State Consumer Disputes Redressal Commission
Roshan Lal Garg Son Of Sh.Atma Ram Garg vs Dr.N.D.Aggarwal on 19 November, 2009
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.805 of 2003
Date of institution : 27.06.2003
Date of Decision : 19.11.2009
Roshan Lal Garg son of Sh.Atma Ram Garg, Aged about 47 years,
Serviceman, resident of House No.49, Ward No.15, Industrial Area,
Cheeka, Tehsil Guhla, District Kaithal.
........Appellant.
Versus
1. Dr.N.D.Aggarwal (since deceased) through his Legal
Representative Mrs.Satya Aggarwal wife of Dr.N.D.Aggarwal, M/s
Aggarwal Orthopaedic Clinic, 1-E, The Mall, Patiala.
2. Dr.Rajeev Aggarwal son of Dr.N.D. Aggarwal, Assistant Professor,
Department of Orthopaedics, Govt. Rajindra Hospital, Patiala and
resident of M/s Aggarwal Orthopaedic Clinic, 1-E, The Mall, Patiala
3. M/s Aggarwal Orthopaedic Clinic, 1-E, The Mall, Patiala through its
Owner Dr.N.D. Aggarwal (since deceased) through his legal
Representative Mrs. Satya Aggarwal wife of Dr.N.D.Aggarwal, 1-E,
The Mall, Patiala.
.....Respondents.
First Appeal against the order dated 19.5.2003
of the District Consumer Disputes Redressal
Forum, Patiala.
Before:-
Hon'ble Mr. Justice S.N. Aggarwal, President.
Lt. Col. Darshan Singh (Retd.), Member
Mr. Piare Lal Garg, Member.
Present:-
For the appellant : None
For the respondent : Ms.Sonal Dutta, Advocate for
Sh.V.M.Gupta, Advocate
PIARE LAL GARG, MEMBER:
This is an appeal filed by Roshan Lal Garg (in short 'the appellant') against the order dated 19.5.2003 of the District Consumer Disputes Redressal Forum, Patiala (in short the 'District Forum') by which the complaint of the appellant was dismissed by the District Forum.
2. Brief facts of the case are that the appellant met with an accident at Cheeka on 11.12.99. He was taken to M/s Aggarwal First Appeal No. 805 of 2003 2 Orthopaedic Clinic, opposite party No.3(in short 'respondent No.3') so as to obtain the services of Dr.N.d. Aggarwal, opposite party No.1(since deceased)(in short 'respondent No. 1') in order to get the appellant's left leg femur XXX operated upon by him on payment of consideration. The appellant was admitted in the said clinic on 11.12.99 and was discharged on 23.12.99. Allegedly the operation was performed not by Dr.N.D.Aggarwal but by Dr.Rajeev Aggarwal, opposite party No.2(in short 'respondent No.2'), who had no right nor consent of the appellant or his relations to do the operation was taken. Dr.Rajeev Aggarwal was also a State Govt. employee working as Assistant Professor in the Department Orthopaedics, Govt. Rajindra Hospital, Patiala. For the operation, the appellant was taken to the operation theatre on 14.12.99 at 5.30 a.m. The appellant, his relations and well wishers were kept under the impression by the staff member of respondent No. 3 that the operation shall be done by Dr. N.D. Aggarwal himself but Dr.N.D.Aggarwal remained sitting in his office while the operation was done by Dr.Rajeev Aggarwal. During the operation, one attendant who was inside the operation theatre came out the theatre and approached the relations of the appellant to bring an injection from the chemist shop. When the relation of the appellant reached in the operation theatre as to pass the injection inside the operation theatre he was shocked and stunned to see that operation was being done by Dr.Rajeev Aggarwal. The relations of the appellant approached Dr.N.D.Aggarwal who told that during those days he himself performed operations rarely due to his old age and major operative work was being done by his son Dr.Rajeev Aggarwal, though this fact was not disclosed to the appellant/his relations earlier. While performing the operation a rod was put inside the leg of the appellant. The leg was First Appeal No. 805 of 2003 3 plastered for a period of 4 weeks but a severe pain continued in the operated leg and he had suffered physically as well as mentally due to the above said severe pain and he was put on medicines including pain killers and injections. He was discharged on 23.12.99 despite the fact that the said pain continued to exist. A sum of Rs.29200/- was paid to the respondent M/s Aggarwal Orthopaedic Clinic by the relation of the appellant. However, a receipt for a sum of Rs.9200/- only was issued by respondent No.3. The appellant claimed to have spent about Rs.60,000/- on his treatment in the said Clinic. The appellant, however, continued visiting the clinic as he had been