Delhi

North

CC/208/2017

SALESH KUMAR SONI - Complainant(s)

Versus

SANT PARMANAND BLIND RELIEF MISSION & ORS. - Opp.Party(s)

MANOJ KUMAR MAHAUR

27 Feb 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No.:208/2017

 

Sh. Salesh Kumar Soni

S/o Sh. Banwari Lal Soni,

Police Thana road,

69, Cehlapadi Mohalla,

Ward No. 14, Rajgarh,

Alwar, Rajastha-301408                                …                         Complainant

 

                                                          Vs

 

Sant Parmanand Blind Relief Mission,

Through its Authorised Representative/

Owner of Sant Parmanand Hospital,

18, ShamNath Marg,

Civil Lines, Delhi-110054.                             ….                   Opposite Party No.1

 

Dr. Shekhar Aggarwal,

M.S. (Ortho)

Sant Parmanand Hospital,

18, Sham Nath Marg,

Civil Lines, Delhi-110054.                            …                   Opposite Party No.2

 

ORDER

27/02/2024

Ashwani Kumar Mehta, Member:

 

(1)      The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986. The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that the complainant having the medical problem of 'pain in right knee', consulted The OP-2 (Doctor) in the OPD on 05.02.2015 in the hospital/OP-1 who advised complainant to undergo in a surgery which was scheduled for 10.02.2015 and the complainant got admitted in hospital on 09.02.2015 for the scheduled. The OP-2 operated the complainant on the scheduled date and time and stated that the operation was successful but complainant remained in pain after surgery and informed the OP-2 about his sufferings after the surgery but the OP- 2 kept on avoiding on one pretext or the other.

 

(2)      It has been alleged that during the surgery of complainant's right knee, the OP-2 cut a bone from the stomach for putting/replacing it into the leg which was required for operating knee but during operation negligently and carelessly, the OP-2 left the foreign object (piece of cotton) in the stomach of complainant. The act of the OP-2 was negligent and cannot be expected from a surgeon while operating a patient.

 

(3)      It has further been alleged that the complainant complained about the pain in the stomach due to the above stated negligence of the OP-2, to the OP-1 &2 both, but no heed was paid towards the complaint made by complainant. The OP-2 advised the complainant to take care at home and asked him to get discharged. On repeated complaint of pain in stomach, OP-1 and OP-2, still pressurised complainant to get discharge from the hospital. On seeing the reluctant behaviour of the hospital authorities, complainant left the hospital as the services provided by the hospital were not upto the mark and he has suffered loss and damage as a result of deficiency in service. The act of OP-1 and OP-2 were as like they being aware of the fact of negligence, wanted to get save themselves from the liabilities by discharging to complainant from the hospital by providing him discount in remaining Bills.

 

(4)      Thereafter, the complainant visited in many hospitals for his treatment of stomach pain at Rajasthan since then but same could not be getting well. During the medical test, it was found that a foreign object (Piece of cotton) is in the stomach left during the operation in the hospital of OP-1 and the operation done by the OP-2. Complainant operated again on 29.09.2016 at Mahatma Gandhi Hospital, Jaipur, Rajasthan, due the negligence and carelessness act of other parties i.e. leaving a foreign object in stomach during operation. The complainant spent almost Rs.3,00,000/- on his treatment at Rajasthan. Furthermore, the surgery of the right knee was also not successful and complainant is still suffering pain in knee and the Doctors at Rajasthan advised him for further surgery and told him about further expenses of Rs.3,00,000/- as complainant is not able to walk by his leg without the assistance.

 

(5)      It is further alleged that the OP-1 and OP-2 have considerably failed to provide quality service to complainant affectedly they made him as a handicapped. The complainant is in pain and suffering hardship to feed himself and not able to work anywhere. The service provided by other parties were or likely to be hazardous and injurious to life and safety to complainant. The complainant had also sent a legal notice through Advocate on dated 29.08.2017 which was duly served upon the OPs, regarding the claims made under this complaint but the other parties did not respond the same in positive way, even the other parties did not replied the same. Thereafter, this complaint has been filed praying for directions to the OPs to:-

         

1. pay Rs.6,00,000/- to complainant, on account of expenses surgery of stomach and further surgery of right knee, jointly or severally.
2. pay Rs.5,00,000/- to the complainant, on account of compensation for careless and negligent act of the other parties, jointly or severally.
3. pay Rs.50,000/- to the complainant, on account of cost of the litigation, jointly or severally; and

Pass any other order/direction in favour of complainant and against the other parties, in the interest of justice.

