Chandigarh

StateCommission

A/237/2019

Smt. Darshani Devi Alias Darshani Sharma - Complainant(s)

Versus

Post Graduate Institute of Medicial Education & Reseach, Chandigarh - Opp.Party(s)

Shaveta Sanghi & Lokesh Sharma Adv.

22 Oct 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal No.	:	237 of 2019
Date of Institution	:	18.10.2019
Date of Decision	:	22.10.2019

Smt. Darshani Devi alias Darshani Sharma w/o Sh. Brij Bhushan Sharma r/o H.No.191, Ashoka Nursery, Karnal (Haryana).

…..Appellant/Complainant.

Versus

1.     Post Graduate Institute of Medical Education & Research, Chandigarh through concerned Head of Departments, Department of Cytology and Gynaecologic Pathology as well as Deptt. of Otolarvngology Head & Neck Surgery (En).

2.     Delhi E.N.T. Hospital, FC-33, Plot No.13, Jasola Institutional Area, New Delhi 110025 through Dr. Geeta Kathuria.

3.     Sun Diagnostic Clinic, Exclusive Pathology Service, H-block, 41/S, Saket, New Delhi-110017.

Second Address : Delhi E.N.T. Hospital, FC-33, Plot No.13, Jasola Institutional Area, New Delhi-110025 through Dr. Sunil Dargar, Consultant Pathology.

…Respondents/Opposite Parties No.1 to 3.

4.     Max Health Care Super Speciality Hospital, Mohali through concerned Doctor.

 ...Proforma respondent/Opposite Party No.4.

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:   JUSTICE RAJ SHEKHAR ATTRI (RETD.), PRESIDENT.

                MRS. PADMA PANDEY, MEMBER.

                MR. RAJESH K. ARYA, MEMBER.

 

Argued by:

 

Sh. Lokesh Sharma, Advocate for the appellant.

 

PER  RAJESH  K.  ARYA, MEMBER

                This appeal has been filed by the complainant against order dated 20.05.2019 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short ‘the Forum’), vide which, his consumer complaint bearing No.535 of 2017 was partly allowed qua opposite parties No.2 & 3 only. However, the said complaint was dismissed against opposite parties No.1 & 4.

2.             While partly allowing the complaint qua opposite parties No.2 & 3, the Forum directed as under:-

“21.        In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed qua OPs 2 & 3.  OPs 2 & 3 are directed as under :-

                                     i.        OP-2 shall pay a sum of Rs.2,50,000/- to the complainant as compensation for deficiency in service and negligence on its part inclusive of pain, suffering and mental agony suffered by her.

                                   ii.        OP-3 shall pay a sum of Rs.1,50,000/- to the complainant as compensation for deficiency in service and negligence on its part inclusive of pain, suffering and mental agony suffered by her.

                                  iii.        OPs 2 & 3 shall pay a sum of Rs.10,000/- each as costs of litigation to the complainant.

22.        This order be complied with by OPs 2 & 3, as referred above, within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the respective amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 9% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.”

3.             Before the Forum, it was the case of the complainant that in March 2016, she developed sore throat with pain and difficulty in swallowing food and initial treatment was taken at Karnal but with no effect.  Subsequently, she got herself checked on 21.3.2016 with the doctors of opposite party No.1. The treatment continued for a month as outpatient without much relief. She was advised FNAC test which was got conducted and report dated 23.4.2016 was given with diagnosis of “Thyroid Gland (Left Lobe) : Benign Aspirate”.  Follow up medicines were administered but there was no improvement.  On 14.7.2016, again FNAC test was conducted by opposite party No.1 and report was “follicular lesion in left lobe”. The doctors of opposite party No.1 had told the complainant that there was growth on the left side of the throat which might be cancerous as per report of Dr. Rashi Garg and she was to be operated upon.  However, long date i.e. 12.12.2016 was given and since there was fear of cancer, the complainant got herself checked and hospitalized with opposite party No.2 at Delhi.  She was operated upon on 2.8.2016 and discharged on 4.8.2016.  On being recommended, the test was again conducted by opposite party No.3 and report dated 8.8.2016 was suggestive of cancerous throat.  Again opposite party No.2 was visited and they had advised her for second operation of throat to complete it.  The complainant had lost faith in opposite party No.2 and thereafter was hospitalized with proforma opposite party No.4 and was operated on 12.8.2016 and discharged on 14.8.2016.  Again on being advised, FNAC test was got done from opposite party No.1 and previous reports were also shown and the report dated 7.10.2016 showed it was simply a case of ‘follicular adenoma’ and there was no cancer at all. 

4.             As stated above, the complaint was allowed against opposite parties No.2 & 3 only and vide this appeal, the appellant/complainant is seeking the complaint to be allowed against opposite party No.1 also and award of compensation against the said opposite party on the ground that opposite party No.1 wrongly opined that the complainant was suffering from cancer and having believed that there was cancer in the throat of the complainant, a fixed date of surgery was given to the complainant. It has also been stated that if at all there was no advice of cancer given by opposite party No.1, the complainant would not have proceeded to get the surgery done on urgent basis. It has also been stated that had the surgery was not got conducted by the complainant from other doctor, in that case, on the basis of report given by opposite party No.1, they would have proceeded with surgery on the fixed date given for cancer surgery.

