Haryana

Panchkula

CC/58/2014

JITENDER KUMAR - Complainant(s)

Versus

ORTHOMAX BONE&JOINT HOSP. - Opp.Party(s)

SHITAL BINDAL

12 Jun 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                             

Consumer Complaint No	:	58 of 2014
Date of Institution	:	04.04.2014
Date of Decision	:	12.06.2015

Jitender Kumar s/o Sh.Narayan Singh age about 49 years, R/o H.No.1116/ZL, Rana Colony, Parade Mohalla, Kalka, Tehsil Kalka, Distt. Panchkula.

                                                                                      ….Complainant

Versus

1.       Orthomax Bone & Joint Hospital, behind Raghunath Mandir, Sector-15, Panchkula through its Managing Director.

2.       Managing Director, Orthomax Bone & Joint Hospital, behind Raghunath Mandir, Sector-15, Panchkula

3.       Dr.Anupam Ahuja, Orthopedic Surgeon, Orthomax Bone & Joint Hospital, behind Raghunath Mandir, Sector-15, Panchkula

4.       Dr.R.K.Garg, Orthopedic Surgeon, Orthomax Bone & Joint Hospital, behind Raghunath Mandir, Sector-15, Panchkula

5.       Dr.Bhatia, Orthopedic Surgeon, Orthomax Bone & Joint Hospital, behind Raghunath Mandir, Sector-15, Panchkula.

6.       United India Insurance Co., 60 Janpath, Connaught Place, New Delhi-110001 (Policy No.04010046/12/32/00001976).

                                                                                      ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Coram:                 Mr.Dharam Pal, President.

                             Mrs.Anita Kapoor, Member.

 

Present:                Mr.Sheetal Bindal, Adv., for the complainant. 

Mr.D.K.Singhal, Adv., for the Ops No.1 to 5.

Mr.Naveen Kapoor, Adv., for the Op No.6.

ORDER

(Anita Kapoor, Member)

 

