Haryana

Ambala

CC/152/2017

Pushpa Verma - Complainant(s)

Versus

Rotary Ambala Cancer and Gen Hospital - Opp.Party(s)

Vivek Sagar

29 May 2019

ORDER

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

 

                                                                      Complaint case no.        :  152 of 2017

                                                          Date of Institution         :  22.05.2017                                                    

                                                                Date of decision    :  29.05.2019

 

 

Pushpa Verma widow of Sh. Roop Chand Verma, aged about 65 years Resident of House No.2441, Dhir Ka Ahata,  Timber Market, Ambala Cantt.

    ……. Complainant.

                                                          Vs.

 

1.  Rotary Ambala Cancer  and General Hospital, Opp. Dusherra Ground, Ram Bagh Road, Ambala Cant through its President Sh. Jaidev.

2.  Dr. Vipin Bhatia, C/o Rotary Cancer and General Hospital, Opp. Dusherra Ground, Ram Bagh Road, Ambala Cantt.

3.  Dr. Rajesh Bansal, (Urologist) at Rotary Cancer and General Hospital, Opp. Durherra Ground, Ram Bagh Road, Ambala Cantt and running his own clinic namely Eagle Stone and Kidney Care Centre, Jagadhari Road, Yamuna Nagar.

4.  Dr. Rakesh Kumar Gupta, MBBS, M.D.(Radiologist) Rotary Ambala Cancer and General Hospital, Opp. Dusherra Ground, Ram Bagh, Ambala Cantt.

5.  Dr. Tarsem Bhandari, Anesthetists at Rotary Ambala Cancer and General Hospital Ambala Cantt.

6.  Mr. Sukhwinder, Assistant/ Compounder with Dr. Rajesh Bansal C/o Rotary Ambala Cantt and General Hospital Ambala Cantt. Now working in Adesh, Hospital Village Mohri, Shahabad, Kurukshetra.

7.  The United India Insurance Company Limited having its address Do-60 Janpath New Delhi-110001 through its General Manager.

8.  United India Insurance Company Ltd. Do-1-60 Janpath New Delhi-110001 through its Divisional Office at 2^nd Floor, Triloki Chambers opposite Municipal Corporation Office Ambala Cantt through its Manager.

9.  New India Assurance Co. Ltd, 6269 Nicholson Road Ambala Cantt through its Manager.  At present 5406, Shree Complex 2^nd Floor Cross  Road No.3 Punjabi Mohalla, Ambala Cantt-133001

 

   ……. Opposite Parties.

 

Coram:       Ms. Neena Sandhu, President.

Ms. Ruby Sharma, Member.

Sh. Vinod Kumar Sharma, Member.

 

 

Present:       Sh.Vivek  Sagar, Advocate, counsel for complainant.

Sh. Tarun Mehta, Advocate, counsel for OPs No.1, 3 & 5.

Sh. S.S.Garg, Advocate, counsel for OP No.2.

OP No.4 already given up v.o.d.02.07.2018.

OP No.6 already ex parte v.o.d. 30.03.2018.

Sh. Dev Batra, Advocate, counsel for Ops No. 7 & 8.

Sh. Mohinder Bindal, Advocate, counsel for OP No.9.

         

 

Order:         Smt. Neena Sandhu, President.

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties(hereinafter referred to as ‘Ops’).        

