ORDER

(Per: Mr. D.K. Tyagi, Member):

            These two appeals filed under Section 15 of the Consumer Protection Act, 1986 arise out of the order dated 17.05.2007 passed by the District Forum, Haridwar in consumer complaint No. 17 of 2002.  By the impugned order, the District Forum has allowed the consumer complaint against the opposite parties and directed the opposite party No. 1 to pay to the complainant a sum of Rs. 30,000/- towards compensation and medical expenses and also directed the opposite party No. 2-insurance company to pay to the complainant a sum of Rs. 70,000/- towards compensation and medical expenses due to deficiency in service on the part of Dr. R.N. Vadera-opposite party No. 2.  The District Forum also directed the opposite parties to pay jointly to the complainant a sum of Rs. 1,500/- for litigation expenses, within one month from the date of order.  Since both the two appeals arise out of the same order passed by the District Forum, therefore, these appeal are being disposed of by this Common order. 

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant-Sh. Jugal was suffering from Fistula and for this he made agreement with the opposite party No. 1-Dr. D.K. Biswas for medical treatment, for which he paid Rs. 16,000/- to the doctor. At the time of agreement, three persons were present alongwith complainant and in their presence the doctor started complainant’s treatment.  After six month of opposite party No.1’s treatment, no improvement has shown in the complainant’s condition, then opposite party No. 1-Dr. D.K. Biswas referred the complainant to the opposite party No. 2 for treatment, though the opposite party No. 1 had received the payment of Rs. 16,000/- from the complainant.  Besides this, the complainant had also spent Rs. 8-10 thousand during these six months’ period.  The complainant was admitted to the nursing home of opposite party No. 2 on 07.04.2001, where opposite party No. 2 operated Fistula of complainant and he was discharged from the nursing home on 16.04.2001.  Opposite party No. 2 had charged Rs. 22-23 thousands from the complainant.  After operation by the opposite party No. 2, no improvement was made to the complainant’s condition, for which he complained to the opposite party No. 1.   Opposite party No. 1 advised the complainant to take medicine (tablet) for life long and also for foaming at the place of operation.  On 14.10.2001, complainant approached Dr. N.K. Agarwal in free medical and checkup camp organized by Agarwal Yuva Sangathan, who advised complainant for reoperation. The complainant also take advice from Dr. N. Rao, Link Road, Saharnapur and also from doctor of BHEL Road, Ranipur, who apprised the complainant that no improvement has been made in Fistula of the complainant after operations. On 17.10.2001, the complainant sent notice to the opposite parties through his counsel Sh. Dharmesh Kumar, Advocate and demanded his amount spent on his treatment as well as compensation for harassment and mental agony. Opposite party No. 2 replied the notice through his advocate, who had admitted that the complainant was admitted in his nursing home and he operated the complainant in his nursing home.  The complainant has filed a consumer complaint with a prayer for a sum of Rs. 96,000/- from opposite party No. 1 and for a sum of Rs. 1,23,000/- from opposite party No. 2.

3.       The opposite party No. 1-Dr. D.K. Bishwas has filed written statement before the District Forum and pleaded that he neither gave any treatment to the complainant nor any contract was made for treatment.  He had never received any money from the complainant.  He had never received any notice from the complainant and compensation sought by the complainant is baseless.  He has pleaded that the complainant is a cheater and fraud, therefore, he wants to misuse the provisions of Consumer Protection Act.  In case there is any negligence in treatment of the complainant, then the opposite party No. 2-Dr. R.M. Vadera is responsible for that.  The complainant has unnecessary made party to him.  Actual facts are that the complainant was suffering from disease of Fistula, which was very grievous, due to negligence of complainant himself or due to not taken appropriate treatment.  The complainant had come to the answering opposite party and after his check-up, he was advised operation for his ailment.  The answering opposite party is not a surgeon, therefore, he did not give any treatment to the complainant.

