BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.61/2004

Dated this the 6^th day of December 2016

(Date of Institution:  19.04.2004 )

Pakkirisamy, S/o Gopal,

No.71, Kavalkaran koil Street,

Thirukanour,

Pondicherry – 605 014.

….     Complainant

Vs

The Medical Superintendent,

Pondicherry Institute of Medical Science,

Pondicherry.

                                       ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:   Thiru L. Swaminathan, Advocate      

FOR THE OPPOSITE PARTY:   Thiru L. Sathish, Advocate

O R  D  E  R

(by Thiru A. Asokan, President)

          This is a complaint filed by the complainant as against the opposite party praying to award a sum of Rs. 10,00,000/- with interest from the date of award till date of realization for the deficiency and lack in service, negligence and mental torture and loss of income to the complainant’s family due to the death of their son.

2.  The case of the complainant is as follows:

The complainant is an Agriculturist.  In the month of August, 2002 he took his son Jayaganesh aged about 26 years to the Opposite party’s hospital for heart disease treatment.  The opposite party advised to go for heart surgery with Mitral Valve Replacement  and gave an estimation for Rs. 10,00,000/-.   Subsequently, the complainant approached  Government of Pondicherry and got a sanction of
Rs.75,000/- for the surgery.   The opposite party had demanded the balance amount of Rs.25,000/- and failed to conduct the operation.  Then on 05.05.2003 after arranging Rs. 10,000/- the complainant requested the opposite party to perform the operation.  The opposite party admitted complainant's son in its hospital as inpatient and taken investigation for three days and on 08.05.2003 discharged him with an advise to readmit him after 20days for treatment and also insisted him to bring the balance amount of Rs. 15,000/-.  At the time of discharge the complainant’s son was in the same condition.  Discharging the complainant’s son from the hospital after knowing fully well about his worst condition is deficiency and lack in service.  In the meantime on 23.05.2003, the complainant approached the opposite party for conducting the operation.  But the opposite party is very particular in getting the balance amount and adviced the complainant to bring his son on 1^st June 2003 along with balance amount of Rs. 15,000/-.  But on 29.05.2003 his son died in the Government General Hospital, Pondicherry due to Rhematic Cardiac Failure.  The death of his son is due to the negligent, improper treatment, deficiency and lack in service of the opposite party.  If the opposite party  would have conducted the operation in time i.e. in the month of May, 2003 itself without discharging him from the hospital, his life would have been saved.  Due to the death of the complainant’s son his family sustained mental torture and agony for which the opposite party is responsible.  The complainant further submitted that when he demanded the opposite party to repay the amount paid towards the said operation, the opposite party inhumanly  gave evasive reply and also postponed the repayment for several times.  Hence, the complainant issued an advocate notice on 06.01.2004.  On receipt of the same the opposite party sent a reply dated 14.06.2004 along with the D.D for Rs. 7,975/- after deducting the amount for diagnosis charges and also informed that the sum of Rs. 75,000/- was returned to the Government of Pondicherry.  The complainant computed the damage for death, mental torture and agony and loss of income to the family to a tune of   Rs. 10,00,000/- for which the opposite party is directly liable.  Hence, the complaint.

