State Consumer Disputes Redressal Commission
Mahesh Mahajan Multi Speciality ... vs Deepak Kumar on 3 October, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.169 of 2017
Date of Institution : 09.03.2017
Order Reserved on: 29.09.2017
Date of Decision : 03.10.2017
1. Mahesh Mahajan Multi Specialty Hospital and Trauma Centre,
Ortho Care Centre (ICU with ventilator), opposite Sood Gas
Service, Near Hotel Venice, Dhangu Road, Pathankot, through
its Managing Director-cum-Authorized Signatory.
2. Dr. Manish Mahajan, MBBS, MS (Ortho), Ex-Registrar Mullana
Medical College, Fellowship in Orthopaedics (U.K.) Bone and
Joint Specialist c/o Mahesh Mahajan Multi Specialty Hospital
and Trauma Centre, Ortho Care Centre (ICU with ventilator),
opposite Sood Gas Service, Near Hotel Venice, Dhangu Road,
Pathankot.
.....Appellants/opposite party nos.1&2
Versus
1. Deepak Kumar son of Sh. Tarsem Lal, resident of Vishnu
Nagar, Lamini, Near Rani Ka Mandir, Pathankot, Tehsil and
District Pathankot.
.....Respondent no.1/complainant
2. United India Insurance Company Ltd., through its Branch
Manager office at Dalhousie Road, Pathankot.
.....Respondent no.2/opposite party no.3
First Appeal against order dated
08.12.2016 passed by the District
Consumer Disputes Redressal Forum,
Gurdaspur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member Present:-
For the appellants : Sh. Nitesh Singhi, Advocate For respondent no.1 : Sh. Sachin Ohri, Advocate For respondent no.2 : Sh. D.P. Gupta, Advocate ............................................ First Appeal No.169 of 2017 2 J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by appellant is to order dated 08.12.2016 of District Consumer Disputes Redressal Forum Gurdaspur (in short the 'District Forum'), allowing the complaint of respondent no.1 of this appeal against appellants of this appeal by directing them to pay Rs.3.0 Lac each as compensation for causing him financial loss, physical and mental pain etc. besides Rs.5,000/-
each as litigation cost to complainant. Appellants of this appeal are opposite party nos.1 and 2 (OPs) in the compliant before the District Forum and respondent no.1 of this appeal is complainant therein and respondent no.2 of this appeal is opposite party no.3 therein and they be referred as such hereinafter for the sake of convenience.
2. The complainant instituted the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he was skilled mechanic of ATM machines. On 02.02.2015, he met with road side accident at Pathankot and his two bones of right leg were fractured in that accident and he was shifted to OP no.1 Hospital by his parents for treatment. OP no.2, who has been serving as M.B.B.S. M.S. (Ortho) in OP no.1 Hospital conducted thorough check up and he asked complainant's parents qua providing proper treatment to him and insertion of Steel Road in his affected right leg in the accident. For this purpose, he had to undergo operation. OP no.2 assured that complainant would be perfectly alright. The complainant deposited Rs.60,000/- with OPs for conducting his above operation and OP no.2 conducted the First Appeal No.169 of 2017 3 operation on 03.02.2015. He was thereafter discharged on 05.02.2015 from OP no.1 hospital. After the insertion of the said Steel Rod in his right leg, he felt some pain in his leg and also started feeling some problem of breathlessness. He contacted OP no.2 and told him about the said problems, but OP no.2 asked him not to worry about it, as the said problems would be rectified with the passage of time provided he would take the medicines regularly. On 17.02.2015, he started feeling acute pain in his above leg and serious breathlessness as well and he was again admitted in OP no.1 hospital and OP no.2 started his treatment and one unit of blood was transfused in his body. Thereafter, OP no.2 referred him to Star Pathology Lab, Dr.Ashneet M.D. Pathology D.M.C. (Ludhiana) for conducting Tests and he gave his blood sample for tests on 18.02.2015 and after getting reports of tests, it came to his notice that there were some serious problems and infection in his body. On 19.02.2015, he was referred to D.M.C. Ludhiana by OPs and the doctors of D.M.C. Ludhiana, diagnosed him as "EIGHTEEN DAYS OF OLD FRACTURE MID SHAFT TIBIA RIGHT SIDE WITH INFECTED METAL WORK (INTRAMEDULLARY INTERLOCKING NAIL) IN SITU WITH DISCHARGING SINUS" The doctor of the D.M.C. Ludhiana Hospital clearly stated that OP no.2 had done the operation in a negligent manner and put the Steel Road in his right leg, which was tied with rust, just after few days of insertion oversized rod. The doctors of DMC advised for removal of the said Rod. On 23.02.2015, an operation was conducted on him, whereby First Appeal No.169 of 2017 4 the defective rusted Rod was removed and doctors at DMC inserted Anti Biotic Rod. Even they also mentioned this fact in the report as "Removal of Metal Work and Stabilization of Fracture with External Fixation Across leg and insertion of Antibiotic Rod". The complainant spent Rs.60,000/- on his treatment in OP no.1 Hospital, but OP no.2 conducted wrong operation and remained negligent in his work. He also remained bed ridden for long period and he also suffered acute pain due to wrong diagnosis and operation and he has been compelled to spend another amount of Rs.2,69,790/- on his treatment in the D.M.C. Hospital Ludhiana due to wrong operation done by OPs. He served legal notice dated 03.09.2015 upon OPs, but to no effect. The complainant alleged deficiency in service on the part of OPs and prayed that they be directed to pay Rs.8,00,000/- as compensation for mental harassment; further to pay Rs.2,69,790/- as treatment cost; and to pay Rs.20,000/- as litigation expenses to him.
3. Upon notice, OP nos.1 and 2 appeared and filed joint written reply by raising preliminary objections that the complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous, which is not sustainable in the eyes of law. The complainant has no cause of action against OPs to file the complaint. They denied any deficiency in services or medical negligence on their part. The complaint was contested by OP nos.1 and 2 even on merits by averring that patient Deepak Kumar met with a serious road traffic accident on 02.02.2015 resulting into fracture of his right leg bones. He sustained fracture mid shaft right leg tibia and fibula bones and First Appeal No.169 of 2017 5 he was operated on 03.02.2015. It was further averred that OPs used ISO approved Pitkar branded nail for intra medullary nailing. OP no.2 did IMN with distal locking. Post operative period remained uneventful. First post operative dressing was dry on 05.02.2015 and patient was discharged on 05.02.2015. On 16.02.2015, third dressing was done, where the patient had a slight discharge with history of fever and anemia. On 17.02.2015, the patient was readmitted with raised WBC counts for which antibiotics treatment was started and blood transfusion was given to him. Thereafter, OPs got the test from the star path lab for reconfirmation. The raised WBC did not correlate with patient's symptomatology and OPs referred him to a physician Dr.Manish Goyal, who diagnosed him that it was leukemoid reaction and the same would be all right within 2 days. The patient had occult blood positive in the stool and a peripheral blood report showed haemolysis causing anemia due to sepsis. It was further averred that any implant insertion was like foreign body insertion and sometimes the patient's body would not accept this foreign material inserted that did not mean that there was any negligence on the part of the treating doctor. The patient was advised removal of the plant, but the patient refused it. Reactions to foreign material in the implanted nails are a known complication and not medical negligence. Then the patient was referred to DMC, where all his initial blood tests were found normal. No doctor at DMC Ludhiana pointed out any negligence on the part of OPs. No doctor at DMC Ludhiana pointed out any removal of rusted rod put by OPs. First Appeal No.169 of 2017 6 It was a normal foreign body reaction which sometimes forces medical fraternity to remove the rod and to put external fixators and the same was done in the patient by DMC Ludhiana and not because of negligence of OPs. No doctor at DMC Ludhiana pointed out that the rod was rusted, over sized and hence needed removal. OP nos.1 and 2 controverted the other averments of complainant and prayed for dismissal of complaint.
4. OP no.3 appeared and filed its separate written reply by raising preliminary objections that the complaint is not maintainable against it and it is not liable to pay compensation to the complainant, under the terms and conditions of the Professional Indemnity Dr.(other) Policy. The insured OP nos.1 and 2 did not give written intimation to the company regarding the present claim filed by the complainant against them nor furnished required documents i.e. Medical treatment record of the complainant, Admission and Discharge Certificate etc. by them to the insurance company. It was further averred that in the absence of the required documents, the insurance company is not in a position to investigate the matter and to give the proper and complete reply of the complaint. Hence, the present complaint is liable to be dismissed on this ground only against it. The policy in question was for the reimbursement benefit policy for the insured i.e. Mahesh Mahajan Multi Specialty Hospital, if any omission or negligence was committed by OP no.1 during the treatment of the complainant, even in that case, the insurance company is not liable to pay the claim until it is covered under the First Appeal No.169 of 2017 7 term and conditions of the policy. The liability of the insurance company is fastened on it only subject to the terms and conditions of the policy. OP no.3 prayed for dismissal of the complaint.