4.       The opposite party No. 2-Dr. R.N. Vadera has filed his written statement before the District Forum and pleaded that it is admitted that notice of complainant was replied by him.  Rest is not admitted. In additional pleas, answering opposite party has stated that the complainant was admitted to his nursing home on 07.04.2001 for treatment.  It was diagnosed that ailment of complainant was more than two years’ old.  The complainant had told at the time of investigation that he had four abscess around his anus, which became Fistula for which answering opposite party has told him that there is only 50% chances of recovery, if the complainant desires his Fistula may be operated. Before operation, the answering opposite party on 07.04.2001 had taken consent of Sh. Jogendra Kumar, brother of complainant.  In the consent letter, the opposite party has mentioned that there is 50% chances of success.  The complainant was operated after anesthesia and he charged about Rs. 2,500/- as cost of operation and other expenses.  It is denied that the answering opposite party had charged Rs. 22-23 thousands. On 16.04.2001, the complainant was discharged from the nursing home and answering opposite party informed the complainant that operated parts have been healed and he was advised to come for free dressing.  After a long gap, the complainant again came to the answering opposite party on 03.06.2001 and when answering opposite party inspected the operated area, then he found that out of four abscess three wounds were healed, whereas a new abscess emerged in which pus was there.  The answering opposite party again operated the complainant on 04.06.2001 and discharged the complainant.  The complainant was again informed that there is only 50% chances of success.  The complainant had consented for operation again on 04.06.2001.  The answering opposite party did not commit any negligence, therefore, there is no deficiency in service on the part of answering opposite party.  It is wrong to say that the complainant again consulted other doctors, who apprised him that there is no relief after operation.  In written statement, the answering opposite party has apprised this Commission that although the answering opposite party is not liable to pay any amount, however, it is submitted that for relevant period the answering opposite party was insured by United India Insurance Company Ltd. vide cover note No. 07162 for the period between 26.09.2000 to 25.09.2001. 

5.       The opposite party No. 3-United India Insurance Co. Ltd. has filed its written statement before the District Forum and pleaded that the complainant is not a consumer of the answering opposite party.  The answering opposite party has not committed any deficiency in service.  The complaint is not maintainable.  The answering opposite party has admitted that Dr. R.N. Vadera-opposite party No. 2 had taken insurance policy from insurance company under Professional Indemnity Insurance vide cover note No. 07162 for a period from 26.09.2000 to 25.09.2001.  The opposite party No. 2 had never informed the answering opposite party vide letter dated 25.09.2001.  The opposite party No. 2 had never informed the answering opposite party vide letter dated 06.03.2002 or orally, within the terms and conditions of insurance policy.  According to the terms and conditions of insurance policy, Dr. R.N. Vadera had to inform answering opposite party immediately.         Dr. R.N. Vadera has also not submitted any document for the settlement of claim.  Dr. R.N. Vadera sent a notice to insurance company on 15.10.2003, which was replied by insurance company through its advocate on 03.11.2003 and informed Dr. R.N. Vadera that he has violated the terms and conditions of the insurance policy, therefore, insurance company is not responsible to pay claim amount. It is evident from the facts of the consumer complaint that     Dr. R.N. Vadera operated the complainant and he was discharged from the nursing home of Dr. R.N. Vadera after recovery and later on complainant had also taken advice and treatment from Dr. N. Rao, Link Road, Saharanpur and Purana Chandsi Clinic, Tibdi, therefore, the opposite party No. 2 is not responsible for payment of any compensation, rather complainant is himself responsible for his acts.

6.       The District Forum, on an appreciation of the material on record, has allowed the consumer complaint vide its judgment and order dated 17.05.2007 in the above manner.  Aggrieved by the said order, the opposite party No. 1 has filed First Appeal No. 181 of 2007 and whereas the opposite party No. 3 has filed First Appeal No. 200 of 2007, thereby assailing the propriety and the legality of the impugned order passed by the District Forum. 

7.       We have heard Sh. S.S. Negi, holding brief of Sh. Anurag Gupta, Advocate, learned counsel for Dr. D.K. Bishwas, appellant in First Appeal No. 181 of 2007 and respondent No. 2 in First Appeal No. 200 of 2007 and Smt. Anjali Gusain, learned counsel for United India Insurance Co. Ltd., appellant in First Appeal No. 200 of 2007 and respondent No. 3 in First Appeal No. 181 of 2007.  None is present on behalf of Sh. Jugal, respondent No. 1 in both the appeals and Dr. R.N. Vadera, respondent No. 2 in First Appeal No. 181 of 2007 and respondent No. 3 in First Appeal No. 200 of 2007.  We have also perused the record as well as case laws produced before this Commission.   