 

(6)      The Complainant has filed copies of voter ID and aadhar card of complainant, police complaint dated 18.07.2017, admission form & other document of Sant Parmanand hospital, Discharge summary/entry pass/prescription/test slip of Mahatma Gandhi hospital, Prescription Slips of Rajkiya S. Swastiya centre/ Rajasthan Sarkar hospital/ Sawai Man Singh hospital (Jaipur)/Rajiv Gandhi hospital (Alwar)/ Dr. G.P. Meena/ Dr. S.N. Shara/ Dr. Sachin Gupta. He has also filed copies of postal slip dated 29.08.2017 and reply to legal notice and envelope dated 07.09.2017 alongwith the complaint.

 (7)     Accordingly, notices were issued to the OPs and in response, the OPs have filed joint reply stating that the complaint is liable to be dismissed since the complainant has not approached the Hon'ble forum with clean hands. The complainant has deliberately withheld important information and misstated facts in order to mislead and misinform the Forum. The complaint is also liable to be dismissed since it is vague, casual and reckless; and does not give out the necessary dates and timings with an intention to twist the facts to suit the case of the Complainant.

(8)      The OPs have also contended that the complaint is liable to be dismissed since it is not supported by any expert opinion. Serious allegations of medical negligence have been levelled in the complaint, however, no opinion from a body of medical experts has been placed on record in support of the allegations and therefore, the complaint deserves dismissal in terms of the guidelines laid down by the Hon'ble Supreme court of India.

(9)      The OPs, while admitting the treatment of the complainant, have further contended that the complainant had approached the concerned hospital i.e. Sant Parmanand Hospital a unit of Op-1 with complaints of "pain in right knee and deformity" and consulted respondent no. 2 in the OPD on 05.02.2015 who diagnosed it as a known case of malunited fracture S/C Right Femur with implant in Situ. Earlier complainant was operated for fracture distal femur with ORIF and plating elsewhere on November 2011. The Complainant was advised implant removal + replating + bone grafting which was scheduled for 10.02.2015 following admission on 09.02.2015. The estimate of the expenditure involved in the surgery was explained to the complainant as well as his guardian/friend Mr. Shankar Nikam who was accompanying the complainant. The Complainant was admitted with the plaintiff on 09.02.2015 and the surgery was performed on the scheduled date i.e. 10.02.2015. At the time of admission the admission formalities were completed by said Mr. Shankar Nikam and he had also executed an undertaking for discharging all the outstanding(s), incurred for such treatment, towards the hospital along with a declaration giving consent for the treatment of the complainant and that he shall pay for the hospital and related expenses in full and final at the time of discharge. Post-surgery, the complainant was advised to be discharged on 13.02.2015 after his condition improved under expert medical treatment and supervision provided by the hospital. However, the complainant and his attendant requested for discharge the next day stating that they shall arrange for funds by the time. The next day i.e. 14.02.2015, in the morning shift, the formalities for discharge of the complainant were commenced and the patient's file was sent for billing but the complainant again avoided the formalities of discharge and kept asking for more time to make arrangements for the payment. At around 6:35 p.m. on 14.02.2015, when the attending nurse visited the room of the complainant, both the complainant and his attendant were found to be not present. The complainant and his attendant, thus, absconded from the hospital establishment without making the payment towards the medical expenditure incurred by them.

(10)    It is further contended by the OPs that towards the treatment of the complainant, a bill of Rs.1,43,050/- was raised out of which a sum of Rs.15,000/- was received by the hospital in cash and a sum of Rs.1,28,050/- remained outstanding and payable by the complainant/his attendant when they had absconded. The intimation of the incident was given to the concerned Police Station on 14.02.2015. On 16.02.2015, the relatives of the complainant were contacted on the telephone no. provided by them and payment was demanded, to which they assured that they shall make the payment by the next day which was Tuesday. After waiting for a reasonable time when no response could be evoked, the hospital was forced to get a legal notice issued and subsequently to file a civil suit for recovery of the outstanding amount against the complainant and his attendant. The OPs have further contended that the present complaint has been filed as a counter blast to the civil suit of the respondents at a highly belated stage by the complainant with a view only to harass and pressurize the respondents into withdrawing the civil suit.

