State Consumer Disputes Redressal Commission
Jindal Heart Institute And Inferfility ... vs Veer Pal Kaur on 14 February, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
1. First Appeal No.437 of 2016
Date of institution : 09.06.2016
Date of decision : 14.02.2017
Jindal Heart Institute & Infertility Centre, Power House Road,
Bathinda, through Dr. Rajni Jindal.
....Appellant/Opposite Party No.1
Versus
1. Veer Pal Kaur alias Navdeep Kaur, aged about 29 years,
wife of Sukhjeet Singh, R/o Village Killian Wali, Tehsil
Abohar, District Ferozepur.
....Respondent/Complainant
2. TATA AIR General Insurance Company Limited, Reg.
Office:- Penisula Business Park, Tower A, 15th Floor,
Ganpatrao Kadam Marg, Lower Parel, Mumbai, through its
Managing Director/Manager/Authorized Signatory.
....Respondent/Opposite Party No.2
2. First Appeal No.544 of 2016
Date of institution : 19.07.2016
Date of decision : 14.02.2017
Veer Pal Kaur @ Navdeep Kaur wife of Sukhjeet Singh, resident
of Village Killian Wali, Tehsil Abohar, District Fazilka.
....Appellant/Complainant
Versus
1. Jindal Heart Institute & Infertility Centre, Power House Road,
Bathinda, through Dr. Rajni Jindal.
2. TATA AIR General Insurance Company Limited, Reg.
Office:- Penisula Business Park, Tower A, 15th Floor,
Ganpatrao Kadam Marg, Lower Parel, Mumbai, through its
Managing Director/Manager/Authorized Signatory.
....Respondents/Opposite Parties
First Appeal No.437 of 2016 2
First Appeals against the order dated
27.04.2016 of the District Consumer
Disputes Redressal Forum, Bathinda.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Vinod Kumar Gupta, Member
Mr. Harcharan Singh Guram, Member.
Present:-
For the appellant : Shri Rishabh Gupta, Advocate For respondent No.1 : None For respondent No.2 : Shri R.K. Sharma, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
This order shall dispose of the above noted two appeals, which are directed against the order dated 27.04.2016 passed by District Consumer Disputes Redressal Forum, Bathinda (in short, "the District Forum"), whereby the complaint filed by Veer Pal Kaur, complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") was partly allowed with costs of ₹5,000/- against respondent No.1/opposite party No.1, who was directed to pay ₹5,00,000/-, as compensation on all counts to the complainant. The complaint against respondent No.2/opposite party No.2 was dismissed. The first appeal (F.A. No.437 of 2016) has been filed by opposite party No.1 for setting aside the impugned order, whereas the second appeal (F.A. No.544 of 2016) has been filed by the complainant for enhancement of compensation.
2. It would be apposite to mention at the outset that hereinafter the parties will be referred, as have been arrayed before the District Forum.
First Appeal No.437 of 2016 3
3. Briefly stated, the facts, as set out in the complaint, are that the agent/representative of opposite party No. 2 approached and allured the complainant to purchase its cashless Medi-claim Insurance policy. It was assured that in case the complainant suffers any illness, the opposite party No. 2 will provide cashless treatment to her free of cost through hospitals. On his assurance, the complainant obtained cashless Medi-claim Insurance policy of opposite party No. 2 on 28.05.2014 for a sum insured of ₹3,00,000/- by paying ₹3,831/-, as premium, vide certificate Ex.C-
18. Opposite party No. 2 issued policy schedule bearing policy No. 0200177916 01 w.e.f. 28.05.2013 to 27.05.2014 bearing ID No. ZZZZ359601301028. The complainant got renewed the same, effective from 28.05.2014 to 27.05.2015. Opposite party No. 2 did not issue the terms and conditions of the policy, rather issued only policy schedule. In the month of April, 2012, the complainant was pregnant and she, alongwith her husband, consulted the concerned doctor at Abohar. On the advice of the doctor, the complainant got some tests/ultrasound conducted from the laboratory. After examining the test reports, the doctor found that there was no proper growth of the baby as the uterus was bulky due to multiple fibroids. The doctor suggested that the same can be diagnosed properly only after various tests, failing which there was possibility of the baby getting aborted. The complainant had to get her baby aborted. Suspecting seriousness in the matter, the complainant consulted opposite party No.1, who claimed herself to be expert with super specialty qualifications and super specialty First Appeal No.437 of 2016 4 infrastructure in such like cases. After going through the report of the complainant, opposite party No.1 told the complainant that she would have to get removed fibroids from her uterus and only thereafter it would be possible that she can take chance for pregnancy. Opposite party No.1 further informed that