8.       There is no dispute with regard to the fact that the complainant-          Sh. Jugal visited at Vishwas Chandsi Clinic of Dr. D.K. Vishwas. Dr. D.K. Vishwas had made check-up of complainant and advised him for operation, as the ailment was grievous one.  There is also no dispute that Dr. R.N. Vadera had admitted the complainant in his nursing home on 07.04.2001 for his treatment and after taking consent, operated Fistula of complainant.  The main dispute is that Dr. D.K. Bishwas had ever gave treatment to the complainant or ever operated Fistula of complainant and charged Rs. 16,000/- or not?  And the other dispute is that whether Dr. R.N. Vadera had operated the complainant and complainant was informed that only 50% chances of success are there or not and whether Rs. 22-23 thousands were charged from the complainant or not?

9.       Learned counsel for the appellant-Dr. D.K. Bishwas in First Appeal No. 181 of 2007 has submitted that finding of the forum below holding that respondent No. 1-complainant got himself treated in the first instance from the appellant is against facts and evidence on record.  The Forum below committed a gross illegality and irregularity in holding that the appellant kept the respondent No. 1 in dark in the garb of treatment and took money from the respondent No. 1. There is no evidence on record to either sustain the alleged contention of the respondent No. 1 nor to sustain the finding of the Forum below.  The Forum below exceeded its jurisdiction in holding the appellant to be a quack without there being any evidence on record to the said effect.  The Forum below while giving such finding lost sight of even the contention of the respondent No. 1 to the effect that the alleged treatment of the appellant did not cure the ailment of the respondent No. 1.  None appeared for respondent No. 1-complainant for oral submissions before this Commission.  Learned counsel for respondent No. 3 has submitted that        Dr. R.N. Vadera-respondent No. 2 did not give information to the insurance company immediately and there is no expert evidence on record to show that there was any negligence in treatment by Dr. R.N. Vadera. 

10.     Learned counsel for the appellant-insurance company in First Appeal No. 200 of 2007 has submitted that the District Forum has over looked the statutory provision of the Consumer Protection Act while passing the impugned judgment and order. The District Forum has given an erroneous and hypothetical judgment having no support or corroboration from the evidence on record.  There was no deficiency of service on the part of the appellant.  The case was allowed without any basis or justification. There was a gross policy violation which was apparent on the face of the record. No information regarding the claim was given to the company as was mandatory and specified in sub-clauses 1, 2, and 3 of the policy conditions clause-10.  No expert evidence was produced by the claimant and mere statement cannot be yardstick of negligence.  The onus of proof is on the claimant to prove that there was negligence. The liability of the appellant is not covered by the conditions and provisions of the policy.

11.     The appellant-Dr. D.K. Bishwas has filed his affidavit (paper No. 20/1 on the District Forum’s record) and has categorically denied that he had never gave any treatment to the respondent No. 1-complainant and had never charged Rs. 16,000/- in presence of Balram, Mangeram and Bhawesh Kumar.  In his affidavit appellant –Dr. D.K. Bishwas has deposed on oath that respondent No. 1 has not filed any piece of evidence against him regarding treatment of Fistula.  No slip of paper regarding treatment or regarding receiving of money by the appellant has been filed by the respondent No. 1.  In the affidavit Dr. D.K. Bishwas has admitted that respondent No. 1-complainant came to him only once. He inspected the respondent No. 1 and found that it was an old and serious disease of Fistula and the only cure is by operation, which is a work of surgeon.  He is not a surgeon, therefore, he cannot do anything for him.  No fees was charged from the respondent No. 1-complainant.

