ORDER

SRI SHRINIDHI.H.N., MEMBER

1. This complaint is filed by the complainant under section 35 of the C.P.Act, 2019 against the OPs alleging deficiency of service seeking directions to OPs to pay a sum of Rs.4,00,000/- as compensation  and Rs.1,00,000/- for the amount spent towards various tests and hospital bills, medicines etc. and with interest 18% p.a. from the date of complaint till payment and to Rs.25,000/- as litigation expenses.

2.   The brief facts of the case is as follows: 

The complainant has felt pain in her breast and immediately has consulted the OP doctor in the 1^st week of April 2023.The doctor has advised for an Ultra sound Scan which was also done on 26.04.2023 at Sanjeev Scans, Rajajinagar, Bengaluru, which is produced as Annexure-A. The scan report indicates that Right Breast shows two solid rounded masses adjacent to each other at 10.00 clock position about 4cms away from the right nipple measuring 10mm and 9mm. The complainant there after approached OP-1 with scan report on 02.05.2023 and the doctors at the OP advised for immediate treatment which otherwise left, may result in cancer. Further, the complainant was prescribed tablets for two months which is placed as Annexure-B.It is also contended that the doctors attending have told the complainant and the family members that these lumps are likely to disappear within two months with the prescribed tablets. Even after consumption of the tablets for a period of one month, the condition did not improve and the complainant started experiencing severe pain and hence she approached the OP-1 on 30.05.2023 and on observation the OP-1 advised the complainant, surgery for removal of lumps after admissionin the hospital of OP-1. On the same date, the complainant got admitted and surgery is stated to have been performed on 31.05.2023 for removal of the two lumps in the Right Breast of the complainant and the complainantstates that the OP-2 to 4 have conducted the surgery and she was discharged on 01.06.2023 stating that the surgery has been successful and was advisedmedication and post operative review on 03.06.2023. The complainant produces discharge summary as Annexure-C  and all the related bills issued by the OP-1 as Annexure-D.

3. On 03.06.2023, when she visited OP-1 the OP-2 to 4 have examined her and have advised her to continue with medication. Thereafter, complainant even after undergoing surgery was experiencing the presence of two lumps by external touch. The complainant there after went for ultra sonography on 12.06.2023 at Kanva Diagnostic Services Pvt. Ltd. Rajajinagar and report of the same is placed as Annexure-E along with bill Annexure-F. This sonography report shows the presence of slightly lobulated fibro adenoma close to each other measuring 2.1 X0.6 Cms  in the supero lateral part after Right Breast near Axilla in Zone-C and on consultation of the doctor it was advised to her to undergo surgery for removal of the  same. The complainant for reconfirmation of this presence of lumps visited the K.C.General Hospital, Malleswaram, Bengaluru, Wherein 2^nd Ultra sonography was carried out on 14.06.2023 which is placed as Annexure-G Which again confirms presence of 02 lumps on her Right Breast. Therefore, the contention of the complainant is that the OPs in this case have collected money from the complainant for an operation for  removal of two lumps with due admission of the complainant in their hospital and two sonography tests after the procedure stated to have been conducted by the complainant within a period of 12 days has confirmed the existence of the lumps which has caused shock to the complainant due to the fact that the OPs have stated that they have removed these lumps surgically. The complainant states that the lumps were not surgically removed by the OPs as claimed by them and there is negligence on the part of OPs in this regard. Due to this act of the OPs, the complainant had to undergo one more surgery which involved lot of money, pain and mental agony. It is submitted by the complainant that they hail from a poor family and have pledged their jewels to pay the hospital bills which is more than Rs.1,00,000/- including medicines, scan, transportation etc. The complainant states that she is undergoing untold mental agony since the scan report on the 1^st occasion and when she came to know that the lumps are still available even after undergoing surgery  and to undergo a 2^nd surgery afterwards. Under these circumstances, the complainant claims that the procedure done on the complainant by the OP-2 to 4 under the umbrella of OP-1 for collecting huge money without performing the surgery is a fraud on her and is a clear case of negligence and dereliction of duty, cast on them. The complainant has also served legal notice on 19.06.2023 through registered post which is produced as annexure-H and acknowledgements as J & K and it is stated there was no response from the OPs and hence the prayer in this complaint.

4. On admission of the complaint, notice was ordered to be issued to OPs on 13.07.2023 and the same was served on all the OPs on 31.07.2023. Inspite of receipt of notice issued by this commission, the OPs have neither filed their version nor attended the proceedings. Subsequently, after a time gap of 4 ½  months, on 15.12.2023 the OPs submitted an IA before this commission for condonation of delay and permit them for filing version. Prior to this advocate for OPs filed power on 16.11.2023 and the same was taken on record and  was advised that right to file version by the OP is forfeited as the prescribed 45 days limit has already expired and all the OPs were kept as ex-parte as per the orders on  IA, which was passed on 31.01.2024 by this commission to this effect.

5. The complainant filed chief examination affidavit along with memo with 30 documents and all the documents were marked as C1 to C30.

6. Heard arguments and complaint was posted for orders on merits.

7. Considering the contentions and documents filed by the complainants  and OP, the following points arise for consideration by the commission are:

1. Whether the Complainant proves that there is deficiency of service on the part of the OPs as alleged in the complaint and thereby prove that she is entitled for the relief sought?
2. What order?