feeling severe pain. At the time of operation he was assured that the operation was successful. On 1.5.2000, the appellant went to the Department of Orthopaedics C.M.C., Ludhiana for a thorough check up and was told that the rod had been inserted with great negligence without requisite care and caution and a piece of effected bone had fallen somewhere and for this reason the fracture had not joined/cured. He was admitted in the C.M.C. on 5.5.2000 for treatment and remained there upto 13.5.2000. Thereafter too he had visited C.M.C. for regular thorough check up treatment so as to avoid further operation. He spent Rs.30,000/- on this. The appellant and his relations took up the matter with the respondents who showed their willingness to pay expenses and fresh fee for operation but claimed that as the appellant had not turned up quite for a long time so they were not in a position to advice qua further treatment. The appellant then went to Orthopaedic department of P.G.I. Chandigarh for his treatment on 22.9.2000 and was told that the operation had not been done properly by M/s Aggarwal Orthopadic Clinic. The appellant spent Rs.5000/- for his treatment in the P.G.I. Chandigarh. On 13.11.2000 the appellant went to the department of Orthopaedics at First Appeal No. 805 of 2003 4 P.G.I. Rohtak for check up and was told that the operation had not been properly done. HE was admitted in the PGI Rohtak for the treatment of the effected leg. He remained admitted upto 28.11.2000 during which period the appellant underwent another operation of his effected leg. The appellant had also been visiting P.G.I. Rohtak, subsequently, for follow up treatment. At PGI, Rohtak he claimed to had spent on travelling to Rohtak from Cheeka. On these facts the appellant pleaded negligence and deficiency on the part of the respondents and had demanded a sum of Rs.4,85,000/- as per the details given under heading prayer.
3. Respondents contested the complaint and filed joint written reply on 8.3.2002 by which date Dr.N.D.Aggarwal had died. It was admitted that Dr.N.D.Aggarwal impleaded as respondent No.1 was the proprietor of M/s Aggarwal Orthopaedics Clinics, respondent No.3 and respondent No.2 Dr.Rajeev Aggarwal, was then a professor at Rajindra Hospital, Patiala and son of respondent No.1. It was, however, pleaded that the operation of the appellant was satisfactorily performed. When he brought to the hospital, he was accompanying with his wife Daropti Rani who attended him during admission in the hospital. It was denied if the operation was not done by Dr.N.D.Aggarwal as Dr.Rajeev Aggarwal was not doing any private practice nor was employee of respondent No.3. He was a Govt. employee in the Rajindra Hospital, Patiala. It was denied if during the operation Dr.N.D.Aggarwal remained sitting in office or that any injection was asked for and was handed over in the operation theatre by any relation of the appellant or that said relation had seen Dr.Rajeev Aggarwal conducting the operation. It was also denied if Dr.N.D.Aggarwal was unable to carry out any operation. Rather Dr.N.D.Aggarwal conducted the operation First Appeal No. 805 of 2003 5 himself alongwith his team of other doctors including Dr.O.P.S.Kande, Anesthesiologist. By operation, K-nailing (Wrongly referred as rod in the complaint) was done considering it the best accepted treatment in case of fracture of femur. The plaster was given above the ankle and below the knee. A derotation bar (wooden plant of about 1/2' in width and about 8" in length) was embedded in the plaster of the ankle itself to avoid the movement of the affected foot to and fro so that the said movement may not affect the process of union in the femur. The plaster was given for four weeks initially which could be continued on reviewing at the time of follow-up. It was denied if the appellant complained of any severe pain any time after the plastering or was put on sleeping pills. Infact pain, in the normal course of disease, differs from patient to patient and also depends on his habits of drinking and eating. The appellant was discharged in satisfactory condition on 23.12.99. The appellant did not pay Rs.29,200/- as alleged. It was further pleaded that wife of the appellant sent false complaint against Dr.Rajeev Aggarwal to different quarters with a view to extort money from him on the threat that he performed the operation in the clinic despite being the