State Consumer Disputes Redressal Commission
Harpreet Kaur vs Fortis Escorts Hospital on 8 September, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.104 of 2012
Date of institution : 30.11.2012
Date of decision : 08.09.2017
1. Harpreet Kaur W/o Sh. Varinder Singh S/o Sh. Iqbal Singh, R/o
G.T. Road, Chheharta, District Amritsar.
2. Samanpreet D/o Sh. Varinder Singh;
3. Karandeep S/o Sh. Varinder Singh;
4. Gaganroop S/o Sh. Varinder Singh; all through natural
guardian/mother Harpreet Kaur;
5. Iqbal singh (Father);
6. Jaswant Kaur (Mother);
All residents of GT Road, Chheharta, Amritsar.
.....Complainants
Versus
1. Fortis Escorts Hospital Majitha, Verka Bypass Road, Amritsar.
2. Dr. Raj Kumar, Consultant C/o Fortis Escorts Hospital Majitha,
Verka Bypass Road, Amritsar.
3. United India Insurance Company Ltd., Himalaya House (policy
issuing office) 7th Floor, 38-B, J L Nehru Road, Kolkata-700071.
Head Office: United India Insurance Company Ltd. 24, Whites
Road, Chennai.
4. United India Insurance Company Ltd., Branch Office: 57, Railway
Link Road, Amritsar-143001. Head Office: United India Insurance
Company Ltd., 24 Whites Road, Chennai.
.....Respondents/Opposite Parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member.
Consumer Complaint No.104 of 2012 2
Present:-
For Complainants : Sh. Puneet Sharma,Advocate
For opposite party No.1 : Sh. Jatinder Nagpal, Advocate For opposite party No.2 : Sh. Munish Kapila, Advocate For opposite party No 3&4: Sh. Vikas Sharma, Advocate for Sh. R K Bashamboo, Advocate.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
Facts of the Complaint The complainants Smt. Harpreet Kaur wife of Shri Varinder Singh, three minor children Samanpreet daughter of Varinder Singh, Karandeep and Gaganroop sons of Shri Varinder Singh through their mother being natural Gaurdian and Sh. Iqbal Singh, Father and Smt. Jaswant Kaur, mother of the patient, Varinder Singh (hereinafter to be referred as 'patient') have approached this commission, by way of consumer complaint u/s 17 of the Consumer Protection Act,1986 (in short, "the Act"), claiming compensation of ₹60,00,000/- on account of deficiency in service on the part of the opposite parties; ₹20,00,000/- for future maintenance of Varinder Singh; and ₹1,00,000/- for loss of love and affection. Thus, a total compensation of ₹81,00,000/- has been claimed against opposite party No.1-Fortis Escorts Hospital, Amritsar (hereinafter to be referred as 'Hospital') and opposite party No.2-Dr. Raj Kumar, Consultant surgeon ENT (hereinafter to be referred as 'Doctor') at Fortis Escorts Hospital, alleging medical negligence on their part.
2. The brief facts, as averred in the complaint, are that Varinder Singh, patient, husband of complainant No.1, father of complainants No.2 to 4 and son of complainants No.5 & 6, approached Consumer Complaint No.104 of 2012 3 the Fortis Hospital on 11-05-2011 for treatment, consultation and diagnosis. The preliminary investigations were conducted, as advised by Dr Raj Kumar Saini. After perusal of the investigation reports, he was advised to undergo surgery for removal of Polyps, for this purpose, functional/endoscopic sinus surgery is immediately required. Thereafter, patient got admitted in the hospital on dated 18-05-2011 for operation, known as 'Functional Endoscopic Sinus Surgery' (in short, 'FESS') for removal of Polyps. The diagnosis was as under:
Polyposis nose, Bifrontal ICH with B/L infarcts post-operative. CSF Rhinorrhoea, DVT right lower limb, hypertension." During the operation/surgery for removal of the Polyps, on account of medical negligence of the operating surgeon, Cribriform Plate separating brain from nasal cavity, which attaches to structure located on the frontal bone of the skull known as Ethmoidal Notch, was broken/ruptured; causing complication during surgery. The patient was sent to Non-Contrast Computerized Tomography (in short, "NCCT") from the operation table, on the recommendation of Neurosurgeon, in incubated condition. It was clinically diagnosed that Cribriform Plate had been disrupted and intra-cerebral haemorrhage had occurred in bilateral basifrontal region and patient was put on 'life support system' and he was managed conservatively. Thereafter, there was slight improvement in the condition of the patient, but the patient had become paraplegic and it was so recorded in the Discharge Summary, which reads as under:Consumer Complaint No.104 of 2012 4
"Conscious, obeying commands, taking orally and on Foley's cath.
Paraplegic +.
Upper limb power is improving."
The patient was discharged on 16-07-2011 after about 2 months by opposite party No.1-Hospital. In fact, there was no improvement in the condition of the patient and the total bill of the patient was ₹12,01,170/- but opposite party No.1 simply requested the complainants to take him away, stating that no further charges would be levied upon them and only the charges, which would be paid by the Insurance Company, would take care of the patient's bill. Out of the said bill, an amount of ₹1,33,000/- was paid by ICICI Prudential Life Insurance Company and no extra amount was demanded by opposite parties No. 1 & 2, as they were fully aware that they had committed gross medical negligence and had rendered the patient 100% disabled, who had become paraplegic for whole of his life. The complainants took the patient to various top hospitals of the country, like VIMHANS, AIIMS and other specialized Neurologists, not caring for the expenses, but till the date of filing of the complaint, he had not recovered much, but is living in a vegetative state. The patient is 42 years old and is the sole bread earner of the family, which consists of the complainants; out of which his father and mother are of 65 years and 63 years old, respectively. The minor children of the patient are studying in reputed educational institutions. The patient was also a partner in M/s Karan Spinning Mills and M/s Roop International. The patient was earning a handsome Consumer Complaint No.104 of 2012 5 income of ₹1,00,000/- per month, but now a days he is rendered totally worthless and is living in a vegetative state, on account of paraplegia. The said condition of patient is on account of gross medical negligence and deficiency in service on the part of opposite parties No.1 & 2.
3. Upon notice opposite parties No.1 and 2 appeared and filed separate replies to the complaint. During the pendency of the complaint, opposite parties No.1 & 2 moved an application for impleading Insurance Companies, as opposite parties No. 3 and 4. The application for impleading was allowed, vide order dated 08.07.2013, and Insurance Companies were added as opposite parties No.3 and 4, who filed joint reply to the complaint. Defence of Opposite Parties No.1 & 2
4. Opposite parties No.1and 2 though filed separate replies to the complaint, but their replies are on the same lines. Summary of their version is as under:
5. Opposite parties No.1 & 2, in their replies, have raised certain preliminary objections that complainants are not covered under the definition of 'consumer'. The complaint is not maintainable, either on facts or under law against the answering opposite parties. There is no medical negligence as well as deficiency in service or lack of professional ethics on the part of opposite parties No.1 & 2. The best possible treatment with due care was provided to the patient. The present complaint is a gross abuse of the process of this Commission. The complainants have not approached this commission with clean hands and material facts have been concealed and the entire version Consumer Complaint No.104 of 2012 6 of complaint has been distorted. It was specifically pleaded that complainants concealed material medical facts relating to the patient's medical condition. The hospital staff is fully trained, the treating doctors and other paramedical staff are fully qualified. The doctors and the staff of the Hospital had followed the standard medical practice, adopting proper procedure and the same was done by qualified, experienced and competent surgeon and his assisting staff. At the time of surgery, a supporting team of Dr Raj Kamal, Consultant Neurosurgeon, was also available and he immediately examined the patient on the call of admitting/operating Surgeon. Complicated questions of law and facts are involved, which cannot be adjudicated in summary proceedings. The complainants have no locus stand to file the present complaint. These are the main preliminary objections and many other objections such as improper verification, mis-joinder of parties and complaint being false and frivolous etc. have also been taken.