5.                It may be stated here that there is delay in filing the appeal, for which, an application for condonation of delay of 116 days in filing the same has been filed. The ground taken to condone the delay is that the appellant/complainant, being a senior citizen, does not keep good health as well as even after conclusion of undesired surgery for removal of thyroid. It has been stated that for the purpose of filing the present appeal, the entire record was not available with the counsel, so the same could not be provided to the Counsel at the earliest, due to which, delay occurred. The ground taken seems to be afterthought. Nothing new has been brought in evidence or placed on record alongwith the appeal. Whatever documents or evidence available with the complainant was annexed with the complaint before the Forum. Had any new documents been brought in appeal, which could be said to be procured after passing of the impugned order, then the matter would have been different. In that eventuality, it could have been said that some time was consumed in procuring the said document/evidence from the complainant from the opposite parties. However, it is not so. Accordingly, the appeal also deserves dismissal on delay also.

6.                On merits also, after hearing the Counsel for the appellant/complainant and going through the impugned order and the material available on record, we are of the considered opinion, that the appeal lacks merit and deserves dismissal at the preliminary stage for the reasons to be recorded hereunder.

7.                Admittedly, the complainant was treated as outdoor patient by opposite party No.1 and as an indoor patient by opposite parties No.2 & 4. Undisputedly, first FNAC test report dated 23.4.2016 conducted in the lab of opposite party No.1 diagnosed the complainant as “Thyroid Gland (Left Lobe) : Benign Aspirate” and  on 14.7.2016, another FNAC was got conducted by opposite party No.1, which revealed follicular lesion in left lobe.

8.                In our opinion, the Forum rightly observed that it was nowhere opined in the said report that it could be cancerous and report showed lesion i.e. area of abnormal tissue change.  The Forum also rightly observed that there were no confirmed reports, vide which, Dr. Rashi Garg had authenticated the said growth being malignant.  It could be benign or malignant and as such, long date of 12.12.2016 was given for operation. 

9.                The Forum further observed that opposite party No.1 is a busy institution covers 3-4 States and keeping in view the priorities and the seriousness of the ailment, they fixed the date for surgery. In Para 10, the Forum, inter-alia, also rightly observed as under:-

“10………Even in case of proposed surgery of complainant, it was merely an area of abnormal tissue change expressed of the growth it was nowhere authenticated of being cancerous at all.”

10.              Further in Paras 11 and 12, the Forum rightly observed as under:-

“11.   Not only this, even in the fourth FNAC which was also done by OP-1 after the second surgery by OP-4 in August 2016 their own pathologist had opined the growth simply a case of ‘follicular adenoma’ and there was no cancer at all. It speaks of the bonafides on the part of the lab of OP-1 as at the first instance “benign aspirate” was detected and then ‘follicular lesion in left lobe’ and lastly opined ‘follicular adenoma’ i.e. a tumour which was benign one.

12.     Hence, OP-1 had nowhere put the complainant on a hanging death sentence i.e. the fear of cancerous growth and every day the patient has to remember and expect his death from such a fatal disease.  We have already reproduced and referred reports of the complainant and the complainant was also being given a clean chit of a benign growth which was operated upon by OP-4 and even the expression oral opinion raising suspicion of cancer or benign does not mean that they had in any way certified it to be a case of confirmed malignant growth. Any tumour can develop in the body, may be a benign or cancerous one.  In view of above, case of deficiency in service or say medical negligence is not made out against OP-1 and OP-4 which was made a proforma OP who had conducted the second surgery which was successful and for the purpose of convenience of the consumer complaint was arrayed as OP-4.  Hence, we hold that there was no negligence or deficiency in service on the part of OPs 1 & 4.”

11.              Therefore, in our considered opinion, the appellant/ complainant has failed to make out any case of medical negligence or deficiency in rendering service on the part of opposite party No.1 or against opposite party No.4 and as such, the complaint filed by the Complainant was rightly dismissed by the Forum against these opposite parties.         

12.              For the reasons recorded above, we concur with the findings given by the Forum in its judgment and are of the opinion that the order passed by the Forum, being based on the correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity.    

13.           For the reasons recorded above, the appeal filed by the appellant/complainant is dismissed in limine being time barred as well as on merits with no order as to costs. The impugned order dated 20.05.2019 passed by District Forum-I, U.T., Chandigarh in Consumer Complaint bearing no.535 of 2017 is upheld.

14.           Certified copies of this order, be sent to the parties, free of charge.

15.           The file be consigned to Record Room, after completion.

Pronounced.

22.10.2019.

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

(PADMA PANDEY)

        MEMBER

 

 

(RAJESH  K. ARYA)

MEMBER

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