govt. employee and that he was negligent in performing the operation. It was also stated that the period taken for the complete union of the bone for a particular patient depends upon his compliance with the instructions given by the doctor and proper follow up. It was denied if the appellant had come to know that the rod or the K-nailing which was put in the femur was inserted with any negligence or lack of requisite care or caution or that at the time of fixing/insertion of K-nailing any piece of affected bone was removed or there remained any gap due to which ends of the fracture/part of the bone had not joined/cured and caused lot of pain, agony and mental First Appeal No. 805 of 2003 6 torture to the appellant. The allegations made in the complaint about the appellant visiting the CMC, PGI etc. had been denied. The expenses incurred by the appellant in these hospitals had also been refuted. Thus, the respondents had denied the various allegations of negligence and deficiency on the part of the respondents and the appellant having put to mental torture inconvenience and agony and financial loss. The complaint was pleaded to be false, frivolous with malafide intention to extract money.
4. Learned District Forum after hearing the learned counsel for the parties and gone through the record, dismissed the complaint.
5. Hence, the appeal.
6. We have gone through the pleadings of the parties, perused the record of the learned District Forum and heard the arguments of the learned counsel for the respondent.
7. The appellant filed the present appeal against the order of the District Forum on the ground that there is a material irregularity and illegality in the order of the District Forum and apparently on wrong presumption of facts, which find no mention in the records of the case, passed in a haste manner and without applying the judicious mind and also not appreciated the evidence produced by the appellant to prove the negligence on the part of the respondents.
8. The main controversy between the appellant as well as the respondents is that Dr. N.D. Aggarwal(deceased) not operated the appellant himself and he was being operated by Dr. Rajeev Aggarwal- respondent No. 2, who had no right nor taken any consent of the appellant as well as his relations to operate the appellant.
9. The second controversy between the parties is that the rod which was inserted in the left leg of the appellant was inserted with First Appeal No. 805 of 2003 7 great negligence; without requisite care and caution and a piece of affected bone had fallen somewhere and due to this reason, the fracture had not joined/cured.
10. The third controversy between the parties is that they had paid Rs. 29,200/- to the respondents but a receipt of only Rs. 9,200/- was issued by the respondents to the appellant.
11. There is no dispute between the parties that the appellant met with an accident on 11.12.1999 and his left leg was fractured due to the accident. He was admitted in the hospital owned by respondent No. 1 for the treatment of his left leg. The appellant was operated on 14.12.1999 at 5.30 a.m. in the operation theatre of respondent No. 3.
12. The allegation of the appellant is that the operation of the left leg of the appellant was not done by Dr. N.D. Aggarwal(deceased) himself but the same was done by Dr. Rajeev Aggarwal - respondent No. 2, who is the son of respondent No. 1 - Dr. N.D. Aggarwal and Dr. N.D. Aggarwal remained sitting in the office when the left leg of the appellant was operated by Dr. Rajeev Aggarwal. No consent was taken from the appellant as well as from his relations for conducting of the operation of the left leg of the appellant by Dr. Rajeev Aggarwal. Even it was also not told to them that Dr. N.D. Aggarwal himself will not operate the appellant. It is also the version of the appellant that one staff member who was assisting the doctor during the operation went out of the operation theatre and asked the relations of the appellant to bring an injection and when the relative of the appellant had gone in the operation theatre to hand over the injection, he had seen that the operation was being done by Dr. Rajeev Aggarwal and not by Dr. N.D. Aggarwal. When they approached Dr. N.D. Aggarwal why he had not operated the appellants he had told that due to old age the operation First Appeal No. 805 of 2003 8 work was being done by his son Dr. Rajeev Aggarwal, who is also Orthopedic.
13. On the other hand, the version of the respondents was that the operation was done by Dr. N.D. Aggarwal and not by Dr. Rajeev Aggarwal, who was Government employee and was working as Assistant Professor in Rajindra Hospital, Patiala.
14. We have perused the complaint as well as affidavits of Roshan Lal Garg(Ex. C-1), Anil Kumar(Ex. C-2), Ishwar Chand Mittal(Ex. C-3), Dropti Rani wife of R.L. Garg(Ex. C-4), Parmod Kumar(Ex. C-5), Dalip Singh(Ex. C-6), Ajay Kumar Mittal(Ex. C-7), Deepak Raheja(Ex. C-8), which were tendered/produced into evidence by the appellant to prove the allegation that Dr. N.D. Aggarwal himself not operated the appellant, rather, the operation was conducting by his son respondent No. 2 Dr. Rajeev Aggarwal. No name of any relative is mentioned in the complaint nor in the affidavits tendered into evidence by the appellant that who was the relation/relative, who brought the injection, which was required during the operation of the appellant and gone into the operation theatre to hand over the same to the Doctor, who was operating the appellant and who had seen that the operation was being done by Dr. Rajeev Aggarwal and not by Dr. N.D. Aggarwal. No affidavit of the same relative/relation, who had seen the conducting of operation of the appellant by Dr. Rajeev Aggarwal was produced/tendered into evidence by the appellant to prove his allegation i.e. deficiency on the part of respondent No. 1. Not disclosing the name of the said person by the appellant creates doubt in our mind that the appellant himself concealed the real facts from the District Forum and not produced the required evidence to prove his allegation that the operation was not done by Dr. N.D. Aggarwal. The allegation First Appeal No. 805 of 2003 9 seems to be an after thought version only to extort money from the respondents.
15. On the other hand, the respondents tendered into evidence the affidavit of Dr. O.P. Singh Kande(Ex. R-4), MBBS, Dc, R.M., M.D. (Anesthesia), who stated on Oath that he was present on 14.12.1999 in the Orthopedic Clinic i.e. respondent No. 3 when Dr. N.D. Aggarwal and his team of para-medical staff was present and he had given pre- operative treatment for giving 'Spinal' Anaesthesia to the patient/appellant. It is also stated in his affidavit on Oath that he remained present in the operation theatre throughout the operation and Dr. N.D. Aggarwal himself conducted the operation on the patient Roshan Lal Garg and Dr. Rajeev Aggarwal was not present at that time in M/s Aggarwal Orthopedic Clinic. The respondents also tendered into evidence affidavit of Dr. Rajeev Aggarwal (Ex. R-1), affidavits of Smt. Satya Aggarwal widow of Dr. N.D. Aggarwal(Ex. R-3) and Krishana(Theatre Attendant) wife of Sh. Sherjang Singh(Ex. R-5) to controvert the allegations of the appellant and to prove their version.
16. From the above discussion, it is proved that the evidence of the respondents is more reliable than that of the appellant and the evidence of the appellant is lack of in order. As such, we are of the view that the appellant failed to prove his allegation that the operation was not done by Dr. N.D. Aggarwal and done by Dr. Rajeev Aggarwal.