12.     Respondent No. 2-opposite party No. 2-Dr. R.N. Vadera has also filed an affidavit (paper Nos. 18/1 to 18/4 on the District Forum’s record) alongwith certain documents regarding treatment of respondent No. 1-complainant in his nursing home.  In the affidavit, respondent No. 2 has deposed on oath that the respondent No. 1 was admitted to his nursing home for treatment of Fistula on 07.04.2001.  His ailment was about 2 years’ old and during his treatment he found four abscess around his anus, which were busted and became Nasoor.  He had informed the patient-respondent No. 1 that there was only 50% chances of success in his ailment.  He operated the Fistula of respondent No. 1 after taking consent of his brother Sh. Jogendra Kumar on 07.04.2001.  On the consent letter dated 07.04.2001, he had wrote that only 50% chances of success are there.  Similarly, Dr. R.N. Vadera inspected the patient on 03.06.2001 and found that out of four abscess three were healed, but one new abscess was emerging, so he again operated the patient on 04.06.2001 free of cost. In the second operation, he again obtained consent of respondent No. 1 himself and wrote that there are only 50% chances of success.  In the affidavit Dr. R.N. Vadera has also deposed on oath that he had charged only Rs. 2,500/- from the respondent No. 1 and he had never charged Rs. 23,000/- from the complainant for his treatment.  Dr. R.N. Vadera has also filed certified copies of admission sheet dated 07.04.2001 and admission sheet dated 04.06.2001 and also filed a copy of history sheet of respondent No. 1-complainant. From the perusal of the admission sheet and history sheet, we have found that on the back of admission sheet, there is clear cut writing by doctor that “50% chances of success”.  In the history sheet, Dr. R.N. Vadera has also wrote that there are only 50% chances of success.  Similarly, Dr. R.N. Vadera has filed two certificates of different qualified surgeons.  One is of Dr. D.K. Tripathi (paper No. 25/2 on the District Forum’s record).  Dr. D.K. Tripathi, B.Sc, M.B.B.S., M.S. has certified that this is a known fact as well as his personal experience that in the operation of Fistula In Ano the chances of reoccurrence are there.  It is common happening particularly when there are multiple opening of Fistula.  Similarly, one more Dr. N.K. Agarwal, MBBS, MS, FICS (USA), Sr. Specialist Surgeon and Chief Medical officer has also given a certificate (paper No. 25/3 on the District Forum’s record).  In the certificate, Dr. N.K. Agarwal has wrote that reoccurrence of Fistula In Ano after operation is not uncommon.  The respondent No. 1-complainant has filed a literature “Medical Diagnosis Treatment” by Marcus A. Krupp and Milton J. Chatton.  In chapter 10 of this book, there is reference of Fistula In Ano.  From the perusal of this chapter about Fistula, we have come to know that treatment of Fistula is only by surgical incision or excision.  If a Fistula passes deep to the entire anorectal ring, so that all the muscles must be divided in order to extirpate the tract, a 2-stage operation must be done to prevent incontinence.  From the perusal of the evidence adduced by the respondent No. 1-complainant, it is clear that the complainant took treatment from several doctors out of which some were really quacks.  So far as treatment of complainant by the appellant-Dr. D.K. Bishwas is concerned, there is no evidence on record to show that Dr. D.K. Bishwas had ever gave any treatment to the respondent No. 1-complaiant or charged any money from the complainant.  There is no evidence on record to show that there was any contract of treatment and for which appellant-Dr. D.K. Bishwas charged      Rs. 16,000/- from the complainant. Similarly, Dr. R.N. Vadera is a qualified surgeon, who operated the four opening of Fistula of the complainant on 07.04.2001 and again he operated one opening of Fistula of respondent, which remained unhealed free of cost by second operation on 04.06.2001.  The respondent No. 1-complainant has not filed any expert evidence before the District Forum to show that there was any negligence on the part of Dr. R.N. Vadera or there was any deficiency in service on the part of Dr. R.N. Vadera.  Rather on the other hand, Dr. R.N. Vadera has filed an affidavit alongwith admission sheets dated 07.04.2001 and 04.06.2001 and the history sheet of respondent No. 1, which shows that Dr. R.N. Vadera operated four opening of Fistula of respondent No. 1-complainant after taking consent from his brother and also by complainant himself.  In admission sheet as well as history sheet, Dr. R.N. Vadera has specifically mentioned that in case of Fistula, there are only 50% chances of success. In support of Dr. R.N. Vadera two eminent surgeons Dr. D.K. Tripathi and Dr. N.K. Agarwal have also issued certificates that in case of Fistula In Ano chances of reoccurrence are there. Respondent No. 1-complainant had also not filed affidavit of Balram, Mangeram and Bhawesh Kumar in support of his case. In these circumstances, we are of the view that the District Forum has not properly appreciated the evidence filed by the parties. 

13.     Learned counsel for the appellant has placed reliance on a judgment of Hon’ble National Commission in the case of Sh. Ramdeo Prasad Singh vs. Dr. Ramesh Chandra Sinha; 2007(1) CPR 110 (NC).  In this case, the Hon’ble National Commission has held that no expert evidence filed by revision petitioner in support of medical/surgical negligence.  No extract of any medical text submitted by revision petitioner to support allegations of medical negligence.  Doctor, who performed four stage surgery was an eminent doctor having a post-graduate degree in plastic surgery.  Evidence on record showed that doctor used his rich and varied experience to perform surgery.  Treating surgeon not only showed average skills, but showed extraordinary skills and created a bright future to a deformed child.  Instead of appreciating services of gifted surgeon, complainants filed a baseless complaint only to collect money and harass opposite party doctor, which was a clear abuse of process of law.  This citation has force in this case also.       Dr. R.N. Vadera, who had operated the Fistula of the complainant, is a qualified surgeon, who gave treatment to the complainant and in support of Dr. R.N. Vadera two more eminent and qualified surgeons have certified that there are chances of reoccurrence in case of Fistula In Ano.  There is no evidence on record to show that for treatment by Dr. R.N. Vadera, the respondent No. 1 paid Rs. 23,000/- or any amount.  Dr. R.N. Vadera in his affidavit has admitted that he charged only Rs. 2,500/- from the respondent No. 1-complainant for treatment and operation in his nursing home.  In these conditions, we are of the view that the District Forum has committed a gross illegality and irregularity in passing the impugned judgment and order dated 17.05.2007. Therefore, First Appeal No. 181 of 2007 filed by Dr. D.K. Bishwas-appellant succeeds.

14.     So far the First Appeal No. 200 of 2007 is concerned, the appellant-insurance company has mentioned in its written statement that it is admitted to the insurance company that Dr. R.N. Vadera-opposite party No. 2 had taken Professional Indemnity Insurance vide cover note No. 07162 for a period from 26.09.2000 to 25.09.2001, which was effective in the light of terms and conditions of policy.  In the written statement the insurance company has also stated that Dr. R.N. Vadera never intimated to the insurance company on 06.03.2002 or orally to the insurance company, whereas Dr. R.N. Vadera was bound to inform the insurance company immediately.  Dr. R.N. Vadera has not submitted details as well as documents for investigation or for disposal of his claim.  Dr. R.N. Vadera sent a notice to the insurance company dated 15.10.2003, which was replied by the insurance company on 03.11.2003 and it was also informed to Dr. R.N. Vadera that he has violated the terms and conditions of the insurance policy, therefore, by not intimating the insurance company immediately within time, the insurance company is not responsible to pay the claim amount.  Learned counsel for the appellant has also submitted before us that the District Forum has given an erroneous and hypothetical judgment having no support or corroboration from the evidence on record.  There was a gross policy violation which was apparent on the face of the record. No information regarding the claim was given to the company as was mandatory and specified in sub-clauses 1, 2, and 3 of the policy conditions clause-10.  Admittedly Dr. R.N. Vadera operated Fistula of respondent No. 1-complainant on 07.04.2001 and 04.06.2001 and intimation was not given by Dr. R.N. Vadera to the insurance company-appellant orally or through a letter dated 06.03.2002, rather Dr. R.N. Vadera sent a notice dated 15.10.2003 through his advocate, which was replied by the insurance company.  This shows that there is a long delay in intimating by    Dr. R.N. Vadera to the insurance company.  Furthermore, as we have already discussed earlier in First Appeal No. 181 of 2007 that Dr. R.N. Vadera is a qualified surgeon having a degree of MBBS and MS, who has operated Fistula of respondent No. 1-complainant twice, i.e. on 07.04.2001 and 04.06.2001 and on admission sheets dated 07.04.2001 and 04.06.2001, it is clearly indicated by Dr. R.N. Vadera that there are only 50% chances of success and respondent No. 1-complaiannt has failed to adduce evidence regarding payment of Rs. 23,000/- to Dr. R.N. Vadera.  Though Dr. R.N. Vadera has admitted that he charged only Rs. 2,500/- from the respondent No. 1-complainant for treatment in his nursing home.  In these conditions, we are of the view that the District Forum has committed a gross illegality and irregularity in passing the impugned order ignoring the affidavit of Dr. R.N. Vadera filed before the District Forum.  Therefore, the First Appeal No. 200 of 2007 filed by the appellant-United India Insurance Co. Ltd. succeeds. 

15.     For the reasons aforesaid, we are of the view that the District Forum has not properly considered the facts and circumstances of the case and recording an incorrect finding, erred in allowing the consumer complaint.  Order impugned being not sustainable in the eyes of law, is liable to be set aside and both the appeals are, thus, fit to be allowed.

16.     In view of the above, both the appeals are allowed. Order impugned dated 17.05.2007 passed by the District Forum, Haridwar is set aside and consumer complaint No. 17 of 2002 is dismissed.  No order as to costs.

17.     Let the copy of the order be kept on the record of First Appeal No. 200 of 2007.