1. The complainant was at a friend’s house on 23.06.2012 to attend the marriage of latter’s daughter when, during the night, he (former) fell down from the roof and sustained fracture in the thigh (femur) of left leg and also sustained injuries on other parts of the body. Immediately transported to the Civil Hospital at Kalka where he was given first aid and referred to General Hospital, Sector-6, Panchkula, the non availability of a bone specialist doctor impelled him to go over to OP No.1 on the following day i.e. 24.06.2012. The complainant was examined at the hospital by OP No.4 under whose directions he was hospitalized. He was operated upon by OPs No.3 to 5, on 25.06.2012 and was discharged from the hospital on 27.06.2012, with an assurance that the operation had gone through successfully and that he would recover in very near future and would not undergo any pain or complication in future. The complainant was billed for Rs.60,000/- which included medicines, operation charges and other items of miscellaneous expenditure.
2. By hiring an ambulance from Shorry Hospital, Pinjore, at a cost of Rs.1,000/-, the complainant visited OPs No.3 to 5 for a routine examination, after 10 days. On that visit, the complainant was charged Rs.150/- for the visit and Rs.250/- for the X ray examination. He visited the hospital every month for routine check up and, on each visit, he would complain of pain in muscle and difficulty in movement, inviting an assurance each time by the OPs that the pain would be cured.
3. On a routine check up visit to the hospital on 23.12.2012, the complainant was told by OPs No.3 and 4 that the operation performed upon him was not successful, and that he shall have to undergo another operation to rectify an error which had occurred on their part in performing the earlier operation. The complainant was told to deposit a sum of Rs.60,000/- as the cost of the second operation. His queries about what went wrong with the first operation were not properly answered by the OPs No.3 to 5 who only assured him that cure would come about with the second operation.
4. On 25.12.2012 the complainant went over to the Railway Hospital, Ambala for treatment. On examining his operation record, the doctor over there informed the complainant that the earlier operation had not been performed properly inasmuchas the tissues “which has been inserted in the thigh which is taken from the other part of the body of the complainant is not required to be inserted” in the first operation“and the tissues are required to be inserted when the operation is conducted for the 2^nd time”.
5. The complainant was admitted the Railway Hospital, Ambala on 29.12.2012 and was operated upon on 31.12.2012. He was discharged after hospitalization for a period of 13 days.
6. On account of the negligence on the part of OPs in the performance of first operation, the complainant was bed ridden for about 6 months i.e. from June 2012 to December 2012 and, thereafter, from January 2013 to June 2013, during which period he could not join his duty and consumed all types of leave available to him.
7. It is on the above averments that the complainant filed this complaint for compensation on a precise charge that there was deficiency in service on the part of the OPs in the matter of the first operation.
8. OPs No.1 to 5 denied the allegation that there was any deficiency in service in the performance of the first operation. The averment made by them was that the complainant had been “treated diligently, prudently with due care and caution”. The holding out of any assurance of cure was controverted and it was averred that the complainant had been told that the curing of fracture shall take longer duration of about 3 to 6 months because he was a diabetic. It was further averred that the complainant had been told at the time of discharge that another surgery “might be required in future” (The plea for the complaint being bad for non joinder of the insurer- United India Insurance Company Ltd. – is no longer of any consequence because the insurer presently stands impleaded).
9. OP No.6 challenged the locus standi of the complainant on an averment that he is not a consumer within the ambit of the consumer protection and also challenged the maintainability of the complaint before the Forum as it involves disputed questions of fact and law. The complaint was averred to be bad for want of non joinder of other hospitals where the complainant had had treatment, as party respondent.
10. Affidavit Annexure C A alongwith documentation Annexure C 1 to C 7 were tendered into evidence on behalf of the complainant. 
11. Affidavit Annexure R1/A, alongwith documentation Annexure R1/1 to R1/9, were tendered into evidence on behalf of Ops No.1 to 5.
12. Affidavit Annexure R6/A and document Annexure R6/1 were tendered into evidence on behalf of Op No.6.
13. We have heard the Ld. Counsel for the parties and peruse the record in relatability to the respective pleas made on behalf of the parties during the course of hearing.
14. The Ld. Counsel appearing on behalf of OPs, at the very outset, challenged the very maintainability of the complaint by arguing that the matter had not been referred to a Board of Doctors before issuance of a notice of the complaint. Reliance, in support of the contention was placed upon the view obtained by a three Judge Bench of the Hon’ble Apex Court in Jacob Mathew Vs. State of Punjab and another(2005 (2) Apex Court Judgments 136 (SC).
15. The plea was resisted on behalf of the complainant by relying upon 2013 (2) Civil Court cases 244 (SC) (A. Srimannarayana vs. Dasari Santa kumara & Anr.). It was argued on the basis of that judgment that reference to a medical board, prior to the issuance of a notice, was mandated only in the matter of launching of a prosecution under Section 304A IPC.
16. We find force in the plea made on behalf of the complainant. In Srimannarayana’s case (supra), the Hon’ble Apex Court categorically held that the observations made by the Hon’ble Apex Court in “Jacob Mathew (supra) were limited only with regard to the prosecution of doctors for the offence under Section 304A IPC”. Those observations could not be distinguished on behalf of the OPs during the course of hearing.
17. On behalf of the OPs, yet another impediment in the maintainability of the complaint was argued. The averment was that the complaint is not triable by a District Consumer Forum as it involves disputed questions of fact.