17. The second version/allegation of the appellant is that the rod inserted in the left leg of the appellant by the respondents during the operation has been inserted with great negligence as well as with the total lack of requisite care and caution and a piece of the affected bone had fallen somewhere and due to that reason a gap was remained in the bones and the fracture was not properly joined and a First Appeal No. 805 of 2003 10 severe pain continued to exist. The appellant neither pleaded in the complaint nor in the grounds of appeal that what was the negligence in the treatment given by respondent No. 1 to the appellant. No expert evidence was produced by the appellant to prove that there was any negligence on the part of the doctor, who operated the appellant. The appellant examined Dr. Sansar Sharma, Associate Professor and Unit Head Department of Orthopedic, PGI, MS, Rohtak as CW-1 but he has nowhere stated that there was any negligence on the part of the doctor, who had operated the appellant at Patiala. Rather he supported the version of the respondents. In his cross-examination, he stated that Dr. N.D. Aggarwal was Padamshree and he was the 1st Orthopaedician in Punjab, who had MCH Degree from Liverpool and remained Head of the Orthopedic Department till his retirement in Rajindra Hospital, Patiala. The Orthopedic Department was in fact set-up by Dr. N.D. Aggarwal in the year 1958 in Rajindra Hospital, Patiala. He also admitted in his cross-examination when a under mentioned question was put to him?
"Q. Is it correct that insertion of K nail - is the known and prescribed method for treating femur fracture?
Ans. Yes it is correct."
18. So from the evidence of the expert, which is produced by the appellant himself, it is proved that there was no negligence in the treatment as well as in the course of operation, which was conducted by the doctor.
19. No evidence was produced by the appellant to prove his allegation that he had paid Rs. 29,200/- on his treatment in the hospital of the respondents but a receipt of only Rs. 9,200/- was issued by the respondents to the relations of the appellant.
First Appeal No. 805 of 2003 11
20. In this context, learned counsel for the respondent has cited judgment of Hon'ble Supreme Court reported as "Jacob Mathew Versus State of Punjab and another" (2005) 6 SCC 1, in which it was held that "K-Tort - Negligence - Professional negligence - When actionable - Test for - Held, a professional may be held liable for negligence either (1) when he was not possessed of the requisite skill which he professed to have possessed, or (2) when he did not exercise, with reasonable competence in the given case, the skill which he did possess - Standard to be applied would be that of an ordinary competent person exercising ordinary skill in that profession - Test for professional negligence laid down in Bolam case, (1957) 2 All ER 118, 121 D-F [set out in para 19 herein] , held, applicable in India - Professional negligence distinguished from occupational negligence.";
"Tort - Negligence - Medical negligence - Applicability of principle of res ipsa loquitur - Held, simply because a patient has not responded favourably to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying doctrine of res ipsa loquitur - Doctrines - Medical Practitioners." and also cited judgment of the learned "The Consumer Disputes Redressal Commission, Union Territory, Chandigarh" reported as "Veena Mahajan & Ors. Vs. Ved Kumar Gupta (Dr.) & Ors.", 2009(1) CLT 390 in which it was held that "Medical negligence - There is no expert evidence on file that OPs were in any manner negligent in operating or were further deficient in providing due care and caution - Cannot be said that there was lack of medical skill or they have not taken due and proper care in the administration of treatment - Simply because the patient had gone in coma or ultimately had died on this score Ops cannot be condemned."
Both these judgments are fully applicable in the case of the First Appeal No. 805 of 2003 12 respondents as the appellant badly failed to prove any negligence in the treatment of Dr. N.D. Aggarwal.
21. In view of the above discussions, we are of the view that no negligence on the part of the respondents is proved as such, we fully concur with the judgment of the District Forum and we affirm the same.
22. The appeal of the appellant is without any merit and the same is dismissed with no order as to costs.
23. The arguments in this appeal were heard on 11.11.2009 and the order was reserved. Now the order be communicated to the parties.
24. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Justice S.N.Aggarwal)
President
(Lt.Col.Darshan Singh [Retd.])
Member
November 19, 2009 (Piare Lal Garg)
As/- Lb/- Member