| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C.No. 232 of 31.8.2018 Decided on : 19-06-2023 Sunita Kumari widow of Suresh Kumar S/o Late Sri Ram R/o H. No. 39179, Street No. 12, Partap Nagar, Bathinda (now deceased through her LRs) Rajat, Son aged about 19 years; Muskan, daughter aged about 18 years R/o H. No. 39179, Street No. 12, Partap Nagar, Bathinda.
........Complainants Versus State of Punjab, Department of health through its Secreary at Chandigarh. Civil Surgeon, Civil Hospaital, Bathinda. Dr. Maninder Pal Singh of Civil Hospital, Bathinda. The Oriental Insurance Company Ltd., 95/2, Gali-6, Than Singh Nagar, Karol Bagh, New Delhi 110 005, through its Divisional Manager/Branch Mnager, Branch Office 4501, Post Box No. 18, Bank Street,Bathinda.
.......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Lalit Mohan Dogra, President Sh. Shivdev Singh, Member Present : For the complainant : Sh. Pargat Singh, Advocate. For opposite parties : OP No. 1 Exparte Sh. Lalit Garg, Advocate, for OPs No. 2 & 3 Sh. Vinod Garg, Advocate, for OP No. 4. ORDER Lalit Mohan Dogra, President The complainant Sunita Kumari (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986, (Now C.P. Act, 2019 here-in after referred to as 'Act') before this forum (Now Commission) against State of Punjab & others (here-in-after referred to as opposite parties) Briefly stated, the case of the complainant is that she was suffering from Stones in the .Gall bladder and for the treatment, she approached Dr. Maninder Pal Singh, Civil Hospital, Bathinda for the removal of Stones of Gall bladder. The doctor advised surgery and the complainant was admitted in the Civil Hospital, Bathinda on 02/05/2018 against the payment of outdoor ticket as well as admission charges and surgery charges besides medicines and apparatus of Surgery. It is alleged that on 03/05/2018, the complainant was operated upon by Dr. Maninder Pal Singh in Civil Hospital, Bathinda for removal of stones from Gall bladder but instead of removing the stones from Gall baldder, Dr. Maninder Pal Singh cut the food pipe of the complainant and ultimately after keeping the complainant in Civil Hospital for seven days, when there was no Improvement and with CBD Injury, ultimately on 11/5/2018 the complainant was discharged from Civil Hospital, Bathinda and referred to GGS Medical College, Faridkot for further management. It is further alleged that complainant was got admitted in GGS Medical. College and Hospital, Faridkot on 13/5/2018 where she was treated for CBD Injury by Dr. Sarabjeet Singh and Dr. Ashwani Sethi. The complainant deposited the required fee with GGS Medical College and Hospital, Faridkot. Since in GGS Medical College and Hospital, Faridkot, Ventilator, and ICU bed was not available, so, at the request of relatives of the patient, the complainant was referred to higher hospital on 13/5/2018. Thereafter complainant was admitted in ESIC Model Hospital, Bharat Nagar, Ludhiana on 06/06/2018 and till the date of filing of complaint, complainant was under the treatment of Doctor of ESIC Model Hospital,Ludhiana. The complainant alleged that she spent about Rs. 3.00 Lacs till the date of filing of complaint on her treatment and was likely to spend more. It is alleged that due to negligence of Dr. Maninder Pal Singh, repeated surgeries performed over the body of the complainant at Bathinda as well as Ludhiana due to which complainant has undergone severe bodily pain and sufferance for which she claims compensation to the tune of Rs. 5.00 Lacs inclusive of actual expenditure. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to pay compensation to the tune of Rs. 5.00 Lacs. Registered A.D. Notice of complaint was sent to opposite parties but none appeared on behalf of opposite party No. 1. As such, exparte proceedings were taken against opposite party No.1. The opposite party No.2 & 3 appeared through counsel and filed written reply. The opposite No. 2 in written reply raised preliminary objections that as per the Supreme Court, three judge bench, Judgment Indian Medical Association Vs V.P. Shantha (1995) 6 SCC 651, this case should be dismissed against the opposite party No. 2. That opposite party No. 2 was not paid a single Naya paisa by this patient or any other patient which came in family planning camp. Therefore, there is no consumer vendor relationship between the opposite party and the complainant. The opposite party No. 2 works under the direction and supervision of the government of Puniab, hence there is no cause of action against