2.                 The brief facts of the present complaint are that on 25.3.2013, Sh. Roop Chand (since deceased) consulted Dr. Vipin Bhatia (OP No.2) in the hospital of O.P. NO.1 after paying requisite fees for the urinary problems. O.P. No. 2 took him to Dr. Rakesh Kumar Gupta (OP No.4) who conducted certain tests and examinations on the patient. Thereafter, OP No.2 advised for the surgery (prostatectomy) and referred to Dr. Rajesh Bansal (OP. NO.3) (Urologist) who has been a weekly visiting doctor in the hospital of OP No. 1. The OP No.3 advised immediate surgery suggesting that it was a routine minor/one hour surgery and that there was no need to worry at all and that the patient (Sh. Roop Chand) will be alright after the surgery and that there was no risk of life. Accordingly, on 2.4.2013, the OPs got deposited a sum of Rs.5,000/- as fees for the surgery. At about 1:00 PM, the patient Roop Chand was admitted to the operation theatre. Sh. Roop Chand was otherwise hale and hearty before the surgery and himself walked (on his foot) into the operation theatre. However, the OPs did not inform about the condition of the patient even after 2-3 hours from the start of the surgery. Ultimately, at about 5.30 PM the complainant and her son were informed that the patient had died during the surgery in the operation theatre itself. Neither any specific reason was assigned nor any information about the cause of death was given to the complainant/family members of the deceased. No postmortem was conducted of the body of the deceased, to know the cause of death. No information was given to the Police. The body of deceased Roop Chand was handed over to the complainant. When the complainant insisted to meet the OP No.3 to know the cause of death, then the OP No.6 misbehaved, slapped and thrown out the complainant from the hospital. No responsible person/doctor bothered to meet and explain the complainant about the cause of death of Sh. Roop Chand. Even the original medical record has been destroyed by the OPs and they have manipulated certain reports to safeguard the concerned doctors. It is further stated that there after the complainant and her son, who are simple and poor persons, made so many efforts to know the cause of death and made several representations to the higher officials of the health department against the Opposite parties but to no avail.  The complainant issued several notices and final notice dated 16.07.2016 to the Department of Health Services Haryana and others including the OPs for investigation of the case but no reply received. The complainant being a widow was left abandoned/ helpless without any redressal of her grievances by the OPs as well as Govt. authorities. The OPs do not have the requisite staff, equipment and facilities for carrying out such type of operations in their hospital.The said hospital is neither recognized nor authorized by the State Govt. to perform such type of surgeries. Even the hospital is not equipped with the requisite machinery to cover the emergency conditions during the surgery. The doctors have not acted with due diligence and reasonable care. Though the operation was a minor operation, yet the husband of the complainant died due to gross medical negligence and deficiency in service on the part of the OPs. It is prayed that OPs may be directed to pay compensation of Rs.19 lacs alongwith interest on account of death of the husband of the complainant, due to negligence of the concerned Doctors  in performing surgery, for loss of livelihood, love and affection and also to pay of Rs.31,000/- as litigation expenses. It is also prayed that the Ops be directed to apologize for their act and conduct.

3.                 The OPs No. 1, 3 & 5 have filed a common written version, wherein it has been pleaded that the OP No.1 hospital is a non-profitable charitable hospital established and sponsored by Rotary Ambala Cancer Detection & Welfare Society (Regd,) which is engaged in the service of mankind for the last many years. That OP No.3 & 5 are well qualified and experienced medical experts who are working in the OP no.1 hospital and had no separate liability.

Further a preliminary objection has been taken about the maintainability of the complaint being barred by limitation as provided under section 24-A of the Consumer Protection Act ( In short “The Act”). That the deceased Roop Chand had availed the services of the OPs in March/ April 2013 and that the cause of action had arisen on 2.4.2013 when he died due to alleged medical negligence and deficiency in service on the part of the OPs. Since the complaint has been filed beyond the period of 2 years, hence the same is required to be dismissed with special costs. Further it has been pleaded that an enquiry was conducted by the senior doctors of civil hospital, Ambala on the direction of the State Govt. in respect of the complaint of the complainant bearing No. 1349/R dated 19.3.2015, but no negligence in the operation and post operative care was reported by the Govt. doctors in their report No.2015/2098. The concluding opinion in the said report read as under:

“ TURF is a major surgical procedure & incidence of cardiac arrest in elderly persons undergoing this surgery known and no team member in particular can be blamed for action”

