Date of Institution      :          5.2.2009

                                                                        Date of Decision       :       18.10.2011

Kanav Chopra (minor) aged 11 years son of Mr.Rajesh Chopra, through his father and natural guardian, r/o Street No.1, Professor Colony, Sirhind, District Fathehgarh Sahib.

                                                                .…Complainant.

                                Vs.

1.         Suparb M.R.I. & C.T.Scan Center, SCO No.24-25, Sector 8-C, Chandigarh, through Dr.Tejinder Kaur.

2.         The New India Assurance Company Limited, Branch Office, SCO No.54-55, Sector 34-A, Chandigarh.

                                                                                                …. Opposite Parties

 BEFORE:     JUSTICE SHAM SUNDER, PRESIDENT

                        MRS. NEENA SANDHU, MEMBER

                        S.JAGROOP SINGH MAHAL, MEMBER

Present:          Sh.S.N.Chopra, Advocate for the complainant.

                        Sh.Parminder Singh, Advocate, proxy for Sh.Paul.S.Saini,                                             Advocate for OP No.1.

                        Sh.Varun Chawla, Advocate for Sh.Rajneesh Malhotra,                                      Advocate for OP No.2.

MRS. NEENA SANDHU, MEMBER

1.                     Briefly stated, the facts of the case, are that the complainant Mr.Kanav Chopra (minor) complained of headache in the month of November, 2006 when he was about 9 years of age, and he was medically examined by local doctors at Sirhind/Fatehgarh Sahib, who advised for MRI and Eye Fundus Test. On 13.1.2007 MRI was done by OP No.1 and as per report (annexure C-1), the MRI scan of brain was normal. It was stated that the complainant approached Grewal Eye Institute, Sector 9, Chandigarh (hereinafter referred to as GEI) for Eye Fundus Test in the evening on the same day i.e. 13.1.2007, but on that date, only simple eye test was conducted, which was normal and the complainant was advised to come again on 15.1.2007 for Eye Fundus Test. On 15.1.2007, Eye Fundus Test was conducted and he was advised ‘PMR’ (Post Medriatic Test) after 48 hours (Annexure C-3). The complainant was called after 48 hours for PMR by the doctor, as by that time impact of the medicine was to be over, but on 16.1.2007, he complained of loss of eye sight to a certain extent and on 17.1.2007, when the complainant returned from School, he again complained of loss of further eye sight. The father of the complainant immediately contacted GEI, on telephone, and he was informed that sometimes the impact of the medicine last longer amongst few children. It was further stated that the same position continued on 18.1.2007. On 19.1.2007, the complainant was again taken to GEI and got checked thoroughly. The doctor informed the father of the complainant that there was no impact of the medicine, on the eyes of the complainant, but he (complainant) was certainly not able to read or identify the largest letters, shown to him, by the doctor. So, ultimately, he was advised VEP Test and Neurological consultation. He was referred to Prakirti Brain and Nerve Research Centre, Sector 8-C, Chandigarh for the aforesaid test. The aforesaid test was found to be normal. It was further stated that on 21.1.2007, the complainant contacted Dr.J.S.Chopra, who after seeing MRI report, started giving treatment to him but there was no improvement in his eyes. Thereafter, out of panic, the father of the complainant, also consulted Dr.Manish Modi, Dr.Sethi, a Psychiatrist and Dr.Jagbir Singh Shashi, Neuro Surgeon, at Mohali, but there was no improvement.   Ultimately, on 30.1.2007, the complainant through his guardian approached the Post Graduate Institute of Medical Education and Research, (hereinafter to be called as the PGI only) Chandigarh. He was referred to visual evaluation from the Eye Wing of PGI. On 3.2.2007, he was advised RAPD Test. As the report of the RAPD Test was normal, the doctors referred him to Neurological Department. On 5.2.2007, Dr.V.Lal got suspicious, about the left eye of the complainant and advised him for fresh/repeat MRI Scan of optical nerves. The father of the complainant again approached Dr. Tejinder Kaur, proprietor of OP No.1 on 5.2.2007 for a fresh MRI. Dr.Tejinder Kaur asked the father of the complainant to bring the previous MRI report dated 13.1.2007. When the original MRI report dated 13.1.2007 was shown to her, she applied some white fluid on the same. It was further stated that the report of the MRI dated 5.2.2007 was an utter shock for the guardian of the complainant and his family members. On 5.2.2007, in the late hours, the complainant was immediately admitted in the PGI, Chandigarh, for further treatment. On 8.2.2007, biopsy through Nasal Endoscopy was done by Dr.A.P.Gupta of ENT Department, PGI, who opined that there was NHL(Non Hodgkin Lymphoma). The complainant was discharged on 21.2.2007, and, thereafter, his condition deteriorated further. He was then taken to Bombay, on 22.2.2007 and CT Scan and Bone Marrow Tests were conducted by Dr.Advani. On 27.2.2007, Dr.Advani advised the father of the complainant to get him admitted immediately, as there was high grade burkitt type NHC and mild chemotherapy was to be done.  As the complainant is a resident of Punjab, and Bombay is far away, from his native place, therefore,  he was admitted in Rajiv Gandhi Cancer Institute, New Delhi on 7.3.2007 and in total eight chemotherapy cycles, MRI and other tests were conducted from time to time. On 24.8.2007, biopsy was conducted, in which, residual was found. Thereafter, the complainant was put to radiotherapy and total 11 sittings were conducted, five days a week, starting from 6.9.2007 to 19.9.2007. The complainant was directed by the doctor to get himself examined and treated from time to time. Since then the complainant has been getting the treatment. It was further stated that due to wrong and negligent report of OP No.1, the left eye optic nerve of the complainant was completely damaged, and there was no treatment for the restoration of optic nerve till date. It was further stated that if the first report dated 13.1.2007 had reflected the true state of affairs and had there been no negligence on the part of Dr. Tejinder Kaur of OP No.1, in giving the wrong report of the MRI then he would not have undergone the agony. Due to deficiency in service, on the part of the OP, the complainant suffered great physical harassment, mental agony as well as financial loss by spending huge amount, on his medical treatment. It was further stated that the guardian of the complainant spent a sum of Rs.10 lacs on the  medical treatment of the complainant, Rs.2 lacs on traveling expenses for taking him to Chandigarh, New Delhi and Mumbai for his medical treatment. The complainant also claimed Rs.20 lacs as future damages and Rs.20,000/- as costs of litigation. Thus, in total, the complainant claimed Rs.32,20,000/- with interest.

