State Consumer Disputes Redressal Commission
Silver Oaks Hospital vs Capt. Anil Kumar on 17 April, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.02 OF 2011
Date of Institution: 06.01.2011
Date of Decision : 23.02.2015
1. Paul Departmental Store, Proprietorship Concern, Basti Jodhewal,
Ludhiana, through its Proprietor Sh.Hardeep Singh.
2. Hardeep Singh, Proprietor of M/s Paul Departmental Store, Basti
Jodhewal, Ludhiana.
.....Complainants.....
Versus
1. National Insurance Company Ltd., Mehtab House, Near Ujagar
Service Station, Dhulkot Road, Ahmedgarh, Sangrur, Punjab.
2. United India Insurance Company Limited, 151-A, Industrial Area-A,
Cheema Chowk, Ludhiana Punjab.
Second Address :
United India Insurance Company Limited 136, Ferozegandhi
Market, Ludhiana.
3. ICICI Lombard General Insurance, Zenith House, Keshav Rao
Khadye Marg, Mahalaxmi, Mumbai.
....Opposite parties....
Consumer Complaint U/s 17 of the
Consumer Protection Act, 1986 (as
amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Present:-
For the complainant : Sh.Vibhav Sehgal, Advocate For the Opposite party No.1 : Sh.Parminder Singh, Advocate For the Opposite party No.2 : Sh.D.R Bansal, Advocate. For the Opposite Party No.3 : Sh.Sandeep Puri, Advocate. Consumer Complaint No.02 of 2011 2 .............................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have filed this complaint through its proprietor Hardeep Singh U/s 17 of the Consumer Protection Act 1986 (for short the "Act) against the OPs. The brief facts of the case are that complainant no.2, the proprietor of complainant no.1 a sole proprietor concern. That complainant no.1 is engaged in the retail sale of a range of goods involving personal household and other commodities like readymade garments, hosiery, shoes and so on. The business of the complainant is highly prominent and they are known amongst the customers for rendering services. That complainant took policy from OP No.1/National Insurance Company for covering the risk with regard to extremely valuable goods lying in the departmental store of the complainant. The complainant took insurance policy, vide No.401308/11/3100000092 dated 6.6.08 and the insured amount was Rs.10,00,000/- with the coverage period from 14.6.08 to 13.6.09, against the premium of Rs.16,500/-, and furniture, fixture and fittings and other stocks lying in the departmental store of the complainant and they were insured for Standard Fire & Special Perils Policy issued by National Insurance Company/OP No.1. That complainant also took policy, vide No.201002/11/08/11/00000540 dated 5.12.2008 from United India Insurance Company/OP No.2 for insured amount of Rs. 30,00,000/- against the premium of Rs.5880/- for the period from 15.12.2008 to Consumer Complaint No.02 of 2011 3 14.12.2009. The complainant also took policy, vide policy no.4017/ICICI-HSP/209447/00/000 dated 31.05.2008 from OP No.3/ICICI Lombard General Insurance Company Limited for the insured amount of Rs.4,11,569/- for building and Rs.1,64,628/- for Standard Fire and Special Perils The Policy was against the premium of Rs.1813/- with the covering period from 31.05.2008 to 30.05.2009. That the fire erupted in the above referred store of the complainant in the evening of 30.04.2009 at about 7 A.M and the neighbor of the complainant Pritam Singh noticed the smoke belching out of the above store of the complainant. The Fire Brigade services were requisitioned, which fought relentlessly for a long time to put out the fire and the stock of the complainant lying in the departmental store was incinerated in the fire and complainant suffered incalculable loss therewith. The complainant also got the survey done from Protocol Surveyors and Engineers, private limited appointed by OP No.1 on receipt of intimation of the insurance claim for assessing the loss. The complainant cooperated with the surveyor, as referred above and appointed by OP No.1. The complainant also provided trading account from 1.4.2009 till the date of loss i.e. 30.04.2009 to the surveyor, besides providing the vat returns of the last four quarters. The above referred surveyor M/s P.K Goel and Associates Chartered Accountants categorically stated in report that total purchases and sales, as per vat returns tallied with balance sheet of 2008 and 2009. The photographs were taken by Consumer Complaint No.02 of 2011 4 the surveyor of the departmental store, where the above fire broke out. The vat retruns, Annexure C-5 to Annexure C-9 were duly supplied to them by the complainant. The above-referred account was also certified by P.K. Goel and Associates Chartered Accountants, after verifying the account and comparing with relevant purchase and sale vouchers and tax returns of the complainant. The complainant availed the cash credit limit facility from Indian Overseas Bank Rahon Road Ludhiana, and bank gave certificate stating the fact that limit has been sanctioned against the collateral services of land and building as per bank scheme and no stock statements were required for the purpose of loan. The above certificate is Annexure C-11, document of P.K. Goel and Associates Chartered Accountants is Annexure C-12. Balance Sheet of the complainant dated 31.03.2009 is Annexure C-13, trading account of the complainant for the ending year 31.03.2009 is Annexure C-14, current assets, loans and advances is Annexure C-15 and balance sheet of the ending year March 2008 is Annexure C-16, copy of DDR was lodged with the police regarding this incident of fire by the complainant, vide Annexure C-17. The photograph of departmental store is Annexure C-18 and fire report issued by the Assistant Divisional Fire Officer, Ludhiana is Annexure C-19, statement of furniture and fixture for the period from 1.4.09 to 29.4.09 is Annexure C-20, newspaper report dated 1.5.09 regarding report of incident of fire Annexure C-22. It was further pleaded in the complaint that OP Consumer Complaint No.02 of 2011 5 No.1/National Insurance Company committed the deficiency in service and wrongly ignored the trading account of the complainant for the year 1.4.09 to 29.04.09 on the ground that there was abnormal increase in the purchase made in the month of April 2009, despite the fact that it was verified by P.K Goel Associates and Chartered Accountant. That loss suffered by the complainant was decreased from Rs.1,32,50,100/- to Rs.1,05,63,602/- by OP No.1 unreasonably. That OP No.1/ National Insurance Company applied unnecessary deductions for slow moving stocks and dead stocks in the insurance claim of the complainant. That OP No.1, thus, rendered deficient service to the complainant. It has been pleaded that stock constitute 10% of the total stocks, which is reasonable. OP No.1/National Insurance Company caused wrongful loss to the complainant by reducing the claim to the extent of Rs.19,01,416/-.
The depreciation made by OP No.1/National Insurance Company on furniture, fixtures and fittings is 50%, which is against the rules and regulations of the Income Tax Act, whereas, it should have been 10%. The complainant challenged the deductions of Rs. 1,62,186/- ,as salvage made by OP No.1/National Insurance Company. The complainant further averred that deduction of 50%, as salvage value of furniture by OP No.1 is unjustifiable. The OP No.1/ National Insurance Company alleged that the complainant accepted the amount of Rs. 90,48,204/- as full and final settlement under policy No.401308/11/09/3193100000092 and it is completely Consumer Complaint No.02 of 2011 6 unreasonable being the case of gross deficiency in service. OP No.1 misrepresented the facts. The complainant also averred that OP No.2/United India Insurance Company also committed deficiency in service to the complainant as it the quantum of loss as quantified by OP No.1/National Insurance Company as correct. OP No.2 rejected the claim of the complainant by stating that complainant has received the claim from OP No.1. The surveyor M/s Cunningham Lindsey International Pvt. Ltd was deputed by OP No.2. Intimation of OP No.1 to the complainant that the clam of the complainant has been provided by OP No.1, is unjustified. Similarly the complainant averred that the surveyors appointed by OP No.1 and 2 placed on record the interim survey report dated 2.6.09 and final survey report dated 20.10.09. The complainants have, thus, filed the consumer complaint U/s 17 of the Act against the OPs directing them to pay the total amount of Rs.1,32,50,100/- on the basis of its properly audited trading account. The complainant has also prayed that its claim with regard to furniture, fixture and fittings be enhanced from Rs.7,50,000/- to Rs.10 lacs besides Rs.20 lacs as compensation for mental harassment along with interest @ 12% per annum from the date of claim till its payment.
2. Upon notice, OP No.1 filed the written reply and contested the complaint of the complainant on the preliminary objections that complainant is a concern dealing in commercial business organization and is not consumer of OP No.1 and hence the instant Consumer Complaint No.02 of 2011 7 complaint is not maintainable. Any deficiency in service was denied by OP No.1/National Insurance Company in this case on its part. The fact of issuance the insurance policy to the complainant was admitted by OP No.1. OP No.1 pleaded that the amount of Rs.10 lacs was for covering the risk to furniture, fixtures and fittings and a sum of Rs.1 crore covering the risk to the stock, which was valid from 14.6.2008 to 13.6.2009 under the policy in question. That on receipt of intimation from the complainant regarding alleged fire, the OP No.1 deputed M/s Protocol Surveyors and Engineers Pvt. Ltd., Noida, an IRDA approved Surveyors and Loss Assessors to conduct the survey and to assess the alleged loss. The said surveyor after physical verification of the loss, assessed the loss to the tune of Rs.92,50,000/- in respect of stocks, furniture, fixtures and fittings, vide survey report dated 20.10.09, vide Annexure R-3. That in response to certain queries raised by the competent authority of OP No.1, vide e-mail dated 01.12.2009 , the aforesaid amount of loss was revised to Rs.92,10,000/- by the surveyor, vide revised assessment report dated 09.12.2009. It is further averred by OP NO.1 that the complainant submitted its consent for accepting the aforesaid amount of Rs.90,64,704/- towards full and final settlement of the claim through consent letter dated 15.12.09, vide Annexure R-
5. That after receipt of the aforesaid revised assessment report and consent letter dated 15.12.009, the claim of the complainant was processed and approved for Rs.90,64,704/- by the competent Consumer Complaint No.02 of 2011 8 authority, subject to deductions of reinstatement premium as per Clause 15 of the terms and conditions of the policy, agreed Bank Clause and compliance of all formalities, as per claim procedural manual. The aforesaid approval of claim was conveyed by the Regional Office Chandigarh to the concerned Divisional Office, Ludhiana, vide letter dated 04.01.2010, vide Annexure R-6. It was further conveyed to the concerned Branch Office Ahmedgarh, vide letter dated 11.01.2010, vide Annexure R-7. B.O Ahmedgarh, thereafter, it released the amount of Rs. 90,48,204/- after deducting Rs.16500/- towards reinstatement premium to the complainant, vide cheque no.831063 dated 05.02.2010, vide Annexure R-8, payment voucher dated 5..2.2010, vide Annexure R-9, which was duly received by the complainant towards full and final settlement of the claim without any protest. The net amount was Rs.90,48,204/-, which as been voluntarily and willingly accepted by the complainant towards full and final settlement of the insurance claim. That once claim has been settled with the consent of the complainant, then the matter came to a final closure. The amount of Rs. 90,48,204/- also included share of the liability of the OP No.2/United India Insurance Company, being the co-insurer. The complainant has tried to mislead this Commission by placing on record a copy of interim survey report dated 23.09.09, vide Annexure C-25 and also concealed the final survey report submitted by the surveyor deputed by the United India Insurance Company, who assessed the loss to Consumer Complaint No.02 of 2011 9 the tune of Rs.67,53,078/-. That there is provision for referring the matter to the Arbitrator and this Commission has no jurisdiction to entertain and decide the present complaint. OP No.1 controverted the other pleadings of the complaint regarding his entitlement of the amount of claim, as pleaded by him. OP No.1 specifically pleaded that the claim has been finally settled for Rs.90,48,204/-, which has been received by the complainant as full and final settlement of its insurance claim. It is further averred that OP No.1 has discharged its liability and hence it prayed for dismissal of the complaint.
3. OP No.2/United India Insurance Company filed its separate written reply and contested the claim of the complainant to the effect that complainant has claimed increase in the claim against stock from Rs.85 lacs to Rs.1,32,50,100/- along with interest. The claim of the complainant is highly exaggerated as pleaded by it and it goes to Rs.1,62,50,100/-, which is out of pecuniary jurisdiction of this Commission. The complaint of complainant is alleged to be false, frivolous and vexatious. The complaint is alleged to have been filed by suppressing the material facts only. It was further averred that the commercial transaction is involved in this case, which is out of the jurisdiction of this Commission. The complainant took the policy from OP No.1 from 14.6.08 to 13.6.08 before obtaining the policy for insuring the stock of 30 lacs from 15.12.08 to 14.12.09. That surveyor was appointed by OP No.2 on receipt of the intimation regarding the incident of above fire. That stocks were insured with Consumer Complaint No.02 of 2011 10 the National Insurance Company, which cannot be separated from the stocks, which was got insured with OP No.2 by the complainant. OP No.2 further pleaded that had it been brought to its notice that the stocks of complainant have been insured with OP No.1 and they cannot be separated therefrom. OP No.2 has further averred that complainant has agreed to accept the claim as full and final settlement and it cannot raise any dispute thereafter and is estopped from doing so. OP No.2 has prayed for the dismissal of the complaint alleging that the claim of the complainant has been finally settled in this case.
4. OP No.3/ICICI Lombard filed its separate written reply averring that no relief has been claimed by the complainant against OP No.3. That the relief of the complainant has been directed against OP No.1 and 2 only. It has further averred that the full amount under the insurance policy has already been paid on 19.07.2010 amounting to Rs.2,27,666/- towards full and final settlement by the complainant. The complainant has also signed the claim discharge-cum- satisfaction voucher on 19.07.2010 in acceptance thereof. OP No.3 prayed for dismissal of the complaint by unnecessarily dragging it into litigation.
5. The complainant tendered in evidence his affidavit copies of insurance policy Annexure C-1 , copy of Standard Fire and Special Perils Policy Annexure C-2, copy of insurance policy Annexure C-3, copy of claim form Annexure C-4, copy of VAT returns from Consumer Complaint No.02 of 2011 11 01.10.2008 to 31.12.2008 Annexure C-5, copy of VAT returns from 1.7.09 to 30.09.2008 Annexure C-6, copy of VAT returns 1.10.08 to 31.12.08 Annexure C-7, copy of VAT returns from 1.1.09 to 31.3.09 Annexure C-8, copy of trading account of the complainant for the period from 1.4.09 to 29.4.09 Annexure C-9, copy of sale account of the complainant Annexure C-10, copy of certificate Annexure C-11, copy of Significant Accounting Policies/Notes on Accounts Annexure C-12, copy of balance sheet of the complainant Annexure C-13, copy of trading account for the ending year 31.3.2009, copy of current assets, loans and advances Annexure C-15, copy of balance sheet Annexure C-16, copy of DDR Annexure C-17, photographs Annexure C-18, copy of fire report Annexure C-19, copy of furniture and fixture for the period from 1.4.09 to 29.4.09, copy of fixed assets Annexure C-21, copy of cutting of newspaper dated 1.5.09 Annexure C-22, copy of trading account of the complainant for the period from 1.4.09 to 29.4.09 Annexure C-23, copy of final survey report Annexure C-21-A, copy of interim report Annexure C-24. As against it, OPs tendered evidence copy of Standard Fire and Special Perils Policy Annexure R-2/1, copy of insurance policy Annexure R-1, copy of fire claim form Annexure R-2, copy of report of Protocol Surveyors and Engineers Pvt. Ltd. Annexure R-3 , copy of report of Vikram Johar Annexure R-4, copy of document of National Insurance Company Limited , Branch Office, Ahmedgarh Annexure R-5, copy of leter dated 4.1.2010 from National Insurance Company to Consumer Complaint No.02 of 2011 12 Divisional Manager , Ludhiana Annexure R-6, copy of document of Fire Claim Account Paul Departmental Store Annexure R-7, copy of receipt dated 5.2.2010 for Rs.9048204/-, copy of document of National Insurance Company Annexure R-9, copy of bank statement Annexure R-10, copy of judgment decided on 2.5.2011 by State Commission, Punjab Chandigarh.
6. We have heard Ld.Counsel for the parties and have also examined the record of the case. The submission of the counsel for the complainant is that the stock statement and the trading statement, which were also verified by the Chartered Accountant, have been completely ignored in settling the claim of the complainant by the OPs. The complainant relied upon various documents like claim form Annexure C-4, vat returns Annexure C-5 to C-8, trading account of the complainant for the period from 1.4.09 to 29.4.09 Annexure C-9, sale account of the complainant showing sales from 1.4.09 to 29.4.09 Annexure C-10, certificate of the bank Annexure C-11. The document, showing the significant accounting policies/notes on accounts Annexure C-12, balance sheet of the complainant, as on 31.3.2009 Annexure C-13, trading account of the complainant for the ending year on 31.3.2009 Annexure C-14, current asses, loans and advances showing closing the stock of the complainant on 31.3.2009 Annexure C-15, balance sheet of the complainant for the year 31.3.2009 Annexure C-16, DDR lodged with the police about this incident of fire and loss caused thereby in the Consumer Complaint No.02 of 2011 13 Departmental Store Annexure C-17, photographs Annexure C-18, fire report certified by Divisional Fire Officer, Municipal Corporation Ludhiana Annexure C-19, furniture and fixture account of the complainant for the period from 1.4.09 to 29.4.09 Annexure C-20, fixed assets account of the complainant showing furniture and fixture from 1.4.08 to 31.3.09 Annexure C-21, newspaper cutting dated 1.5.09 Annexure C-22 about the incident of fire which erupted at the departmental store of the complainant.