It has been further stated that since the opinion of the medical board carries value, hence as per the finding of the board, the complaint is liable to be dismissed. The complaint is not maintainable against OP No.2 to 6 as they are doctors and employees of the hospital and there was no service contract between them and the complainant. The complainant has suppressed material facts from this forum and has not come to the court with clean hands hence, does not deserve any relief from this forum. Since the complaint involves complex and complicated issues, hence the same cannot be decided by this forum in a summary procedure. The complainant has filed a false, frivolous, malicious and vexatious by way of misusing the beneficial provisions of the Consumer Protection Act.                     On merits, it has been pleaded that husband of the complainant aged about 65 years was not a healthy man but was suffering from serious ailment. He visited the hospital of the OP on 24.3.2013 with the complaint of urinary problems. He was clinically examined and it was gathered that he was suffering from a typical problem in males with ageing i.e. benign prostatic hyperplasia (BPH) having Gr II Prostatomegaly. In order to ascertain the disease, the patient was advised ultrasonography and examination of other vital parameters such as HB, HbsAg, HIV, Blood Sugar etc. After examination he was diagnosed as case of prostate enlargement with Median Lobe Hypertrophy. Considering the above diagnoses, he was referred to urologist. The patient was examined by Dr. Rajesh Bansal (O.P. No.3), urologist on 26.3.2013 who too confirmed that the patient was a case of Benign Prostate Hypertrophy and that there was a need of TURP( Trans Urethral Resection of Prostate). After getting all the necessary preoperative check up and finding all the vitals normal, the patient was advised to come on 1.4.2013 for admission and after explaining the prognosis to the patient and his relatives, surgery/prostatectomy was performed on 2.4.2013. Dr. Rakesh Gupta (OP No.4) is a qualified Radiologist, Dr. Vipin Bhatia (MBBS; MS) is a qualified surgeon and is an ex medical officer in Govt. hospitals, Dr. Rajesh Bansal ( MBBS, Mch Urology & kidney Transplant)  (O.P. NO.3) is a qualified urologist. They had conducted hundreds of such operations meticulously and treated thousands of patients without any complaint. During the surgery, the patient was extended all critical care by the hospital. However during the surgical procedure, despite anesthesia by expert Anesthetist (OP No.5), all of sudden, the patient had difficulty in breathing and it was observed that the patient suffered heart problem. Therefore, immediately the consultant cardiologist was called and on examination, it was found that LVF i.e. left ventricular failure has occurred because the fluid had crept in alveoli, despite best efforts to rescue the patient by the team of doctors including urologist and cardiologist, the patient died due to heart failure and not due to any surgical procedure adopted for operation. That simply because the patient has died that does not mean that the doctors were negligent. Inspite of best medical treatment, there is no guarantee of success despite scientific advances and specialization. The action for negligence cannot be taken simply because the risk inherent in the treatment has actually occurred. None of the OPs are guilty of any medical negligence or deficiency in service. Even board of senior doctors of civil hospital, who conducted the enquiry in the case, have also not found any act of negligence on the part of the OPs. The legal notices sent by the counsel for the complainant were immediately replied on 15.11.2013 and 1.08.2013 respectively. It has been denied that the hospital of the OPs is not properly equipped with required machinery, infrastructure or staff. High quality healthcare is provided to the patients at very low cost in the OP No.1 hospital. Specialist doctors are being engaged to provide consultation to the patients. The Hospital of OP No.1 is a100 bedded hospital and is the only institution of its kind in Ambala with all the requisite medical infrastructure and facilities. That the treatment /surgery was done on Sh. Roop Chand with most diligence and reasonable manner. There was no negligence or deficiency in service on the part of the OPs. Dismissal of the complaint along with costs of Rs.10,000/- has been prayed for.

                    OP No. 2 (Dr. Vipin Bhatia) has filed a separate reply to the complaint wherein it has been pleaded that the patient Roop Chand had initially consulted him for urinary problems. After conducting the necessary tests and examinations, he was referred to the Urologist. Thereafter, the OP No. 2 had no role in the further treatment of the patient. There was no negligence or deficiency in service on the part of OP NO.2.