3. The reply version filed by the opposite party briefly discloses the following:

          In the counter the opposite party denied all the Allegations found in the complaint and submitted that the complaint is not maintainable as the opposite party has not given any service to the complainant or his son as defined under Section 2 (i) (o) of the Consumer Protection Act.  It did not perform the operation on the complainant’s son and therefore there is no question of deficiency in service.  The opposite party further submitted that when the complainant approached it for his son’s treatment, it diagnosed that his son was suffering from Rheumatic heart Disease, Severe Calcific Mitral Stenosis, mild mitral regurgitation and mild aortic stenosis with pulmonary hypertension which required replacement of mitral valve and tricuspid repair.  Since the complainant is a poor man, the Government of Pondicherry has sanctioned a sum of Rs. 75,000/- on 07.11.2002 for his medical expenses and issued a Demand Draft dt. 07.11.2002 in favour of the opposite party.   After six months from the date of receipt of the said Demand Draft  i.e. on 05.05.2003 the complainant came back to the opposite party and handed over the Demand Draft along with Rs. 10,000/- totaling to Rs. 85,000/- .  The opposite party further submitted that the complainant never had an intention of performing operation for his son but wanted to usurp the money given by the government without performing the operation.  The complainant’s son was kept in the hospital for four days in order to recuperate and make him medically fit for the operation, on 12.03.2003 the condition of the complainant’s son had improved considerably due to proper medication and treatment of the opposite party and he was found to be medically fit to undergo operation and the opposite party also informed the same to the complainant, who  was reluctant to spend Rs. 25,000/- for the operation of his son.  Ignoring the advice of the opposite party, the complainant demanded for the discharge of his son from the hospital.  Hence, the opposite party had no other option except to discharge the complainant’s son.  The complainant had already paid almost 85% of the amount and if he agreed for operation without getting discharged, it would have definitely performed the operation successfully and saved the life of his son.  The opposite party was always ready to perform the operation in spite of the fact that it has entitled to demand the payment of the expenses in advance.  Since the complainant did not give an opportunity to it to provide any service, there is no deficiency of service and it was never performed by the opposite party.  Hence, prayed for the dismissal of the complaint.

          4.  Initially, this complaint was disposed by the District Forum on 15.10.2004 by allowing the complaint.  Aggrieved by the same, the Opposite Party preferred an Appeal No. 14 / 2005 along with a Miscellaneous Petition No. 37 / 2005  for adducing additional evidence before the Hon'ble State Commission, Puducherry.  The said appeal and the petition both were allowed by the Hon'ble State Commission vide its order dated 26.08.2005 by setting aside the order of this Forum.  Against the said order, the complainant preferred Revision Petition No. 633/2006 before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi which in turn, remanded this case back to this Forum with a direction to allow the parties to lead evidence.  Accordingly, notice was given to both the parties and they appeared before this Forum and on the side of the complainant, the complainant himself was examined as CW1 and Exs.C1 to C17 were marked.  On the side of the opposite party, one Dr. Udit B Das, Additional Medical Superintendent appeared before this Forum and  gave evidence as RW1 on the line of reception of documents marked before the Hon'ble State Commission, Puducherry and Exs.R1 to R5 were marked among them Exs.R3 to R5 were marked on consent after remand of the case by the Hon'ble National Commission, New Delhi.

5.       Points for determination are :

1. Whether the complainant is a Consumer?
2. Whether the Opposite Party attributed any deficiency in service and negligence?
3. To what relief the complainant is entitled for?

6   Point No.1 :

          The complainant took his son Jayaganesh to the Opposite Party's hospital in the month of August 2002 for the treatment of heart disease and the opposite party also examined the complainant's son and diagnosed that he was suffering from Rheumatic Heart Disease, Severe Calcific Mitral Stenosis, mild mitral regurgitation and advise to undergo heart surgery with Mitral Valve Replacement.  Since the complainant was poor, the government of Puducherry given financial assistance and issued a demand draft for Rs.75,000/- vide Ex.C13 Demand Draft No. 1103 dated 7.11.2002 in favour of the opposite party hospital and the same was handed over to the opposite party on 5.5.2003 by the complainant.  Hence, the complainant is a consumer. 

