankot) as Ex.OP-5/1 alongwith other document as Ex.OP-5/2.
11. Written arguments filed by the opposite parties No.1,2 and 5 but not filed by the complainant and opposite parties No.3 and 4.
12. Counsel for the complainant has argued that complainant had some problem in her stomach and she consulted Dr. Kuljit Singh who recommended ultrasonography and accordingly on 06.05.2016 complainant had under gone ultrasonography from opposite parties No.1 and 2 and as per report Ex.C2 there was no abnormality. It is further argued that in October, 2017 complainant again had some problem in the stomach and she approached Dr.R.S.Kalsi at Batala and ultrasonography was again recommended by the said doctor on which complainant had approached opposite parties No.1 and 2 who conducted ultrasonography on 27.10.2017 and gave their report Ex.C4 and it was mentioned that "Liver is normal in size and shape, Intrahepatic. Biliary radicles are normal. A small echogenic mass measuring 8 x 8 mm is seen in posterior segment of right lobe of liver". It is further argued that opposite party No.2 recommended their own doctor at Amritsar for operation. However, complainant remained under great shock and had consulted Dr.R.S.Kalsi and Dr.R.S.Kalsi had examined the previous report Ex.C2 and compared the same with Ex.C4 and had again recommended ultrasonography from some other Lab. It is further argued that thereafter the complainant had approached opposite parties No.3 and 4 who conducted ultrasonography and gave their report on 01.11.2017 and the reported that "Liver is normal in size and shows normal hepatic parenchymal echo pattern. The portal vein is within normal limits. The hepatic veins display normal sonographic anatomical distribution and average caliber. No focal lesions or dilated bile ducts are seen" and opposite parties No.3 and 4 declared the complainant is not suffering from any problem and report given by opposite parties No.1 and 2 is totally wrong. In the end counsel for the complainant prayed for compensation on account of unnecessary harassment, mental tension and agony.
13. On the other hand counsels for the opposite parties No.1 and 2 have argued that the report Ex.C2 is of 06.05.2016 and second report Ex.C4 is of 27.10.2017 and there is a gap of more than one year and five months. The report report Ex.C4 is correctly given by opposite parties No.1 and 2. It is further argued that ultrasonography by itself is not 100% sure test. It is further argued that USG scan dated 01.11.2017 Ex.C6 conducted by Dr.Mohit Preet Singh cannot prove definitely that both the scans are of the same persons. It is further argued that scan centre do not take any photo I card as identity of the patient under going ultrasonography of abdomen and age of the patient written as 35 years female, whereas in Ex.C2 and Ex.C4 there is no aged referred. However, in the private file of the complainant regarding USG scan age mentioned as 32 years. USG scan is a computer generated image, which has specificity and sensitivity upto 95% only hence there is always 5% error of false positive and false negative reports. It is further argued that on USG of OP. No.2 found a small echogenic mass measuring 8x8 mm is seen in the posterior segment of right lobe of liver which is marked by an arrow in Ex.C4. It is further argued that description of haemangioma given in the text book clinical ultrasonogrpahy is exactly same. The image given on page No.261 is placed on file. It is further argued that the gap between first and second ultrasonography Ex.C2 an Ex.C4 is of one year and five months and as such small lesion can grow during this period and has further argued that the opposite parties No.3 and 4 have never declared the report Ex.C4 as incorrect report and in the end it has been argued that to prove medical negligence the complainant has not produced on record any expert opinion and as such complaint is liable to be dismissed.
14. Counsel for the opposite parties No.3 and 4 has argued that complaint against opposite parties No.3 and 4 is not maintainable. It is further argued that report Ex.C6 given by opposite parties No.3 and 4 is correct report. However, opposite party No.4 never declared the report Ex.C4 as a incorrect report and it is further argued that liver infection can happen any time and there is no specific reason, specific period or time when the infection can occur. It is further argued that it is part of body and due to various reasons any malfunctioning or infection can be occurred in the liver and in the end has prayed for dismissal of complaint.
15. Counsel for the opposite party No.5 has argued that opposite party No.5 has no liability for the act of opposite parties No.1 and 2 and as such complaint is liable to be dismissed.