(11)      The OPs have further contended that the allegations made in the complaint are unfounded baseless, fictitious, imaginary and unsupported by any cogent evidence. The documents relied upon in support of the claim are on the face of them illegible, manipulated, forged and fabricated and cannot be relied upon for any purpose. No document on record of the case supports the allegation of the complainant that the opposite party no. 2 left a foreign object (piece of cotton) in the stomach of the complainant and the allegation is absolutely false and unfounded. No document even remotely mentions that piece of cotton was left in the stomach of the complainant as alleged. The ultrasound report is totally silent on the presence of any foreign body. The discharge summary is totally silent on this aspect. the surgeon who operated upon the sinus was the most competent to comment on the presence of any foreign body as alleged and even in the case of a reasonable suspicion the surgeon would have conclusively said so. Biopsy was taken in routine manner to identify the cause of the sinus and even the histopathology report merely mentions few filamentous structures (cotton threads) at the lining of the tract and not cotton piece as alleged. The x-ray sinogram is of no consequence and makes evident the manipulation on the face of it as it is of a date subsequent to the alleged surgery/biopsy. It is contended that the cotton thread, as mentioned in histopathology could have resulted from subsequent mishandling/ improper cleaning and dressing of the wound and could be a manipulated document. The documents relied upon by the complainant are insufficient, inconclusive, self-contradictory and manipulated and fabricated even if taken at the face value.

(12)      The OPs have further contended that the complainant was operated on 10.02.2015 and post discharge on 13.02.2015, the complainant was advised stitch removal on 26.02.2015. It is pertinent to mention here that at the time of stitch removal, the condition of the wound is gauged and dressing/disinfecting of the wound is done as per clinical requirement. As per the allegation of the complainant, he was admitted for wound debridment on 27.09.2016 i.e. after a period of more than 19 months. The details of what transpired during this long intervening period have not been disclosed in the complaint whatsoever. It is submitted that any sort of injury/trauma or contamination to the wound site could have caused complications and the presence of cotton thread, as alleged, could very well be from the subsequent dressing of the wound. The exact position could have been made known only if the complainant had come for a review in the OPD which never happened. Further, it is impossible and improbable that a piece of cotton as alleged kept lodged in the abdomen of the complainant asymptomatically for more than 19 months till the subsequent admission as alleged.

(13)    The OPs have denied the allegations that:-

a. complainant remained in pain after surgery and informed the OP-2 about his sufferings who kept on avoiding on one pretext or other.

b. during the surgery of the complainant's right knee, OP-2 cut a bone from the stomach for putting replacing it into the leg which was required for operating knee but during operation negligently and carelessly left foreign piece of cotton in the stomach of the complainant.

c. complainant complained of pain in stomach due to above stated negligence of the OPs but no heed was paid towards the complainant.

d. opposite party advised the complainant to take care at home and asked him to get discharged.

e. on repeated complaints of the complainant, the opposite parties pressurized him to get a discharge from the hospital.

f.  on seeing the reluctant behaviour of the hospital authorities complainant left the hospital as the services provided by the hospital were not upto mark and he has suffered loss and damage as a result of deficiency in service.

g. complainant was operated again due to negligence and carelessness act of other parties.

h. OPs have failed to provide quality service to complainant.

(14)        It has further been contested by the OPs that the allegations are not only concocted, afterthought and imaginary but also absurd. The complainant and his attendant absconded from the hospital establishment without making the payment towards the medical expenditure incurred by them. Towards the treatment of the complainant, a bill of Rs.1,43,050/- was raised out of which a sum of Rs.15,000/- was received by the hospital in cash and a sum of Rs.1,28,050/- remained outstanding and payable unsupported by any cogent evidence. The documents relied upon in support of the claim are on the face of them illegible, manipulated, forged and fabricated and cannot be relied upon for any purpose. The intimation of the incident was given to the concerned Police Station on 14.02.2015. On 16.02.2015, the relatives of the complainant were contacted on the telephone no. provided by them and payment was demanded, to which they assured that they shall make the payment by the next day which was Tuesday. After waiting for a reasonable time when no response could be evoked, the hospital was forced to get a legal notice issued and subsequently to file a civil suit for recovery of the outstanding amount against the complainant and his attendant.

(15)      The OPs has also filed discharge summary dated 13.02.2015 indicating Advice at discharge/medication, stitch removal on 26-02-2015 and review on 18-03-2015. The said discharge summary has not been filed by the complainant alongwith the complaint. However, the Complainant has also filed disability certificate dated 14.12.2017 on 17.09.2018. The copies of the following records were also called/received from the MG Medical College & Hospital, Sitapura, Jaipur:-

I.        Attested Photocopy of complete case file

II.       Patient I-card is pasted on Admission Ticket

III.      Photocopy of Discharge ticket

IV.      Reports of Investigations which are endorsed in Discharge

ticket.

 

However original X-Ray, Sonography and Microbiology reports have not been made available by the MGMC&H as the same are stated to have been handed over to patient at the time of discharge. It has also been informed that Medical records of patients in hospital are retained in hospital only for 3 years except in case of Medicolegal and death cases.

 

(16)      The complainant has not filed rejoinder to counter the averments of the OPs and has filed evidence. The OPs have also filed evidence. Accordingly, the complaint has been examined in view of the facts of the case and averments/documents/Evidence put forth by the complainant & OPs and it has been observed that:-

 

1. The complainant has  alleged that the OPs have not replied to the legal notice dated 29.08.2017  which was duly served upon the OPs through Advocate, regarding the claims made under this complaint whereas the copy of the reply of OPs advocate dated  07-09-2017 has been filed by the complainant with the complaint at  pages-48 to 49 wherein all the averments of the complainant have been replied alongwith the facts of absconding of complainant from the Hospital without clearing the bills of medical expenditures.
2.  The complainant has not denied the averments of the OPs that the Complainant and his attendant absconded from the hospital

Establishment without making the payment towards the medical

expenses of Rs.1,28,050/- which proves that the complainant has

not come before this commission with clean hands.

3. The allegations of medical negligence have been levelled by the complainant but no medical expert’s opinion has been placed on record in support of the allegations.
4. The OPs have filed discharge summary dated 13.02.2015 indicating Advice at discharge/medication, stitch removal on 26-02-2015 and review on 18-03-2015. The said discharge summary has not been filed by the complainant along with the complaint which proves the averments of the OPs that the complainant had left the Hospital without informing the medical authorities and also without clearing the medical expenses bills. Since the complainant has not followed the Advice of doctor explained in discharge summary under the Head-discharge/medication, stitch removal on 26-02-2015 and review on 18-03-2015, being LAMA & without receiving discharge summary, no medical negligence can be alleged against the OP-1 and OP-2, though the OP-2 has since been expired and the complainant had not insisted any relief qua OP-2 or his legal heirs.

(17)             In view of the above observations, we are of the opinion that the complainant has come to this Commission with unclean hands and without disclosing and presenting the facts in its true sense and it has been held by the Hon'ble Supreme Court of India in the case of S.P. Chengalvaraya Naida Vs. Jagannath (AIR 1994 SC 853) that one who comes to the court, must come with clean hands. In this case, the Hon'ble Supreme Court of India has observed as under:-

"We are constrained to say that more often than not, process of the court is being abused. Property grabbers, tax-evaders, bank loan dodgers and other unscrupulous persons from all walk of life find the court- process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court, he can be summarily thrown out at any stage of litigation."

(18)              The provisions of section 26 of the CP Act,2016 also provide dismissal of frivolous or vexatious complaints which mentions that “where a complaint instituted before the District Forum, the State Commission or, as the case may be, the National Commission is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding ten thousand rupees, as may be specified in the order.

(19)      In view of the above position, we are of the considered view that the complainant has come to this commission with unclean hands and has filed vexatious complaint against the OPs. We, therefore, dismiss the complaint with cost of Rs.10000/-, out of which Rs.5,000/- shall be paid by the Complainant to the OP-1 and Rs.5000/- shall be deposited in the “ State Consumer Welfare Fund (L/Aid), SBI Account No.00000010310544717, IFSC No.SBIN0001187” within 30 days from the date of receipt of this order failing which this cost would be paid with interest @ 9% per annum till the date of payment.

(20)      Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

ASHWANI KUMAR MEHTA                                              HARPREET KAUR CHARYA

Member                                                                                     Member       

                                            DCDRC-1 (North)                                                               DCDRC-1 (North)  

                                                           

DIVYA JYOTI JAIPURIAR

President

DCDRC-1 (North)