opposite party No. 2 and Government of Punjab is vicariously liable for all the acts done by its employees. The opposite party No. 2 has never treated this patient, nor was he involved in his treatment. The present complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous which is unsustainable in the eyes of law and has been filed without any justified reason/cause. That the complainant has filed this complaint with false allegations of negligence by claiming exorbitant amounts without any basis. It has been pleaded on factual matrix and medical facts that as per the hospital records patient Sunita Rani came to OPD, with USG report showing Choleclithiasis (Gall Stone). She was unregistered patient. Her blood tests & ECG etc. and medical fitness were taken from a medical specialist. The patient was given a date for elective surgery of laparoscopic cholecystectomy on 16-03-2018 and was admitted on 2-05-2018 for last case depending on time On 3-05-2018 the patient was taken operation theatre for surgery. Surgery was started diligently, prudently under spinal anesthesia and fully aseptic precautions pneumo-insufflation was created. Camera and working ports made under vision. GB identified and was extremely badly adherent to omentum and viscera. Adhesiolysis was tried with care. The adhesions were very thick and vascular, and adhesiolysis was not possible. Dr S S Romana was called in the OT for a second opinion. As the adhesions were dense and cemented to each other. It was decided to defer the surgery. Food pipe was never injured during the lap cholecystectomy. Patient's attendants were called in the OT and shown the internal condition of the patient on the monitor and were explained about the adhesions. Open surgery was advised, but the patient party refused open surgery in the OT. Hence surgery was deferred. 28 F tube drain was put in and de-sufflation was done. Port sites were closed. Patient withstood the procedure well and shifted to ward in a satisfactory condition. The patient was treated with IV fluids, antibiotics, anti-inflammatory and PPI's. On 4-05-2018 the patient remained stable and Only 150 cc of serous fluid came in drain. On 5-5-2018 the patient remained stable and urine output decreased, 100 ml serous fluid came in drain. On 6-05-2018 general condition was stable & the patient complained of uneasiness, tachycardia was present, drain output was nil. Some investigation advised. On 7-05-2018 the patient's general condition was stable. The patient passed flatus and oral sips of fluid were allowed. Some investigations were advised. On 8-05-2018 patient's general condition was stable. The patient passed stool. On 9-05-2018 general condition stable in the OT, the tube drain was changed. Free fluid came on. The catheter was removed. On 9-5-2018 evening round, bile leaking seen in the drain, patient was advised referral to a higher center, relatives explained about the referral and then were not ready. On 10-05-2018 patient's GC was stable, no fresh complaint was there, bile coming in the drain. On 11-05-2018 patient's general condition was stable. No fresh complaint, bile coming in the drain. The patient was referred to GGS Medical College Faridkot for further management. On merits, the opposite party No. 2 has pleaded that the hospital record shows that everything was done diligently, prudently, with utmost due care and caution by treating doctors. No doctor at GGS or ESIC or anywhere else has pointed out any negligence on the part of treating doctors. Hence, the opposite party No. 2 is not liable to pay any compensation to the complainant as there is no deficiency of service and no medical negligence on the part of opposite party No. 2. The opposite party No. 3 filed written reply verbatim to opposite party No. 2. In the end, the opposite party No. 3 also prayed for dismissal of complaint. The opposite party No. 4 filed separate written statement and submitted that the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in summary procedure under C.P. Act and appropriate remedy, if any, lies only in the Civil Court. That the deceased Sunita Kumari has taken the treatment and was admitted in the Civil Hospital where the treatment is provided free of costs. Further even in case this Commission comes to the conclusion that there is any liability, only in that case the liability if any, is that of State of Punjab and not of opposite party No.3 or 4. That there is no privity of contract between the State of Punjab and opposite party No. 4. That the complainant has concealed material