16. We have the Ld. counsels for the parties and gone through the record.
17. To prove his case complainant placed on record her affidavit Ex.C2, copy of ultrasonography report dated 06.05.2026 Ex.C2, copy of second report dated 27.10.2017 Ex.C4, copy of other report given by opposite parties No.3 and 4 dated 01.11.2017 Ex.C6 whereas opposite party No.1 has placed on record affidavit of Dr.Vaneet Ahluwalia Ex.OP-1/A, copy of certificate of registration Ex.OP-1/1, copy of degree Ex.OP-1/2, copy of renewal certificate Ex.OP-1/3. Opposite party no.2 has placed on record affidavit of Dr.Gurmeet Singh Radiologist Ex.OP-2/1, alonwith documents i.e. copy of policy of insurance Ex.OP-2/2, copy of degree Ex.OP-2/3, Ex.OP-2/4, copies of ultrasonography reports Ex.OP-2/9, Ex.OP-2/5 and Ex.OP-/10. It is admitted fact that complainant had approached opposite parties No.1 and 2 to undergo ultrasonography of her stomach and opposite party No.2 being Radiologist had conducted the said ultrasonography and submitted his report Ex.C2 as per which liver is normal in size and shows normal hydronephrotic changes. The portal vein is within normal limits. The hepatic veins display normal sonographic anatomical distribution and average caliber. No focal lesions or dilated bile ducts are seen. It is further admitted fact that on the recommendations of Dr.R.S.Kalsi second ultrasonography was carried out by opposite parties No.1 and 2 on 27.10.2017 vide report Ex.C4 as per which the liver is normal in size and shape and intrahepatic biliary radicles are normal. A small echogenic mass measuring 8x8 mm is seen in posterior segment of right lobe of liver. The disputed question for adjudication before this Commission is whether the report Ex.C4 is manipulated one or not. The report Ex.C2 dated 06.05.2016 shows no abnormality. However, it is seen that complainant visited same diagnostic centre on 27.10.2017 and echogenic mass measuring 8x8 mm was shown in the right lobe of liver. Although, arguments of opposite parties No.1 and 2 are that there is gap of one year and five months and said growth can took place in such a long gap. However, we are of the view that report Ex.C4 is itself falsified vide report Ex.C6 dated 01.11.2017 given by opposite party No.4. There is gap of 4 days in both the reports Ex.C4 and Ex.C6. Although, opposite parties No.1 and 2 have tried to raise dispute on the report Ex.C6 on the ground that age of the patient mentioned as 35 years whereas aged of same patient is mentioned as 32 years in the record of opposite parties No.1 and 2. The said plead of opposite parties No.1 and 2 carries no weight as in both the reports Ex.C2 and Ex.C4 column of age has been left blank by opposite parties No.1 and 2. Opposite party No.4 has also tries to support of opposite parties No.1 and 2 by taking the plea that infection can occur any time but the opposite party No.4 has no where stated that report Ex.C6 given by opposite party No.4 is not correct meaning thereby that opposite party No.4 being from same brotherhood of doctors is trying to safe opposite party No.2. The contention of opposite party No.2 that report of ultrasonography can never 100% accurate and no operation is required in such like normal 8x8 mm ecogenic mass cases. However, this Commission is of the view that complainant is a layman and can be befooled by unsculputres medical professional by giving such reports and thereby compelling the patient to undergo operations for shown abnormality and issuace of such report itself amounts to deficiency in service and business malpractice on the part of opposite parties. The plea of counsels for the opposite parties that there is no expert opinion to prove medical negligence on the part of opposite parties No.1 and 2 has no force, as the report Ex.C6 which was given just after four days clearly established that report Ex.C4 dated 27.10.2017 was given by opposite party No.2 with some oblique motive and when the facts are clear from the evidence on record, as such this Commission is of the view that there is no requirement of expert opinion to establish deficiency in service and business malpractice on the part of opposite parties No.1 and 2.
18. We have placed reliance upon order of Hon'ble National Consumer Disputes Redressal Commission New Delhi in First Appeal No.314 of 2004, D/d 11.12.2007 in case titled as Deo Kumar Singh. Vs. Dr.CBP Sinha wherein it was held by the Hon'ble National Commission as under:-
"Consumer Protection Act, 1986 Sections 12 and 17 Complaint was that wife of complainant had to be aborted three times because of wrong blood report regarding Rh factor submitted by Pathological Laboratory of opposite party - State Commission dismissed the complaint because the complainant neither obtained a third independent blood report nor brought any expert opinion to prove that only the wrong blood report had caused complications to his wife - National Commission took the view that there was no need to obtain any further expert opinion when there was a third report and a total failure on the part of opposite party in exercising adequate care in analysing the blood - National Commission allowed the appeal and awarded only Rs.25,000/- as compensation to the complainant to meet the ends of justice". (Paras 6 and 10).
19. In the above order the Hon'ble National Commission has held in very clear cut manner that there is no need to obtain any further expert opinion when there was a third report which proves negligence on the part of opposite parties. As such we have no hesitation in holding that opposite parties No.2 who is employee of opposite party No.1 had deliberately and wrongfully given report Ex.C4 exposing the complainant to unnecessary harassment and mental agony. As such complainant is definitely entitled to compensation from opposite parties No.1 and 2.
20. Accordingly, present complaint is partly allowed against opposite parties No.1 and 2 and opposite parties No.1 and 2 are directed to pay compensation of Rs.50,000/- to the complainant jointly and severally for mental tension, harassment, agony and cost of litigation within one month i.e. 30 days from the date of receipt of copy of this order without interest. However, it is made clear that if above referred compensation amount of Rs.50,000/- is not paid within period as referred above i.e. 30 days the amount of Rs.50,000/- shall carry interest @ 9% P.A. w.e.f. 27.10.2017 till realization of the entire amount.
21. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
22. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Oct. 05, 2023 Member
*YP*
