New Complaint No.238 of 2023.
Date of Institution:27.10.2023.
Old Complaint No:302 of 2018.
Date of Institution: 16.07.2018.
Date of order:15.01.2024.
Baldev Singh Son of Sh. Jamila Singh, resident of House No. 125/11, Prem Nagar Colony Gurdaspur, Tehsil and District Gurdaspur.
…......Complainant.
VERSUS
1. Vijay Scan, Near Khushal Behl Residence, Library Road Gurdaspur, through its Proprietor Dr. Vijay Mahajan.
2. Dr. Kamaljit Singh, C/o KJ Hospital Batala Road Dhariwal Tehsil and District Gurdaspur.
3. The Oriental India Insurance Company Ltd. 4E/14, Azad Bhavan, Jhandelwalan Ext. New Delhi – 110005, through its Manager.
....Opposite parties.
Complaint U/s 12 of Consumer Protection Act.
Present: For the Complainant: Sh.Lalit Parshad, Advocate.
For the Opposite Party No.1: Sh.Manoj Loomba, Advocate.
For the Opposite Party No.2: Sh.Pushkar Nanda, Advocate.
For the Opposite Party No.3: Sh.H.S. Kahnuwania, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Baldev Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against Vijay Scan Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that on 31.05.2018, the complainant suffered suffocation and he approached the OP No. 2 Dr. Kamaljit Singh at Dhariwal for medical checkup. The above said doctor suggested the complainant for CT Scanning. It is pleaded that as per advice of the OP No. 2, the complainant approached the OP No. 1 on 01.06.2018 for CT Scanning. The OP No. 1 conducted CT Scanning of the complainant and give report that the complainant is suffering from Heart disease and only 50% heart of the complainant is working. It is further pleaded that the complainant approached the OP No. 2 who gave medicine, but opined that the report given by the OP No. 1 seems to be wrong. It is further pleaded that when the complainant did not feel any relief in his health even after taking medicines continuously for 5 days, he got his CT Scanning from Sigma MRI & CT Scans Tibri Road Gurdaspur, who gave report that the complainant is suffering from sine disease of throat and neck and not from heart disease. It is further pleaded that after getting report of Sigma MRI & CT Scans Tibri Road Gurdaspur, the complainant again went to the OP No. 2 who gave medicines on the basis of report of Sigma MRI & CT Scans Tibri Road Gurdaspur and now the complainant is feeling quite well. It is further pleaded that the complainant approached the OP No. 1 and requested him that he has given a wrong CT Scan report on account of which the complainant remained under stress and depression, but the OP No. 1 instead of feeling his mistake or compensate the complainant, misbehaved and humiliated the complainant in the presence of number of persons, which further caused mental agony and torture to the complainant. It is further pleaded that act of the OP No. 1 of giving wrong report and subsequently misbehaving and humiliating the complainant is altogether wrong, and clear cut deficiency and negligence in service and unfair trade practice. The OP No. 1 is liable to compensate the complainant. It is further pleaded that due to this illegal act and conduct of the opposite party the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite party.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite party and prayed that necessary directions may kindly be issued to the opposite party to make the payment of Rs.3 Lacs to the complainant for giving wrong CT Scan Report which caused mental agony, physical harassment to the complainant on account of and deficiency in service on the part of the opposite party. Litigation expenses to the tune of Rs.5000/- may also be awarded in favour of the complainant after accepting this complaint, in the interest of justice.
3. Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that 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 against the answering opposite party No.1 just to harass, defame and extort illegal sum of money from the opposite party No.1, hence the complaint is liable to be dismissed. It is pleaded that no specific, scientific and justified allegations in regard to negligence or deficiency in providing services has been made by the complainant against the opposite party No.1 and the complainant has totally failed to explain "as to how he is involved and the opposite party No.1 were negligent", hence the complainant is miserably failing to explain the cause of action against the opposite party No.1. It is further pleaded that complaint is liable to be dismissed outright. It is further pleaded that the complainant has filed this complaint with false allegations of negligence to the Hon'ble Commission by claiming exorbitant amounts without any basis, just to waste the valuable time, harass and defame the opposite party No.1. Although it is a fact that the opposite party No.1 has not committed any negligence in this case, while providing the said treatment, hence the complaint is liable to be dismissed. It is further pleaded that as such no cause of action arose against the opposite party No.1 in this case, no negligence or deficiency in services has been made/provided by the opposite party No.1 to the patient while providing the said services in question, and hence this complaint is not maintainable in the present form and is liable to be dismissed outright. It is further pleaded that the present complaint is totally false, fabricated, wrong and baseless which is synthesized on the basis of unscientific laymen conjectures, assumptions and presumptions and that in this case no negligence (either in the form of commission or omission) has been committed by the opposite party No.1 and hence the complaint is liable to be dismissed.