                    On 02.07.2018, the complainant given up the OP No.4 from the array of the parties.                

OP No 6 was proceeded against ex-parte vide order dated 30.3.2018

                    OP No. 7 & 8 (United India Insurance Company) which is the insurer of OP No.2, has also denied any act of negligence or deficiency in service on the part of any of the doctors and hospital. Further it has been pleaded that there is no privity of contract between the complainant and OP No. 7 & 8. All the averments of the written version filed by OP No.1,3, 5 and by OP.2 have been reiterated.

                    OP No.9 i.e. The New India Insurance Company, who is the insurer/ indemnifier of OP NO.5 has also filed written version on the similar lines and has denied its liability to pay any compensation to the complainant. Dismissal of the complaint has been prayed for.

4.                 Complainant to prove her case tendered into evidence her Affidavit CW1/A and documents as Annexure C-1 to C-22. Apart from that Complainant herself got examined as CW1, got summoned Dr.Manoj Verma, MO (Surgeon) and examined as CW2 and DR. Puja Paintal as CW3 and closed her evidence.

OP No.1,3 & 5 tendered into evidence Affidavit of Dr.Vijay Bansal as RW1/A and documents as Annexure R1 to R15 and closed their evidence.

OP no.2 tendered into evidence affidavit R2/A and document R1 and closed evidence.

OP No.7 & 8 tendered Affidavit R7/A and documents as Annexure R7/1 and closed evidence.

OP No.9 tendered into evidence Affidavit RA and closed evidence.

5.                 We have heard the learned counsel for contested parties and gone through the record, written arguments filed by the learned counsel for the complainant and also the cases referred by the learned counsel for the complainant and the learned counsel for OPs No.1,3 & 5.  

6.                The learned counsel for the complainant has argued that on 02.04.2013, late Sh. Roop Chand, the deceased husband of the complainant was admitted in OP No.1 hospital for surgery. OP No.3, examined him and found that his BP was low. The said doctor gave him some medicine to bring his BP back to normal. Without monitoring his BP the said doctor starting doing surgery, as a result whereof he died during the operation due to heart failure. The OP No.1, handed over the dead body of late Sh.Roop Chand to his family without conducting Post-Mortem. It is clear cut case of medical negligence. Complainant filed an application to the Department of Health Services, Haryana, for investigation of cause of death of her deceased husband. An enquiry was conducted by the penal of doctors, constituted by the CMO, Civil Hospital, Ambala. The penal submitted its report dated 18.08.2015 and opined that

“ TURF is a major surgical procedure & incidence of cardiac arrest in elderly persons undergoing this surgery known and no team member in particular can be blamed for action”

After getting the biased report, the cause of action accrued to the complainant to file a complaint against the said OPs for the medical negligence committed by them. Accordingly, the complainant filed the present complaint on 27.05.2017, within the prescribed period, as envisaged in Section 24-A of CP Act, 1986.

7.                On the contrary, the learned counsel for the OPs No.1, 3 & 5 has vehemently argued that the cause of action accrued to the complainant on 02.04.2013, when the husband of the complainant died and not on receipt of enquiry report dated 18.08.2015, Mark-R-1. As per the Section 24-A of CP Act, 1986, the complainant could have filed the complaint within two years i.e. upto 01.04.2015, after the death of her husband. Whereas, she has filed the present complaint on 24.05.2017 i.e. after a delay of about four years from the date of occurrence of the incident. In the complaint, complainant did not disclose this fact that she had lodged a complaint with the Health Department, Haryana for investigation of the matter. In terms of Section 3, of the Consumer Protection Act, 1986, the remedy under the Act is in addition to the other remedies available to the consumer. The complainant being a consumer, for redressal her grievance, could have filed the complaint before this Forum, simultaneously, when she had lodged the complaint with the Health Department, Haryana. The Consumer Protection Act, 1986 does not give her any right to file a complaint on getting allegedly biased inquiry report, after about four years, from the date of death of her husband. The present complaint filed by the complainant is barred by limitation and is liable to be dismissed solely on this ground. Even the present complaint is liable to be dismissed on merits also because the doctors who had done the operation are well qualified and acted with due diligence in accordance with recognized practice, accepted as proper by responsible body of medical men’s in that particular field.  More so, from the report dated 18.08.2015 given by the penal of doctors, it is crystal clear that there is no medical negligence on the part of the said OPs.

The learned counsel for the OP No.2, has argued that deceased husband of the complainant came to the OP No.2, who is a general surgeon, with urinary problem, who after examining referred him to urologist. As such no deficiency in service is attributable against him. Thus the present complaint filed against OP no.2 is liable to be dismissed, being not maintainable.

The learned counsel for the OPs No.7 & 8 has argued that the present complaint is liable to be dismissed on the ground of limitation because the same has been filed after the expiry of the two years from the date of occurrence of the incident. Even on merits, it is liable to be dismissed because there is no medical negligence on the part of the doctor concerned, who is insured with them. Thus the complaint filed against OPs No. 7 & 8 may be dismissed with cost. 

The learned counsel for the OP No.9 has argued that at the relevant time, the OP No.5 was insured with the OP No.9. From the inquiry report, it is clear that there is no medical negligence on the part of OP No.5, therefore, it has no role to play, even the present complaint is barred by limitation also. Therefore, same may be dismissed against it alongwith heavy cost.  

8.                Moot question which falls for consideration is as to whether the complaint filed by the complainant is within limitation or not.

                    It may be stated here that in Para no. 10 of the complaint it has clearly been admitted by the complainant that after the death of her husband on 02.04.2013, she kept on making representations to the higher official of the Health Department, Haryana against the hospital and doctors concerned but no action was taken and finally legal notice was served upon them on 16.07.2016 and thereafter, this complaint has been filed on 24.05.2017. Perusal of above these facts clearly goes to show that this complaint filed by the complainant is barred by limitation. After the death of the husband of the complainant on 02.04.2013, the consumer complaint was required to be filed on 01.04.2015 i.e. within the prescribed period  as envisaged under Section 24-A of the CP Act, 1986. Mere exchange of correspondence between the parties or approaching any another authority, will not extend the period of limitation automatically. In the case of Hans Raj Bhardwaj Vs. Dr. Vijay  Nijhawan 1997(1) CPC 165, Hon’ble State Commission, Punjab has held that the cause of action accrued from the date of operation and not from the date of opinion of the doctor. Even in the present case the cause of action accrued on 02.04.2013, when the husband of the complainant died and not from the date of receipt of inquiry report by the complainant. Further more if the complaint is filed beyond limitation, the party concerned is required to file an application for condonation of delay by giving sufficient cause. However, no such application has been filed by the complainant in this case. It may be stated here that if any order is passed without limitation, the same will suffer nullity. In the case of State Bank of India Vs. M/s B.S. Agricultural Industries 2009(2) CPJ 29(SC), the Hon’ble Supreme Court has held that provision of Section 24-A of the Act is peremptory in nature and requires consumer forum to see before it admits the compliant that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring  in Section 24A is sort of a legislative command  to the consumer forum to examine  on its own whether  the complaint has been filed within limitation  period  prescribed thereunder.  As a matter of law, the consumer  forum  must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24-Aand give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and therefore, the aggrieved party would be entitled to have such order set-aside. The Hon’ble Supreme Court has further held that by no stretch of imagination, it can be said that limitation came to be extended by Bank’s reply.

9.                Under these circumstances, the complaint being barred by limitation is dismissed without any order as to cost. Parties are left to bear their own costs. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :29.05.2019

 

 

 

 

          (Vinod Kumar Sharma)     (Ruby Sharma)      (Neena Sandhu)

              Member                            Member                         President