18. The plea made is flawed on logic and is completely devoid of merit. There are no disputed questions of fact in this complaint inasmuchas the facts which have to go into consideration for purposes of adjudication are beyond the pale of controversy. For example, there is no dispute that the complainant did undergo treatment at the hospital/OPs No.1 where he was treated by OPs No.3 to 5. The fact that the complainant ceased to have further treatment from OPs No.1 to 5 after few routine check-up visits too has not been controverted by the latter, though it has not been conceded that the ceasure of treatment came about as the complainant was not satisfied with the treatment as he continued to be in pain. Further, in Para No.10 of the complaint, the complainant made a mention of his having undergone treatment at Railway Hospital, Ambala where he was told that “the tissues which has been inserted in the thigh which is taken from the other part of the body of the complainant is not required to be inserted in operation which is conducted for the first time and the tissues are required to be inserted when the operation is conducted for the 2^nd time”. The corresponding para of the written statement filed by OP No.1 to 5 does not controvert those allegations which are precise and relevant to the adjudication.
19. We, accordingly, negate the objection raised on behalf of the OPs to the maintainability of the complaint.
20. For the reasons noticed in the course of Para No.18 of this order, we have no hesitation in upholding the correctness of the averment by the complainant that the tissues which came to be inserted in the course of the first operation were indeed required to be inserted at the time of the 2^nd operation.
21. Insofaras OPs No.1 to 5 are concerned, the discharge report Annexure C 6 does make a mention of the fact that the complainant had been informed that the “2^nd Surgery may be required for complications” but it does not explain why the tissues were inserted at the time of first operation. It is not, and it cannot be, the plea on behalf of the OPs No.1 to 5 that the tissues were inserted at the time of first operation for reasons of economy. If an act is not required to be done at a particular point of time, the fact of it having been done makes it a case of gross error on the part of the OPs No.1 to 5 and the proved facts would justify that there was deficiency on the part of OPs No.3 to 5 in service in the matter of treatment of the complainant.
22. Without at all suggesting that there is any presumption about the quality of treatment available either at a Governmental Health Institution or a Private Health Institution, it cannot be controverted that a Governmental Health Institution would have nothing to gain by denigrating the quality of treatment rendered at a Private Hospital. In fact, even in the present case, all that the complainant was told at the Railway Hospital, Ambala was that the tissues were required to be inserted at the time of 2^nd operation. As already noticed, the relevant averments about the advice given by the Doctors at Railway Hospital, Ambala, were not controverted in the course of the corresponding para of the written statement. The OPs would, thus, be legally and legitimately be inferred to have conceded the correctness thereof. In that eventuality, OPs No.3 to 5 ought to have informed the complainant that the 2^nd operation would be required not (only) for purposes of ‘complications’ but also for the tissues being inserted. That would have been the only and prudent course of advice by OPs No.3 to 5 to the complainant.
23. It is in the course of Para No.11 of the complaint that the complainant made a mention of the duration of hospitalization, the factum of his having been operated upon on 31.12.2012, the operating Doctors having taken out the tissues inserted by OPs No.3 to 5 at the time of first operation and also the fact that the operating Doctors at the Railway Hospital, Ambala “again inserted the tissues after taking it from the other part of the body of the complainant”. It is further in the course of Para No.12 of the complaint that the complainant made a mention of the period for which he was bed ridden and further during which he could not perform his duty and further that he exhausted all types of leave available to him.
24. Inexplicably though, OPs No.1 to 5 did not offer any challenge to the averments made in the course of the para No.11 and 12 of the complaint. The complaint consists of as many as 18 paras; whereas the written statement contains only 10 paras. In their own discretion, OPs No.1 to 5 opted to aver in the course of para No.10 of the written statement that it was being indicated “With reference to the contents entire complaint and prayer clause a, b, c, d” All those averments were averred to be “based upon mere allegations without any admissible evidence under the Indian Evidence Act”. The averment aforementioned does not take cognizance of the fact that the entire treatment and hospitalization record was tendered into evidence by an official of the Railway Hospital, Ambala and the correctness thereof was not challenged in the course of the affidavit filed on behalf of OPs No.1 to 5 much thereafter. If the OPs No.1 to 5 had any reservations about whatever transpired between the complainant and the Doctors at Railway Hospital, Ambala, in the matter of the treatment of the former, they were duty bound to challenge it in the course of the affidavit which obviously came to be filed after the complainant had concluded evidence. The refrain on the part of OPs No.1 to 5 in that context makes them open to the charge of not having controverted whatever was averred by the complainant in the course of Paras No.10 to 12 of the complaint was also the contents of the documentation (pertaining to the treatment of the complainant at the Railway Hospital, Ambala).
25. We have, thus, no manner of hesitation in holding that the complainant has been able to prove that there was deficiency on the part of OPs No.1 to 5 in the matter of treatment of the complainant.
26. We would, accordingly, allow the complaint and direct as under:

a)       OPs No.1 to 5 would be liable to refund half the cost of operation to the complainant;

b)      OPs No.1 to 5 would be liable to pay an amount of Rs.50,000/- the complainant for the physical pain, mental agony and harassment etc. undergone by him.

c)       OPs No.1 to 5 shall be liable to pay a sum of Rs.5,000/- to the complaint as the cost of litigation.

27. In view of the fact that OP No.6/Insurer has not denied the factum of insurance, all the OPs shall be jointly and severally liable to pay the amount aforementioned to the complainant who shall be entitled to decide upon whom to proceed against in the first instance.
28. OPs shall comply with this order within a period of one month from the date its communication to it comes about. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 

Announced                     (Anita Kapoor)                        (Dharam Pal)

12.06.2015                    Member                                    President

 

Note: Each and every page of this order has been duly signed by me.

 

                                          

                                            

                                                          Anita Kapoor                                                                                            Member