7. The complainant submitted that the trading account of the complainant for the year 1.4.09 to 29.4.09 has been ignored on the ground that there is absolute increase in the purchases made in the month of April 2009 despite the fact that it was verified by P.K Goel Associates and Chartered Accountant and prepared in accordance with the books of the accounts. That the purchase and sale vouchers and vat returns have been properly verified. The total loss suffered by the complainant is Rs. 1,32,50,100/- and the claim has decreased to Rs.1,05,63,602/- by the OPs unreasonably. It was further contended by the complainant that unreasonable deductions have been made by OP No.1 while proceeding on the basis of the industry standards, slow moving stocks, relying only 50% of their price constituting about 20% of the total stocks, which is arbitrary and unreasonable. That the liability has been reduced by the OPs by Rs.19,01,416/- without any basis. It was contended by the complainant that once this is case of total loss of the complainant, Consumer Complaint No.02 of 2011 14 nothing absolutely can be provided as deductions for salvage value out of it. The complainant accepted the amount of Rs. 90,48,204/-
as full and final settlement under policy No.401308/11/09/3193100000092 and it is completely unreasonable and amounts to gross deficiency in service by the OPs. Similarly, it was submitted that conduct of the OP/United India Insurance Company is arbitrary in stating that once claim of the complainant is settled by OP No.1, hence it cannot be enforce against OP No.2. It was further argued that the survey report submitted by M/s Cunningham Lindsey International Pvt. Ltd deputed by OP No.2 is also on the record to this effect.
8. The submission of the OPs is that the claim has been finally settled for a sum of Rs. 90,48,204/- and complainant has received this amount towards full and final settlement and nothing is due, thereafter, in this case. Much emphasis has been laid down by the OP that once claim has been finally settled, it cannot be reopened again by the complainant.
9. From careful appraisal of the documents on the record and hearing the respective submissions of counsel for the parties, we find that complainant has claimed total value of the gutted goods in the fire to the extent of Rs.1,32,50,100/- in this case. The prayer of the complainant is that total amount of Rs.1,32,50,100/- be awarded to him including the amount of Rs.90,48,204/-already received by it. We find that the relief clause of the complainant claimed total loss of Consumer Complaint No.02 of 2011 15 Rs.1,32,50,100/- , part payment as per own version of the complainant is also out of this total claim of Rs.1,32,50,100/-, which is part of the same transaction and cannot be disintegrated from it. Once the complainant claimed total relief of Rs.1,32,50,100/- in this case and the jurisdiction of this Commission only is up to one crore only, consequently, the Commission is not competent to look into the matter on the ground that the jurisdiction of this Commission is limited to the jurisdiction up to the value of goods or deficiency in service up to one crore only and not beyond that. This Commission on this score is not competent to entertain this complaint.
10. Even assuming for the sake of arguments and not admitting, now the dispute is confined to the remaining amount only by deducting the amount of Rs.90,48,204/- out of the amount of Rs.1,32,50,100/-. Even from that premise, we find that the complaint of the complainant is without substance. The complainant has already received the amount of Rs. 90,48,204/- as full and final settlement of the policy. Now, the submission of the counsel for the complainant before this Commission is that complainant has not received the above referred amount of Rs.90,48,204/- as full and final settlement.
11. We have examined the matter on its merits on the record. Our attention has been drawn to Para No.10 of the complaint, wherein complainant itself admitted that it has accepted the amount of Rs.90,48,204/- from the OPs in this case. The affidavit of Vikram Consumer Complaint No.02 of 2011 16 Johar of M/s Protocol Surveyors and Engineers Pvt.Ltd, Protocol House, A-56, Sector-7, Noida is on the record to the effect that physical verification of the articles caused to the stock furniture, fixture and fittings, due to alleged fire was conducted. That he assessed the loss to the tune of Rs.92,50,000/- in respect of stock, furniture, fixture and fittings, vide survey report dated 20.10.2009, annexure R-3 is on the record. There is an affidavit by the above surveyor to this effect that he found loss of Rs.92,50,000/- in this case. The report of the surveyor carries weightage and it is strong piece of evidence on the record. Surveyor is appointed under the Insurance Act. The report of the surveyor can be discarded, when there is contrary cogent evidence on the record. Consequently, on the basis of the survey report, the claim was found to be Rs.90,48,204/- by the OPs in this case. The complainant received this claim amount regarding loss of the articles due to fire under the policies. Final survey report is Annexure C-23-A by Protocol Surveyors and Engineers private limited. The final net amount payable, is Rs.91,04,116/-, as has been examined by us. The final report of the surveyor would prevail over the interim report. Undisputedly, the complainant received an amount of Rs.90,48,204/- towards the full and final settlement of this claim from the OPs. The counsel for the complainant was specifically asked by this bench as to whether complainant lodged any protest about the receipt of claim of Rs.90,48,204/-. The counsel for the complainant could not point Consumer Complaint No.02 of 2011 17 out any substance on the record to the notice of this bench to the effect that it received the above insurance claim under any protest. The complainant, if dissatisfied with this claim amount, could have returned this cheque amount under protest or it could have lodged protest with the OPs forthwith without any delay expressing its dissatisfaction over this amount of settlement of insurance claim. The counsel for the complainant is unable to point out any document to our notice on this point except filing this complaint. The instant complaint was presented by the complainant before this Commission on 06.01.2011. The complainant received full and final settlement amount of Rs. 90,48,204/-, vide affidavit of Sh.S.K. Takkar, Managing Director of the United India Insurance Company on the record and Annexure R-10 on the record. The claim form is Annexure R-2 , the survey after physical verification found the loss assessed to the tune of Rs.92,50,000/- vide survey report dated 20.10.09 Annexure R-3 and Annexure R-4 revised assessment report dated 9.12.2009. The complainant submitted their consent for accepting the amount of Rs. 90,64,704/- towards full and final settlement, vide Annexure R-5, which is signed by Hardeep Singh Complainant. Strong reliance is upon Annexure R-5, vide which, the complainant accepted the full and final settlement of Rs. 90,64,704/- without any protest on 15.12.2009. The instant complaint was filed by the complainant on 06.01.2011 before this Commission much time thereafter. From 15.12.09 to 06.01.2011, there is no Consumer Complaint No.02 of 2011 18 document pointed out to our notice by the complainant that he ever lodged any protest with the OPs for inadequate amount or settlement of Rs.90,64,704/-. On this point, there is an authority of the Apex Court in United India Insurance Company Vs. Ajmer Singh Cotton and General Mills & Ors , reported in II(1999) CPJ 10 (SC) , wherein Apex Court held that : "discharge voucher executed voluntarily, complainant had not alleged their execution under fraud, absence of the pleadings and evidence to this effect on the record, the discharge voucher was admittedly executed voluntarily towards full and final settlement. The mere delay for couple of day would have not authorized to the National Commission to grant relief particularly when the insurer had complained of no delay during the acceptance of insurance amount under the policy."
12. Consequently, the matter stood finally settled as per the observation of the Apex Court in the above authority and discharge voucher is not proved to be fraudulent, hence the complaint of the complainant is without merit. The complainant is estopped from challenging it again, once the complainant has accepted the full and final settlement of the claim for Rs. 90,48,204/-, vide Annexure C-5 on the record from the OP No.1.
13. In view of our above discussion the complainant does not succeed on any of the counts and the complaint of the complainant is accordingly dismissed even assuming that this Commission has jurisdiction to try the complaint for the purpose of arguments. Consumer Complaint No.02 of 2011 19
14. Arguments in this complaint were heard on 19.02.2015 and the order was reserved. Now the order be communicated to the parties.
15. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER February, 2015.
(ravi) FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.90 of 2010 Date of Institution: 09.12.2010 Date of Decision :13.02.2015 Naik Dalip Kumar Son of Sh.Diwan Chand, Behrampur Road, c/o Guru Nanak Electrical Works, Gurdaspur, Punjab Nanak Electrical Works, Gurdaspur, Punjab (since deceased) through his legal representatives
1. Smt.Asha Devi wife of Late Sh.Dalip Kumar.
2. Harvinder Kumar (son)
3. Amarjit (son) All residents of c/o Guru Nanak Electrical Works, Behrampur Road, Gurdaspur
4. Smt.Mamta daughter of Dalip Kumar now wife of Sukhbir Singh, resident of near Chakki Bank Station, Pathankot.
5. Smt.Reeta daughter of Dalip Kumar now wife of Vipan Singh, resident of New Shastri Nagar, Pathankot.
6. Smt.Renu daughter of Dalip Kumar, now wife of Sanjeev Kumar, resident of Sangalpura Road, Gurdaspur.
.....Complainants.....
Versus
1. Dr.K.D Singh of K.D Eye Hospital, Patel Chowk, Pathankot.
2. Dr.K.D Singh, resident of Patel Chowk, Pathankot, Punjab ....Opposite parties....
Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 Quorum:-
Shri J. S. Klar, Presiding Judicial Member. Shri Vinod Kumar Gupta, Member.
Present:-
For the complainant : Sh.G.S Lalli, Advocate
For the opposite parties : Sh.D.K. Gupta Advocate
.............................................. Consumer Complaint No.90 of 2010 2 J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant Naik Dalip Kumar has directed this complaint against the opposite parties on the allegations that he retired as Naik from the Indian Army and has been carrying on repair work under the name and style of Guru Nanak Electrical Works. That he is consumer, being beneficiary as retired army person, of the OPs. That he is entitled to medical treatment after retirement as ex-army man, in as much as Indian Army is having Ex-serviceman Contributory Health Scheme (in short "E.C.H.S" Hospital) all over India for the retired army personnel. Army is also having many private clinics on their panel like Eye Hospital and so on. That in the month of October 2009, complainant approached E.C.H.C Poly Clinic at Gurdaspur for the checkup of his eyes, as he found some strain while doing his job in the left eye. He was referred by the above Poly Clinic of E.C.H.C to the OPs for treatment of his left eye. On checkup of the complainant by the OPs, the OPs gave an estimate for transplantation of lens in the left eye to the tune of Rs.9000/- including price of the lens and operation charges of the complainant. The complainant disclosed the OPs that he has been a diabetic. The SEMO 172 MIL Hospital gave approval to the estimate of the OPs for the treatment, to be rendered to the complainant, by the OPs. The OPs admitted the complainant for transplant of lens in the left eye after getting the approval of the estimate and injection was injected in the left eye of the complainant by the staff nurse Consumer Complaint No.90 of 2010 3 namely Nishu, without any competence to do so, in the hospital of the OPs. The complainant was operated upon and he complained of severe pain in the operated eye, thereafter. OP told the complainant that he needed not to worry and prescribed medicines therefor. The complainant was discharged next day from the hospital by the OPs and was called for check up after few days. The complainant approached OP for the same problem many times and lastly in the month of October 2009. The OPs referred the complainant to another empanelled eye hospital i.e Dr. Daljit Singh Hospital at Amritsar with referral slip and complainant was admitted and treated for the pain and shrinking of left eye thereat. That Dr. Daljit Singh Hospital, Amritsar referred the complainant to Dr. Uppal Neurogist for certain tests and treatment with referral slip and not to charge any expenses from the complainant and to debit all the expenses in the account of Dr.Daljit Eye Hospital, Amritsar. The complainant underwent certain tests at Uppal Hospital at Amritsar and remained admitted there for 2-3 days and his tests reports were sent to Dr. Daljit Singh, Eye Hospital. That complainant went to Dr. Om Parkash Eye Hospital, Amritsar of his own for check up, which is also an empaneled on Army Hospital and complainant was prescribed certain medicines for the pain and shrinking of the left eye. Size of the left eye of the complainant was shortened due to shrinking. There was no improvement in the eye of the complainant despite tests and check up. The complainant made written complaint to the Incharge of E.C.H.C Poly Clinic at Gurdaspur against the OPs and Consumer Complaint No.90 of 2010 4 complaint of the complainant was forwarded to Dr. D.K. Singh and he sought his explanation, but no reply was given to the complainant in this regard. The complainant sought information under RTI Act. On account of operation of the complainant, the left vision of the complainant's eye was reduced instead of improving, the complainant is unable to concentrate on repair job to start it for long time. The complainant was earning Rs.20,000/- per month from the repair and contract fitting of electricity before operation. The complainant has prayed for compensation of Rs.35,00,000/- for the loss of his vision along with interest @ 18% per annum from the date of operation till its realization from the OPs.
2. Upon notice, the OPs appeared, filed written reply and contested the complaint of the complainant vehemently. OP raised preliminary objections in the written reply that OP is an empanelled hospital with E.C.H.S. The complainant was referred to OP through E.C.H.S clinics on the choice of the patient himself. Necessary tests were carried out before undertaking the surgery of the complainant and approval for treatment was also sought from the E.C.H.S. The treatment was started after obtaining the permission from the competent authority of the E.C.H.S and bill for the surgery was submitted to the concerned E.C.H.S by the OPs for reimbursement along with original receipts/reports of the test and treatment of the complainant. On completion of the treatment of the patient, he was required to submit for post care check up. The complainant stated that he was satisfied with the treatment rendered to him by the OP. Consumer Complaint No.90 of 2010 5
The payment charges of the treatment of the patient is released only, if feedback by the patient is satisfactory. E.C.H.S has not been impleaded as a party in this case by the complainant. The complainant has instituted this false and frivolous complaint. On merits, the OPs contested the complaint of the complainant by denying any medical negligence on its part. It is averred that keeping in view diabetic profile of the complainant, special permission from Incharge Military Hospital, Gurdaspur for a special Phaco operation procedures for cataract and few advanced test like Fundus Flourescein Angiography (FFA) and Optical Coherence Temography (OCT) for diabetic patient was asked for. Aforesaid tests were latest and specific for diabetic patient. The OP was very careful in conducting pre-operative check up of the complainant, being diabetic patient after taking due precautions. The complainant was operated under topical anaesthesia, which means with anaesthetic eyedrops, which was instilled for the anesthesia. However, no injection was administered to the complainant as pleaded by him. The complainant underwent Phacoemulsification operation without stitches with most advanced Baush & Lomb's Millenium Phaco Machine. It was further averred that there was no staff member by name of Nishu in the hospital of the OPs and hence no injection was given to the complainant by her whatsoever. The blood sugar level of the complainant at the time of the surgery was 118 mg, which was within the prescribed limits. The OP denied any medical negligence on its part in this case. It was further averred that complainant was not Consumer Complaint No.90 of 2010 6 referred to Dr. Daljit Singh Eye Hospital, Amritsar in October 2009 for shrinking of his left eye. In fact, he was referred on 18.01.2010 after more than three months from the time of his surgery as second opinion in medical practice is quite ethical. It was admitted by OPs that complainant was further referred by Dr. Daljit Singh to Dr. Ashok Uppal a renowed Neurologist at Amritsar. The complainant developed Optic Neuropathy, which was a neurological problem of the optic nerve of the eye, and hence he was referred to renowed Neurophysician Dr.Ashok Uppal by Dr. Daljit Singh Eye Hospital. On 02.02.2010, complainant approached Dr. Ashok Uppal Neurologist where Electrophysiological diagnosis was made and VER was done by flash method of both eyes. No.P-100 was formation seen on left eye, where as it was within normal limit on right eye. Conclusion made was left eye neuropathy diabetic cause. Dr. Uppal clarified that diabetic neuropathy was not outcome of surgery carried out by the OPs. The problem of decrease in left eye vision started about mid of January 2010, whereas the operation was conducted on him on October 2010. The OPs denied any medical negligence on its part in the surgery of the complainant. It further pleaded that E.C.H.S, vide letter dated 10.06.2010, restored referral of the patients to OPs, when the complaint submitted by the complainant, after looking into it was rejected and OPs, thus, prayed for dismissal of this complaint.
3. The complainant tendered in evidence his affidavit Ex.C-A, copy of letter dated 25.08.2010 Ex.C-1, photocopy of Discharge Certificate Ex.C-2 and death certificate of Sh.Dalip Kumar Ex.C-3. Consumer Complaint No.90 of 2010 7 As against it, opposite parties tendered in evidence affidavits of Dr.K.D Singh as Ex.R/A-1 and Ex.R/A-2, Full Retina Thickness Map of Dr.K.D's Eye Institute Retina Services Ex.R-1, photocopy of document of Dr.Daljit Singh Eye Hospital Ex.R-2, photocopy of Uppal Neuro Hospital Ex.R-3, photocopy of document of Dr.Om Parkash Eye Institute Ex.R-4, photocopy of map of Retina Ex.R-5 and photocopy of document Ex.R-6 and closed the evidence.
4. We have heard Ld.Counsel for the parties and have also examined the record of the case.
5. The OPs submitted that the complainant is not a consumer. We find that the payment of the OP was released by the E.C.H.S Hospital on behalf of complainant and complainant is beneficiary, therefore, on the basis of law laid down by the Apex Court in Kishori Lal Vs. Chairman, Employees State Insurance Corporation, reported in AIR 2007 (SC) 1819, we hold that complainant is proved to be a consumer of the OP and hence complainant has been found a consumer within the parameters of law.
6. The complainant relied upon Ex.C-1 report regarding follow up of the complaint, which was made against the OP for the medical negligence and for not properly conducting the eye surgery of the complainant, being a diabetic patient. Ex.C-2 is discharge/follow up card of Uppal Neuro Hospital, Amritsar. The complainant relied only on the above documents coupled with the pleadings. As against it, the OPs tendered in evidence his affidavit Ex.R-1/A. OP stated on oath in his affidavit that OPs is empanelled hospital with E.C.H.S Consumer Complaint No.90 of 2010 8 for eye problems. He admitted that complainant was referred for the treatment to OPs by E.C.H.S on the choice of the patient/complainant himself. That he took permission from competent authority of the E.C.H.S before starting the treatment of complainant. That complainant was required to report after surgery for feedback to OP. He further stated that complainant never reported to him, if there was any problem after post surgery. He further stated in his affidavit that keeping in view his diabetic profile, the OP asked for special treatment from in charge Military Hospital, Gurdaspur for a special phaco operation procedures for cataract and few advanced tests like Fundus Flourescein Angiography and optical coherence tomography for diabetes. That above tests are latest for diabetic patient before taking up the surgery. He further stated that the complainant was operated under Topical anaesthesia, which means with anaesthetic eyedrops only. He denied the fact of administering of any injection to him. He further stated on oath that complainant underwent for Phacoemulsification operation without stitches with most advanced Baush & Lomb's Millenium Phaco Machine. He denied that there was any staff member of Nishu in the hospital of the OPs. He further stated that due care was taken of the complainant after conducting the above tests, keeping in view his diabetic profile before conducting the surgery. He further stated that complainant was not referred to Dr.Daljit Singh's Hospital at Amritsar for shrinking of his left eye. He remained fine for more than three months after surgery. Second opinion, which is just quite ethical in Consumer Complaint No.90 of 2010 9 medical practice, could be taken. He further stated that complainant suffered from optic nerve of the eye and Dr.Ashok Uppal found this complication of the complainant. This witness further stated that Dr.Ashok Uppal, neurologist diagnosed the complainant with electrophysiological. VER was done by flash method of both eyes. No.P-100 were formation seen on left eye, whereas it is within normal limit on right eye. Conclusion made of complainant's problem was left eye Neuropathy Diabetic Cause. Dr. Uppal clarified that problem was because of the Diabetic Optic Neuropathy and not the outcome of surgery, as carried out by the OPs. The OPs denied any medical negligence on its part in this case towards the complainant in the cataract surgery. The OPs further stated in his affidavit that even complaint of the complainant was found false by the E.C.H.S, vide letter dated 04.05.2010 and letter dated 10.06.2010.
7. We have examined the documents on the record and the pleadings of the parties. Ex.R-1 is Full Retina Thickness Map of the complainant, Ex.R-2 is the prescription slip of Dr. Daljit Singh Eye Hospital, Amritsar of the complainant, Ex.R-3 is the report of Dr.Ashok Uppal Neuro Hospital at Amritsar, Ex.R-4 is prescription slip of Dr.Om Parkash Eye Institute, Ex.R-5 is photocopy of eye.
8. The complainant has pleaded medical negligence in this case on the part of OPs in not conducting his surgery being a diabetic patient in a negligent manner. There is mere assertions of the complainant in this regard. The complainant has not examined any expert witness to prove any medical negligence on the part of the Consumer Complaint No.90 of 2010 10 OPs. On the other hand, there is categorical plea as well as affidavit of the OPs that he conducted latest tests for surgery of eye of the complainant and thereafter did cataract surgery, keeping in view the diabetic profile of the complainant. The OPs have proved that they also took permission for conducting the specify tests for diabetic patient before conducting the cataract surgery from the Military Hospital Authorities for the complainant. We find that in case the complainant suffered from Optic Neuropathy, which is neurological problem of the optic nerve of the eye, then Op cannot said to be medically negligent in that way in this case. The complaint filed by the complainant with the Army E.C.H.S Cell was also found without any basis. Ex.C-1 which is the result of the complaint of the complainant against OP, is also taken into consideration by us. It has been held that there is no evidence on the record to prove deficiency in service, being provided by Dr.K.D Singh Hospital to the complainant, as alleged. On the contrary, the hospital has acted in ethical manner before surgery and taking second opinion from Dr. Daljit Singh Eye Hospital. Military Hospital Authorities found that the present problem of the complainant is not due to complication of surgery, but a complication of old hidden diabetes with its irregular treatment. The complaint of the complainant against OPs was accordingly held to be frivolous by the Army , vide report of SEMO dated 03 June 2010 at Page No.16 on the record. There is report of Dr. Ashok Uppal neurologist, Amritsar Ex.C-2 on the record. He has also found that complainant suffered from Optic Neuropathy on Consumer Complaint No.90 of 2010 11 account of irregular treatment of diabetes. On the other hand, OPs have categorically asserted that they conducted the test for diabetes before conducting the surgery. OPs further stated that they took extra care in this case before cataract surgery of the complainant due to his diabetic profile. OPs relied upon the case law laid down by Apex Court in case titled as Kusum Sharma Versus... Batra Hospital & Medical Research Centre, AIR 2010 (SC) 1050, wherein it has been held by the Apex Court as under :
"That negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution, 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.
An error of judgment is not necessarily negligence. 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 is prudent and reasonable man would not do. Medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very lowest degree of care and competence is required from him. In the realm of diagnosis and treatment, there is scope for genuine difference of opinion and one professional doctor is Consumer Complaint No.90 of 2010 12 clearly not negligent merely because his conclusion differs from that of other professional doctor. It would not be conducive to the efficiency of the medical profession, if no doctor could administer medicine without a halter round his neck.
The Apex Court further laid emphasis in this authority that it is our bounden 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. The Medical practitioners at times also have to be saved from such a class of complainants. Medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interests of the patients."
9. We find that there is no breach of 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 on the part of the OP in this case. Doctor never guarantees to provide permanent cure from any problem to the patient, when he takes on his treatment.
10. We have, thus, reached the conclusion in the light of our above discussion that the case of the complainant was only due to Optic Neuropathy, which is unrelated to his cataract surgery performed by OPs. Due care has been taken by the OP in this case of the Consumer Complaint No.90 of 2010 13 complainant keeping in view his diabetic profile, as discussed above, No medical negligence has been proved on the record by the complainant against the OP. The complaint of the complainant about medical negligence was also found false by the Army Authorities against the OPs. The complainant failed to point out as to on what count, the OP was medically negligent in treating him. Resultantly, there is no merit in this complaint and same is hereby dismissed with costs which are quantified to Rs.2000/- .
11. Arguments in this complaint were heard on 11.02.2015 and the order was reserved. Now the order be communicated to the parties.
12. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER February, 13 2015.
(ravi) FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.90 of 2010 Date of Institution: 09.12.2010 Date of Decision :13.02.2015 Naik Dalip Kumar Son of Sh.Diwan Chand, Behrampur Road, c/o Guru Nanak Electrical Works, Gurdaspur, Punjab Nanak Electrical Works, Gurdaspur, Punjab (since deceased) through his legal representatives
1. Smt.Asha Devi wife of Late Sh.Dalip Kumar.
2. Harvinder Kumar (son)
3. Amarjit (son) All residents of c/o Guru Nanak Electrical Works, Behrampur Road, Gurdaspur
4. Smt.Mamta daughter of Dalip Kumar now wife of Sukhbir Singh, resident of near Chakki Bank Station, Pathankot.
5. Smt.Reeta daughter of Dalip Kumar now wife of Vipan Singh, resident of New Shastri Nagar, Pathankot.
6. Smt.Renu daughter of Dalip Kumar, now wife of Sanjeev Kumar, resident of Sangalpura Road, Gurdaspur.
.....Complainants.....
Versus
1. Dr.K.D Singh of K.D Eye Hospital, Patel Chowk, Pathankot.
2. Dr.K.D Singh, resident of Patel Chowk, Pathankot, Punjab ....Opposite parties....
Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 Quorum:-
Shri J. S. Klar, Presiding Judicial Member. Shri Vinod Kumar Gupta, Member.
Present:-
For the complainant : Sh.G.S Lalli, Advocate
For the opposite parties : Sh.D.K. Gupta Advocate
.............................................. Consumer Complaint No.90 of 2010 2 J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant Naik Dalip Kumar has directed this complaint against the opposite parties on the allegations that he retired as Naik from the Indian Army and has been carrying on repair work under the name and style of Guru Nanak Electrical Works. That he is consumer, being beneficiary as retired army person, of the OPs. That he is entitled to medical treatment after retirement as ex-army man, in as much as Indian Army is having Ex-serviceman Contributory Health Scheme (in short "E.C.H.S" Hospital) all over India for the retired army personnel. Army is also having many private clinics on their panel like Eye Hospital and so on. That in the month of October 2009, complainant approached E.C.H.C Poly Clinic at Gurdaspur for the checkup of his eyes, as he found some strain while doing his job in the left eye. He was referred by the above Poly Clinic of E.C.H.C to the OPs for treatment of his left eye. On checkup of the complainant by the OPs, the OPs gave an estimate for transplantation of lens in the left eye to the tune of Rs.9000/- including price of the lens and operation charges of the complainant. The complainant disclosed the OPs that he has been a diabetic. The SEMO 172 MIL Hospital gave approval to the estimate of the OPs for the treatment, to be rendered to the complainant, by the OPs. The OPs admitted the complainant for transplant of lens in the left eye after getting the approval of the estimate and injection was injected in the left eye of the complainant by the staff nurse Consumer Complaint No.90 of 2010 3 namely Nishu, without any competence to do so, in the hospital of the OPs. The complainant was operated upon and he complained of severe pain in the operated eye, thereafter. OP told the complainant that he needed not to worry and prescribed medicines therefor. The complainant was discharged next day from the hospital by the OPs and was called for check up after few days. The complainant approached OP for the same problem many times and lastly in the month of October 2009. The OPs referred the complainant to another empanelled eye hospital i.e Dr. Daljit Singh Hospital at Amritsar with referral slip and complainant was admitted and treated for the pain and shrinking of left eye thereat. That Dr. Daljit Singh Hospital, Amritsar referred the complainant to Dr. Uppal Neurogist for certain tests and treatment with referral slip and not to charge any expenses from the complainant and to debit all the expenses in the account of Dr.Daljit Eye Hospital, Amritsar. The complainant underwent certain tests at Uppal Hospital at Amritsar and remained admitted there for 2-3 days and his tests reports were sent to Dr. Daljit Singh, Eye Hospital. That complainant went to Dr. Om Parkash Eye Hospital, Amritsar of his own for check up, which is also an empaneled on Army Hospital and complainant was prescribed certain medicines for the pain and shrinking of the left eye. Size of the left eye of the complainant was shortened due to shrinking. There was no improvement in the eye of the complainant despite tests and check up. The complainant made written complaint to the Incharge of E.C.H.C Poly Clinic at Gurdaspur against the OPs and Consumer Complaint No.90 of 2010 4 complaint of the complainant was forwarded to Dr. D.K. Singh and he sought his explanation, but no reply was given to the complainant in this regard. The complainant sought information under RTI Act. On account of operation of the complainant, the left vision of the complainant's eye was reduced instead of improving, the complainant is unable to concentrate on repair job to start it for long time. The complainant was earning Rs.20,000/- per month from the repair and contract fitting of electricity before operation. The complainant has prayed for compensation of Rs.35,00,000/- for the loss of his vision along with interest @ 18% per annum from the date of operation till its realization from the OPs.
2. Upon notice, the OPs appeared, filed written reply and contested the complaint of the complainant vehemently. OP raised preliminary objections in the written reply that OP is an empanelled hospital with E.C.H.S. The complainant was referred to OP through E.C.H.S clinics on the choice of the patient himself. Necessary tests were carried out before undertaking the surgery of the complainant and approval for treatment was also sought from the E.C.H.S. The treatment was started after obtaining the permission from the competent authority of the E.C.H.S and bill for the surgery was submitted to the concerned E.C.H.S by the OPs for reimbursement along with original receipts/reports of the test and treatment of the complainant. On completion of the treatment of the patient, he was required to submit for post care check up. The complainant stated that he was satisfied with the treatment rendered to him by the OP. Consumer Complaint No.90 of 2010 5
The payment charges of the treatment of the patient is released only, if feedback by the patient is satisfactory. E.C.H.S has not been impleaded as a party in this case by the complainant. The complainant has instituted this false and frivolous complaint. On merits, the OPs contested the complaint of the complainant by denying any medical negligence on its part. It is averred that keeping in view diabetic profile of the complainant, special permission from Incharge Military Hospital, Gurdaspur for a special Phaco operation procedures for cataract and few advanced test like Fundus Flourescein Angiography (FFA) and Optical Coherence Temography (OCT) for diabetic patient was asked for. Aforesaid tests were latest and specific for diabetic patient. The OP was very careful in conducting pre-operative check up of the complainant, being diabetic patient after taking due precautions. The complainant was operated under topical anaesthesia, which means with anaesthetic eyedrops, which was instilled for the anesthesia. However, no injection was administered to the complainant as pleaded by him. The complainant underwent Phacoemulsification operation without stitches with most advanced Baush & Lomb's Millenium Phaco Machine. It was further averred that there was no staff member by name of Nishu in the hospital of the OPs and hence no injection was given to the complainant by her whatsoever. The blood sugar level of the complainant at the time of the surgery was 118 mg, which was within the prescribed limits. The OP denied any medical negligence on its part in this case. It was further averred that complainant was not Consumer Complaint No.90 of 2010 6 referred to Dr. Daljit Singh Eye Hospital, Amritsar in October 2009 for shrinking of his left eye. In fact, he was referred on 18.01.2010 after more than three months from the time of his surgery as second opinion in medical practice is quite ethical. It was admitted by OPs that complainant was further referred by Dr. Daljit Singh to Dr. Ashok Uppal a renowed Neurologist at Amritsar. The complainant developed Optic Neuropathy, which was a neurological problem of the optic nerve of the eye, and hence he was referred to renowed Neurophysician Dr.Ashok Uppal by Dr. Daljit Singh Eye Hospital. On 02.02.2010, complainant approached Dr. Ashok Uppal Neurologist where Electrophysiological diagnosis was made and VER was done by flash method of both eyes. No.P-100 was formation seen on left eye, where as it was within normal limit on right eye. Conclusion made was left eye neuropathy diabetic cause. Dr. Uppal clarified that diabetic neuropathy was not outcome of surgery carried out by the OPs. The problem of decrease in left eye vision started about mid of January 2010, whereas the operation was conducted on him on October 2010. The OPs denied any medical negligence on its part in the surgery of the complainant. It further pleaded that E.C.H.S, vide letter dated 10.06.2010, restored referral of the patients to OPs, when the complaint submitted by the complainant, after looking into it was rejected and OPs, thus, prayed for dismissal of this complaint.
3. The complainant tendered in evidence his affidavit Ex.C-A, copy of letter dated 25.08.2010 Ex.C-1, photocopy of Discharge Certificate Ex.C-2 and death certificate of Sh.Dalip Kumar Ex.C-3. Consumer Complaint No.90 of 2010 7 As against it, opposite parties tendered in evidence affidavits of Dr.K.D Singh as Ex.R/A-1 and Ex.R/A-2, Full Retina Thickness Map of Dr.K.D's Eye Institute Retina Services Ex.R-1, photocopy of document of Dr.Daljit Singh Eye Hospital Ex.R-2, photocopy of Uppal Neuro Hospital Ex.R-3, photocopy of document of Dr.Om Parkash Eye Institute Ex.R-4, photocopy of map of Retina Ex.R-5 and photocopy of document Ex.R-6 and closed the evidence.
4. We have heard Ld.Counsel for the parties and have also examined the record of the case.
5. The OPs submitted that the complainant is not a consumer. We find that the payment of the OP was released by the E.C.H.S Hospital on behalf of complainant and complainant is beneficiary, therefore, on the basis of law laid down by the Apex Court in Kishori Lal Vs. Chairman, Employees State Insurance Corporation, reported in AIR 2007 (SC) 1819, we hold that complainant is proved to be a consumer of the OP and hence complainant has been found a consumer within the parameters of law.
6. The complainant relied upon Ex.C-1 report regarding follow up of the complaint, which was made against the OP for the medical negligence and for not properly conducting the eye surgery of the complainant, being a diabetic patient. Ex.C-2 is discharge/follow up card of Uppal Neuro Hospital, Amritsar. The complainant relied only on the above documents coupled with the pleadings. As against it, the OPs tendered in evidence his affidavit Ex.R-1/A. OP stated on oath in his affidavit that OPs is empanelled hospital with E.C.H.S Consumer Complaint No.90 of 2010 8 for eye problems. He admitted that complainant was referred for the treatment to OPs by E.C.H.S on the choice of the patient/complainant himself. That he took permission from competent authority of the E.C.H.S before starting the treatment of complainant. That complainant was required to report after surgery for feedback to OP. He further stated that complainant never reported to him, if there was any problem after post surgery. He further stated in his affidavit that keeping in view his diabetic profile, the OP asked for special treatment from in charge Military Hospital, Gurdaspur for a special phaco operation procedures for cataract and few advanced tests like Fundus Flourescein Angiography and optical coherence tomography for diabetes. That above tests are latest for diabetic patient before taking up the surgery. He further stated that the complainant was operated under Topical anaesthesia, which means with anaesthetic eyedrops only. He denied the fact of administering of any injection to him. He further stated on oath that complainant underwent for Phacoemulsification operation without stitches with most advanced Baush & Lomb's Millenium Phaco Machine. He denied that there was any staff member of Nishu in the hospital of the OPs. He further stated that due care was taken of the complainant after conducting the above tests, keeping in view his diabetic profile before conducting the surgery. He further stated that complainant was not referred to Dr.Daljit Singh's Hospital at Amritsar for shrinking of his left eye. He remained fine for more than three months after surgery. Second opinion, which is just quite ethical in Consumer Complaint No.90 of 2010 9 medical practice, could be taken. He further stated that complainant suffered from optic nerve of the eye and Dr.Ashok Uppal found this complication of the complainant. This witness further stated that Dr.Ashok Uppal, neurologist diagnosed the complainant with electrophysiological. VER was done by flash method of both eyes. No.P-100 were formation seen on left eye, whereas it is within normal limit on right eye. Conclusion made of complainant's problem was left eye Neuropathy Diabetic Cause. Dr. Uppal clarified that problem was because of the Diabetic Optic Neuropathy and not the outcome of surgery, as carried out by the OPs. The OPs denied any medical negligence on its part in this case towards the complainant in the cataract surgery. The OPs further stated in his affidavit that even complaint of the complainant was found false by the E.C.H.S, vide letter dated 04.05.2010 and letter dated 10.06.2010.
7. We have examined the documents on the record and the pleadings of the parties. Ex.R-1 is Full Retina Thickness Map of the complainant, Ex.R-2 is the prescription slip of Dr. Daljit Singh Eye Hospital, Amritsar of the complainant, Ex.R-3 is the report of Dr.Ashok Uppal Neuro Hospital at Amritsar, Ex.R-4 is prescription slip of Dr.Om Parkash Eye Institute, Ex.R-5 is photocopy of eye.
8. The complainant has pleaded medical negligence in this case on the part of OPs in not conducting his surgery being a diabetic patient in a negligent manner. There is mere assertions of the complainant in this regard. The complainant has not examined any expert witness to prove any medical negligence on the part of the Consumer Complaint No.90 of 2010 10 OPs. On the other hand, there is categorical plea as well as affidavit of the OPs that he conducted latest tests for surgery of eye of the complainant and thereafter did cataract surgery, keeping in view the diabetic profile of the complainant. The OPs have proved that they also took permission for conducting the specify tests for diabetic patient before conducting the cataract surgery from the Military Hospital Authorities for the complainant. We find that in case the complainant suffered from Optic Neuropathy, which is neurological problem of the optic nerve of the eye, then Op cannot said to be medically negligent in that way in this case. The complaint filed by the complainant with the Army E.C.H.S Cell was also found without any basis. Ex.C-1 which is the result of the complaint of the complainant against OP, is also taken into consideration by us. It has been held that there is no evidence on the record to prove deficiency in service, being provided by Dr.K.D Singh Hospital to the complainant, as alleged. On the contrary, the hospital has acted in ethical manner before surgery and taking second opinion from Dr. Daljit Singh Eye Hospital. Military Hospital Authorities found that the present problem of the complainant is not due to complication of surgery, but a complication of old hidden diabetes with its irregular treatment. The complaint of the complainant against OPs was accordingly held to be frivolous by the Army , vide report of SEMO dated 03 June 2010 at Page No.16 on the record. There is report of Dr. Ashok Uppal neurologist, Amritsar Ex.C-2 on the record. He has also found that complainant suffered from Optic Neuropathy on Consumer Complaint No.90 of 2010 11 account of irregular treatment of diabetes. On the other hand, OPs have categorically asserted that they conducted the test for diabetes before conducting the surgery. OPs further stated that they took extra care in this case before cataract surgery of the complainant due to his diabetic profile. OPs relied upon the case law laid down by Apex Court in case titled as Kusum Sharma Versus... Batra Hospital & Medical Research Centre, AIR 2010 (SC) 1050, wherein it has been held by the Apex Court as under :
"That negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution, 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.
An error of judgment is not necessarily negligence. 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 is prudent and reasonable man would not do. Medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very lowest degree of care and competence is required from him. In the realm of diagnosis and treatment, there is scope for genuine difference of opinion and one professional doctor is Consumer Complaint No.90 of 2010 12 clearly not negligent merely because his conclusion differs from that of other professional doctor. It would not be conducive to the efficiency of the medical profession, if no doctor could administer medicine without a halter round his neck.
The Apex Court further laid emphasis in this authority that it is our bounden 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. The Medical practitioners at times also have to be saved from such a class of complainants. Medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interests of the patients."
9. We find that there is no breach of 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 on the part of the OP in this case. Doctor never guarantees to provide permanent cure from any problem to the patient, when he takes on his treatment.
10. We have, thus, reached the conclusion in the light of our above discussion that the case of the complainant was only due to Optic Neuropathy, which is unrelated to his cataract surgery performed by OPs. Due care has been taken by the OP in this case of the Consumer Complaint No.90 of 2010 13 complainant keeping in view his diabetic profile, as discussed above, No medical negligence has been proved on the record by the complainant against the OP. The complaint of the complainant about medical negligence was also found false by the Army Authorities against the OPs. The complainant failed to point out as to on what count, the OP was medically negligent in treating him. Resultantly, there is no merit in this complaint and same is hereby dismissed with costs which are quantified to Rs.2000/- .
11. Arguments in this complaint were heard on 11.02.2015 and the order was reserved. Now the order be communicated to the parties.
12. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER February, 13 2015.
(ravi) FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.90 of 2010 Date of Institution: 09.12.2010 Date of Decision :13.02.2015 Naik Dalip Kumar Son of Sh.Diwan Chand, Behrampur Road, c/o Guru Nanak Electrical Works, Gurdaspur, Punjab Nanak Electrical Works, Gurdaspur, Punjab (since deceased) through his legal representatives
1. Smt.Asha Devi wife of Late Sh.Dalip Kumar.
2. Harvinder Kumar (son)
3. Amarjit (son) All residents of c/o Guru Nanak Electrical Works, Behrampur Road, Gurdaspur
4. Smt.Mamta daughter of Dalip Kumar now wife of Sukhbir Singh, resident of near Chakki Bank Station, Pathankot.
5. Smt.Reeta daughter of Dalip Kumar now wife of Vipan Singh, resident of New Shastri Nagar, Pathankot.
6. Smt.Renu daughter of Dalip Kumar, now wife of Sanjeev Kumar, resident of Sangalpura Road, Gurdaspur.
.....Complainants.....
Versus
1. Dr.K.D Singh of K.D Eye Hospital, Patel Chowk, Pathankot.
2. Dr.K.D Singh, resident of Patel Chowk, Pathankot, Punjab ....Opposite parties....
Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 Quorum:-
Shri J. S. Klar, Presiding Judicial Member. Shri Vinod Kumar Gupta, Member.
Present:-
For the complainant : Sh.G.S Lalli, Advocate
For the opposite parties : Sh.D.K. Gupta Advocate
.............................................. Consumer Complaint No.90 of 2010 2 J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant Naik Dalip Kumar has directed this complaint against the opposite parties on the allegations that he retired as Naik from the Indian Army and has been carrying on repair work under the name and style of Guru Nanak Electrical Works. That he is consumer, being beneficiary as retired army person, of the OPs. That he is entitled to medical treatment after retirement as ex-army man, in as much as Indian Army is having Ex-serviceman Contributory Health Scheme (in short "E.C.H.S" Hospital) all over India for the retired army personnel. Army is also having many private clinics on their panel like Eye Hospital and so on. That in the month of October 2009, complainant approached E.C.H.C Poly Clinic at Gurdaspur for the checkup of his eyes, as he found some strain while doing his job in the left eye. He was referred by the above Poly Clinic of E.C.H.C to the OPs for treatment of his left eye. On checkup of the complainant by the OPs, the OPs gave an estimate for transplantation of lens in the left eye to the tune of Rs.9000/- including price of the lens and operation charges of the complainant. The complainant disclosed the OPs that he has been a diabetic. The SEMO 172 MIL Hospital gave approval to the estimate of the OPs for the treatment, to be rendered to the complainant, by the OPs. The OPs admitted the complainant for transplant of lens in the left eye after getting the approval of the estimate and injection was injected in the left eye of the complainant by the staff nurse Consumer Complaint No.90 of 2010 3 namely Nishu, without any competence to do so, in the hospital of the OPs. The complainant was operated upon and he complained of severe pain in the operated eye, thereafter. OP told the complainant that he needed not to worry and prescribed medicines therefor. The complainant was discharged next day from the hospital by the OPs and was called for check up after few days. The complainant approached OP for the same problem many times and lastly in the month of October 2009. The OPs referred the complainant to another empanelled eye hospital i.e Dr. Daljit Singh Hospital at Amritsar with referral slip and complainant was admitted and treated for the pain and shrinking of left eye thereat. That Dr. Daljit Singh Hospital, Amritsar referred the complainant to Dr. Uppal Neurogist for certain tests and treatment with referral slip and not to charge any expenses from the complainant and to debit all the expenses in the account of Dr.Daljit Eye Hospital, Amritsar. The complainant underwent certain tests at Uppal Hospital at Amritsar and remained admitted there for 2-3 days and his tests reports were sent to Dr. Daljit Singh, Eye Hospital. That complainant went to Dr. Om Parkash Eye Hospital, Amritsar of his own for check up, which is also an empaneled on Army Hospital and complainant was prescribed certain medicines for the pain and shrinking of the left eye. Size of the left eye of the complainant was shortened due to shrinking. There was no improvement in the eye of the complainant despite tests and check up. The complainant made written complaint to the Incharge of E.C.H.C Poly Clinic at Gurdaspur against the OPs and Consumer Complaint No.90 of 2010 4 complaint of the complainant was forwarded to Dr. D.K. Singh and he sought his explanation, but no reply was given to the complainant in this regard. The complainant sought information under RTI Act. On account of operation of the complainant, the left vision of the complainant's eye was reduced instead of improving, the complainant is unable to concentrate on repair job to start it for long time. The complainant was earning Rs.20,000/- per month from the repair and contract fitting of electricity before operation. The complainant has prayed for compensation of Rs.35,00,000/- for the loss of his vision along with interest @ 18% per annum from the date of operation till its realization from the OPs.
2. Upon notice, the OPs appeared, filed written reply and contested the complaint of the complainant vehemently. OP raised preliminary objections in the written reply that OP is an empanelled hospital with E.C.H.S. The complainant was referred to OP through E.C.H.S clinics on the choice of the patient himself. Necessary tests were carried out before undertaking the surgery of the complainant and approval for treatment was also sought from the E.C.H.S. The treatment was started after obtaining the permission from the competent authority of the E.C.H.S and bill for the surgery was submitted to the concerned E.C.H.S by the OPs for reimbursement along with original receipts/reports of the test and treatment of the complainant. On completion of the treatment of the patient, he was required to submit for post care check up. The complainant stated that he was satisfied with the treatment rendered to him by the OP. Consumer Complaint No.90 of 2010 5
The payment charges of the treatment of the patient is released only, if feedback by the patient is satisfactory. E.C.H.S has not been impleaded as a party in this case by the complainant. The complainant has instituted this false and frivolous complaint. On merits, the OPs contested the complaint of the complainant by denying any medical negligence on its part. It is averred that keeping in view diabetic profile of the complainant, special permission from Incharge Military Hospital, Gurdaspur for a special Phaco operation procedures for cataract and few advanced test like Fundus Flourescein Angiography (FFA) and Optical Coherence Temography (OCT) for diabetic patient was asked for. Aforesaid tests were latest and specific for diabetic patient. The OP was very careful in conducting pre-operative check up of the complainant, being diabetic patient after taking due precautions. The complainant was operated under topical anaesthesia, which means with anaesthetic eyedrops, which was instilled for the anesthesia. However, no injection was administered to the complainant as pleaded by him. The complainant underwent Phacoemulsification operation without stitches with most advanced Baush & Lomb's Millenium Phaco Machine. It was further averred that there was no staff member by name of Nishu in the hospital of the OPs and hence no injection was given to the complainant by her whatsoever. The blood sugar level of the complainant at the time of the surgery was 118 mg, which was within the prescribed limits. The OP denied any medical negligence on its part in this case. It was further averred that complainant was not Consumer Complaint No.90 of 2010 6 referred to Dr. Daljit Singh Eye Hospital, Amritsar in October 2009 for shrinking of his left eye. In fact, he was referred on 18.01.2010 after more than three months from the time of his surgery as second opinion in medical practice is quite ethical. It was admitted by OPs that complainant was further referred by Dr. Daljit Singh to Dr. Ashok Uppal a renowed Neurologist at Amritsar. The complainant developed Optic Neuropathy, which was a neurological problem of the optic nerve of the eye, and hence he was referred to renowed Neurophysician Dr.Ashok Uppal by Dr. Daljit Singh Eye Hospital. On 02.02.2010, complainant approached Dr. Ashok Uppal Neurologist where Electrophysiological diagnosis was made and VER was done by flash method of both eyes. No.P-100 was formation seen on left eye, where as it was within normal limit on right eye. Conclusion made was left eye neuropathy diabetic cause. Dr. Uppal clarified that diabetic neuropathy was not outcome of surgery carried out by the OPs. The problem of decrease in left eye vision started about mid of January 2010, whereas the operation was conducted on him on October 2010. The OPs denied any medical negligence on its part in the surgery of the complainant. It further pleaded that E.C.H.S, vide letter dated 10.06.2010, restored referral of the patients to OPs, when the complaint submitted by the complainant, after looking into it was rejected and OPs, thus, prayed for dismissal of this complaint.
3. The complainant tendered in evidence his affidavit Ex.C-A, copy of letter dated 25.08.2010 Ex.C-1, photocopy of Discharge Certificate Ex.C-2 and death certificate of Sh.Dalip Kumar Ex.C-3. Consumer Complaint No.90 of 2010 7 As against it, opposite parties tendered in evidence affidavits of Dr.K.D Singh as Ex.R/A-1 and Ex.R/A-2, Full Retina Thickness Map of Dr.K.D's Eye Institute Retina Services Ex.R-1, photocopy of document of Dr.Daljit Singh Eye Hospital Ex.R-2, photocopy of Uppal Neuro Hospital Ex.R-3, photocopy of document of Dr.Om Parkash Eye Institute Ex.R-4, photocopy of map of Retina Ex.R-5 and photocopy of document Ex.R-6 and closed the evidence.
4. We have heard Ld.Counsel for the parties and have also examined the record of the case.
5. The OPs submitted that the complainant is not a consumer. We find that the payment of the OP was released by the E.C.H.S Hospital on behalf of complainant and complainant is beneficiary, therefore, on the basis of law laid down by the Apex Court in Kishori Lal Vs. Chairman, Employees State Insurance Corporation, reported in AIR 2007 (SC) 1819, we hold that complainant is proved to be a consumer of the OP and hence complainant has been found a consumer within the parameters of law.
6. The complainant relied upon Ex.C-1 report regarding follow up of the complaint, which was made against the OP for the medical negligence and for not properly conducting the eye surgery of the complainant, being a diabetic patient. Ex.C-2 is discharge/follow up card of Uppal Neuro Hospital, Amritsar. The complainant relied only on the above documents coupled with the pleadings. As against it, the OPs tendered in evidence his affidavit Ex.R-1/A. OP stated on oath in his affidavit that OPs is empanelled hospital with E.C.H.S Consumer Complaint No.90 of 2010 8 for eye problems. He admitted that complainant was referred for the treatment to OPs by E.C.H.S on the choice of the patient/complainant himself. That he took permission from competent authority of the E.C.H.S before starting the treatment of complainant. That complainant was required to report after surgery for feedback to OP. He further stated that complainant never reported to him, if there was any problem after post surgery. He further stated in his affidavit that keeping in view his diabetic profile, the OP asked for special treatment from in charge Military Hospital, Gurdaspur for a special phaco operation procedures for cataract and few advanced tests like Fundus Flourescein Angiography and optical coherence tomography for diabetes. That above tests are latest for diabetic patient before taking up the surgery. He further stated that the complainant was operated under Topical anaesthesia, which means with anaesthetic eyedrops only. He denied the fact of administering of any injection to him. He further stated on oath that complainant underwent for Phacoemulsification operation without stitches with most advanced Baush & Lomb's Millenium Phaco Machine. He denied that there was any staff member of Nishu in the hospital of the OPs. He further stated that due care was taken of the complainant after conducting the above tests, keeping in view his diabetic profile before conducting the surgery. He further stated that complainant was not referred to Dr.Daljit Singh's Hospital at Amritsar for shrinking of his left eye. He remained fine for more than three months after surgery. Second opinion, which is just quite ethical in Consumer Complaint No.90 of 2010 9 medical practice, could be taken. He further stated that complainant suffered from optic nerve of the eye and Dr.Ashok Uppal found this complication of the complainant. This witness further stated that Dr.Ashok Uppal, neurologist diagnosed the complainant with electrophysiological. VER was done by flash method of both eyes. No.P-100 were formation seen on left eye, whereas it is within normal limit on right eye. Conclusion made of complainant's problem was left eye Neuropathy Diabetic Cause. Dr. Uppal clarified that problem was because of the Diabetic Optic Neuropathy and not the outcome of surgery, as carried out by the OPs. The OPs denied any medical negligence on its part in this case towards the complainant in the cataract surgery. The OPs further stated in his affidavit that even complaint of the complainant was found false by the E.C.H.S, vide letter dated 04.05.2010 and letter dated 10.06.2010.
7. We have examined the documents on the record and the pleadings of the parties. Ex.R-1 is Full Retina Thickness Map of the complainant, Ex.R-2 is the prescription slip of Dr. Daljit Singh Eye Hospital, Amritsar of the complainant, Ex.R-3 is the report of Dr.Ashok Uppal Neuro Hospital at Amritsar, Ex.R-4 is prescription slip of Dr.Om Parkash Eye Institute, Ex.R-5 is photocopy of eye.
8. The complainant has pleaded medical negligence in this case on the part of OPs in not conducting his surgery being a diabetic patient in a negligent manner. There is mere assertions of the complainant in this regard. The complainant has not examined any expert witness to prove any medical negligence on the part of the Consumer Complaint No.90 of 2010 10 OPs. On the other hand, there is categorical plea as well as affidavit of the OPs that he conducted latest tests for surgery of eye of the complainant and thereafter did cataract surgery, keeping in view the diabetic profile of the complainant. The OPs have proved that they also took permission for conducting the specify tests for diabetic patient before conducting the cataract surgery from the Military Hospital Authorities for the complainant. We find that in case the complainant suffered from Optic Neuropathy, which is neurological problem of the optic nerve of the eye, then Op cannot said to be medically negligent in that way in this case. The complaint filed by the complainant with the Army E.C.H.S Cell was also found without any basis. Ex.C-1 which is the result of the complaint of the complainant against OP, is also taken into consideration by us. It has been held that there is no evidence on the record to prove deficiency in service, being provided by Dr.K.D Singh Hospital to the complainant, as alleged. On the contrary, the hospital has acted in ethical manner before surgery and taking second opinion from Dr. Daljit Singh Eye Hospital. Military Hospital Authorities found that the present problem of the complainant is not due to complication of surgery, but a complication of old hidden diabetes with its irregular treatment. The complaint of the complainant against OPs was accordingly held to be frivolous by the Army , vide report of SEMO dated 03 June 2010 at Page No.16 on the record. There is report of Dr. Ashok Uppal neurologist, Amritsar Ex.C-2 on the record. He has also found that complainant suffered from Optic Neuropathy on Consumer Complaint No.90 of 2010 11 account of irregular treatment of diabetes. On the other hand, OPs have categorically asserted that they conducted the test for diabetes before conducting the surgery. OPs further stated that they took extra care in this case before cataract surgery of the complainant due to his diabetic profile. OPs relied upon the case law laid down by Apex Court in case titled as Kusum Sharma Versus... Batra Hospital & Medical Research Centre, AIR 2010 (SC) 1050, wherein it has been held by the Apex Court as under :
"That negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution, 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.
An error of judgment is not necessarily negligence. 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 is prudent and reasonable man would not do. Medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very lowest degree of care and competence is required from him. In the realm of diagnosis and treatment, there is scope for genuine difference of opinion and one professional doctor is Consumer Complaint No.90 of 2010 12 clearly not negligent merely because his conclusion differs from that of other professional doctor. It would not be conducive to the efficiency of the medical profession, if no doctor could administer medicine without a halter round his neck.
The Apex Court further laid emphasis in this authority that it is our bounden 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. The Medical practitioners at times also have to be saved from such a class of complainants. Medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interests of the patients."
9. We find that there is no breach of 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 on the part of the OP in this case. Doctor never guarantees to provide permanent cure from any problem to the patient, when he takes on his treatment.
10. We have, thus, reached the conclusion in the light of our above discussion that the case of the complainant was only due to Optic Neuropathy, which is unrelated to his cataract surgery performed by OPs. Due care has been taken by the OP in this case of the Consumer Complaint No.90 of 2010 13 complainant keeping in view his diabetic profile, as discussed above, No medical negligence has been proved on the record by the complainant against the OP. The complaint of the complainant about medical negligence was also found false by the Army Authorities against the OPs. The complainant failed to point out as to on what count, the OP was medically negligent in treating him. Resultantly, there is no merit in this complaint and same is hereby dismissed with costs which are quantified to Rs.2000/- .
11. Arguments in this complaint were heard on 11.02.2015 and the order was reserved. Now the order be communicated to the parties.
12. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER February, 13 2015.
(ravi) FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.90 of 2010 Date of Institution: 09.12.2010 Date of Decision :13.02.2015 Naik Dalip Kumar Son of Sh.Diwan Chand, Behrampur Road, c/o Guru Nanak Electrical Works, Gurdaspur, Punjab Nanak Electrical Works, Gurdaspur, Punjab (since deceased) through his legal representatives
1. Smt.Asha Devi wife of Late Sh.Dalip Kumar.
2. Harvinder Kumar (son)
3. Amarjit (son) All residents of c/o Guru Nanak Electrical Works, Behrampur Road, Gurdaspur
4. Smt.Mamta daughter of Dalip Kumar now wife of Sukhbir Singh, resident of near Chakki Bank Station, Pathankot.
5. Smt.Reeta daughter of Dalip Kumar now wife of Vipan Singh, resident of New Shastri Nagar, Pathankot.
6. Smt.Renu daughter of Dalip Kumar, now wife of Sanjeev Kumar, resident of Sangalpura Road, Gurdaspur.
.....Complainants.....
Versus
1. Dr.K.D Singh of K.D Eye Hospital, Patel Chowk, Pathankot.
2. Dr.K.D Singh, resident of Patel Chowk, Pathankot, Punjab ....Opposite parties....
Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 Quorum:-
Shri J. S. Klar, Presiding Judicial Member. Shri Vinod Kumar Gupta, Member.
Present:-
For the complainant : Sh.G.S Lalli, Advocate
For the opposite parties : Sh.D.K. Gupta Advocate
.............................................. Consumer Complaint No.90 of 2010 2 J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant Naik Dalip Kumar has directed this complaint against the opposite parties on the allegations that he retired as Naik from the Indian Army and has been carrying on repair work under the name and style of Guru Nanak Electrical Works. That he is consumer, being beneficiary as retired army person, of the OPs. That he is entitled to medical treatment after retirement as ex-army man, in as much as Indian Army is having Ex-serviceman Contributory Health Scheme (in short "E.C.H.S" Hospital) all over India for the retired army personnel. Army is also having many private clinics on their panel like Eye Hospital and so on. That in the month of October 2009, complainant approached E.C.H.C Poly Clinic at Gurdaspur for the checkup of his eyes, as he found some strain while doing his job in the left eye. He was referred by the above Poly Clinic of E.C.H.C to the OPs for treatment of his left eye. On checkup of the complainant by the OPs, the OPs gave an estimate for transplantation of lens in the left eye to the tune of Rs.9000/- including price of the lens and operation charges of the complainant. The complainant disclosed the OPs that he has been a diabetic. The SEMO 172 MIL Hospital gave approval to the estimate of the OPs for the treatment, to be rendered to the complainant, by the OPs. The OPs admitted the complainant for transplant of lens in the left eye after getting the approval of the estimate and injection was injected in the left eye of the complainant by the staff nurse Consumer Complaint No.90 of 2010 3 namely Nishu, without any competence to do so, in the hospital of the OPs. The complainant was operated upon and he complained of severe pain in the operated eye, thereafter. OP told the complainant that he needed not to worry and prescribed medicines therefor. The complainant was discharged next day from the hospital by the OPs and was called for check up after few days. The complainant approached OP for the same problem many times and lastly in the month of October 2009. The OPs referred the complainant to another empanelled eye hospital i.e Dr. Daljit Singh Hospital at Amritsar with referral slip and complainant was admitted and treated for the pain and shrinking of left eye thereat. That Dr. Daljit Singh Hospital, Amritsar referred the complainant to Dr. Uppal Neurogist for certain tests and treatment with referral slip and not to charge any expenses from the complainant and to debit all the expenses in the account of Dr.Daljit Eye Hospital, Amritsar. The complainant underwent certain tests at Uppal Hospital at Amritsar and remained admitted there for 2-3 days and his tests reports were sent to Dr. Daljit Singh, Eye Hospital. That complainant went to Dr. Om Parkash Eye Hospital, Amritsar of his own for check up, which is also an empaneled on Army Hospital and complainant was prescribed certain medicines for the pain and shrinking of the left eye. Size of the left eye of the complainant was shortened due to shrinking. There was no improvement in the eye of the complainant despite tests and check up. The complainant made written complaint to the Incharge of E.C.H.C Poly Clinic at Gurdaspur against the OPs and Consumer Complaint No.90 of 2010 4 complaint of the complainant was forwarded to Dr. D.K. Singh and he sought his explanation, but no reply was given to the complainant in this regard. The complainant sought information under RTI Act. On account of operation of the complainant, the left vision of the complainant's eye was reduced instead of improving, the complainant is unable to concentrate on repair job to start it for long time. The complainant was earning Rs.20,000/- per month from the repair and contract fitting of electricity before operation. The complainant has prayed for compensation of Rs.35,00,000/- for the loss of his vision along with interest @ 18% per annum from the date of operation till its realization from the OPs.
2. Upon notice, the OPs appeared, filed written reply and contested the complaint of the complainant vehemently. OP raised preliminary objections in the written reply that OP is an empanelled hospital with E.C.H.S. The complainant was referred to OP through E.C.H.S clinics on the choice of the patient himself. Necessary tests were carried out before undertaking the surgery of the complainant and approval for treatment was also sought from the E.C.H.S. The treatment was started after obtaining the permission from the competent authority of the E.C.H.S and bill for the surgery was submitted to the concerned E.C.H.S by the OPs for reimbursement along with original receipts/reports of the test and treatment of the complainant. On completion of the treatment of the patient, he was required to submit for post care check up. The complainant stated that he was satisfied with the treatment rendered to him by the OP. Consumer Complaint No.90 of 2010 5
The payment charges of the treatment of the patient is released only, if feedback by the patient is satisfactory. E.C.H.S has not been impleaded as a party in this case by the complainant. The complainant has instituted this false and frivolous complaint. On merits, the OPs contested the complaint of the complainant by denying any medical negligence on its part. It is averred that keeping in view diabetic profile of the complainant, special permission from Incharge Military Hospital, Gurdaspur for a special Phaco operation procedures for cataract and few advanced test like Fundus Flourescein Angiography (FFA) and Optical Coherence Temography (OCT) for diabetic patient was asked for. Aforesaid tests were latest and specific for diabetic patient. The OP was very careful in conducting pre-operative check up of the complainant, being diabetic patient after taking due precautions. The complainant was operated under topical anaesthesia, which means with anaesthetic eyedrops, which was instilled for the anesthesia. However, no injection was administered to the complainant as pleaded by him. The complainant underwent Phacoemulsification operation without stitches with most advanced Baush & Lomb's Millenium Phaco Machine. It was further averred that there was no staff member by name of Nishu in the hospital of the OPs and hence no injection was given to the complainant by her whatsoever. The blood sugar level of the complainant at the time of the surgery was 118 mg, which was within the prescribed limits. The OP denied any medical negligence on its part in this case. It was further averred that complainant was not Consumer Complaint No.90 of 2010 6 referred to Dr. Daljit Singh Eye Hospital, Amritsar in October 2009 for shrinking of his left eye. In fact, he was referred on 18.01.2010 after more than three months from the time of his surgery as second opinion in medical practice is quite ethical. It was admitted by OPs that complainant was further referred by Dr. Daljit Singh to Dr. Ashok Uppal a renowed Neurologist at Amritsar. The complainant developed Optic Neuropathy, which was a neurological problem of the optic nerve of the eye, and hence he was referred to renowed Neurophysician Dr.Ashok Uppal by Dr. Daljit Singh Eye Hospital. On 02.02.2010, complainant approached Dr. Ashok Uppal Neurologist where Electrophysiological diagnosis was made and VER was done by flash method of both eyes. No.P-100 was formation seen on left eye, where as it was within normal limit on right eye. Conclusion made was left eye neuropathy diabetic cause. Dr. Uppal clarified that diabetic neuropathy was not outcome of surgery carried out by the OPs. The problem of decrease in left eye vision started about mid of January 2010, whereas the operation was conducted on him on October 2010. The OPs denied any medical negligence on its part in the surgery of the complainant. It further pleaded that E.C.H.S, vide letter dated 10.06.2010, restored referral of the patients to OPs, when the complaint submitted by the complainant, after looking into it was rejected and OPs, thus, prayed for dismissal of this complaint.
3. The complainant tendered in evidence his affidavit Ex.C-A, copy of letter dated 25.08.2010 Ex.C-1, photocopy of Discharge Certificate Ex.C-2 and death certificate of Sh.Dalip Kumar Ex.C-3. Consumer Complaint No.90 of 2010 7 As against it, opposite parties tendered in evidence affidavits of Dr.K.D Singh as Ex.R/A-1 and Ex.R/A-2, Full Retina Thickness Map of Dr.K.D's Eye Institute Retina Services Ex.R-1, photocopy of document of Dr.Daljit Singh Eye Hospital Ex.R-2, photocopy of Uppal Neuro Hospital Ex.R-3, photocopy of document of Dr.Om Parkash Eye Institute Ex.R-4, photocopy of map of Retina Ex.R-5 and photocopy of document Ex.R-6 and closed the evidence.
4. We have heard Ld.Counsel for the parties and have also examined the record of the case.
5. The OPs submitted that the complainant is not a consumer. We find that the payment of the OP was released by the E.C.H.S Hospital on behalf of complainant and complainant is beneficiary, therefore, on the basis of law laid down by the Apex Court in Kishori Lal Vs. Chairman, Employees State Insurance Corporation, reported in AIR 2007 (SC) 1819, we hold that complainant is proved to be a consumer of the OP and hence complainant has been found a consumer within the parameters of law.
6. The complainant relied upon Ex.C-1 report regarding follow up of the complaint, which was made against the OP for the medical negligence and for not properly conducting the eye surgery of the complainant, being a diabetic patient. Ex.C-2 is discharge/follow up card of Uppal Neuro Hospital, Amritsar. The complainant relied only on the above documents coupled with the pleadings. As against it, the OPs tendered in evidence his affidavit Ex.R-1/A. OP stated on oath in his affidavit that OPs is empanelled hospital with E.C.H.S Consumer Complaint No.90 of 2010 8 for eye problems. He admitted that complainant was referred for the treatment to OPs by E.C.H.S on the choice of the patient/complainant himself. That he took permission from competent authority of the E.C.H.S before starting the treatment of complainant. That complainant was required to report after surgery for feedback to OP. He further stated that complainant never reported to him, if there was any problem after post surgery. He further stated in his affidavit that keeping in view his diabetic profile, the OP asked for special treatment from in charge Military Hospital, Gurdaspur for a special phaco operation procedures for cataract and few advanced tests like Fundus Flourescein Angiography and optical coherence tomography for diabetes. That above tests are latest for diabetic patient before taking up the surgery. He further stated that the complainant was operated under Topical anaesthesia, which means with anaesthetic eyedrops only. He denied the fact of administering of any injection to him. He further stated on oath that complainant underwent for Phacoemulsification operation without stitches with most advanced Baush & Lomb's Millenium Phaco Machine. He denied that there was any staff member of Nishu in the hospital of the OPs. He further stated that due care was taken of the complainant after conducting the above tests, keeping in view his diabetic profile before conducting the surgery. He further stated that complainant was not referred to Dr.Daljit Singh's Hospital at Amritsar for shrinking of his left eye. He remained fine for more than three months after surgery. Second opinion, which is just quite ethical in Consumer Complaint No.90 of 2010 9 medical practice, could be taken. He further stated that complainant suffered from optic nerve of the eye and Dr.Ashok Uppal found this complication of the complainant. This witness further stated that Dr.Ashok Uppal, neurologist diagnosed the complainant with electrophysiological. VER was done by flash method of both eyes. No.P-100 were formation seen on left eye, whereas it is within normal limit on right eye. Conclusion made of complainant's problem was left eye Neuropathy Diabetic Cause. Dr. Uppal clarified that problem was because of the Diabetic Optic Neuropathy and not the outcome of surgery, as carried out by the OPs. The OPs denied any medical negligence on its part in this case towards the complainant in the cataract surgery. The OPs further stated in his affidavit that even complaint of the complainant was found false by the E.C.H.S, vide letter dated 04.05.2010 and letter dated 10.06.2010.
7. We have examined the documents on the record and the pleadings of the parties. Ex.R-1 is Full Retina Thickness Map of the complainant, Ex.R-2 is the prescription slip of Dr. Daljit Singh Eye Hospital, Amritsar of the complainant, Ex.R-3 is the report of Dr.Ashok Uppal Neuro Hospital at Amritsar, Ex.R-4 is prescription slip of Dr.Om Parkash Eye Institute, Ex.R-5 is photocopy of eye.
8. The complainant has pleaded medical negligence in this case on the part of OPs in not conducting his surgery being a diabetic patient in a negligent manner. There is mere assertions of the complainant in this regard. The complainant has not examined any expert witness to prove any medical negligence on the part of the Consumer Complaint No.90 of 2010 10 OPs. On the other hand, there is categorical plea as well as affidavit of the OPs that he conducted latest tests for surgery of eye of the complainant and thereafter did cataract surgery, keeping in view the diabetic profile of the complainant. The OPs have proved that they also took permission for conducting the specify tests for diabetic patient before conducting the cataract surgery from the Military Hospital Authorities for the complainant. We find that in case the complainant suffered from Optic Neuropathy, which is neurological problem of the optic nerve of the eye, then Op cannot said to be medically negligent in that way in this case. The complaint filed by the complainant with the Army E.C.H.S Cell was also found without any basis. Ex.C-1 which is the result of the complaint of the complainant against OP, is also taken into consideration by us. It has been held that there is no evidence on the record to prove deficiency in service, being provided by Dr.K.D Singh Hospital to the complainant, as alleged. On the contrary, the hospital has acted in ethical manner before surgery and taking second opinion from Dr. Daljit Singh Eye Hospital. Military Hospital Authorities found that the present problem of the complainant is not due to complication of surgery, but a complication of old hidden diabetes with its irregular treatment. The complaint of the complainant against OPs was accordingly held to be frivolous by the Army , vide report of SEMO dated 03 June 2010 at Page No.16 on the record. There is report of Dr. Ashok Uppal neurologist, Amritsar Ex.C-2 on the record. He has also found that complainant suffered from Optic Neuropathy on Consumer Complaint No.90 of 2010 11 account of irregular treatment of diabetes. On the other hand, OPs have categorically asserted that they conducted the test for diabetes before conducting the surgery. OPs further stated that they took extra care in this case before cataract surgery of the complainant due to his diabetic profile. OPs relied upon the case law laid down by Apex Court in case titled as Kusum Sharma Versus... Batra Hospital & Medical Research Centre, AIR 2010 (SC) 1050, wherein it has been held by the Apex Court as under :
"That negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution, 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.
An error of judgment is not necessarily negligence. 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 is prudent and reasonable man would not do. Medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very lowest degree of care and competence is required from him. In the realm of diagnosis and treatment, there is scope for genuine difference of opinion and one professional doctor is Consumer Complaint No.90 of 2010 12 clearly not negligent merely because his conclusion differs from that of other professional doctor. It would not be conducive to the efficiency of the medical profession, if no doctor could administer medicine without a halter round his neck.
The Apex Court further laid emphasis in this authority that it is our bounden 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. The Medical practitioners at times also have to be saved from such a class of complainants. Medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interests of the patients."
9. We find that there is no breach of 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 on the part of the OP in this case. Doctor never guarantees to provide permanent cure from any problem to the patient, when he takes on his treatment.
10. We have, thus, reached the conclusion in the light of our above discussion that the case of the complainant was only due to Optic Neuropathy, which is unrelated to his cataract surgery performed by OPs. Due care has been taken by the OP in this case of the Consumer Complaint No.90 of 2010 13 complainant keeping in view his diabetic profile, as discussed above, No medical negligence has been proved on the record by the complainant against the OP. The complaint of the complainant about medical negligence was also found false by the Army Authorities against the OPs. The complainant failed to point out as to on what count, the OP was medically negligent in treating him. Resultantly, there is no merit in this complaint and same is hereby dismissed with costs which are quantified to Rs.2000/- .
11. Arguments in this complaint were heard on 11.02.2015 and the order was reserved. Now the order be communicated to the parties.
12. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER February, 13 2015.
(ravi) FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.90 of 2010 Date of Institution: 09.12.2010 Date of Decision :13.02.2015 Naik Dalip Kumar Son of Sh.Diwan Chand, Behrampur Road, c/o Guru Nanak Electrical Works, Gurdaspur, Punjab Nanak Electrical Works, Gurdaspur, Punjab (since deceased) through his legal representatives
1. Smt.Asha Devi wife of Late Sh.Dalip Kumar.
2. Harvinder Kumar (son)
3. Amarjit (son) All residents of c/o Guru Nanak Electrical Works, Behrampur Road, Gurdaspur
4. Smt.Mamta daughter of Dalip Kumar now wife of Sukhbir Singh, resident of near Chakki Bank Station, Pathankot.
5. Smt.Reeta daughter of Dalip Kumar now wife of Vipan Singh, resident of New Shastri Nagar, Pathankot.
6. Smt.Renu daughter of Dalip Kumar, now wife of Sanjeev Kumar, resident of Sangalpura Road, Gurdaspur.
.....Complainants.....
Versus
1. Dr.K.D Singh of K.D Eye Hospital, Patel Chowk, Pathankot.
2. Dr.K.D Singh, resident of Patel Chowk, Pathankot, Punjab ....Opposite parties....
Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 Quorum:-
Shri J. S. Klar, Presiding Judicial Member. Shri Vinod Kumar Gupta, Member.
Present:-
For the complainant : Sh.G.S Lalli, Advocate
For the opposite parties : Sh.D.K. Gupta Advocate
.............................................. Consumer Complaint No.90 of 2010 2 J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant Naik Dalip Kumar has directed this complaint against the opposite parties on the allegations that he retired as Naik from the Indian Army and has been carrying on repair work under the name and style of Guru Nanak Electrical Works. That he is consumer, being beneficiary as retired army person, of the OPs. That he is entitled to medical treatment after retirement as ex-army man, in as much as Indian Army is having Ex-serviceman Contributory Health Scheme (in short "E.C.H.S" Hospital) all over India for the retired army personnel. Army is also having many private clinics on their panel like Eye Hospital and so on. That in the month of October 2009, complainant approached E.C.H.C Poly Clinic at Gurdaspur for the checkup of his eyes, as he found some strain while doing his job in the left eye. He was referred by the above Poly Clinic of E.C.H.C to the OPs for treatment of his left eye. On checkup of the complainant by the OPs, the OPs gave an estimate for transplantation of lens in the left eye to the tune of Rs.9000/- including price of the lens and operation charges of the complainant. The complainant disclosed the OPs that he has been a diabetic. The SEMO 172 MIL Hospital gave approval to the estimate of the OPs for the treatment, to be rendered to the complainant, by the OPs. The OPs admitted the complainant for transplant of lens in the left eye after getting the approval of the estimate and injection was injected in the left eye of the complainant by the staff nurse Consumer Complaint No.90 of 2010 3 namely Nishu, without any competence to do so, in the hospital of the OPs. The complainant was operated upon and he complained of severe pain in the operated eye, thereafter. OP told the complainant that he needed not to worry and prescribed medicines therefor. The complainant was discharged next day from the hospital by the OPs and was called for check up after few days. The complainant approached OP for the same problem many times and lastly in the month of October 2009. The OPs referred the complainant to another empanelled eye hospital i.e Dr. Daljit Singh Hospital at Amritsar with referral slip and complainant was admitted and treated for the pain and shrinking of left eye thereat. That Dr. Daljit Singh Hospital, Amritsar referred the complainant to Dr. Uppal Neurogist for certain tests and treatment with referral slip and not to charge any expenses from the complainant and to debit all the expenses in the account of Dr.Daljit Eye Hospital, Amritsar. The complainant underwent certain tests at Uppal Hospital at Amritsar and remained admitted there for 2-3 days and his tests reports were sent to Dr. Daljit Singh, Eye Hospital. That complainant went to Dr. Om Parkash Eye Hospital, Amritsar of his own for check up, which is also an empaneled on Army Hospital and complainant was prescribed certain medicines for the pain and shrinking of the left eye. Size of the left eye of the complainant was shortened due to shrinking. There was no improvement in the eye of the complainant despite tests and check up. The complainant made written complaint to the Incharge of E.C.H.C Poly Clinic at Gurdaspur against the OPs and Consumer Complaint No.90 of 2010 4 complaint of the complainant was forwarded to Dr. D.K. Singh and he sought his explanation, but no reply was given to the complainant in this regard. The complainant sought information under RTI Act. On account of operation of the complainant, the left vision of the complainant's eye was reduced instead of improving, the complainant is unable to concentrate on repair job to start it for long time. The complainant was earning Rs.20,000/- per month from the repair and contract fitting of electricity before operation. The complainant has prayed for compensation of Rs.35,00,000/- for the loss of his vision along with interest @ 18% per annum from the date of operation till its realization from the OPs.
2. Upon notice, the OPs appeared, filed written reply and contested the complaint of the complainant vehemently. OP raised preliminary objections in the written reply that OP is an empanelled hospital with E.C.H.S. The complainant was referred to OP through E.C.H.S clinics on the choice of the patient himself. Necessary tests were carried out before undertaking the surgery of the complainant and approval for treatment was also sought from the E.C.H.S. The treatment was started after obtaining the permission from the competent authority of the E.C.H.S and bill for the surgery was submitted to the concerned E.C.H.S by the OPs for reimbursement along with original receipts/reports of the test and treatment of the complainant. On completion of the treatment of the patient, he was required to submit for post care check up. The complainant stated that he was satisfied with the treatment rendered to him by the OP. Consumer Complaint No.90 of 2010 5
The payment charges of the treatment of the patient is released only, if feedback by the patient is satisfactory. E.C.H.S has not been impleaded as a party in this case by the complainant. The complainant has instituted this false and frivolous complaint. On merits, the OPs contested the complaint of the complainant by denying any medical negligence on its part. It is averred that keeping in view diabetic profile of the complainant, special permission from Incharge Military Hospital, Gurdaspur for a special Phaco operation procedures for cataract and few advanced test like Fundus Flourescein Angiography (FFA) and Optical Coherence Temography (OCT) for diabetic patient was asked for. Aforesaid tests were latest and specific for diabetic patient. The OP was very careful in conducting pre-operative check up of the complainant, being diabetic patient after taking due precautions. The complainant was operated under topical anaesthesia, which means with anaesthetic eyedrops, which was instilled for the anesthesia. However, no injection was administered to the complainant as pleaded by him. The complainant underwent Phacoemulsification operation without stitches with most advanced Baush & Lomb's Millenium Phaco Machine. It was further averred that there was no staff member by name of Nishu in the hospital of the OPs and hence no injection was given to the complainant by her whatsoever. The blood sugar level of the complainant at the time of the surgery was 118 mg, which was within the prescribed limits. The OP denied any medical negligence on its part in this case. It was further averred that complainant was not Consumer Complaint No.90 of 2010 6 referred to Dr. Daljit Singh Eye Hospital, Amritsar in October 2009 for shrinking of his left eye. In fact, he was referred on 18.01.2010 after more than three months from the time of his surgery as second opinion in medical practice is quite ethical. It was admitted by OPs that complainant was further referred by Dr. Daljit Singh to Dr. Ashok Uppal a renowed Neurologist at Amritsar. The complainant developed Optic Neuropathy, which was a neurological problem of the optic nerve of the eye, and hence he was referred to renowed Neurophysician Dr.Ashok Uppal by Dr. Daljit Singh Eye Hospital. On 02.02.2010, complainant approached Dr. Ashok Uppal Neurologist where Electrophysiological diagnosis was made and VER was done by flash method of both eyes. No.P-100 was formation seen on left eye, where as it was within normal limit on right eye. Conclusion made was left eye neuropathy diabetic cause. Dr. Uppal clarified that diabetic neuropathy was not outcome of surgery carried out by the OPs. The problem of decrease in left eye vision started about mid of January 2010, whereas the operation was conducted on him on October 2010. The OPs denied any medical negligence on its part in the surgery of the complainant. It further pleaded that E.C.H.S, vide letter dated 10.06.2010, restored referral of the patients to OPs, when the complaint submitted by the complainant, after looking into it was rejected and OPs, thus, prayed for dismissal of this complaint.
3. The complainant tendered in evidence his affidavit Ex.C-A, copy of letter dated 25.08.2010 Ex.C-1, photocopy of Discharge Certificate Ex.C-2 and death certificate of Sh.Dalip Kumar Ex.C-3. Consumer Complaint No.90 of 2010 7 As against it, opposite parties tendered in evidence affidavits of Dr.K.D Singh as Ex.R/A-1 and Ex.R/A-2, Full Retina Thickness Map of Dr.K.D's Eye Institute Retina Services Ex.R-1, photocopy of document of Dr.Daljit Singh Eye Hospital Ex.R-2, photocopy of Uppal Neuro Hospital Ex.R-3, photocopy of document of Dr.Om Parkash Eye Institute Ex.R-4, photocopy of map of Retina Ex.R-5 and photocopy of document Ex.R-6 and closed the evidence.
4. We have heard Ld.Counsel for the parties and have also examined the record of the case.
5. The OPs submitted that the complainant is not a consumer. We find that the payment of the OP was released by the E.C.H.S Hospital on behalf of complainant and complainant is beneficiary, therefore, on the basis of law laid down by the Apex Court in Kishori Lal Vs. Chairman, Employees State Insurance Corporation, reported in AIR 2007 (SC) 1819, we hold that complainant is proved to be a consumer of the OP and hence complainant has been found a consumer within the parameters of law.
6. The complainant relied upon Ex.C-1 report regarding follow up of the complaint, which was made against the OP for the medical negligence and for not properly conducting the eye surgery of the complainant, being a diabetic patient. Ex.C-2 is discharge/follow up card of Uppal Neuro Hospital, Amritsar. The complainant relied only on the above documents coupled with the pleadings. As against it, the OPs tendered in evidence his affidavit Ex.R-1/A. OP stated on oath in his affidavit that OPs is empanelled hospital with E.C.H.S Consumer Complaint No.90 of 2010 8 for eye problems. He admitted that complainant was referred for the treatment to OPs by E.C.H.S on the choice of the patient/complainant himself. That he took permission from competent authority of the E.C.H.S before starting the treatment of complainant. That complainant was required to report after surgery for feedback to OP. He further stated that complainant never reported to him, if there was any problem after post surgery. He further stated in his affidavit that keeping in view his diabetic profile, the OP asked for special treatment from in charge Military Hospital, Gurdaspur for a special phaco operation procedures for cataract and few advanced tests like Fundus Flourescein Angiography and optical coherence tomography for diabetes. That above tests are latest for diabetic patient before taking up the surgery. He further stated that the complainant was operated under Topical anaesthesia, which means with anaesthetic eyedrops only. He denied the fact of administering of any injection to him. He further stated on oath that complainant underwent for Phacoemulsification operation without stitches with most advanced Baush & Lomb's Millenium Phaco Machine. He denied that there was any staff member of Nishu in the hospital of the OPs. He further stated that due care was taken of the complainant after conducting the above tests, keeping in view his diabetic profile before conducting the surgery. He further stated that complainant was not referred to Dr.Daljit Singh's Hospital at Amritsar for shrinking of his left eye. He remained fine for more than three months after surgery. Second opinion, which is just quite ethical in Consumer Complaint No.90 of 2010 9 medical practice, could be taken. He further stated that complainant suffered from optic nerve of the eye and Dr.Ashok Uppal found this complication of the complainant. This witness further stated that Dr.Ashok Uppal, neurologist diagnosed the complainant with electrophysiological. VER was done by flash method of both eyes. No.P-100 were formation seen on left eye, whereas it is within normal limit on right eye. Conclusion made of complainant's problem was left eye Neuropathy Diabetic Cause. Dr. Uppal clarified that problem was because of the Diabetic Optic Neuropathy and not the outcome of surgery, as carried out by the OPs. The OPs denied any medical negligence on its part in this case towards the complainant in the cataract surgery. The OPs further stated in his affidavit that even complaint of the complainant was found false by the E.C.H.S, vide letter dated 04.05.2010 and letter dated 10.06.2010.
7. We have examined the documents on the record and the pleadings of the parties. Ex.R-1 is Full Retina Thickness Map of the complainant, Ex.R-2 is the prescription slip of Dr. Daljit Singh Eye Hospital, Amritsar of the complainant, Ex.R-3 is the report of Dr.Ashok Uppal Neuro Hospital at Amritsar, Ex.R-4 is prescription slip of Dr.Om Parkash Eye Institute, Ex.R-5 is photocopy of eye.
8. The complainant has pleaded medical negligence in this case on the part of OPs in not conducting his surgery being a diabetic patient in a negligent manner. There is mere assertions of the complainant in this regard. The complainant has not examined any expert witness to prove any medical negligence on the part of the Consumer Complaint No.90 of 2010 10 OPs. On the other hand, there is categorical plea as well as affidavit of the OPs that he conducted latest tests for surgery of eye of the complainant and thereafter did cataract surgery, keeping in view the diabetic profile of the complainant. The OPs have proved that they also took permission for conducting the specify tests for diabetic patient before conducting the cataract surgery from the Military Hospital Authorities for the complainant. We find that in case the complainant suffered from Optic Neuropathy, which is neurological problem of the optic nerve of the eye, then Op cannot said to be medically negligent in that way in this case. The complaint filed by the complainant with the Army E.C.H.S Cell was also found without any basis. Ex.C-1 which is the result of the complaint of the complainant against OP, is also taken into consideration by us. It has been held that there is no evidence on the record to prove deficiency in service, being provided by Dr.K.D Singh Hospital to the complainant, as alleged. On the contrary, the hospital has acted in ethical manner before surgery and taking second opinion from Dr. Daljit Singh Eye Hospital. Military Hospital Authorities found that the present problem of the complainant is not due to complication of surgery, but a complication of old hidden diabetes with its irregular treatment. The complaint of the complainant against OPs was accordingly held to be frivolous by the Army , vide report of SEMO dated 03 June 2010 at Page No.16 on the record. There is report of Dr. Ashok Uppal neurologist, Amritsar Ex.C-2 on the record. He has also found that complainant suffered from Optic Neuropathy on Consumer Complaint No.90 of 2010 11 account of irregular treatment of diabetes. On the other hand, OPs have categorically asserted that they conducted the test for diabetes before conducting the surgery. OPs further stated that they took extra care in this case before cataract surgery of the complainant due to his diabetic profile. OPs relied upon the case law laid down by Apex Court in case titled as Kusum Sharma Versus... Batra Hospital & Medical Research Centre, AIR 2010 (SC) 1050, wherein it has been held by the Apex Court as under :
"That negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution, 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.
An error of judgment is not necessarily negligence. 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 is prudent and reasonable man would not do. Medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very lowest degree of care and competence is required from him. In the realm of diagnosis and treatment, there is scope for genuine difference of opinion and one professional doctor is Consumer Complaint No.90 of 2010 12 clearly not negligent merely because his conclusion differs from that of other professional doctor. It would not be conducive to the efficiency of the medical profession, if no doctor could administer medicine without a halter round his neck.
The Apex Court further laid emphasis in this authority that it is our bounden 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. The Medical practitioners at times also have to be saved from such a class of complainants. Medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interests of the patients."
9. We find that there is no breach of 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 on the part of the OP in this case. Doctor never guarantees to provide permanent cure from any problem to the patient, when he takes on his treatment.
10. We have, thus, reached the conclusion in the light of our above discussion that the case of the complainant was only due to Optic Neuropathy, which is unrelated to his cataract surgery performed by OPs. Due care has been taken by the OP in this case of the Consumer Complaint No.90 of 2010 13 complainant keeping in view his diabetic profile, as discussed above, No medical negligence has been proved on the record by the complainant against the OP. The complaint of the complainant about medical negligence was also found false by the Army Authorities against the OPs. The complainant failed to point out as to on what count, the OP was medically negligent in treating him. Resultantly, there is no merit in this complaint and same is hereby dismissed with costs which are quantified to Rs.2000/- .
11. Arguments in this complaint were heard on 11.02.2015 and the order was reserved. Now the order be communicated to the parties.
12. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER February, 13 2015.
(ravi) FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1297 of 2011
Date of Institution: 26.08.2011 Date of Decision: 17.04.2015
1. Silver Oaks Hospital, Phase IX, Sector 63, SAS Nagar, Mohali, through its Managing Director-cum-Chairman.
2. Dr. Akhil Bhargava c/o Silver Oaks Hospital, Phase IX, Sector 63, SAS Nagar, Mohali.
.....Appellants/Opposite parties Versus Capt. Anil Kumar c/o Shivalik Agro/Eng. Solan (HP) ....Respondent/Complainant First Appeal against order dated 22.07.2011 passed by the District Consumer Disputes Redressal Forum, SAS Nagar, Mohali Quorum:-
Shri J. S. Klar, Presiding Judicial Member. Shri Vinod Kumar Gupta, Member.
Present:-
For the appellant : Sh. G.S Ahluwalia, Advocate
For the respondent : Sh.Amit Awasti, Advocate.
.............................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellants (the opposite parties in the complaint) have directed this appeal against the respondent in this appeal (the First Appeal No.1297 of 2011 2 complainant in the complaint), challenging order dated 22.07.2011 of District Consumer Disputes Redressal Forum Mohali, accepting the complaint of the complainant by directing the OPs now appellants to pay the compensation amount of Rs.7,50,000/-, besides costs of litigation of Rs.10,000/- to the complainant. The instant appeal has been preferred against the same by the OPs now appellants.
2. The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the allegations that Smt. Binoo Gupta was his wife, who has since expired on 15.10.2009. His wife Smt. Binoo Gupta complained of breathlessness and fever and she was taken to Civil Hospital Solan, where some tests were conducted on her. Civil Hospital Solan further refereed Smt. Binoo Gupta to Silver Oaks Hospital, Mohali for her onward treatment. The complainant also took his wife to the clinic of Dr. Ravi Kant Sood at Solan, who also advised that she needed hospitalization. The complainant brought her to Silver Oak Hospital Mohali, without any loss of time and, thus, got her admitted in the evening night of 15/16th October 2009 thereat. The wife of the complainant was clearly showing the symptoms of swine flu, however, OP No.2 being treating doctor of Silver Oak Hospital, stated that she was suffering from lung infection or pneumonia and gave treatment to her accordingly. Smt. Binoo Gupta was admitted to the ICU ward of OP No.1 and OP No.2 treated her and also got various tests conducted on her in this regard. Smt. Binoo Gupta wife of the complainant was diagnosed as pheumonitis/pneumonia by the OPs. Her reports clearly showed the symptoms of litharge, First Appeal No.1297 of 2011 3 respiratory distress, difficulty in breathing, cough, fever and breathlessness. These are very clear symptoms of swine flu.
Instead of treating her for swine flu, the OPs had not quarter tined and rather kept her in the ICU ward of the hospital. Last noting in the treatment record by the Ops was made after the death of Smt. Binoo Gupta only to the effect that the attendants of the patient were advised to take her to PGI by Dr. Akhil Bhargava, but because of festival vacations, they were not willing and inclined to take her there. The complainant could never enjoy any festival with her wife Smt. Binoo Gupta being on the deathbed of ICU ward. Had OPs diagnosed her symptomatic of swine flu case and she was taken in time to PGI, her precious life could have been saved. The National Institute of Communicable Diseases, Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India issued guidelines for sample collection and handling of human clinical samples for laboratory diagnoses of H1 N1 influenza. None of the above-referred guidelines were followed by the OPs contumaciously in this case. As per above-referred guidelines, the concerned hospital has to immediately inform the District Health Authority about any swine flu case. The patient of swine flu is to be kept in Isolation ward, but in the present case, the patient was rather kept in ICU by OPs along with other patients. In case of suspected case of swine flu, then respiratory specimen must be collected as soon as possible after symptoms begin, before antiviral medication is administered. Even if symptoms being more than one week aged, multiple specimens on multiple days should be collected, if the First Appeal No.1297 of 2011 4 patient is accessible. The OPs did not have even the kit to collect throat and nasal swabs and the complainant was sent to PGI to get the kit at a very delayed stage by the OPs. The complainant got the kit from PGI and entrusted it to OPs, but the doctor of OP No.1 did not even feel the need to follow the guidelines, as issued by Ministry of Health and Family Welfare Government of India. Valuable life of Smt. Binoo Gupta could have been saved, had the OPs conducted the above test for swine flu on her in time in a diligent manner. The District Health Officer Dr.S.P Surila called the OP Hospital to explain the lapse found on their part, while dealing with the patient of H1 N 1/swine flu and the query of Dr. S.P Surila was replied by OP no.2 admitting the lapse, fault and medical negligence on their part. The complainant sought information under the RTI Act from the OPs in this case as well. The OP No.2 sent letter dated 21.10.2009 to the effect that Smt. Binoo Gupta, diagnosed as H1 N1 positive, expired in a hospital on 18th May at 8.45 AM. Her report of H1 N1 positive were known only in the evening and hence the delay in informing District Health Officer took place. The patient's relative went to PGI with an intention to transfer the patient and hence the District Health Officer was not informed. However, after District Health Officer visited at hospital on the 18th evening and found that ICU was empty and patient were kept in isolation ward, all patients in the ICU were given Tamiflu CD to naturalize the effect of swine flu. List of people was given and sent to District Health Officer and Tamiflu procured was given to Nurses, attendants, doctors etc and the affected people had been quarantined. Two other patients in the ICU, who had been First Appeal No.1297 of 2011 5 there earlier were also treated for H1 N1 virus. The wife of the complainant Smt. Binoo Gupta exhibited clear symptoms of H1 N1/swine flu from 15.10.2009. Had the OPs informed the Health Authorities, then timely treatment could have been given to her and her life saved. The complainant has, thus, filed the complaint against the OPs directing them to pay the amount of compensation of Rs.15 lac towards their medical negligence and deficiency in service on their, besides the compensation of Rs.1 lac for mental harassment to the complainant and Rs.1 lac for litigation expenses to him. 3 Upon notice, OPs filed written reply and contested the complaint of the complainant vehemently by raising preliminary objections that complaint is false and frivolous. The complainant has failed to prove any document/reports from the specialist doctors to prove any medical negligence or deficiency in service on the part of the OPs. On merits, it was admitted that wife of the complainant was admitted in Civil Hospital Solan, being case of acute Pneumonitis with Diabetes Mellitus. She was put on antibiotic medicines even in Solan Hospital and was also given Oxgen support there before bringing her to Silver Oak Hospital Mohali. Since deceased Binoo Gupta consulted another medical practitioner, who suspected her to be a case of acute left ventricular failure, which is a heart disease and further prescribed additional medication, as set out in the prescription slip Ex.C-2. Smt. Binoo Gupta was admitted in the hospital of OP No.1 on the intervening night of 15-16th October 2009 and her history was noted down at that juncture during emergency consultation as below :
First Appeal No.1297 of 2011 6
"48 years female pt. received in triage with c/o --> severe breathing difficulty since one day but aggravated more today -- fever since 2 days.
Pt. was diagnosed as Acute Pneumonitis and taking Rx. .......DM II since 8-10 years on Regular Rx. Non/o HTN/CAD/.................
H/o Hystrectomy at Fortis O/E........./........./ Breathless/Note able to lie down BP- 130/90 PR-80/min RB-32 ......- Temp 100 F ....- SI-S2 (tachycardia) ...-......
......-B/L Crept +ive (entry decreases in left lower zone) ....+ ive .....> soft......
Adv > inj..............
>inj.............
>inj PCM C/D/W Dr. Akhil >...............
>...............
>Admit in ICU"
She was brought to hospital of OP No.1 suffering from severe breathing difficulty since the past one day, which further aggravated before bringing her to hospital to OP No.1. She had been suffering from fever for the past two days. She was diagnosed with Acute Pneumonitis and was taking medicines therefor. She had been suffering from diabetes for the last 8-10 years and was on regular medication and was medically examined and admitted in ICU of OP First Appeal No.1297 of 2011 7 No.1 hospital. ABG was done, which showed low oxygen saturation. All relevant tests including sputum and blood culture had been conducted on her. She was started on BI-PAP besides injectable asked for also pleural tap was done and sent for relevant investigations. Her symptoms were high fever, cough and expectoration and breathlessness, which were all signs of Pneumonitis/pneumonia. Various tests were conducted on her when she was admitted in ICU by the OPs. Since her condition was serious, constant tests had to be conducted on her to keep track of even the slightest change in the condition of the deceased patient. She was first known case of swine flu in the region. She had no history of travel abroad or foreign contact and hence there was no reason to suspect swine flu infection in her except that she was a diabetic. Swine flu does not have any unique symptoms and manifest it in the same manner, as seasonal with common symptoms, as mentioned above. Requisite tests were needed to be conducted by way of samples/specimen to be collected from the respiratory cavity, which include bronchalveolar lavage, tracheal aspirates, nasopharyngeal or oropharyngeal aspirates as washes or swabs. She was diagnosed as case of Acute Pneumonitis and was put on the treatment. It was further noted that she was advised to be taken to PGI but her attendants wanted to take her after festival was over. It was admitted that OP No.1 did not have kit to collect the throat and nasal swabs because there was a shortage of the test kits and it could be obtained only from PGI or the District Health Officer. No private hospital was in possession of the test kits. OP No.1 had First Appeal No.1297 of 2011 8 been trying to obtain a kit, which was not available even at PGI or with the District Health Officer at that juncture. She was treated for Pneumonitis in order to stabilize her condition. It was admitted that OPs have not informed the District Health Officer about the deceased patient Smt. Binoo Gupta and due to this fact H1 N1 tests were not conducted on her and it was not known that she would be H1 N1 positive being afflicted with swine flu. The District Health Officer was not informed because her attendants to shift her to PGI. OPs controverted other averments regarding any medical negligence or deficient in service by them in treating Smt. Binoo Gupta. The OPs prayed for dismissal of the present complaint.
4. The complainant tendered in evidence the affidavit of complainant Ex.CW-1/1, copy of OPD Card of Civil Hospital Solan Ex.C-1, prescription slip of Dr. Sood dated 15.10.2009 Ex.C-2, medical test done at Durga Clinical Lab Solan Ex.C-3, admission form of Binoo Gupta dated 16.10.2009 Ex.C-4, bills and invoice of the OPs regarding test, registration and medicine Ex.C-5, progress sheet and diagnoses of the OPs Ex.C-6, guidelines of Government of India regarding H1 N1 cases Ex.C-7, newspaper clippings Ex.C-8 and Ex.C-9, application under RTI Act Ex.C-10, letters dated 03.02.2010 and 20.10.2009 Ex.C-11 and Ex.C-12, translation of letters Ex.C-11 and Ex.C-12, Ex.C-13 and Ex.C-14, letter of OPs dated 21.10.2009 Ex.C-15. As against it, OPs tendered in evidence affidavit of Dr. Akhil Bhargava Ex.RW-1/1, resolution of the Board of Director dated 28.04.2011 Ex.R-1, case history of the patient dated 16.10.2009 Ex.R-2, relevant literature Ex.R-3, last medical First Appeal No.1297 of 2011 9 attendants report Ex.R-4. On conclusion of evidence and arguments, the District Forum, SAS Nagar (Mohali), accepted the complaint of the complainant by directing the OPs to pay the amount of Rs.7,50,000/- as compensation, besides costs of litigation of Rs.10,000/- to the complainant. Dissatisfied with this order dated 22.07.2011, the instant appeal has been preferred by the OPs now appellants against the same.
5. We have heard learned counsel for the parties and also examined the record of the case. The evidence is required to be examined in this case by us for adjudication of the matter in dispute in this case. Pleadings of both the parties have been duly considered by us on the record in this case. The complainant Anil Kumar has placed on record his sworn affidavit Ex.CW-1/1 in support of his pleadings. He vehemently stated in his affidavit that his wife Smt. Binoo Gupta was a positive case of swine flu, but OPs treated her for Pneumonitis disorder in a wrong manner and thereby due to their medical negligence, her death took place. He further stated that since she was a positive case of swine flu, therefore in violation of the instructions of the National Health Ministry, she was kept in ICU with other patients and not kept in isolation ward. He further stated no kit for swine flu was even available with the OPs, but in spite of that, they continued treating her for Pneumonitis. He further stated that since symptoms of swine flu was identical with Pneumonitis, therefore, it was obligatory on the part of the OPs to test her for swine flu as well to find the correct diagnosis of her disease. He supported his case, as pleaded in the complaint in this affidavit. First Appeal No.1297 of 2011 10 Ex.C-1 is the prescription slip of Solan Hospital dated 15.10.2009 of Binoo Gupta. It is stated in it that acute Pneumonitis was there and certain medication has been prescribed in it. Ex.C-2 is prescription slip of Binoo Gupta issued by Dr. Sood dated 15.10.2009, Ex.C-3 is report of Durga Clinical Lab Solan regarding some tests conducted on her. She was found to be a case of diabetes, because her Blood Sugar was 252, which was beyond normal range, Ex.C-4 is admission form of Smt. Binoo Gupta by OP No.1 at Mohali. She was admitted in Silver Oak Hospital Mohali in ICU, Ex.C-5 is receipt regarding the payment of amount 18.10.2009 paid to the OPs, Ex.C- 6 is the prescription slip of Smt. Binoo Gupta prescribing certain medication for her for the Pneumonitis and her progress sheet in the hospital, Ex.C-7 is the guidelines for sample collection and handling clinical samples for laboratory diagnosis of H1 N1 Influenza, which have been issued by National Health Ministry, Ex.C-8 is the newspaper cuttings regarding lapse on the part of OP hospital , Ex.C-9 is newspaper report to the effect that Smt. Binoo Gupta, being 48 years old, was the first H1 N1 victim from Himachal Pradesh and she was undergoing treatment at Silver Oak Hospital Mohali in Phase IX, Mohali, where she had passed away on Sunday, Ex.C-10 is legal notice sent by the complainant through his counsel to the OPs, Ex.C-11 is relevant information of this case treatment collected under RTI Act by the complainant, Ex.R-12 is letter of Office of Civil Surgeon, SAS Nagar to Managing Director, Silver Oaks Hospital, Phase 9, SAS Nagar Mohali with regard to death of Smt. Binoo Gupta for H1 N1 test, Ex.C-13 is regarding information First Appeal No.1297 of 2011 11 sought under RTI Act, Ex.C-16 is the downloaded document from the internet regarding swine flu cases in the area of Chandigarh. From perusal of Ex.C-16, it is evident that 17 years old resident of neighbouring Mohali town tested positive for the above influenza and was admitted in Chandigarh Hospital. This is first case of H1 N1 virus in Chandigarh and is dated 31st July 2009. His throat swab samples were sent to National Institute of Communicable Disease New Delhi. The boy complained of high fever, sore throat and a running nose and his condition got stable thereafter after treatment, Ex.C-15 is reply of OP No.2 sent to District Health Officer Mohali with regard to this case. The lapse is admitted for non-testing swine flu by the OPs.
6. The OPs tendered in evidence the affidavit of OP No.2 Dr.Akhil Bhargava and he swore in his affidavit in support of his pleas, taken in reply by the OPs. He admitted that Smt. Binoo Gupta was admitted in OP No.1 hospital on the intervening night of 15-16th October 2009. He further stated that she was treating for Acute Pneumonitis. It is admitted in his affidavit that there was no kit for N1 H1 test available with the hospital of the OPs. He further stated that kit was available with District Health Officer Mohali or PGI only. He stated in his affidavit that symptoms of swine flu were alike that of Pneumonitis, therefore, no medical negligence on their part is involved in this case at all. The OPs also tendered in evidence that the diagnosis as Acute Pneumonitis of Smt. Binoo Gupta 48 years old, Ex.R-3 is literature with regard to swine flu on the record, Ex.R-4 is Last Medical Attendants Report by the OP on the record. First Appeal No.1297 of 2011 12
7. We have carefully examined the documents on the record and heard the respective submissions of counsel for the parties. The submission of the counsel for OPs now appellants is that since Binoo Gupta was first patient of swine flu in the area, hence OP could not suspect it to be a case of swine flu, as such, no medical negligence is proved on their part in this case. The counsel for the complainant drew our attention to Ex.C-16, which is downloaded document from the Internet. It has reported that 17 years old boy tested positive for H1 N1 virus and was admitted at Chandigarh hospital. The related two cases of swine flu in Chandigarh were detected on July 19, 2009, couple in Punjab tested positive for swine flu on 7th July 2009, eight swine flu cases in Chandigarh in August 16,2009 , three students gets swine flu in Chandigarh on November 20, 2009. From perusal of Ex.C-16, the downloaded document from the internet, we have come to this conclusion that case of Smt. Binoo Gupta is not an isolated case of swine flu positive in this case in the region. Ex.C-16 has, thus, proved that many swine flu cases were already also detected at or around Chandigarh in the month of July/August much prior to the case of Smt. Binoo Gupta in this case. Since the symptoms of swine flu and Pneumonitis were similar, therefore, it was more obligatory on the part of the OPs to go in for H1 N1 test of deceased to rule out the possibility of any swine flu infection in her. Ex.C-16 has, thus, proved that symptoms of swine flu has spread in the area around Chandigarh, but OPs kept Binoo Gupta in ICU with other patients without any quartnining her from swine flu as well as from other patients. This is a case of medical negligence and First Appeal No.1297 of 2011 13 deficiency in service on the part of OPs in this case. OP No.1 is hospital equipped with good doctors and they were supposed to keep Binoo Gupta in isolation ward and could have advised her for swine flu test to rule out any such virus in her body. Only the layman is not supposed to know about such matters. The OPs are expert in the medical science and when symptoms of swine flu and Pneumonitis were similar, therefore, it was binding on them to test the swine flu test in her for ruling out this possibility in Binoo Gupta. Smt. Binoo Gupta patient died on account of non-testing of swine flu positive, whereas she was not given any treatment by the OP therefor. She was not diagnosed by the OPs for swine flu and was rather continued to be treated for Pneumonitis, despite the fact that she was not suffering from any Pneumonitis disorder. Had the OPs been a bit careful, then death of Binoo Gupta could have been avoided in this case. Even the newspaper clippings Ex.C-9 has also reported that OPs had not taken proper care for testing Smt. Binoo Gupta. In addition to that, we find that as per the instructions of National Health Ministry, which is Ex.C-7, certain guidelines have been given in it to ascertain whether the patient is a case of H1 N1 Influenza virus or not. What to talk of following instructions of the National Health Ministry contained in Ex.C-7, the OPs were not even furnished with any kit for swine flu test nor they went to PGI or Government Hospital to collect it. On account of clear violation of these instructions Ex.C-7, the District Health Officer Mohali swung into action and called the explanation of the OP Hospital in this regard. The letter from Civil Surgeon, Civil Hospital to Managing First Appeal No.1297 of 2011 14 Director Silver Oaks Hospital Mohali/OP, vide Ex.C-12 is dated 20.10.2009 to this effect. The OPs were directed to explain as to why they have not intimated the case of Binoo Gupta since deceased to the District Health Authority despite their obligation to do so. The explanation was furnished by OP No.1 to District Health Officer, vide Ex.C-15 on the record. He took the same vague explanation that since swine flu and Pneumonitis were similar to that of Influenza and hence it could not be done. We are not convinced with this submission of OPs on this point, why the OPs remained totally careless in not isolating other patients in ICU to save their lives from this deadly virus. There is clear violation by the OPs of the directions of the Health Ministry in this case.
8. The Apex Court has held in case V.Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr. , reported in III (2010) CPJ 1(SC) that negligence on the part of OP No.1 in giving wrong treatment to complainant's wife suffering from Malaria. District Forum rightly held that patient died due to 'cardio respiratory' arrest. Wrong treatment was provided by the OPs. The Apex Court held that there is clear admission on the part of the OP that patient was not treated for Malaria. Even otherwise, we find that Ops have not followed the Bolam Tests correctly in this case. The principle of res ipsa loquitur is clearly applicable in this case. The OPs had not conducted the test of Binoo Gupta despite the epidemic of swine flu in the area and hence they are clearly negligent and deficient in service in this case when the symptoms of swine flu resembled to that of Pneumonitis. First Appeal No.1297 of 2011 15
9. Medical practitioners do not enjoy any immunity and they can be sued, if they have failed to exercise reasonable skill and care. Negligence is the omission to do something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do or doing something, which a prudent and reasonable man would not do. Test for negligence is failure to exercise ordinary care and caution expected from prudent man in the circumstances in a given case. The definition involves the following constituents :-
1. A legal duty to exercise due care
2. Breach of the duty and
3. Consequential damages.
The breach of duty may be occasioned either by not doing something, which a reasonable man, in a given set of circumstances, would do or, by doing some act, which a reasonable prudent man would not to do.
10. We find that in view of the medical literature of swine flu, as discussed above, the OPs have not taken proper care in treating Binoo Gupta. It was obligatory on their part to get the test conducted on her to rule out the possibility of swine flu Influenza in this case, when it was already rife in the area around Mohali. We find that the OPs are medically negligent in not keeping Binoo Gupta in isolation and properly treating her there. Explanation has been called by the District Health Officer Sh. S.P Surila, from OPs for their lapse in this case. The OPs have not prescribed or given any specific medicines for treatment of swine flu including Tami flu in this case to the First Appeal No.1297 of 2011 16 deceased. We find that District Forum has correctly held that OPs were negligent and deficient in service for not saving life of Binoo Gupta by not providing the correct treatment for swine flu virus to her and by not taking precautions to spread the deadly infection from the health staff ICU patient and others.
11. Considering the facts and circumstances of the case, we find that District Forum has rightly quantified the amount of compensation payable to the complainant in this case. No illegality or infirmity has been found in the order of the District Forum under challenge in this case by us. The order of the District Forum is accordingly affirmed in this appeal.
12. As a result of our above discussion, we find no merits in the appeal and same is hereby dismissed.
13 The appellants had deposited an amount of Rs.25,000/- at the time of filing the appeal. They also deposited an amount of Rs.2,00,000/-, vide receipt dated 18.11.2011 and amount of Rs.1,12,500/-, vide receipt dated 18.11.2011. All these amounts with interest, if any, accrued thereon, be refunded by the registry to the complainant by way of crossed cheque/demand draft after 45 days from receipt of copy of this order and remaining amount as per impugned order shall be paid by the appellants to the complainant within 45 days from receipt of copy of this order , failing which it shall carry interest @ 9% from the date of complaint till actual payment. 14 Arguments in this appeal were heard on 13.04.2015 and the order was reserved. Now the order be communicated to the parties. First Appeal No.1297 of 2011 17
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER April 17 2015.
(ravi) (Refer to Reporter) (J.S Klar) Presiding Judicial Member FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.662 of 2012
Date of Institution: 24.05.2012 Date of Decision : 04.03.2015 Executive Officer Municipal Council Tapa-cum-Public Instruction Officer, Municipal Council Tapa.
.....Appellant/Opposite Party Versus Jagsir Singh s/o Joginder Singh r/o H.No.205, Gugga Mari Basti, Tapa Mandi, District Barnala.
....Respondent/Complainant First Appeal against order dated 02.04.2012 passed by the District Consumer Disputes Redressal Forum, Barnala Quorum:-
Shri J. S. Klar, Presiding Judicial Member. Shri Harcharan Singh Guram, Member.
Present:-
For the appellant : Sh.Rajiv Joshi, Advocate
For the respondent : Ex-parte
.............................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellant (the OP in the complaint) has directed this appeal against the respondent in this appeal (the complainant in the complaint), challenging the order dated 02.04.2012 of District Consumer Disputes Redressal Forum Barnala, accepting the complaint of the complainant and directing the OP to provide the requisite information within 30 days from the date of receipt of copy First Appeal No.662 of 2012 2 of this order and to pay the consolidated amount of Rs.1000/- as compensation. The instant appeal has been preferred against the same by the OP now appellant.
2. The complainant Jagir Singh has filed this complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP before the District Forum on the averments that complainant applied for requisite information under Right to Information Act (hereinafter referred to as "RTI") to the OP by sending the postal order of Rs.10/- bearing no. 03F-788682 on 30.12.2011 through registered post, which was received by OP. Requisite information has not been supplied to complainant under RTI Act by the OP. That in the month of January, the complainant went to the office of OP and requested it to supply the requisite information, but of no use.
The complainant has filed the complaint against OP directing it to supply the requisite information under the RTI Act.
3. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant. It was averred in legal objection by the OP that the jurisdiction of the Consumer Fora is excluded under Section 23 of the RTI Act 2005. That the complaint is not maintainable and complainant has not locus standi to file the present complaint. That the application received from the complainant was duly forwarded to Sectional Officer Inderjit Singh for necessary compliance, but information cannot be supplied. The OP prayed for dismissal of the complaint.
4. The complainant tendered in evidence affidavit only in support of his contentions. As against it, OP did not tender in evidence any First Appeal No.662 of 2012 3 document. On conclusion of evidence and arguments, the District Forum, Barnala accepted the complaint of the complainant and directed the OP to supply the requisite information within the period of one month from the date of copy of order to the complainant, besides payment of Rs.1000/- as composite amount. Dissatisfied with the order dated 02.04.2012 District Forum, Barnala, the OP now appellant has preferred this appeal against the same.
5. We have heard learned counsel for the appellant/OP as none has appeared on behalf of respondent in this appeal, being the complainant. We have examined the record of the case. The contention raised by the counsel for the OP now appellant is that the jurisdiction of the Consumer Fora is barred under the RTI Act 2005 and this information cannot be provided. Reference was made to law laid down by the Hon'ble National Commission in case titled as Sanjay Kumar Mishra & Company Vs. Public Information Officer (PIO) & Ors reported in 2015(1) CPR 171 (NC) Page 171-172, wherein the National Commission has held that the "person seeking information under provisions of RTI Act cannot be said to be a consumer vis-à-vis Public Authority concerned or CPIO/PIO nominated by the Act. Jurisdiction of Consumer Fora to intervene in the matters, arising out of provisions of RTI Act, is barred by necessary implication as also under provisions of Section 23 of the RTI Act as well." The complaint is accordingly held to be not maintainable, as the informant is not held to be a consumer, while relying upon law laid down by the Hon'ble National Commission in Sanjay Kumar Mishra's Case (supra). We hold that the District First Appeal No.662 of 2012 4 Forum has committed an illegality in accepting the complaint of the complainant by holding the complainant to be a consumer. The order of the District Forum cannot be sustained in this appeal on the strength of law laid down in the above authority.
6. As a result of our above discussion, by setting the aside the order of the District Forum Barnala dated 2.04.2012, the appeal of the appellant is hereby accepted and complaint filed by the complainant now respondent in this appeal is ordered to be dismissed.
7. The appellant had deposited an amount of Rs.500/- at the time of filing the appeal. This amount with interest, if any, accrued thereon be refunded by the registry to the appellant by way of crossed cheque/demand draft after 45 days from receipt of copy of this order.
8. Arguments in this appeal were heard on 02.03.2015 and the order was reserved. Now the order be communicated to the parties.
9. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (HARCHARAN SINGH GURAM) MEMBER March, 4 2015.
(ravi) FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.662 of 2012
Date of Institution: 24.05.2012 Date of Decision : 04.03.2015 Executive Officer Municipal Council Tapa-cum-Public Instruction Officer, Municipal Council Tapa.
.....Appellant/Opposite Party Versus Jagsir Singh s/o Joginder Singh r/o H.No.205, Gugga Mari Basti, Tapa Mandi, District Barnala.
....Respondent/Complainant First Appeal against order dated 02.04.2012 passed by the District Consumer Disputes Redressal Forum, Barnala Quorum:-
Shri J. S. Klar, Presiding Judicial Member. Shri Harcharan Singh Guram, Member.
Present:-
For the appellant : Sh.Rajiv Joshi, Advocate
For the respondent : Ex-parte
.............................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellant (the OP in the complaint) has directed this appeal against the respondent in this appeal (the complainant in the complaint), challenging the order dated 02.04.2012 of District Consumer Disputes Redressal Forum Barnala, accepting the complaint of the complainant and directing the OP to provide the requisite information within 30 days from the date of receipt of copy First Appeal No.662 of 2012 2 of this order and to pay the consolidated amount of Rs.1000/- as compensation. The instant appeal has been preferred against the same by the OP now appellant.
2. The complainant Jagir Singh has filed this complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP before the District Forum on the averments that complainant applied for requisite information under Right to Information Act (hereinafter referred to as "RTI") to the OP by sending the postal order of Rs.10/- bearing no. 03F-788682 on 30.12.2011 through registered post, which was received by OP. Requisite information has not been supplied to complainant under RTI Act by the OP. That in the month of January, the complainant went to the office of OP and requested it to supply the requisite information, but of no use.
The complainant has filed the complaint against OP directing it to supply the requisite information under the RTI Act.
3. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant. It was averred in legal objection by the OP that the jurisdiction of the Consumer Fora is excluded under Section 23 of the RTI Act 2005. That the complaint is not maintainable and complainant has not locus standi to file the present complaint. That the application received from the complainant was duly forwarded to Sectional Officer Inderjit Singh for necessary compliance, but information cannot be supplied. The OP prayed for dismissal of the complaint.
4. The complainant tendered in evidence affidavit only in support of his contentions. As against it, OP did not tender in evidence any First Appeal No.662 of 2012 3 document. On conclusion of evidence and arguments, the District Forum, Barnala accepted the complaint of the complainant and directed the OP to supply the requisite information within the period of one month from the date of copy of order to the complainant, besides payment of Rs.1000/- as composite amount. Dissatisfied with the order dated 02.04.2012 District Forum, Barnala, the OP now appellant has preferred this appeal against the same.
5. We have heard learned counsel for the appellant/OP as none has appeared on behalf of respondent in this appeal, being the complainant. We have examined the record of the case. The contention raised by the counsel for the OP now appellant is that the jurisdiction of the Consumer Fora is barred under the RTI Act 2005 and this information cannot be provided. Reference was made to law laid down by the Hon'ble National Commission in case titled as Sanjay Kumar Mishra & Company Vs. Public Information Officer (PIO) & Ors reported in 2015(1) CPR 171 (NC) Page 171-172, wherein the National Commission has held that the "person seeking information under provisions of RTI Act cannot be said to be a consumer vis-à-vis Public Authority concerned or CPIO/PIO nominated by the Act. Jurisdiction of Consumer Fora to intervene in the matters, arising out of provisions of RTI Act, is barred by necessary implication as also under provisions of Section 23 of the RTI Act as well." The complaint is accordingly held to be not maintainable, as the informant is not held to be a consumer, while relying upon law laid down by the Hon'ble National Commission in Sanjay Kumar Mishra's Case (supra). We hold that the District First Appeal No.662 of 2012 4 Forum has committed an illegality in accepting the complaint of the complainant by holding the complainant to be a consumer. The order of the District Forum cannot be sustained in this appeal on the strength of law laid down in the above authority.
6. As a result of our above discussion, by setting the aside the order of the District Forum Barnala dated 2.04.2012, the appeal of the appellant is hereby accepted and complaint filed by the complainant now respondent in this appeal is ordered to be dismissed.
7. The appellant had deposited an amount of Rs.500/- at the time of filing the appeal. This amount with interest, if any, accrued thereon be refunded by the registry to the appellant by way of crossed cheque/demand draft after 45 days from receipt of copy of this order.
8. Arguments in this appeal were heard on 02.03.2015 and the order was reserved. Now the order be communicated to the parties.
9. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (HARCHARAN SINGH GURAM) MEMBER March, 4 2015.
(ravi)