5. The complainant tendered in evidence his affidavit Ex.C1, alongwith other documents Ex.C-2 to Ex.C-200 and closed the evidence. As against it, OP nos.1 and 2 tendered in evidence affidavit of Dr.Mahesh Mahajan and Dr.Munish Mahajan Ex.OP-1,2/1, alongwith other documents Ex.OP-1,2/2 to Ex.OP-1,2/5 and closed the evidence. OP no.3 tendered in evidence affidavit of Sh.Satish Kumar Sharma Assistant Manager Ex.OP-3/1, alongwith other document Ex.OP-3/2 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainant, as referred to above. Aggrieved by above order, OP nos.1 and 2 now appellants have preferred this appeal against the same.
6. We have heard learned counsel for the parties at length and have also examined the record of the case. The forceful submission of counsel for OP nos.1 and 2 now appellants before us is that there is no expert witness report on the file to prove any medical negligence on the part of OPs. Much emphasis has been laid by counsel for OPs on this point. On the other hand, counsel for complainant now respondent no.1 in the appeal submitted that an application was moved by complainant before the District Forum for examining expert witness Dr. H.S. Selhi of Department of Ortho DMC Hospital Ludhiana. The District Forum has not accepted this First Appeal No.169 of 2017 8 application of complainant. The complainant cannot be condemned for not examining expert witness, because complainant moved such application before District Forum, which was not accepted by it. We are of this view that the District Forum has not understood the matter in proper perspective and proceeded to dismiss this application by a snap order. The District Forum should have examined the expert witness to require assistance for proper adjudication of the matter in this case. The controversy in this case between the parties pertain to this fact as to whether OPs used ISO approved pitkar branded nail for intra medullary nailing in the fractured leg of complainant or not. There is version of OP nos.1 and 2 that ISO approved pitkar branded nail for intra medullary nailing was used by them to unite the fractured leg of complainant. On the other hand, the version of complainant is that his fractured bone did not unite and he was referred to DMC, where the notes of "EIGHTEEN DAYS OF OLD FRACTURE MID SHAFT TIBIA RIGHT SIDE WITH INFECTED METAL WORK (INTRAMEDULLARY INTERLOCKING NAIL) IN SITU WITH DISCHARGING SINUS" was recorded. The OPs now appellant have filed application for additional evidence in the appeal as well to examine, to produce and prove the certificate no.27482-2008-AQ-IND-NA issued by concerned authority and the licence dated 25.08.2008 issued by the Joint Commissioner (Pune Division), Food and Drug Administration, Maharashtra State, Pune on this point that the rods were certified to be of the same brand. This proposition has been contested by complainant. We are First Appeal No.169 of 2017 9 of this view that in case this application for additional evidence is allowed, it would go a long way in proving whether OP nos.1 and 2 used the approved pitkar branded nail for intra medullary nailing in the complainant's fractured leg or not. We allow this application for additional evidence as well as permit the examining of Dr. H.S. Selhi Department of Ortho DMC Hospital Ludhiana an expert witness at the instance of complainant for rendering assistance to the Forum in this case. We accept the application for additional evidence to prove certificate no.27482-2008-AQ-IND-NA issued by concerned authority and the licence dated 25.08.2008 issued by the Joint Commissioner (Pune Division), Food and Drug Administration, Maharashtra State, Pune at the instance of OP nos.1 and 2 now appellants and further allowing respondent no.1/complainant to examine Dr. H.S. Selhi Orthopaedic Surgeon by District Forum. We set aside the order of the District Forum Gurdaspur dated 08.12.2016 and remand the case to the District Forum Gurdaspur with the direction to allow the complainant to examine Dr. H.S. Selhi Orthopaedic Surgeon DMD Ludhiana as witness of complainant and further to permit OP to prove certificate no.27482-2008-AQ-IND-NA issued by concerned authority and the licence dated 25.08.2008 issued by the Joint Commissioner (Pune Division), Food and Drug Administration, Maharashtra State, Pune, as sought by OPs.
7. As a result of our above discussion, the appeal is, thus, accepted by remanding the case and the District Forum is directed to examine the above evidence before it and then to decide the case in First Appeal No.169 of 2017 10 the light of above evidence afresh. The record of the District Forum be sent forthwith complete in all respects with a direction to the parties to appear before the District Forum Gurdaspur on 27.11.2017 either in person or through their authorized representatives/agents.
8. The appellants had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount with interest, which accrued thereupon, if any, be remitted by the registry to appellant by way of a crossed cheque/demand draft after the expiry of 45 days.
9. Arguments in this appeal were heard on 29.09.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
10. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER October 03, 2017 MM