facts and documents from this Commission as well as opposite party No. 4, therefore, complainant is not entitled to any relief. The complainant has concealed the fact that deceased Sunita Kumari was never treated by Dr. Satish Kumar Goyal and she was treated by opposite party No.3 in an efficient manner and no negligence is made out at all. That the present complaint is bad for non-joinder of necessary parties. On merits, the opposite party No. 4 denied all the averments of the complainant and prayed for dismissal of complaint. It is relevant to mention here that initially this complaint was filed by Sunita Kumar but during proceedings of this case, Sunita Kumar expired on 30-9-2018. Accordingly, vide order dated 3-01-2019 of this Commission, LRs of deceased Sunita Kumar were allowed to brought on record. In support of her complaint, the complainant has tendered into evidence her affidavit dated 29-8-2018 (Ex. C-5) and documents (Ex.C-1 to Ex. C-4). In order to rebut the evidence of complainant, the opposite party No. 2 & 3 have tendered into evidence affidavit of Dr. Satish Kumar Goyal (Ex. OP-2/1 & Ex. OP-2/3), affidavit of Dr. Maninder Pal Singh (Ex. OP-3/3) and the documents (Ex. OP-2/2, Ex. OP-3/2 & Ex. OP-3/4). The opposite party No. 4 has tendered into evidence affidavit dated 20-3-2019 of Ashwani Kumar, D.M. (Ex. OP-4/1) and the documents (Ex. OP-4/2 & Ex. OP-4/3). The learned counsel for the complainant has argued that complainant was suffering from stone of gall bladder and for treatment, she approached opposite party No. 3 doctor of civil hospital, Bathinda and was admitted in civil hospital, Bathinda on 2-5-2018 on payment of outdoor ticket as well as admission charges and surgery charges. The complainant was operated on 3-5-2018 by opposite party No. 3. However, opposite party No. 2 instead of removing the stone from the gall bladder, cut the food pipe of the complainant and thereafter complainant got discharged on 11-5-2018 with CBD injury and was referred to GGS medical college and Hospital, Faridkot and thereafter she remained under treatment at Ludhiana and due to negligence on the part of opposite party No. 3 who is employee of opposite parties No. 1 & 2, complainant suffered unnecessary harassment, pain, agony and had spent considerable amount and claims compensation to the tune of Rs. 5.00 Lacs. On the other hand, learned counsel for opposite parties No. 2 to 4 have argued that in view of the three judge bench, Judgement in the case titled Indian Medical Association Vs. V P Shantha reported in 1995 (6) SCC page 651, this Commission has no jurisdiction to entertain the present complaint as the opposite parties did not charge even a single penny from the complainant. Therefore, there is no consumer vendor relationship between the opposite parties and complainant. We have heard learned counsel for the parties and gone through the aforesaid judgement of Hon'ble Supreme Court of India and have also gone through the documents placed on file. A perusal of record makes the position crystal clear which reveals that complainant had not paid any amount for her treatment and her treatment was totally free of cost. As such, relying upon the judgement of Hon'ble Supreme Court of India and after evaluation of evidence and facts on record, this Commission is of the view that case of the complainant does not fall under the definition of consumer under Consumer Protection Act. Moreover, reliance has been placed on the judgement of Hon'ble Supreme Court of India reported in 2021 (3) Apex Court Judgements (SC) 787 wherein it has been held :- “The salary that is paid by the hospital administration to the employee medical offer cannot be regarded as payment made on behalf of the person availing of the service or for his benefit so as to make the person availing the service a 'consumer' under Section 2(1)(d) in respect of the service rendered to him. The service rendered by the employee-medical officer to such a person would, therefore, continue to be service rendered free of charge and would be outside the purview of Section 2(1)(o).” Therefore by relying upon the case law as referred above and without going into merits of the case, this complaint is hereby dismissed being not maintainable before this Commission. However, the complainant is given liberty to approach appropriate Form for redressal of her grievance. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced:- 19-06-2023 (Lalit Mohan Dogra) President (Shivdev Singh) Member
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