2.                     Reply was filed by OP No.1, wherein, it was stated that the complainant alongwith his father on 13.1.2007 came to MRI Centre of OP No.1 without any prescription from any doctor and asked Dr.Tejinder Kaur for simple MRI Scan of the brain of the complainant. She advised his father to consult some specialized doctor and get a proper prescription, for conducting the MRI Scan, but his father did not do so. Rather he got annoyed with Dr. Tejinder Kaur proprietor of OP No.1, and directed her to conduct routine MRI of brain, without giving any injection.  Under these circumstances, the concerned doctor conducted the MRI Scan of the brain of the complainant without injection. The doctor handed over the report alongwith MRI Scan Film to his father and also advised his father to consult some specialized doctor for further treatment of his son. It was further stated that on 13.1.2007, the complainant consulted GEI and got his eye test conducted. As per his report, both the eyes of the complainant were normal, meaning thereby, that the report of OP No.1 (Annexure C-1) was correct. The complainant also got eye fundus test done from GEI on 15.1.2007. Thereafter, he got VEP test done on 19.1.2007 at Prakriti Brain and Nerve Research Centre. As per the reports, visual path of both the eyes of the complainant was found to be normal and, as such, there was no damage to the eyes of the complainant till 19.1.2007, as confirmed by the VEP test. It was further stated that after examining the complainant and on going through the report of the MRI Scan dated 13.1.2007, Dr.J.S.Chopra, Head of Neurology Department, PGI, Chandigarh came to the conclusion that the reduced vision of the complainant could be either due to migraine or patient could be functional (Annexure C-5). The complainant also consulted Dr.Manish Modi, Dr. Sethi and Dr.Jagbir Singh Shashi but they could not find any contradiction in MRI Film and report dated 13.1.2007. They directed the complainant to consult Dr.M.R.Dogra, Eye Department of PGI, Chandigarh. As such, he consulted the said doctor of Eye Department of PGI on 31.1.2007, who advised for RAPD test, and as per report, there was no RAPD in both the eyes of the complainant. Thus, both the eyes were normal. Accordingly, the complainant was again referred back to Neuro Department of PGI. Dr.V.Lal, Neuro Physician of PGI on 5.2.2007 advised him for MRI Scan of orbit and Cavernous Sinus with Gadolenium from OP No.1 and, on the same day, the test was conducted by OP No.1, in which, it was found that there was difference between the test/investigation done on 13.1.2007 and 5.2.2007. It was further stated that the test done on 13.1.2007 was without any prescription from any doctor, whereas, the test done on 5.2.2007, was on the specific prescription, from the specialist doctor for a specific test of a specific area, and, as such, the test was conducted. Therefore, the reports of both the tests conducted on 13.1.2007 and 5.2.2007 were different. It was further stated that OP No.1 conducted this test on 5.2.2007 and advised the complainant for biopsy and he got the biopsy conducted on 7/8.2.2007 but the treatment was started after a lapse of 20 days. It was further stated that due to this negligent act of the father of the complainant, the eye of the complainant, was damaged/lost as none of the doctors, consulted by the complainant during the period from 13.1.2007 to 5.2.2007 pointed out any contradiction or any fault with the film and report dated 13.1.2007 issued by OP No.1. The various eye tests conducted showed that there was no damage to the visual path of the complainant till the second test was conducted by OP No.1 on 5.2.2007. It was further stated that the perusal of annexure C-8 (VEP test) clearly showed that the left eye of the complainant got damaged on 20.10.2007 i.e. after a lapse of period of more than 8 months, from the date of second MRI test done on 5.2.2007. It was further stated that this damage to the eye of the complainant resulted from the treatment viz. chemotherapy, biopsy and radiotherapy, as also due to the aggressive nature of the disease process. It was further stated that the vision could also be damaged, as a result of chemotherapy, with agents like Vincristine and Methotrexate. It was further stated that even biopsy done through trans nasal mode could lead to damage to the visual pathway. It was further stated that this damage was not on account of any investigation i.e. MRI. It was further stated that OP No.1 had just done the MRI and had not given any medical treatment. All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of Dr. Tejinder Kaur of OP No.1..