NON-JOINDER OF NECESSARY PARTY
It is further pleaded that this complaint is bad for non-arraignment and mis-arraignment of parties. The opposite party No.1 is insured with "The Oriental India Insurance Company Ltd", through its Professional Indemnity Policy No.272200/48/2018/12537 effective from 13-Sep-2017 to 12-Sep-2018. It is further pleaded that the opposite party No.1 is a well-qualified and a reputed doctor, with substantial good will and experience of long standing successful medical practice. And this complaint is full of concocted facts, defamatory language, derogatory words, spirit and tenure.
FACTUAL MATRIX AND MEDICAL FACTS
It is further pleaded that Patient Baldev Singh came to Vijay Scan on 1st June 2018 with prescription of KJ Hospital. Prior to coming to OP center, patient has visited KJ Hospital with complaint of breathlessness and general weakness on 31st May 2018. There patient was advised echocardiography by KJ Hospital hence he visited OP centre for getting done echocardiography. Echocardiography was done diligently prudently and a normal report with ejection fraction > 50% approx. was handed over to the patient. Value of EF is 55% which is within normal range, i.e. 50-75 %. Three methods can be used to measure EF. First is MO Mode method by Teicholz, Second is Simpson volumetric method and third is subjective eye ball method. It is further pleaded that when all these methods used simultaneously variation of 10% in EF can occur which is normal B stroke volume and EF depends upon preload, after load and myocardial contractility which can be influenced by hormones, drugs, stress and anxiety. It is further pleaded that this variation is normal unless variation is generated by regional wall motion abnormality. The gold standard for measuring EF is cardiac MRI. It is further pleaded that variation in EF within normal range may also be due to Physiological reasons, Biological cycle variation, postural variation and variation after eating food. Everything the opposite party No.1 has done diligently, prudently, with utmost due care and caution in treating the said patient. It is further pleaded that there is no negligence on the part of the answering opposite party No.1. It is further pleaded that the opposite party No.1 is not liable to pay anything to the complainant.
On merits, the opposite party No.1 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Upon notice, the opposite party No.2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainant has not come with clean hands and suppressed true facts relating to the matter in question and thus not entitled to any discretionary relief and as such the complaint is not maintainable. It is pleaded that the answering opposite party No.2 has no role in the matter in question and more over no relief has been sought against the answering opposite party as per pleadings. However fact is that Dr. Shakeel Ahmed had treated the patient as per documents attached with the complaint and the answering opposite party has no dealing with the complainant in any manner and been made as unnecessary party in this case and thus entitled to special costs for this unwanted litigation from the complainant. It is further pleaded that as per documents attached with the complaint, the complainant had visited the Hospital of the answering opposite party No.2 and got himself treated from Dr. Shakeel Ahmad who had treated and referred scan and even nothing wrong has been done by the said doctor with the complainant as per pleadings of the complaint. However, it is admitted that in the scan report the name of the answering opposite party has been mentioned as Dr. Shakeel Ahmad is working in the hospital of the answering opposite party who had treated the complainant.
On merits, the opposite party No.2 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
5. Upon notice, the opposite party No.3 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint filed by the complainant against the answering opposite party No.3 is not maintainable as the same is in contradiction of the terms and conditions of the Insurance policy. Hence, the complaint is liable to be dismissed. It is pleaded that the answering opposite party No.3 is not liable for the professional act and conduct of the opposite party No.1 which is done intentionally, deliberately and knowingly wrong. Therefore, the answering opposite party’s Insurance Company is not liable to pay any compensation to the complainant. The complaint is bad for non-joinder and mis-joinder of necessary parties The Sigma MRI & CT Scan, Tibri Road, Gurdaspur has not impleaded as party in the complaint by the complainant which is necessary party. It is further pleaded that the complaint is not maintainable and is liable to be dismissed. It is further pleaded that this Ld. Commission has no jurisdiction to entertain, try and decide the present complaint as the complainant does not fall within the ambit of consumer. The complainant has not approached this Ld. Commission with clean hands and has also misleading to this Ld. Commission by concealing the true facts. The whole story of the complainant is concocted one and even after thought. There is no deficiency in service as well as no unfair trade practice on the part of the opposite party No.1 and answering opposite party No.3. It is further pleaded that the opposite party No.1, Dr. Vijay Mahajan (Vijay Scan Library Road, Gurdaspur) has been insured with the answering opposite party No.3 under the "Professional Indemnity - Doctor Policy Schedule". The Policy was having bearing No. 272200/48/2018/12537 and period of insurance was w.e.f. 13.09.2017 to midnight of 12.09.2018. It is further pleaded that if the complainant did not get any relief in his health even after taking medicines continuously for 5 days given by the opposite party No.2, then it does not means that the CT Scan conducted and report of CT Scan given by the opposite party No.1 must be wrong. It might happen that medicine recommended by the opposite party No.2 was not of standard prescription so it could not give any relief to the complainant. It is further pleaded that the answering opposite party No.3 is not liable for misbehave and professional act and conduct of the opposite party No.1 which is done intentionally, deliberately and knowingly wrong with complainant. There is no deficiency in service as well as no unfair trade practice on the part of the opposite party No.1 and answering opposite party No.3. Therefore, the answering opposite party’s Insurance Company is not liable to pay any compensation to the complainant.