          7. Point No.2:

          From the averments contained in the complaint, reply version filed by the opposite party,  the documents filed and evidence adduced by both the parties, this Forum finds that the complainant took his son Jayaganesh for treatment for heart disease to the opposite party in the month of August 2002 and the opposite party also examined the said Jayaganesh and advised to go for heart surgery with Mitral Valve Replacement and has given an estimation vide Ex.C15 dated 8.8.2022 to a tune of Rs.1,00,000/-.  Since the complainant is a poor, he approached the Government of Puducherry for financial assistance and the government also sanctioned a sum of Rs.75,000/- vide Ex.C13.  It is alleged by the complainant that on 14.11.2002 the complainant approached the opposite party with the demand draft and handed over the same to the opposite party.  Thereafter, the opposite party demanded balance amount of Rs.25,000/-.   The complainant explained about his poor financial condition and requested the opposite party to conduct the operation to save the life of his son.  On 5.5.2003 the complainant paid a sum of Rs.10,000/- to the opposite party and then the opposite party admitted the son of complainant as in-patient and he was kept under observation and investigation for three days and then on 8.5.2003 the opposite party discharged the patient and advised to readmit after 20 days and also insisted for balance amount.  The complainant further alleged that at the time of discharge on 8.5.2003 the condition of son of the complainant was same without any recovery and improvement.  The complainant alleged that knowing fully well about the worst condition of the patient, the opposite party discharged the patient without conducting any lifesaving measure or to conduct the operation, which amounts to deficiency in service.  While so, on 29.5.2003 the health condition of the complainant's son became very worst and he was admitted in General Hospital, Pondicherry where he died.  The complainant further stated that if the operation was conducted in time by the opposite party, his son's life might have been saved. 

          8. The opposite party while admitting the fact of diagnosing the son of complainant and the financial assistance extended by the government, they have stated that the deceased Jayaganesh approached them only on 14.11.2002  and showed the demand draft.  The opposite party gave an estimation for performance of the surgery.  The Opposite party also stated that when they were ready and willing to admit the complainant's son for medical treatment on 14.11.2002, the complainant instead of admitting his son collected the original cheque and left the hospital stating that he would admit his son within a period of 15 days.  On 5.5.2003 the complainant came back to the opposite party along with a sum of Rs.10,000/- and totally paid a sum of Rs.85,000/-.  The complainant handed over the demand draft just two days before the expiry of its validity period of six months.  On 5.5.2003 the said Jayaganesh was kept under observation and all necessary pre-operation tests were conducted on him.   The said Jayaganesh was kept in hospital for four days for him to recuperate and make him medically fit for operation.  On 12.5.2003 the condition of the complainant's son had improved considerably for surgery due to proper medication and treatment.  The same was informed to the complainant.  The complainant presumed that his son could be cured with the same medicines and he need not to undergo operation immediately.  The complainant was reluctant to spend Rs.25,000/- on the operation of his son, it was his miscalculation.  It is also alleged by the opposite party that the complainant enquired with the doctors about the postponement of operation for 10 to 15 days for which, the doctors of opposite party advised to go for operation immediately, but the complainant requested that his son may be discharged and the operation to be postponed.   Hence, the complainant's son was discharged at his request against medical advise with instruction to get re-admitted for operation within 20 days i.e. on or before 28.05.2003.  The opposite party denied that the complainant and his son Jayaganesh approached them on any day after discharge, much less on 23.05.2003 and that their doctors advised the complainant to bring his son back on 1.6.2003.  The complainant and his son neglected the advice given by the doctors and did not return back to their hospital for further treatment.  The complainant on the other hand had been taking treatment at General Hospital, Pondicherry.   The opposite party further stated that the complainant did not give an opportunity to them  to provide any service as they were prevented by the complainant from performing the operation to his son and hence, there is no question of deficiency in service. 