3.         Reply was filed by OP No.2, wherein, it was admitted that OP No.1 was insured with it for a sum of Rs.10 lacs, subject to the terms and conditions of the insurance policy (Annexure R-1). It was stated that the complainant was not a consumer, qua OP No.2, as the services were availed of by him, from OP No.1. It was specifically denied that there was negligence, on the part of OP No.2. It was further stated that OP No.2 was not liable to pay Rs.32 lacs, on account of medical treatment/bills, traveling expenses, future damages and litigation expenses alongwith interest etc. as claimed by the complainant. It was further stated that, as the OP No.1 was insured for a sum of Rs.10 lacs only and, if any, negligence was proved against OP No.1 then OP No.2 was liable to indemnify the insured to the extent of Rs.10 lacs only. 

4.         The parties led evidence, in support of their case.

5.         We have heard Sh.S.N.Chopra, Advocate for the complainant, Sh.Parminder Singh, Advocate, proxy for Sh.Paul.S.Saini, Advocate for OP No.1, Sh.Varun Chawla, Advocate, proxy for Sh.Rajneesh Malhotra, Advocate for OP No.2, and have perused the record and the written arguments filed by all the parties.

6.         An application was filed by OP No.1 on 20.4.2009 for directing the complainant to place on record the relevant documents. Reply to the same was ordered to be filed but in the meanwhile on 28.5.2009 the documents, in original, were produced by the complainant, and the same were perused by the respondents. OP No.1 requested for certain other documents, relevant and part of the complainant.  However, the complainant refused to supply the same, on the ground, that the same were not a part of the complaint.

7.         After the perusal of documents produced by the complainant, we are of the opinion that these are not a part of the complaint and need not be placed on record. The application filed by OP No.1, is accordingly dismissed.

8.         The learned Counsel for the complainant, moved another application, on 4.8.2010 for placing on record the application (in fact replication) as well as the evidence by way of affidavit alongwith application for seeking expert opinion. Reply to the application was filed by the OPs.  The application was partly allowed by this Commission vide order dated 4.8.2010, by taking, on record, the replication and evidence by way of affidavit, on behalf of the complainant. However, no decision was rendered in respect to the prayer made in the application, by the complainant, seeking expert opinion.