On merits, the opposite party No.3 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
6. Learned counsel for the complainant has filed Self Attested affidavit of Baldev Singh, (Complainant) alongwith other documents as Ex.C-1 to Ex.C-3.
7. Learned counsel for the opposite party No.1 has tendered into evidence affidavit of Dr. Vijay Mahajan, (opposite party No.1) as Ex.OP-1/1 alongwith reply.
8. Learned counsel for the opposite party No.2 has filed affidavit of Dr. Kamaljit Singh, (opposite party No.2) alongwith reply.
9. Learned counsel for the opposite party No.3 has tendered into evidence affidavit of Sh. Harbans Lal, (Senior Divisional Manager of Oriental Ins. Co. Ltd., Pathankot) as Ex.OP-3/A alongwith other document as Ex.OP-3/1 alongwith reply.
10. Rejoinders filed by the complainant.
11. Written arguments not filed by the parties.
12. Counsel for the complainant has argued that on 31.05.2018 complainant suffered suffocation and consulted opposite party No.2 who advised CT scan and CT scan was conducted by opposite party No.1 on 01.06.2018 and had given report that heart of the complainant is working 50%. It is further argued that by relying upon CT scan report of opposite party No.1, opposite party No.2 has prescribed some medicines for five days but there was no improvement in the health of the complainant and thereafter complainant again undertook CT scan from Signma MRI & CT Scans who had given report that complainant was suffering from sine disease of throat and neck and not from heart disease. It is further argued that complainant took medicines as per report of Signma MRI & CT Scans and cured from the ailment. In the end the complainant has prayed for compensation of Rs.3 Lakhs from opposite party No.1 for giving false report on account of deficiency in service.
13. On the other counsel for the opposite party No.1 has argued that the complainant approached the opposite party No.1 with prescription of KJ Hospital and the patient was advised Echocardiography and accordingly the same was done. However, no CT scan was ever done by opposite party No.1 as the prescription was to perform Echocardiography only and report was given as per the prescription. Accordingly, there is no deficiency in service o the part of the opposite party No.1.
14. Counsel for the opposite party no.2 has argued that opposite party No.2 had advised the tests as per the facts narrated by the patient and second test was also advised as there was no improvement in the health of the patient. It is further argued that complaint is not maintainable against opposite party No.2 and is liable to be dismissed.
15. Counsel for the opposite party No.3 has argued that since no negligence on the part of opposite party No.1 is proved as such opposite party No.3 is not liable to make any payment and accordingly complaint is liable to be dismissed.
16. We have heard the Ld. counsels for the parties and gone through the record.
17. Perusal of file shows that complainant has placed on record his affidavit, copy of prescription slip Ex.Cx3. Perusal of prescription slip Ex.C3 shows that opposite party had recommended Echocardiography and CT Scan is nowhere recommended as per Ex.C3. Moreover, the Echocardiography report Ex.C1 shows that LV ejection fraction result is as 55.00% which is normal limits which is mentioned as 55.65% meaning thereby that the report given by opposite party No.1 did not recommend any abnormality and there was no need for any treatment. However, when the patient/complainant did not recover the complainant had gone for tests from Signma MRI & CT Scans and as per the report the Global LVEF was approximately 67% in resting state which again within the normal parameters. We are of the view that although there is small variations in percentage of both the reports and both the reports shows the condition of the complainant to be normal and the complainant has not been able to point out any deficiency in service on the part of the opposite party No.1. We are of the further view that there is no report of the expert to point out some negligence on the part of opposite party No.1 in conducting the tests and to point out what was the reason for the variation of 10% of both the reports. As such we are of the view that complainant has failed to prove any deficiency in service on the part of opposite parties.
18. Accordingly, present complaint being without merit is ordered to be dismissed with no order as to costs.
19. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
20. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Jan. 15, 2024 Member
*YP*