fibroids will be got removed through surgery to be performed by opposite party No.1. Believing the advice of opposite party No.1, the complainant decided to get herself operated upon from opposite party No.1 and got herself admitted in the hospital of opposite party No.1. At the time of admission, the complainant had shown the said insurance policy to opposite party No.1 and got it confirmed from opposite party No.1, who conveyed the complainant that her treatment shall be done free of cost, as per the said cashless insurance policy. Only after admitting the same, the complainant got herself admitted for surgery on 09.09.2014. Accordingly, opposite party No.1 sent medi-claim of the complainant to opposite party No. 2 and opposite party No. 2 sent message to the complainant regarding her claim. Thereafter, opposite party No.1 started surgery upon the complainant. The complainant remained admitted in the hospital of opposite party No.1 w.e.f. 09.09.2014 to 12.09.2014. The complainant was discharged on 12.09.2014, with the assurance that fibroids have been removed from her body. The test reports conducted at appellant hospital are Ex.C-6 to Ex.C-10. At that time, the opposite party demanded ₹50,000/- from the complainant, on the pretext that opposite party No. 2 had rejected her claim. The complainant requested opposite party No.1 First Appeal No.437 of 2016 5 not to charge any amount from her, as per said insurance policy. In case, opposite party No. 2 rejected the claim, the complainant was not liable for the same. The opposite party No.1 should get reimbursed the amount from opposite party No. 2 itself, but opposite party No.1 did not listen to her requests. Opposite party No.1 did not allow the complainant to leave the hospital, without making payment of ₹ 50,000/- and, as such, under compelling circumstances, she had to pay ₹50,000/- to opposite party No.1, for which no receipt was issued. The complainant requested opposite party No. 2 telephonically to pay her lawful claim amount, but to no effect.
4. After sometime, the complainant again got her ultrasound conducted from Siddharath Ultrasound & Colour Doppler Scan Centre, Abohar on 25.10.2014, vide reports Ex.C-11 & Ex.C-12. She was surprised to see that despite having got operated from opposite party No.1, hypoechoic mass was present in the posterior wall of uterus of size 28x21x39 mm. The complainant again approached and showed the said report to opposite party No.1, but opposite party No.1 failed to give proper reply and simply suggested her to get surgery conducted again from opposite party No.1. Alleging deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has sought directions to the opposite parties to refund ₹50,000/-, charged by opposite party No.1, along with interest at the rate of 12% per annum from the date of deposit till realization; to pay ₹10,00,000/-, as compensation on account of mental tension, First Appeal No.437 of 2016 6 harassment, agony and financial loss suffered by the complainant; and ₹11,000/-, as litigation expenses.
5. The complaint was contested by the opposite parties, by filing independent written replies. Opposite party No.1 in its written reply pleaded that complainant is not consumer, as she has not paid a single penny to opposite party No.1 for her treatment. Only ₹500/- were paid by her, as after operation her fibroid (Rasoli) was sent to Dr. Deepali Path Labs and Cancer Diagnostic Centre, Bathinda, for further investigation. The said amount of ₹500/- was duly sent to Dr. Deepali Path Labs, which has been mentioned in the receipt dated 09.09.2014. The complaint is liable to be dismissed, as the complainant is playing fraud. She has suppressed the facts and has given wrong information. No amount of ₹50,000/- was ever paid by the complainant to opposite party No.1. Opposite party No.1 issued registered legal notice dated 17.10.2014 Ex.OP-1/4 to the complainant, demanding bill amount of ₹53,882/-, but the same was received, with report 'no address', vide report Ex.OP-1/6. Opposite party No. 2 replied to opposite party No.1, vide Ex.OP- 1/7, that in the insurance policy there was specified waiting period of two years for the ailment of the complainant and the claim is not covered, as per the terms and conditions of the insurance policy. Thus, neither the complainant, nor opposite party No. 2-Insurance Company paid any amount. Opposite party No.1 reserved the right to claim the amount of ₹53,882/- from the complainant and opposite party No. 2, as per law in appropriate court. The ailment First Appeal No.437 of 2016 7 of the complainant was not covered under the terms of the policy for first two years. That complaint has not been supported with any affidavit and, as such, it is liable to be dismissed. No expert opinion has been produced by the