9.         A perusal of the record shows that the parties have already adduced their evidence. There is enough material, on record, which is sufficient for the just adjudication of the case. From the evidence already led, it can be concluded whether there was any negligence on the part of OP No.1 or not. Hence the application, seeking expert opinion is dismissed.  

10.       The learned Counsel for the complainant filed another application on 14.1.2011 for placing on record the latest medical report of the complainant as Annexure C-14. It was stated that on 28.12.2010 the complainant was got checked up from GEI, which had given the entire case summary and the latest position of his left eye stating that vision of the same was unlikely to improve because of presence of Optic Atrophy.  It was further stated that the said report was given by the doctor only on 28.12.2010, and was not available with the complainant, at the time, when he furnished his evidence.

11.       Reply to the application was filed by OP No.1, wherein, it was stated that the application was not maintainable, at this belated stage, as the matter was fixed for arguments for the last four dates over a period of six months. It was further stated that it is a settled law that the entire evidence including affidavits and the documents relied upon should be produced in one go and not in piece- meal. It was further stated that OP No.1 filed its entire evidence on 20.7.2009, whereas, the present application was filed by the complainant after a lapse of about 1 ½ year from the date of conclusion of evidence by the OP. Accordingly a prayer for dismissal of the application was made. 

12.       After hearing the learned Counsel for the complainant as well as OP No.1, we are of the view that it’s a genuine request of the complainant for placing on record the latest medical report of the complainant as Annexure C-14 because at the time of placing on record his evidence in 2009, the said report was not with the complainant as it was given by the doctor only on 28.12.2010. Otherwise also, this document is essential for the just decision of the case. So, for the reasons mentioned, in the application, the same is allowed and the medical report of the complainant as Annexure C-14, is taken on record.

 13.      From the facts, it is evident that the report of MRI Scan (Annexure C-1) of the brain of the complainant, which was conducted by Dr. Tejinder Kaur, proprietor of OP No.1, on 13.1.2007,  was stated  to be normal. As the eye sight of the complainant was deteriorating day by day, his father after obtaining this report, consulted expert Ophthalmologists and Neurologists of the City, but all the doctors, after seeing the same instead of giving any treatment, suggested some tests, in order to find out the cause of gradual loss of eye sight, in the left eye. All the tests were duly conducted and were found to be normal. Then, ultimately, on 05.02.2007  Dr. V. Lal, Neurologist of  PGI, Chandigarh, again referred the complainant to OP No.1, for repeat of MRI Scan of his brain, and it was  conducted, on the same day. The relevant part of the said report  dated 05.02.2007 given by OP-1 (Annexure R-13) reads as under;

“MOST LIKELY –AGGRESSIVE FUGNAL INFECTION (INVASIVE ASPERGILLOSIS) IN THE VIEW OF LOW T2WI SINGNAL INTENSITY, LOW INTENSITY RIM. OTHER D/O. OTHER OSTEOMYELITIS OF GRANULOMATOUS OR NON-GRANULOMATOUS TYPE OR NEOPLASTIC”

14                  It is clear, from this report, that the loss of eyesight of the  left eye of the complainant was due to some extra growth, which suppressed and caused harm to the optic nerve.  Therefore, from this report of the second MRI Scan, it was proved that the earlier report dated 13.01.2007 given by OP-1, was wrong.  This fact was further confirmed from the report given by the doctors of Rajiv Gandhi Cancer Institute at Delhi, who viewed the MRI film which was conducted on 13.01.2007 and observed as under:-

“Heterogenous altered intensity lesion is seen in the sellar suprasellar regions involving thesphenoid sinus and laterally bilateral cavernous sinuses partially encasing the cavernous carotids. The mass is also partially encasing bilateral optic nerves. Optic chiasma however is free. The mass is involving the posterior ethmodal sells with extradural soft tissue thickening in bilateral basifrontal regions The pituitary gland is not discretely identified. The clivus appears unremarkable. Soft tissue lesion of altered intensity seen in the nasopharynx effacing bilateral fossa of rossenmullar possibly denoids. “