6. On merits, opposite parties No.1 & 2 admitted the fact that the complainants are the relatives of the patient, but stated that complainants be put to strict proof of the same. It was denied that the patient has been rendered paraplegic, on account of medical negligence of the answering opposite parties. The contents of the complaint regarding previous consultations of the patient on 23-03- 2012, 09-05-2011 and 10-05-2011, cannot be commented upon. There is nothing on record about any consultation done on 23-03-2011, as alleged in the complaint, because nothing has been annexed/tendered Consumer Complaint No.104 of 2012 7 with the complaint/evidence. With regards to the consultation done on 23-03-2011 and 10-05-2011, it was pleaded that these consultations were done before the consultations in OPD in opposite party No.1- Hospital, which was done on 11-05-2011. It was a consultation done on 23-03-2011 with Dr. Raj Kumar Aggarwal, MS Ortho HO DNB Ortho, which indicates the recorded fact of a head Injury 13 years ago, a fact which was not disclosed by the patient to Consultant on 11-05- 2011and even the same has been intentionally omitted from the present complaint, for the reasons best known to the complainants. The same was also concealed at the time of pre-anesthesia checkup, where even allergy to drugs containing sulphur is disclosed, but the head injury was not disclosed at that time. It was further denied that the present condition of the patient is on account of the medical negligence of the operating doctor, while conducting surgery for removal of Polyps, the Cribriform Plate, separating the brain from the nasal cavity, which attaches to the structure located on the frontal bone of the skull known as Ethmoidal -notch, which is alleged to have been broken/ruptured causing complications during the operation. The patient was presented with diagnosis of 'fungal sinusitis' for bilateral FESS. The patient reported with complaints of 'nasal obstruction, post nasal discharge, sneezing and rhinorria of 4 to 5 months duration. The CT PNS done on 11th May 2011 suggested "PANSINUSITIES, Mucosal Polyps in Bilateral Maxilliary, Ethmoid, Spehenoid and Frontal Sinuses". It also indicated "DNS towards left side". The CT Scans were minutely examined by the Consulting Surgeon, Dr. R. K. Saini, and it Consumer Complaint No.104 of 2012 8 was also found that the right side Ethmoidal bone, separating the Brain from Nose, was distorted, thinned out and was also missing at some places. Keeping possibility of FUNGUL POLYPS (fungima), the patient was advised to undergo a comprehensive anti- fungal medication, immediately after examination in OPD on 11-05-2011. Clinically, it was seen that the area on the right side was very weak (as seen in the Scans, copies of which are attached with the record).This was a particular case, where the right side was weak, as is evident in pre- scans and fungus and Polyps cells, consisting mainly of lymphocytes, plasma cells, histiocytes and eosinophils were present, which might have entered the brain through the weakened area. Once the polyps were removed, the vacuum could have been created in the area, which had led to these known complications. Chances of these complications were more, because of the condition of the patient, as explained above. The complications have not arisen, due to the negligence of the operating Surgeon. It was admitted that the patient was discharged on 16-07-2011. However, it was denied that the patient became Paraplegic and that there was no improvement in his condition. It was further pleaded that the Discharge Summery the patient itself clearly indicates as under:
"Patient's general condition gradually improved. The patient in Conscious, Obeying Commands, talking & on foley scath with upper limb power grade 2-3 & having paraplegia. He is being discharged in satisfactory condition. Guarded prognosis Consumer Complaint No.104 of 2012 9 regarding recovery of lower limb movements has been explained to the attendants"
It was further denied that these opposite parties requested the complainants to take away the patient, stating that the bill, which was paid by the Insurance Company, would take care of the entire bill and that no further charge would be levied on the patient. A reference to the undertaking signed by the patient has been made, which reads as under:
"I take full responsibility to settle the bills before leaving the hospital.."
A separate letter of acknowledgement of dues was also signed on 18- 05-201, which reads as under:
"Our Patient named Varinder holds an insurance policy, whose TPA is ICICI Prudential.
I/My patient named above is under treatment at Fortis Escorts Hospital, Majitha-Verka Bypass Amritsar, hereinafter called as hospital. The hospital has sent insurance documents to the Insurance Company for the approval of my claim. In case of denial of insurance claim, I confirm and undertake to clear any dues arising out of the treatment given to me. In case the said hospital does not receive the approval from the Insurance Company before my discharge, then also I am liable and responsible to pay all dues towards my treatment and I undertake to clear all dues before my discharge. Consumer Complaint No.104 of 2012 10 I also undertake to clear any or all amounts over and above the approved amount and also the expenses not covered by insurance.
Sd/".
It was further pleaded that apart therefrom, the complete financial counseling was also done, as would be evident from the hospital records. The patient's attendants were informed about the bills on regular basis, as is evident from some of the documents. The attendants, however, approached the hospital, with the request that they are prominent citizens and would get the bill settled by the Insurance Company. However, if any amount remained unpaid, the same would be paid by them. Copy of the bill in confirmation was also signed by them. Undertaking and bill confirmation were also signed by them. Insurance Company had paid a sum of ₹1,33,000/- only against the total bill amount of ₹12,01,170/. The balance amount is due and payable by the patient, which is being pursued by opposite party No.1. However, the patient has not paid the same till date. This complaint has been filed, only to harass and pressurize opposite party No.1 to waive off the balance amount due and payable by the patient for his treatment undertaken at the opposite party No.1-hospital. The complainants have wrongly stated that the patient was earning a handsome income of ₹1.00 lac, per month. In fact, patient, Varinder Singh, has been duly declaring his income to the Income Tax Department. He is assessed at PAN AFDPS 9021F, in Ward 3(4) Amritsar. The averment that he was earning an income of ₹1.00 Lac, Consumer Complaint No.104 of 2012 11 per month was also denied. The patient had filed his return of income for the year ending 31-03-2011, i.e. assessment year 2011-12, declaring the annual income of ₹1,41,680/- on 30-07-2011. The income as declared for the assessment year 2012-13 (accounting period 1-04-2011 to 31-03-2012) as per his return filed on 13-07-2012 was ₹1,57,170/-, which was also progressive. This was his income before and after and, thus, the averments of Para No.8 of the complaint are just an attempt to mislead this Commission. It was further pleaded that there was no medical negligence or deficiency in service on the part of opposite parties No.1 and 2, while treating the patient and the allegations levelled in the complaint are false and wrongly. Therefore, dismissal of the complaint was prayed, with heavy costs.
Written Statement/ reply of OP No3&4:
7. Opposite parties No.3 & 4, in their reply, took preliminary objections that complaint is not maintainable, as no cause of action arises against them. The policies of insurance only cover reimbursement and that too, subject to the terms and conditions mentioned in the policies. The violation of terms and conditions has to be decided independently, not by this commission. No notice in writing was given by the insured before filing this complaint. The liability of the Insurance Company cannot be more than the maximum limit prescribed in the policies. The policies are governed by compulsory excess clause as well as voluntary access clause. On merits, the averments made in the complaint have been denied. Consumer Complaint No.104 of 2012 12 Evidence of the Complainants
8. To prove their claim, the complainants tendered in evidence affidavit of Harpreet Kaur, complainant No.1 as Ex.C-A, affidavit of S. Iqbal Singh Ex.C-B and affidavit of Karandeep Singh Ex.C-C, along with documents i.e. Ex.C-1 OPD Slip Dr. Raj Kumar Aggarwal dt.23-03-2011, OPD Slip of Gumber Eye, ENT, Dental Care 9-5-2011, OPD Slip of Respicure Chest & ENT Centre 10-5-2011, OPD Slip of Amritsar Hospital dated 10-05-2011; Ex.C-2 (colly.) i.e. Out Patient Receipt dated 11-05-2011, OPD Card of Fortis Hospital dated 11-05-2011,Discharge Summary of Fortis Hospital & Investigation Report Fortis Hospital; Ex.C-3 Inpatient Bill of Fortis Hospital Dated 16-07-2011; Ex.C-4 Health Card-ICICI Prudential; Ex.C-5 (colly.) M.R.I. Scan Report Dated 16-08-2011, Ultrasonography Report Dated 16-08-2011, OPD Slip of Dr. L.K Malhotra, OPD Slip of Dr. R. Kamal dated 28-07-2011, OPD Consultation Card of Fortis Hospital dated 24.8.2011, OPD Slip of Max Hospital New Delhi, OPD Slip of Dr. Prabhjeet Singh dated 20-08- 2011, OPD Slip of Aastha Neuro Research & Rehabilitation Centre dated 31-08-2011,Volume Scan Report dated 20-09-2011, Super MRI Scan Report dated 22-10- 2011, Super MRI Scan Report dated 27-12-2011, Dr. Lal Path Labs CLIA Report dated 17-12- 2011, Ex.C-6 Statement of Dr. Raj Kamal Neuro surgeon before JMIC Amritsar; Ex.C-7 Copy of Criminal Complaint filed before the JMIC Amritsar; Ex.C-8 Copy of Partnership Deed Dated 26-06-2000 69-71, Ex.C-9 Copy of Partnership Deed Dated 01-01-1995 72-74; Ex.C-10 ITRs-3 (Assessment Year : 2009- Consumer Complaint No.104 of 2012 13 10, 2010-11 & 2011-12); Ex.C-11 (colly.) Cash Receipts of Advance Diagnostic; Ex.C-12 (colly.) Clinical Reports ot Advance Lab Systems & International Clinical Lab & Advance, Lab Systems; Ex.C-13 Consultation Note of Medanta Blobal Health Pvt Ltd & Sandhu Life Care Hospital Etc; Ex.C-14 (colly.) Cash Receipts issued by New RO (New Rehabilitation); Ex.C-15 Order Form dated 08-01-2015 issued by Rahul Furnishing Centre; Ex.C-16 (Colly.) Cash Receipts issued by New RO (New Rehabilitation); Ex.C-17 (colly.) New RO Reports; Ex.C-18 New RO Medical Certificate 12-02-2015; Ex.C-19 (colly.) Air Invoices dated 17-09-2014 to 04-01-2016; Ex.C-20 Ref. Letter to SCDRC (including copy of Minutes); Ex.C-21 Copy of medical Literature and Copy of Notice in the Court of Ms. Navreet Kaur, JMIC, Amritsar.
During the pendency of the complaint, the complainants filed M.A. No.1461 of 2014 for referring the matter to the Medical Board/PGI or any other Government Neuro/ENT Super Specialty Hospital for obtaining expert opinion. Reply to the said application was duly filed by the opposite parties. After considering the facts and circumstances, vide order dated 16.07.2015, the matter was referred to the Director, PGI, Chandigarh to constitute the Board of Super Specialty doctors to give the opinion, as to whether any medical negligence on the part of the opposite parties is involved in this case or not? Report of the PGI, Chandigarh was received by this Commission, vide letter No.EV(9)PGI-MS/MA-63/2015 dated 09.09.2015, the copy Consumer Complaint No.104 of 2012 14 of which has also been tendered in evidence by the complainants as Ex.C-20. The same reads as under:
"MINUTES OF THE MEETING OF THE MEDICAL BOARD HELD ON 31.08.2015.
PGIMER, CHANDIGARH.
Reference: Office Order No.EV(9) PGI-MS/MA-63/2015 dated 12.08.2015 regarding constitution of Medical Board for expert opinion in Consumer Complaint No.104 of 2012 titled as "Harpreet Kaur & Others Vs. Fortis Escorts Hospital & Ohers".
Meeting of the Medical Board was held on 31.08.2015 under the Chairmanship of Dr. Jaimanti Bakshi, in the office of the Chairperson. Following members were present:
1. Dr. Jaimanti Bakshi Chairperson Additional Professor, Deptt. of Otolaryngology & Head Neck Surgery
2. Dr. Navneet Singla, Member Assistant Professor, Deptt. of Neurosurgery
3. Dr. Sandeep Singh Flora, Convener Medical Officer, Staff Clinic, PGIMER, Chandigarh.
After taking, thorough history, reviewing pre and post-operative records and clinical examination, following points have been noted by the medical board:
1. Patient was diagnosed as a case of Nasal Polyps on 11.05.2011 in Fortis Hospital, Amritsar.
2. He was taken up for Functional Endoscopic Sinus Surgery (FESS) in the same hospital on 18.05.2011. According to the records and discharge summary, patient had excessive bleeding during surgery and post-operative period. Post-operative CT Scans of head showed Basifrontal Haematoma and Intraventricular Haematoma. Consumer Complaint No.104 of 2012 15
3. Subsequent radiology showed bilateral Anterior Cerebral Artery (ACA) occlusion and infract of bilateral Anterior Cerebral Artery (ACA) Territory. Patient is paraplegic since then without any voluntary movements of bilateral lower limbs and is unable to balance his trunk without support. He is totally dependent on his relatives for his daily activities.
4. Latest radiology (MRI scan dated 02.02.2015) shows Chronic bilateral Anterior Cerebral Artery (ACA) infarcts with area of Gliosis with left fronto-ethmoidal-meningo-encephalocele.
OPINION:- Board is of the opinion that injury of the cribriform plate and anterior base of Skull has occurred during the surgery (i.e. FESS) which has led to bilateral Anterior Cerebral Artery (ACA) injuries leading to Intracerebral Haemorrhage and Intraventricular Haemorrhage and subsequently bilateral Anterior Cerebral Artery (ACA) infracts.
Patient's clinical course and present condition can be very well explained based upon all the records of surgery and post-operative investigations.
Dr. Jaimanti Bakshi Dr. Navneet Singla Dr. Sandeep Singh Flora
Chairperson Member Member."
Evidence of Opposite Party No. 1
9. Opposite party No.1 tendered into evidence affidavit of Dr. Raj Kamal, Neuro Surgeon as Ex.OP-1/A, affidavit of Dr. Pinak Modgil Ex.OP-1/B, along with Medical Record (total pages No.1 to 551) as Ex.OP-1, CD Ex.OP-1/2 and images containing three pages Ex.OP- 1/3.
Consumer Complaint No.104 of 2012 16Evidence of Opposite Party No.2
10. Opposite party No.2 tendered affidavit of Dr. Raj Kumar Saini Ex.OP-2/A, affidavit of Dr. Vivek Kumar Khanna Ex.OP-2/B, affidavit of Dr. Rakesh Chouhan, Radiologist Ex.OP-2/C and Copy of medical literature Ex.OP-2/1 (colly.) and copies of Assessment Year Returns Ex.OPW-1 to Ex.OPW-5.
Evidence of Opposite Parties No.3 & 4
11. Opposite parties No.3 & 4 tendered affidavit of Ms. Sunita Sharma, Deputy Manager as Ex.OP-3&4/A, copies of two insurance policies, along with terms and conditions, Ex.OP-3&4/1 and Ex.OP- 3&4/2.
Contentions of the Parties
12. We have heard learned counsel for the parties and have carefully gone through record carefully. We have also perused the written arguments submitted on behalf of the complainants.
13. Learned counsel for the complainants vehemently contended that it is a case of gross medical negligence on the part of opposite parties No.1 & 2, which has resulted into paraplegic condition of the patient. This has happened due to the medical negligence of the operating surgeon working in opposite party No.1-hospital.
14. When learned counsel for the complainant commenced his arguments on merits, the learned counsel for the opposite party No. 1 raised an objection that this complaint is not maintainable, as the complainants are not the 'consumers'. He contended that this issue be Consumer Complaint No.104 of 2012 17 decided first, as a preliminary issue, and thereafter, the complaint may be heard on merits.
15. It was contended by Sh. Jatinder Nagpal, learned counsel for opposite party No.1 that the patient is alive and the complaint has been filed by his legal heirs, including his father and mother. There is no averment in the complaint that patient had authorized them to file such a complaint. It was further contended that a specific objection has been taken by opposite party No.1 in its reply that complaint is not maintainable, as the complainants are not the 'consumers'. He relied upon the judgment of the Hon'ble National commission in the case of Amita Sharma v. M/s B. H. E. L & Others II (2013) CPJ 505 (NC).
16. Per contra, the learned counsel for the complainants vehemently contended that complainants are 'consumers'. They are representing the interests of the patient. So, the complaint is maintainable. Learned counsel further contended that complainants, being legal heirs of the patient, are entitled to file such a complaint. Consideration of Contentions
17. We have given our thoughtful consideration to the rival contentions raised by the learned counsel for the parties.
18. We proceed to decide the preliminary issue, discussed above, first.
19. It would be appropriate to reproduce the relevant provisions of the Act.
20. The 'complainant', 'complaint' and 'consumer' have been defined in Section 2 (1) (b), (c) and (d) of the Act, which read as under: Consumer Complaint No.104 of 2012 18
(b) "complainant" means--
(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or
(iii) the Central Government or any State Government,
(iv) one or more consumers, where there are numerous consumers having the same interest;
(v) in case of death of a consumer, his legal heir or representative; who or which makes a complaint;
(c) "complaint" means any allegation in writing made by a complainant that--
(i) an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider;
(ii) the goods bought by him or agreed to be bought by him; suffer from one or more defects;
(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;
(iv) a trader or service provider, as the case may be, has charged for the goods or for the service mentioned in the complaint a price in excess of the price -
(a) fixed by or under any law for the time being in force
(b) displayed on the goods or any package containing such goods ;
(c) displayed on the price list exhibited by him by or under any law for the time being in force;
(d) agreed between the parties;
(v) goods which will be hazardous to life and safety when used or being offered for sale to the public,--
(A) in contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force;
(B) if the trader could have known with due diligence that the goods so offered are unsafe to the public;
(vi) services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the service provider which such person could have known with due diligence to be injurious to life and safety;"
(d) "Consumer" means any person who, --Consumer Complaint No.104 of 2012 19
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes.
Explanation.--For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
21. Admittedly, patient Varinder Singh is alive. The perusal of the complaint reveals that there is no averment in the complaint that Varinder Singh has authorized them to file the complaint on his behalf and no authority or power of attorney has been executed by Varinder Singh, who is the husband of complainant No. 1, father of complainants No. 2 to 4 and son of complainants No. 5 and 6, in favour of the complainants to file this complaint. Since no such document has been produced on record, it can be concluded that they have not been Consumer Complaint No.104 of 2012 20 authorized to file the present complaint and, as such, in view of the definition of "consumer" as reproduced above, the complainants cannot be said to be 'consumers' and, thus, have no right to file this complaint on behalf of Varinder Singh, patient; specifically when Varinder Singh is alive and he had hired the services of opposite parties No. 1 and 2 for taking treatment from them and subsequently alleged medical negligence on the part of opposite party No. 1 and 2. Further, definition of "complainant" reveals that only a 'consumer', as defined in section 2 (1) (d) read with (b) of the Act, can file the complaint, being a complainant. The conjoint reading of Section 2 (1),
(b) (c) and (d) of the Act makes it is crystal clear that the present complaint is not maintainable by the complainants, as they are specifically barred by Section 2 (1) (b) (v) of the Act.
22. In the case of Amita Sharma (supra), the consumer complaint was filed by Smt. Amita Sharma on behalf of her husband. It was held by the Hon'ble National Commission that there is nothing on record that the complainant's husband had been incapacitated in any manner or was prevented in any manner whatsoever from filing the consumer complaint and that the complainant had not been authorized by her husband to file the consumer complaint on his behalf. It was held by the Hon'ble National Commission that the complainant is not a 'consumer'.
23. In the case of Ram Niwas Soni Vs. Vaish Model Sr. Sec. School and others II (2013) CPJ 396 (NC), the consumer complaint was filed alleging excess amount of fees charged in admission. The Consumer Complaint No.104 of 2012 21 consumer complaint was filed by the complainant on behalf of his major son, without any authorization. It was held by the Hon'ble National Commission that the complainant has no locus standi to file the consumer complaint and that the complainant did not fall within the purview of 'consumer'.
24. In case Arvind Singh Bisht v. Parakh Imaging Centre F.A. No.109 of 2014 decided on 11.12.2014, State Consumer Disputes Redressal Commission, Uttrakhand, by relying upon Amita Sharma's case (supra) and Ram Niwas Soni's case (supra), held that when at the time of filing of the complaint, the father of the complainant, Sh. Chandan Singh Bisht was alive, therefore, the complainant was not competent to file the complaint on behalf of his father, without any valid authorization in his behalf.
25. Similarly, the present complaint has been filed by the complainants on behalf of Varinder Singh, patient, stating themselves to be his close relatives by blood and marriage, without any authorization. The complainants have no locus standi to file the consumer complaint, as the complainants do not fall within the purview of definition of 'consumer' and the complaint is not maintainable on this score.
26. In view of the discussion and the reasons recorded above, the complaint is dismissed. However, if the complainants wish or the patient so wishes, they/he may file a fresh consumer complaint, narrating all the facts and the events, in accordance with law. They will be at liberty to seek exclusion of the time for the purposes of limitation, Consumer Complaint No.104 of 2012 22 in the light of the judgment of the Hon'ble Apex Court given in the case of Laxmi Engineering Works v. PSG Industrial Institute (1995) 3 SCC 583.
27. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Consumer Complaints and Appeals.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER September 08, 2017.
(Gurmeet S)