complainant alongwith this complaint whereas the same is mandatory as per law settled by Apex Courts. As per record provided by the complainant of Dr. Sarla Sethi, the fibroids (Rasoli) was large and multiple and the size of her uterus (womb) was 4 to 6 weeks bigger than the duration of pregnancy. The complainant used to have pain in lower belly (Abdomen), for which she was taking medicine 'Tab 'Duvadilan' three tabs in a day from Dr. Sarla Sethi from Abohar. The complainant firstly visited opposite party No.1 on 25.03.2014 with the complaint of pain, heaviness and fullness in lower Belly (Abdomen) area. She had a history of pregnancy loss in 2012 at 4- 1/2 months. During her pregnancy, she also used to have pain in her lower belly. Her womb used to be bigger than the duration of her pregnancy. The complainant and her husband did not have any children. They wanted children in future. The complainant came to opposite party No.1 with two ultrasound reports dated 30.09.2013 and 23.01.2014. After examining those ultrasound reports, the opposite party No.1 duly mentioned the size of big 2 fibroids (Rasoli) in the prescription on 1st visit as per ultrasound report i.e. 2 fibroids (Rasoli) of 74 x 66 mm and 32 x 32 mm (Approx.). On 25.03.2014, opposite party No.1 duly examined the complainant clinically and observation was duly mentioned in the prescription dated 25.03.2014 Ex.C-14 that there was irregularly First Appeal No.437 of 2016 8 enlarged uterus about 18 weeks size due to multiple fibroids (Rasoli). Although the complainant was not pregnant at that time, yet due to big fibroids (Rasoli) her uterus (Womb) was enlarged like 18 weeks pregnancy. The complainant was advised myomectomy (surgery on the uterus/womb wall by cutting to take out the fibroids/Rasoli and later stitching the cuts back to save the Uterus/Womb for future pregnancy). Thereafter the complainant never returned back to opposite party No.1 and she visited only on 20.08.2014. The complainant was never assured by opposite party No.1 for any kind of treatment. She was only advised myomectomy and she turned back after 5 months from first visit on 25.03.2014 and second time visited on 20.08.2014 in the OPD. She was again advised for laparotomy myomectomy postmenstrual (open surgery of the Womb/Uterus after periods gets finished). The ultrasound report issued by Chug Ultrasound & Digital X-ray Centre is Ex.C-1 and test reports are Ex.C-2 and Ex.C-3. The complainant was not admitted on that day. The complainant was having difficulty in passing urine and acute pain in belly. She came with opposite party No.1 in emergency on 09.09.2014 in the evening. She was operated in emergency on same day. After surgery, the husband of the complainant produced the insurance policy of opposite party No. 2 and opposite party No.1 immediately lodged claim with opposite party No. 2 on behalf of complainant under cashless insurance scheme. However, the complainant was discharged on 12.09.2014 and opposite party No. 2 denied the cashless insurance on 13.09.2014 First Appeal No.437 of 2016 9 after discharge of the complainant. As such, opposite party No.1 neither received treatment charges from the complainant nor the insurance company paid any amount. The complainant was operated in emergency on 09.09.2014 with hysteroscopy (Examination of Uterus/Womb with the help of telescope from inside) and found that her uterus/Womb was enlarged and distorted and the length of her uterine cavity was larger than normal (12 cm, ordinarily 7 to 8 cm) and also found a bulge. There was also a bulge in her uterine cavity on left of posterior side, which appeared to be due to fibroids (Rasoli). This gave an idea that her posterior fibroids (Rasoli) were very big and not only extended throughout the wall of her womb, but also bulged into the cavity on inner side and towards her upper abdomen (Belly) on outer side. There were no other fibroids (Rasoli) inside her cavity at that time. Such type of big fibroids (Rasoli) cannot be removed by hysteroscopy alone. As such, open surgery i.e. laparotomy myomectomy was done at the same time. After opening the belly, opposite party No.1 saw three fibroids (Rasoli) one in front of uterus/womb bulging 30x30 mm, the other on top of uterus/womb bulging 50x50 mm and 3rd bulging through posterior wall 140x120x100 mm running from top to bottom of uterus/womb posterior. All the three were removed completely by giving 3 cuts on her womb/uterus. The cuts were later stitched back. There were no other fibroids (Rasoli) visible or felt in her womb at that time. These fibroids (Rasoli) were sent for pathological examination to pathologist Dr. Deepali. Thereafter complainant First Appeal No.437 of 2016 10 was kept on close monitoring by daily blood tests, to check her hemoglobin and