15                From these facts and circumstances, it was confirmed that definitely the first MRI report given by OP-1 was not correct and due to this wrong report,  the complainant  could not get the proper treatment well, in time. Due to this negligent act of OP-1, the complainant suffered a lot and ultimately lost eyesight of the left eye.  As alleged by the father of the complainant, not only that OP-1 had given the wrong report of MRI scan, but on 5.2.2007, when he took his son for the second MRI scan then in order to cover up her mistake the concerned doctor of OP No.1 asked him to bring the report of the first MRI.  The same was handed over to the said doctor, who after applying some fluid on word ‘Sella’ returned the same, copy of which was placed on record as Annexure C-6.  This allegation was duly proved by Rajesh Chopra, father of the complainant, through his affidavit. In order to controvert this contention of the complainant, OP-1, neither produced any cogent evidence, nor there was any whisper, in the written statement, regarding this fact. Therefore, in this situation, we are left with no alternative, than to believe the contention of the learned Counsel of the complainant that the doctor of OP-1 applied fluid on the original report dated 13.1.2007 Copy of which is Annexure C-6.   Thus from these facts it has been established that the OP No1 had given a wrong report C-1, which resulted in total loss of the eye sight of the left eye of the complainant.  Had OP no.1 given the correct report of MRI film of brain after carefully examining the same, then definitely, the eye sight of the complainant would have been saved, by the treating doctors, by giving the right kind of treatment at the right time.  Thus, due to the sheer negligence of OP-1, the bright  career of the complainant, was ruined. At the time when the complainant approached OP No.1, he was just a minor boy of 9 years of age. Due to the wrong report given by OP No.1, he has to live throughout his life, without any sight, in the left eye, as till date there is no treatment available as per the medical science for the revival of the eyesight. Therefore, this negligent act of OP NO 1 caused the complainant immense and irreparable damage in every aspect of his life.

16.                   With these observations, we are of the opinion, that although the loss of eye sight in the left eye of the complainant, which was caused due to the sheer negligence of OP No.1, cannot be restored, yet relief can be given to him by granting appropriate compensation. It is evident from the receipts appended with the complaint, that the complainant has already spent more than 10 lacs on his treatment. Therefore, he is  entitled to the reimbursement of the amount.

17.                   It is proved from record that OP No.1 was duly insured with OP-2, for a sum of Rs.10 lacs.  As the negligence, on the part of the OP-1, has been established, therefore, being the insurer, OP No.2 is liable to pay compensation to the complainant, to the extent of Rs.10 lacs i.e. the insured amount.

18.                   In case, titled as Bombay Hospital and Medical Research Centre Vs. Sharifabi Ismail Syed & Ors I(2008) CPJ 432 (NC),  a wrong MRI report was given by the doctors. The Hon’ble National Commission held that there was medical negligence, on the part of the doctors, as well as the hospital and they were jointly and severally liable to pay the compensation to the complainant.

19                    For the reasons stated above, we allow the complaint, and direct the OPs as under;

i)                   To pay Rs.10 lacs to the complainant, which his father incurred on his medical treatment.

ii)                 To pay Rs.20 lacs as compensation to the complainant, on account of mental agony, physical harassment and  loss of his career, as he lost eye sight in his left eye completely, due to the sheer negligence of OP No.1.

iii)                To pay Rs.10,000/- as litigation expenses.

20.               However OP-2 shall only be liable to compensate the complainant to the extent of Rs.10.00 lacs, i.e. maximum insured amount, as mentioned in the Insurance Policy and rest of the awarded amount of Rs.20.00 lacs alongwith costs  is directed to be paid by OP-1.

21.                   The order be complied with, by the OPs, within 30 days, from the date of receipt of a copy of the same, failing which, the OPs shall be liable to pay interest on the aforesaid payable amount, with interest @12% P.A. from the date of filing the complaint, till the realization thereof, besides costs.   

22.                   Since the complainant is minor, the amount of compensation, as and when paid/recovered, alongwith interest, and costs, shall be deposited, in the fixed deposit in his name, through his guardian, for a period of 3 years, to be renewed, from time to time, and the same (amount) shall be withdrawn, by him, (complainant) only, if need be, after attaining majority.

23.                   Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned.