Haryana

Ambala

CC/213/2013

UMESH SAHU - Complainant(s)

Versus

UNION OF INDIA - Opp.Party(s)

NIKHILESH BHAGI

08 Aug 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

Complaint Case No.      : 213 of 2013.

Date of Institution         : 27.08.2013.

Date of Decision            : 08.08.2017

 

Shri Umesh Sahu aged about 52 years son of Shri Loka Sahu, resident of House No.99-C, near railway Gurudwara, Railway Colony, Ambala Cantt employeed in Railway Construction Department, Northern Railway Ambala Cantt.

                            

……Complainant.

 

Versus

 

1.       Union of India, through the General Manager, Northern Railway, Headquarter Office, Baroda House, New Delhi.

2.       The Divisional Railway Manager, Northern Railway, DRM Office, Ambala Cantt.

3.       Dr.Girija Shankar (CMO-UMB), Main Incharge, CMO, Railway Hospital, Ambala Cantt.

4.       Dr.P.Parshad, Eyes Surgeon, Railway Hospital, Ambala Cantt.

 

                                                                   ……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act.

 

BEFORE:   SH. D.N. ARORA, PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

                   MS. ANAMIKA GUPTA, MEMBER.

                  

Present:       Sh. Nikhlesh Bhagi, counsel for complainant.

                   Sh. Nitish Sahni, counsel for OPs.  

 

ORDER

 

                   The facts of the present complaint are that the complainant is employee of Railways and a medical card has been issued by the department to its employees for providing medical facility in the hospitals being run by it. On 06.10.2012, the complainant visited railway hospital at Ambala Cantt. as there was pain in his tooth. After medical examination, OP No.3 gave injunction in the teeth of the complainant as there was pus in the same and thereafter she used grinder in other teeth of the complainant than the infected teeth. It has been further averred that thereafter the complainant started feeling pain in his eyes and it became red besides swelling in the same, therefore, he could not sleep during night. On 07.10.2012, the complainant again visited in the railway hospital where OP No.3 referred him to eye-surgeon (OP No.4) for eye problems. OP No.4 told the complainant that it all happened due to injunction given by OP No.3 and asked him to visit on 08.10.2012. The complainant remained admitted in the hospital from 08.10.2012 to 15.10.2012 but the Op No.4 asked the complainant to visit private doctor as there was no chance to improve the vision of the eyes.  After that, the complainant visited Dr.Manocha for treatment of the eyes on 24.10.2012 but he was advised to visit railway hospital Ambala Cantt. The complainant again visited the railway hospital on 25.10.2012 and further he was referred to PGI, Chandigarh on 26.10.2012. On 06.12.2012, the doctors of PGI, Chandigarh reported that pain, redness vision, water of left eye since 12 days occurred after some dental procedure and it all happened due to negligence of the dentist and eye surgeon of railway hospital, Ambala Cantt. The complainant remained admitted in PGI, Chandigarh and was discharged on 08.02.2013 where the doctors have asked that treatment of eyes cannot be done. The OP No.4 also referred the complainant to Dr.Bharat. The complainant has further averred that the vision of his left eye has got damaged due to the negligence of OP Nos. 3 & 4 who are the employees of OP Nos. 1 & 2. Hence, this Complaint. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C16.

2.                          Upon notice, OPs appeared through counsel and filed their joint reply wherein several preliminary objections such as cause of action, maintainability, estoppal and suppression of material facts from this Forum etc. have been taken. It has been further submitted that the complainant is not the consumer of OPs and the present complaint has been filed just to mislead this Forum as OP No.3 was not posted at Ambala Cantt. in the month of October, 2012.  It has been further submitted that the complainant himself was negligent as he had failed to follow the instructions of the concerned doctor and went away to his home instead of admitting himself in the hospital. The Op No.4 was also not available in the railway hospital, Ambala Cantt. during the treatment period of the complainant. There was no effect  on the eyes of the complainant due to disease as the doctors of PGI have nowhere mentioned either about the negligence of any doctor or the Ops. There was no vision in the left eye of the complainant for the last so many years and the complainant had been working with only one eye since the time of joining of services. There was no negligence on the part of OPs and lastly, prayer for dismissal of the complaint has been made. In evidence, the Ops have tendered affidavit of Sh.Bharat Lal as Annexure RX besides documents Annexure R1 to Annexure R27.

3.                We have heard learned counsel for the parties and gone through the case file very carefully.

4.                Learned counsel for the complainant has argued that the complainant was having tooth ache (pain), therefore, he visited the dental doctor namely Dr.Girija Shanker (OP No.3) posted at Railway Hospital, Ambala but the treating doctor after giving injection to his tooth grinded the another tooth than the affected tooth. Due to this, swelling/redness and watering the left eyes started besides case of diminishing of vision of eye on the next day. He further contacted the eye surgeon (OP No.4) and lateron the complainant has also visited private eye specialist Ambala and after that he visited the PGI, Chandigarh where he remained under treatment w.e.f. 22.10.2012 to 08.02.2013 (Annexure C7). As per PGI record the patient was having history of pain, redness, diminished vision and watering in left eye since 12 days after some dental procedure given by OP No.3. In this report it has also been mentioned that the patient developed orbital cellulites after dental treatment and there is history of giving injection. In support of his contention he placed reliance of case laws titled as Laxman Thamappa Kotgiri Vs. G.M.Central Railway & Ors. III (2006) CPJ 5 (SC), Jagdish Kumar Bajpal Vs. Union of India IV (2005) CPJ 197 (NC), V.Kishan Rao Vs. Nikhil Super Specialty Hospital & Another  2010 (2) 92 RCR (Civil), Bhattacharya Orthopaedics & Related Research Centre (Pvt.) Limited & others 2016 (2) CLT 338, S.R.Shivarakash and others Vs. Wockhardt Hospital Limited & others 2006 (2) CLT 291 and Kedarnath Sethia Vs. Dr.P.S.Hardia  2001 (2) CPC 151.

 5.               On the other hand learned counsel for the OPs has drawn our attention towards specific plea taken in written statement that the Op No.3 was not posted in the month of October, 2012 in Railway Hospital, Ambala Cantt. who allegedly treated the complainant being Dentist. Learned counsel for the OPs has further argued that the complainant has failed to prove any negligency on the part of doctor and when the Op no.3 was not posted at railway hospital, Ambala Cantt. therefore,  question of any deficiency in service does not arise at all. In support of his arguments he has placed reliance of case law titled as Tara Chand Jain Vs. Sir Ganga Ram Hospital & Ors.  1 (2006) CPJ 6 (SC).

6.                In view of the above circumstances, this Forum is of the opinion that to reach at any conclusion that who had treated the complainant during the period from 06.10.2012 to 15.10.2012 and in the interest of justice and proper adjudication of the complaint as well as to decide the controversy whether Op no.3, who allegedly treated the complainant as a Dentist, had treated the complainant or not.  So the Op Nos.1 & 2 were directed to produce duty roaster as well as OPD record of the hospital for the said period regarding treatment of the complainant. Dr.Bharat Lal appeared before this Forum and produced the summoned record as Annexure RA to Annexure RG and further clarify the posting of the Dentist and Eye Surgeon.

7.                          After going through the file we observed that it might be possible that Local Anesthetic Injection was given which was required before extraction or RCT (Root Canal Treatment) of affected teeth. There are known complication of local Anesthetic Drug (local as well as systemic). In this case after giving injection, infection which was present, travelled to the eye through blood vessel and eye can be affected is known complication of Local Anesthetic (specially upper jaw blocks). Nowhere it is on record that treating doctor acted wrongly and gave wrong treatment and there is no record what type of dental procedure and any other procedure was done.

8.                          In view of the above record Annexure RA to Annexure RG, it is clear that OP No.3-Dr.Girija (dental surgeon) was not posted in railway hospital, Ambala Cantt. from 06.10.2012 to 15.10.2012 and during that period Dr.Anshul Garg was on duty as per the OPD record. Since the Op No.3 has not treated the complainant, therefore, question of any deficiency in service does not arise at all on the part of OP No.3. As per the OPD record, the complainant had visited the railway hospital, Ambala Cantt. on 08.10.2012 for infection in the left eye which shows that he had not taken any dental treatment from the said hospital. He might have taken dental treatment from some other/private hospital. The case laws cited by the counsel for the complainant are not disputed but the same are not helpful to the case of the complainant being rested on different footings. Moreover, the complainant has also failed to prove on the case file any negligency on behalf of OP Nos.3 & 4 by leading cogent and reliable evidence. Hon’ble Apex Court of India in title “Kusum Sharma & ors. Vs. Batra Hospital & Medical Research Centre & others reported in 2010(2)RCR (Civil) 161 has directed to keep in view the following principles while holding medical negligence:-

1. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
2. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
3. The medical professional is expected to bring a reasonable decree of skill and knowledge and must exercise a reasonable decree of care. Neither the very highest nor a very low decree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
9. It is our bounded duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
10. The medical practitioner at time also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
11. The medical professional is entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals. 2005 (3) RCR (Crl.) 836 relied.

9.                          Keeping in view the above facts and circumstances as well as the principle laid down in Kusum Sharma & ors. Vs. Batra Hospital & Medical Research Centre & others (supra), we are of the view that the complainant has failed to prove his case by leading cogent and reliable evidence that OP Nos. 3 & 4 are guilty of medical negligence, therefore, the department also cannot be held liable. We accordingly dismiss the present complaint leaving the parties to bear their own costs. Copies of this order be sent to the parties free of costs. File be consigned to the record room.

 

ANNOUNCED ON:      08.08.2017                          (D.N. ARORA)

                            PRESIDENT       

         

 

(PUSHPENDER KUMAR)

                                                                                      MEMBER

 

 

            (ANAMIKA GUPTA)

                                                                                      MEMBER