blood. On 11.09.2014, detailed examination was done to check any abnormality or bleeding from the uterus/womb. On confirming that everything was alright and after the complainant was able to walk on her own, tolerate oral feeds and had cleared her bowel, she was discharged from the hospital on 12.09.2014 with an advice to come for follow-up on 17.09.2014. After 12.09.2014, the complainant never came to the hospital for follow-up. All the three fibroids (Rasoli), which were visible with naked eye, were removed by way of open surgery by meticulous dissection. It was important to preserve uterine (womb) architecture, as the complainant was issueless and was planning pregnancy in future. Opposite party No.1 has also referred to some medical literature regarding Myomectomy. It was further pleaded that after myomectomy, uterus/womb restructuring takes place and in that scenario some small fibroids (Rasoli), which were earlier invisible can become apparent. In ultrasound report dated 25.10.2014, it is clearly mentioned that uterus was in normal dimension and echo texture and endometerial was normal (uterus/womb has become normal from inside), which was earlier before surgery enlarged and distorted. In these circumstances, there was no deficiency in service on the part of opposite party No.1. Opposite party No.1 prayed for dismissal of complaint.
6. The opposite party No. 2 in its separate written reply pleaded that the complainant got admitted herself in Jindal Hospital on 09.09.2014 and request for cashless treatment was First Appeal No.437 of 2016 11 given to the TPA of the opposite parties by the hospital on 10.09.2014. On examination of the documents alongwith request, it was observed that complainant was diagnosed with multiple fibroids in the uterus. Since there was a specific waiting period of 2 years for the ailment as per the policy, the same was found beyond the scope of coverage and, as such, the cashless facility was denied, vide letter dated 12.09.2014, as per terms of the policy. She is liable to be punished under Section 26 of the Act. While denying the allegations of the complainant, opposite party No. 2 has also controverted all the material averments, by pleading that they are within the personal knowledge of the complainant. It also raised legal objections regarding maintainability and territorial jurisdiction and that the complainant has concealed material facts from the District Forum. Opposite party No. 2 also prayed for dismissal of complaint.
7. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, partly allowed the complaint, vide impugned order.
8. We have heard learned counsel for the appellant/opposite party No.1 and respondent No.2/opposite party No.2, as none has appeared on behalf of respondent No.1/complainant at the time of arguments. We have also carefully gone through the records of the case.
9. Learned counsel for opposite party No.1 vehemently contended that the complainant had not paid any amount, so she First Appeal No.437 of 2016 12 does not fall under the definition of the "consumer", as defined in Section 2 (1) (d) of the Act. In fact, the complainant was having the insurance policy of opposite party No.2 and for that reason, cashless surgery was carried out on 09.09.2014. However, the insurance company declined to release the claim amount. Learned counsel for opposite party No.1 further contended that the surgery was correctly conducted and all the three fibroids were removed. No fibroid was left in the womb of the complainant after the surgery and she was discharged in satisfactory condition. Sometimes, small fibroids remain in the uterus, which can grow again due to post operative blood collection, scar tissue or seeding fibroids etc., which were not at all visible at the time of surgery. After the surgery, the uterus was normal and endometrial was also normal. The doctor made every effort to preserve the uterus, as the complainant was a young lady and was not having any issue. Learned counsel further contended that no medical expert evidence has been led to prove that opposite party No.1 was negligent in performing the surgery upon the complainant. It is the duty of the complainant to positively prove the negligence on the part of opposite party No.1. He also contended Dr. Rajni Jindal is MS Gynecologist and is a specialist in the field and has worked in Apollo Hospital, New Delhi as well as Mullana Azad Medical College, New Delhi. Opposite party No.1 was not, at all negligent while performing surgery upon the complainant and there was no deficiency in service on its part. The District Forum has passed an erroneous order, fastening liability upon opposite First Appeal No.437 of 2016 13 party and the same is liable to be set aside and the complaint of the complainant deserves to be dismissed.
10. Per-contra, learned counsel for opposite party No.2 contended that the first policy was issued to the complainant with effect from 28.05.2013 to 27.05.2014. The second policy was effected from 28.05.2014 to 27.05.2015. There was a specific "Waiting Period" of two years for the ailment, as per the policy terms and conditions. The surgery was performed upon the complainant on 09.09.2014 and as the claim was lodged by the complainant within two years, hence the same was rightly declined. There was no deficiency in service on the part of opposite party No.2.
11. None appeared on behalf of the complainant at the time of arguments. However, the stand of the complainant, as per the averments made in the complaint, is that she was taking treatment from opposite party No.1 since 25.03.2014, as is evident from the prescription slip Ex.C-14. The complainant had been visiting opposite party No.1-Hospital on various dates for taking the treatment. She was ultimately admitted on 09.09.2014 in the hospital of opposite party No.1. Various tests were conducted even on 08.09.2014, vide reports Ex.C-7 and Ex.C-8, and surgical procedure was performed upon the complainant on 09.09.2014. During surgery, opposite party No.1 removed three fibroids, but still the fibroids were there in the uterus, as is evident from the ultrasound tests got conducted from Dr. Nagpal's Fertility & Test Tube Baby Centre dated 18.09.2014 (Ex.C-20). The said First Appeal No.437 of 2016 14 ultrasound report clearly shows the presence of a cyst. This test was conducted just after nine days of the surgery and six days of the discharge of the complainant from the hospital of opposite party No.1. The complainant also got examined herself from Khurana Nursing Home on 03.11.2014, vide prescription slip Ex.C- 26, as per which fibroid was seen in the post wall of the uterus of the size of 28x21x39mm. The sum and substance of the stand of the complainant is that actually all the fibroids were not removed, nor the complainant was made aware of the same, but still some fibroids remained in the uterus of the complainant. It is also the specific stand of the complainant that they paid ₹50,000/- to opposite party No.1 at the time of her discharge from its hospital, but no receipt was issued and, as such, the complainant is consumer of opposite party no.1. A finding to this effect has been recorded by the District Forum in its order. Opposite party No.1 was grossly negligent while performing surgery upon the complainant and there was deficiency in service on its part, as a result of which the complainant suffered mental agony, physical hardship and harassment. In the cross appeal filed by the complainant, it is pleaded that the District Forum has not awarded adequate compensation and the same needs to be enhanced, in the light of above enumerated facts and circumstances as well as seriousness of medical negligence on the part of opposite party no.1.
First Appeal No.437 of 2016 15
12. We have given a thoughtful consideration to the respective arguments raised on behalf of the parties and have scrutinized the record carefully.
13. After evaluating the rival contentions raised by learned counsel for opposite parties No.1 & 2 as well as the stand of the complainant in her complaint as well as in cross appeal filed by her, the following questions arise for deciding the controversy between the parties:
(i) Whether the complainant still falls under the definition of the "consumer, as defined in Section 2 (1) (d) of the Act, even though no treatment charges were paid by the complainant to opposite party No.1?
(ii) Whether opposite party No.1 committed medical negligence and deficiency in service, while performing surgery upon the complainant?
In Re: Question No.(i):
14. The "consumer" is defined, under Section 2 (1) (d) of the Act, as under:
"Consumer" means any person who, --
(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 First Appeal No.437 of 2016 16 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.
15. A bare perusal of the above said definition of "consumer", shows that a consumer means any person, who 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, First Appeal No.437 of 2016 17 but does not include a person who obtains such goods for resale or for any commercial purpose. When such service, as referred to above, is availed, then the complainant certainly falls under the definition of "consumer". The definition of "consumer" is wide enough to include a patient, who merely promised to pay the treatment charges to the hospital. In the present case, even if for the arguments sake, it is presumed that the complainant has promised to pay the treatment expenses, by way of the sum insured under the policy, which as per opposite party No.2 did not cover her claim, even then the categorically finding has been recorded by the District Forum that opposite party No.1 has sent a bill of ₹53,882/-,. The averments of the complainant, supported by her affidavit Ex.C-27, that she was allowed to leave the hospital, only after paying ₹50,000/- to opposite party No.1, are to be given due weightage. Still notice was given by opposite party No.1 to the complainant for making the payment of ₹53,882/-. Opposite party No.1 in its written reply admitted that an amount of Rs.500/- was paid by the complainant and the said amount was sent to Dr. Deepali Path Labs and Cancer Diagnostic Centre, Bathinda, for further investigation. The complainant has annexed the receipt of Rs.500/- dated 09.09.2014 issued by opposite party No.1-Hospital Ex.C-16. On this receipt, Depali Lab. is written in bracket by hand. Opposite party No.1 has neither produced any receipt issued by Deepali Labs. showing that the said amount of Rs.500/- was received by them from opposite party No.1 on behalf of the complainant, nor any affidavit of Deepali Lab. is on the record to First Appeal No.437 of 2016 18 this effect. Therefore, the version of opposite party No.1 that the said amount of Rs.500/-, which was received from the complainant, was further sent to Deepali Labs, is not acceptable. Be that as it may, the fact remains that the complainant squarely falls under the definition of the "consumer. Even Otherwise, the complainant had been taking treatment from opposite party No.1 earlier to the surgery also and she had conceived a baby at that time, but due to some problem regarding improper growth of the baby, the same was to be aborted.
16. Hon'ble Supreme Court in Smt. Savita Garg Vs. The Director, National Heart Institute Appeal (Civil) 4024 of 2003 decided on 12.10.2004, while dealing with the issue of free of charge as well as paid treatment, held in Para No.14 (relevant portion) as under:-
"This Court has dealt with all aspects of medical profession from every angle and has come to the conclusion that the doctors or the institutes owe a duty to the patients and they cannot get away in case of lack of care to the patients. Their Lordships have gone to the extent that even if the doctors are rendering services free of charge to the patients in the Government hospitals, the provisions of the Consumer Protection Act will apply since the expenses of running the said hospitals are met by appropriation from the Consolidated Fund which is raised from the taxes paid by the tax payers. Their Lordships have dealt with regard to the First Appeal No.437 of 2016 19 definition of "service" given in Section 2(1)(o) of the Consumer Protection Act, 1986, and have observed as follows:
" The service rendered free of charge to patients by doctors/ hospitals whether non- Govt. or Govt. who render free service to poor patients but charge fee for services rendered to other patients would, even though it is free, not be excluded from definition of service in Section 2(1)(o). The Act seeks to protect the interests of consumers as a class. To hold otherwise would mean that the protection of the Act would be available to only those who can afford to pay and such protection would be denied to those who cannot so afford, though they are the people who need the protection more. It is difficult to conceive that the legislature intended to achieve such a result. Another consequence of adopting a construction, which would restrict the protection of the Act to persons who can afford to pay for the services availed by them and deny such protection to those who are not in a position to pay for such services, would be that the standard and quality of services rendered at an establishment would cease to be uniform. It would be of a higher standard and of better quality for persons who are in a position to pay for such service while the standard and quality of such service would be inferior for person who cannot afford to pay for such service and who avail the service without payment. First Appeal No.437 of 2016 20 Such a consequence would defeat the object of the Act. All persons who avail the services by doctors and hospitals who give free service to poor patients but charge fee for others, are required to be treated on the same footing irrespective of the fact that some of them pay for the service and others avail the same free of charge. Most of the doctors and hospitals work on commercial lines and the expenses incurred for providing services free of charge to patients who are not in a position to bear the charges are met out of the income earned by such doctors and hospitals from services rendered to paying patients. The Government hospitals may not be commercial in that sense but on the overall consideration of the objectives and the scheme of the Act it would not be possible to treat the Government hospitals differently. In such a situation the persons belonging to "Poor class" who are provided services free of charge are the beneficiaries of the service which is hired or availed of by the "paying class". Service rendered by the doctors and hospitals who render free service to poor patients and charge fees for others irrespective of the fact that part of the service is rendered free of charge, would nevertheless fall within the ambit of the expression "service" as defined in Section 2(1)(o) of the Act."
17. In view of above discussion and the settled law, when the person availing treatment from Government Hospitals free of First Appeal No.437 of 2016 21 charge are held to be beneficiaries-consumers, then it is to be held that the complainant in this case, who hired the service of opposite party No.1 for getting her surgery conducted, would certainly fall within the definition of the "consumer", as defined in the Act, as the treatment undertaken by opposite party squarely falls within the definition of "service" as per the definition given in Section 2 (1)(o) of the Act. Even otherwise, it is beyond imagination that opposite party No.1 has undertaken treatment of the complainant and performed such complicated surgery on the complainant free of charge. Resultantly, as discussed above, Question No.(i) is decided in favour of the complainant.
In Re: Question No.(ii):
18. So far as Question No.(ii) is concerned, it is relevant to mention that the complainant has alleged the medical negligence committed by opposite party No.1 while performing surgery on her, which resulted into injury and loss to her. The complainant, aged about 30 years, approached opposite party No.1, who after checking her medical record including ultrasound reports, advised her that the fibroids in the uterus of the complainant would have to be removed completely and only thereafter the complainant could take chance for pregnancy. Believing the version of opposite party No.1, the complainant consented for the same and the surgery was accordingly performed by opposite party No.1 on 09.09.2014. It is the categorical stand of opposite party No.1 that they have removed all the three fibroids, but just after 13 days of the surgery, when complainant got examined herself from Siddharth First Appeal No.437 of 2016 22 Ultrasound & Colour Dopper Centre on 25.09.2014 (Ex.C-11), fibroid of the size of 28x21x39mm was seen in the posterior wall of the uterus; meaning thereby that opposite party No.1 left the same while performing the surgery upon the complainant on 09.09.2014. This shows the gross medical negligence and carelessness on the part of opposite party No.1; which certainly amounts to deficiency in service on its part. The contention of the opposite party No.1 that no expert was examined by the complainant to prove medical negligence on its part does not stand on its legs, as per the settled law. In V. Kishan Rao Vs Nikhil Super Speciality Hospital & Another", 2010(2) RCR (Civil)-929(SC), the Hon'ble Supreme Court held that the expert witness is not required to be examined in all cases of medical negligence. But while defining medical negligence, it was observed in para no.11 (Jacob Mathew's case) as follows:-
"The definition involves three constituents of negligence:
(1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort".
While discussing a large number of authorities in V. Kishan Rao's case (supra), the Hon'ble Supreme Court held that the directions First Appeal No.437 of 2016 23 given in Martin F. D'souza's case (supra), cannot be treated as a binding precedent and in para nos.47 to 49, observed as under:-
"47. In a case where negligence is evident, the principle of res-ipsa-loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case, it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.
48. If the general directions in paragraph 106 in D'souza's (supra) are to be followed, then the doctrine of res-ipsa-loquitur which is applied in cases of medical negligence by this Court and also by Courts in England, would be redundant.
49. In view of the discussions aforesaid, this Court is constrained to take the view that the general direction given in paragraph 106 in D'souza (supra) cannot be treated as a binding precedent and those directions must be confined to the particular facts of that case.
19. In case "Malay Kumar Ganguly Vs Dr. Sukumar Mukherjee & Ors.", 2009(4) RCR (Criminal)-1(SC), Hon'ble Supreme Court dealt with the criminal negligence and civil negligence, opinion of expert witness and in Para no.48, observed as follows:-
"48. In Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Others, 2009(3) RCR (Criminal)-124: 2009(3) RCR (Civil)-174 : 2009(3) RAJ- 634: [2009(7)SCALE-407], this Court held as under:-
"32. We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has First Appeal No.437 of 2016 24 been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence.
20. Establishing medical negligence against the treating doctor is often very difficult. The medical expert witness can only draw inferences from the findings recorded in the medical record by the concerned doctors. It is the concerned doctor, who remains present at the time of conducting the surgery, along with his supporting staff. He only knows, what really occurred, when the alleged medical negligence happened. Even the well trained and knowledgeable expert in the field will not be in a position to ascertain the medical negligence. They are to opine only on the basis of medical record made available. Sometimes, things speak of itself. It is a legal concept, which is known as 'res-ipsa-loquitur'. In the present case, it needs to be examined, whether it will be of any help. Admittedly, opposite party No.1-Doctor had performed the surgery and as per the version of the concerned doctor, she had removed all the fibroids by way of open surgery on 09.09.2014, whereas the ultrasound report of Siddharth Ultrasound & Colour Doppler Scan Centre dated 25.10.2014, Ex.C-11, clearly shows that a fibroid of the size of 28x21x39mm was seen in the posterior wall of the uterus. Not only this, the subsequent report of Khurana Nursing Home dated 03.11.2014, First Appeal No.437 of 2016 25 Ex.C-26, also proves the same fact. However, the fact remains that there was a fibroid, as per the aforesaid ultrasound reports and the same cannot develop to such a size in just 12 days after the surgery. In such circumstances, the principle of 'res-ipsa- loquitur' can certainly be applied. In view of the attending circumstances and facts as well as the evidence brought by the complainant and applying the aforesaid doctrine, it can safely be inferred that fibroid was left in the uterus of the complainant even after the surgery. Once the complainant has prima facie proved the existence of fibroid in-spite of surgery, thereafter, the burden shifts upon opposite party No.1-Doctor to show that she was not negligent in this regard. No evidence has been brought on record by opposite party No.1 to rebut the same. This is like a classic example, where a sponge or other medical instrument was left in the body of a person during surgery. In such circumstances, the surgical instrument would not have been left in the body of a patient, in the absence of someone's negligence. Here also, keeping in view the size of the fibroid, which was detected in just 12 days after the surgery, it cannot be presumed that it had developed in such a short span. The size of the fibroid mentioned in the post surgery ultrasound reports clearly indicates that it was of a big size and not of small size, which was not visible even to a naked eye. In these circumstances, no expert evidence was required to show that prima facie the doctor was negligent. Rather, the burden shifted upon the doctor, who performed the First Appeal No.437 of 2016 26 surgery to bring the expert evidence in order to show that fibroid can grow to such a size in a short span of 12 days.
21. To rebut the defence of opposite party No.1 that after surgery no fibroid remained in the uterus and that the same were completely removed, the complainant produced Ultrasound report conducted by Dr. Nagpal's Fertility & Test Tube Baby Centre dated 18.09.2014, Ex.C-20, which clearly shows the presence of a cyst. Even the ultrasound report Ex.C-11 of Siddharth Ultrasound & Colour Dopplor Scan Centre shows the presence of a hypoechoic mass in the posterior wall of uterus of size of 28x21x39 mm. It is common knowledge that such kind of fibroid does not develop just within 8 days of the surgery. The fibroid of the size of 28x21x39mm cannot develop/grow so rapidly in just 8 days after operation. The complainant further proved on record ultrasound report dated 23.03.2015 Ex.C-24, conducted by Nagpal Superspecialty Hospital, and the impression was "S/O Left hamoregic ovarian cyst and fibroids uterus", meaning thereby that fibroids were present in the uterus. The other contention of opposite party No.1 is that if there was any hypo echoic mass in the posterior wall of uterus, the same was the result of post operative blood collection, scar, tissue etc. This contention of opposite party No.1 is not tenable, as the ultrasound reports discussed above clearly revealed that the fibroids were present in the uterus of the complainant after the surgery and opposite party No.1 has failed to prove any cogent evidence on the record that First Appeal No.437 of 2016 27 the same was due to blood collection or on account of scar tissue etc.
22. All these facts and circumstances lead to the clear conclusion that opposite party No.1 was negligent while performing surgery upon the complainant, resulting into deficiency in service, as a result of which the complainant suffered great mental shock, agony, physical hardship and harassment. Accordingly, Question No.(ii) also stands answered against the opposite party No.1 and in favour of the complainant.
23. Sequel to our above discussion, the appeal filed by opposite party No.1 (F.A. No.437 of 2016) is dismissed, being devoid of any merit.
24. So far as the other appeal (F.A. No.544 of 2016) filed by the complainant for enhancement of the compensation is concerned, the District Forum after discussing all the points minutely has awarded just and reasonable compensation of ₹5,00,000/- to the complainant, besides costs of ₹5,000/- and on failure to pay this amount, opposite party No.1 was further burdened to pay interest at the rate of 12% per annum. We do not find any ground or justification to enhance the compensation already awarded by the District Forum. Resultantly, the appeal filed by the complainant (F.A. No.544 of 2016) is also dismissed.
25. Since both the above said appeals have been dismissed, the well reasoned order passed by the District Forum is upheld.
First Appeal No.437 of 2016 28
26. In F.A. No.437 of 2016, the appellant/opposite party No.1 had deposited a sum of ₹25,000/- at the time of filing of the appeal. They also deposited sum of ₹2,77,750/-, vide receipt dated 15.07.2016, in compliance of the order dated 04.07.2016. Both these sums, along with interest which has accrued thereon, if any, be remitted by the registry to the respondent No.1/complainant, by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
27. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (VINOD KUMAR GUPTA) MEMBER (HARCHARAN SINGH GURAM) MEMBER February 14, 2017.
(Gurmeet S)