8.  The findings on the above points are as under:

      Point No.1        :       Partly affirmative

       Point No.2       :       As per final order

REASONS

9. POINT NO.1:-   Despite of service of notice, OPs did not appear before the commission and  have not chosen to file version to contest the matter.  The Judgment rendered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, which is reported in CPR 2018(1) at Page 325 between Kotak Mahindra Old Mutual Life Insurance V/s Dr.Nishi Gupta, In this case, Hon’ble National Commission has held that “Non-filing of Written version in the complaint which amounts to admission of complaint allegations”. The guidelines of the above ruling is aptly applicable to the case on hand as the OP in this case remained absent and on account of that they are placed ex-parte. In the absence of version and affidavit from their side, the complaint allegations of complainant is to be held as a proved fact. On this point, an inference could be drawn in favour of complainant as against the OP that there is a deficiency in service on the part of   the OPs.  

10. From the facts of the complaint, the commission could make out that the complainant was initially subjected to Ultra sound scan after both the breasts on 26.04.2023 and considering the report thereon the OP-2 to 4 have recommended for a procedure in the OP-1 hospital and accordingly the complainant was prescribed certain medications to ease her pain and with an assurance that the lumps may get cleared within a period of two months with the medication. However, the complainant continued to experiencing pain and on 30.05.2023 when she visited after a period of 01 month she was advised to undergo surgery and she was operated on 31.05.2023 for removal of two lumps. The case history indicates that she continued to experience pain and she went for a Ultra sonography on12.06.2023 with Kanva Diagnostic Service Pvt. Ltd. and the report thereon confirmed the existence of lumps which were initially diagnosed on the first occasion. Therefore, the complainant attended K.C.General hospital and she was subjected to Ultra Sonography again at 14.06.2023 at K.C.General hospital which also confirms existence of two lumps which were operated again.

11. The main allegation in this complaint is that the doctors at OP-1 hospital who are OP-2 to 4 have                                                     played falsehood stating that the complainant had been operated upon and lumps were surgically removed and the complainant was discharged on 01.06.2023 from the OP-1 hospital after collecting a huge amount of nearly Rs.1,00,000/-. When the pain continued to exist, the complainant went for a sonography test at the Kanva Diagnostic Service on 12.06.2023 which confirmed the existence of the two lumps and again a 2^nd sonography test at K.C.General Hospital also confirms the same which is  on 14.06.2023 within a period of 12 days from the date of surgical procedure stated to have been carried out at OP-1 hospital by the OP-2 to4 which is on 31.05.2023. This fact,  on the prima facie goes to show that the allegation of performing of the procedure/surgery by the OPs on the 1^st occasion i.e on 31.05.2023 appears to be an eye wash to extract money from the complainant with false assurances. Had the operation which is stated to have been performed by the OPs on the 1^st occasion on 31.05.2023, if taken on the fact of it, the question of subsequent existence of pain and two sonography tests which proved existence of the two lumps on the breast of the complainant in itself indicates that the OPs have not performed the procedure as assured to the complainant. The two lumps which were removed subsequently at the K.C.General Hospital clearly establishes the fact that the OPs have totally failed to give a satisfactory service which is expected of the profession which they follow. This case appears to be a classic example of fraud on the innocent patients who come to the professional doctors believing them and their words as a gospel. The commission also opines that this case is a clear case of negligence and fraud on the poor patients and needs no Expert evidence as  required in a case of medical negligence. This observation of the commission is based on the 1^st Ultra sound scan and the sonography tests which were conducted prior to  the surgery done by the OP and the 2^nd and 3^rd sonography done on the complainant, which were carried at two different labs at the breast of the complainant, and the reports there-on which prove the existence of lumps inspite of surgery at the OP’s hospital.  The commission is of the  clear opinion that the two lumps which were stated to have operated by the OP can at no stretch of imagination can reappear within a period of 12 days from the date of surgery and the commission expresses its grave concern at the way in which the OPs have attended on this patient/complainant.

12. In view of the above discussion, the commission has no hesitation to hold that OP-1 to 4 are jointly and severally held squarely responsible for the deficiency and negligence in service to the complainant and OPs are to be blamed for the  negligent and careless attitude. Therefore, commission holds that the complaint against OP-1 to 4 needs to be   considered as proved and accordingly, we answer the Point No.1 in Partly affirmative.

13. POINT NO.2:- In the result, for the forgoing reasons,  we passed the following:

                                      ORDER

1. The complaint  is hereby allowed in part.
2. The OP-1 to 4 jointly and severally directed to  refund a sum of Rs.1,00,000/- along with interest at 8% p.a. from the date of deposit of the amount by the complainant.
3. The OP-1 to 4 are held jointly and severally held responsible to pay  as sum of Rs.2,00,000/- as compensation for the misery, pain and mental torture which is caused to the complainant due to the negligent act of the OPs and OPs are jointly and severally ordered to pay a sum of Rs.20,000/- as cost of the proceedings.
4. The OP-1 to 4 are held liable to pay a further sum of Rs.50,000/- as penalty for un-fair trade practice followed by the  OPs towards the complainant.
5. The OPs shall comply this order within 45 days from the date of this order, failing which interest at 10% p.a. shall become payable to the complainant, from the date of the order.
6. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 29^th June  2024)

(RAMACHANDRA M.S.)

PRESIDENT

     (NANDINI H KUMBHAR)                   (SHRINIDHI.H.N)            

                   MEMBER                                       MEMBER

Witness examined on behalf of the complainant by way of affidavit:

Sri Varalakshmi -Who being the complainant.

Documents produced by the complainant:

Witness examined on behalf of the OPs by way of affidavit: Nil

     Documents produced by the OPs: Nil

(RAMACHANDRA M.S.)

PRESIDENT

     (NANDINI H KUMBHAR)                 (SHRINIDHI.H.N)             ​

                   MEMBER                                    MEMBER