          9. Admittedly, there is no dispute that the complainant's son was suffering from heart disease and he approached the opposite party for treatment.  The main issue in this case is whether the opposite party had failed to perform the operation to the complainant's son in time.  The complainant approached the opposite party with his son for heart surgery with Valve Replacement in August 2002 and the opposite party also gave an estimation vide Ex.C15.  Based on Ex.C15, the complainant approached the government through Pondicherry Medical Relief Society who in turn sanctioned a sum of Rs.75,000/- and gave a demand draft to the complainant.  On 14.11.2002 the complainant approached the opposite party along with the above said demand draft for being admitted and for performance of the operation.  When the opposite party was ready and willing to admitted the complainant's son for medical treatment, the complainant instead of admitting his son, collected the estimate and left the hospital stating that he would admit his son within a period of 15 days.  However, he returned back on 5.5.2003 along with the demand draft for Rs.75,000/- and also a sum of Rs.10,000/- as cash.   The complainant's son was admitted in the opposite party's hospital on 5.5.2003 and was diagnosed.  Necessary test were taken and medicines were also administered.  The above facts revealed from Ex.R5 the Progress Report.  On 7.5.2003 the opposite party's doctor has advised to take C.T. Scan needs for Mitral Valve Replacement and also advised to fix the date before the discharge.  From Ex.R5, it is evident that on  8.5.2003 the doctor has noted that "patient is symptomatically better and haemodynamically stable, no chest pain or difficulty in breathing, lungs is clear".  It is also stated in the Ex.R5 that "since the patient is keen to go home and has requested for discharge, he may be discharged and also advised to take bed rest and minimal activities, to avoid unnecessary exertion and also advised to report for surgery at an early date".  In the cross-examination, though the CW1 denied that his son was discharged on his request and admitted that on 8.5.2003 his son was discharged after the investigation made.  On perusal of Ex.C9 the discharge summary, there is a note for mitral valve replacement and Tricuspid repair.  The allegation of the complainant that his son was discharged by the opposite party on 8.5.2003 voluntarily is not established by the complainant. On perusal of Ex.C3 the Attender Pass, the opposite party has given the said pass to the complainant having validity from 6.5.2003 to 6.6.2003.  It clearly shows that the patient was not discharged suo motu by the opposite party.  The Ex.R5 clearly reveals that while discharging the patient, the opposite party's doctors had advised to report for surgery at an early date.

          10. Further, the Audit report filed by the opposite party vide Ex.R2 (page 2) will disclose that the opposite party has given concession to a tune of Rs.1,34,72,938/- to various patients against medical expenses, which is clearly enlightened that no possibility for the opposite party to discharge the patient on compulsion  from their institution without conducting operation for non-payment of balance amount of Rs.15,000/-.  As per Ex.R5 the Progress Report, the  patient / son  was voluntarily taken from the hospital by the complainant against medical advise only.  Further, on perusal of Ex.C15, the doctor endorsed to register the name for Mitral Valve Replacement (MVR).  Hence, the allegation of the complainant that the opposite party insisted for balance amount for conducting operation cannot be accepted.  Though there is a balance amount of Rs.15,000/- to be paid by the complainant, the opposite party has taken proper care and medication and they have prepared for conducting operation for mitral valve replacement.  The complainant alone voluntarily discharged his son from the opposite party's hospital against medical advice and failed to admit his son back to the hospital for further treatment.  Hence, this Forum relied the evidence and documents produced by the opposite party before the Hon'ble State Commission in Appeal No. 14/2005 vide M.P. No. 37/2005 and also the said documents were marked as Exs.R3, R4 and R5 by the RW1 by adducing oral evidence.  From the facts and documents, we ascertain that the opposite party's doctors have acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.  Hence, from the facts and evidence on record, this Forum found that the opposite party was not negligent and there is no deficiency in service in giving treatment to the son of the complainant.   

11. As stated supra, the opposite parties have let in evidence before this Forum and produced necessary documentary evidence to show that the allegation of the complainant that the opposite party has failed to perform the operation for his son for want of balance amount of Rs.15,000/- is not acceptable.  The complainant has not established the deficiency in service against the opposite party.  This point is answered accordingly.

          12. Point No. 3:

          In view of the discussion and decision arrived in Point No. 2 that the Complainant failed to prove the negligent act and deficiency in service on the part of opposite party.  Hence,  this complaint is liable to be dismissed for lack of evidence. 

13. In the result, this complaint is dismissed.  No costs.

Dated this the 6^th day of December 2016.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           21.10.2011           Pakkirisamy            

OPPOSITE PARTY'S WITNESS:  

RW1           12.05.2014           Dr. Udit B. Das

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:   

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER