State Consumer Disputes Redressal Commission
Sudhir Koshik vs Dr. Kuldeep Data on 10 May, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND DEHRADUN
FIRST APPEAL NO. 200 / 2009
Sh. Sudhir Kaushik S/o Late Sh. T.C. Kaushik
R/o 4/8, Dhamawala Mohalla, Dehradun
......Appellant / Complainant
Versus
Dr. Kuldeep Datta S/o Dr. V.P. Datta
R/o 13-A, Old Survey Road, Dehradun
......Respondent / Opposite Party
Sh. Ajay Singh Verma, Learned Counsel for the Appellant
Sh. S.M. Joshi, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. D.K. Tyagi, H.J.S., Member
Dated: 10/05/2016
ORDER
(Per: Mr. D.K. Tyagi, Member):
This is an appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 06.10.2009 passed by the District Forum, Dehradun in consumer complaint No. 70 of 2008. By the order impugned the District Forum has dismissed the consumer complaint.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant felt restlessness on 02.02.2006, so he approached to the opposite party-Dr. Kuldeep Datta for check-up. The opposite party admitted the complainant in his M.K. Surgical Clinic & Nursing Home and directed for some pathological tests. On 03.02.2006 at about 10.00 a.m. the opposite party administered an injection, resulting deteriorating of his condition and he went into Coma. He remained unconscious for 13 hours and his mouth became tilted. There was no complaint of blood-pressure or sugar to the complainant at that time. He remained admitted in the opposite party's nursing home for 5 days and was discharged on 07.02.2006. When the 2 complainant as well as his family members saw the discharged slip, then they became surprised to see that there was name of some medicines, but no name of injections was written on the discharge slip. When they asked about this, the opposite party did not disclose the name of the injection and misbehaved with them. Due to wrong injection administered to the complainant, he suffered mental agony as well as physical and economical loss. Due to the negligence of the opposite party, the complainant was forced to take treatment of Dr. R.K. Karoli at Delhi for so many months. The complainant took treatment of Dr. R.K. Karoli for 5 months after taking leave from his office. The opposite party has committed deficiency in service as well as negligence resulting mental agony, physical and economical loss to the complainant. The complainant sent a notice dated 17.09.2007 to the opposite party through advocate, which was replied by the opposite party by letter dated 19.12.2007. The complainant has prayed for Rs. 1.00 lakh as expenditure of treatment in M.K. Surgical Clinic and Nursing Home as well as treatment at clinic of Dr. R.K. Karoli and tests etc. The complainant has also prayed for Rs. 1.00 lakh as compensation for mental agony and economical loss, Rs. 40,000/- for diet as well as transportation charges and Rs. 5,000/- for litigation expenses.
3. The opposite party-Dr. Kuldeep Datta has filed written statement before the District Forum and has pleaded that the complainant has to prove the allegations according to law. The complainant had been brought to the nursing home with chest pain complaint and accordingly he was admitted to the nursing home and necessary tests and check-up was carried out. It is emphatically denied that the answering opposite party gave some injection to the complainant as a result of which the condition of the complainant deteriorated and he went into Coma and seeing the deteriorating condition of the complainant the answering opposite party sought apology from the family of the complainant for giving wrong injection. It is also denied that the complainant regained consciousness after 13 hours. The allegations are absolutely fabricated and have been made up only for the purpose of the case. It is submitted that since the opposite party does not have the necessary records, he is unable to either admit or deny the contents of para 4 of the 3 complainant and reserves his rights to answer the same at the appropriate time. It is only admitted that the complainant was discharged from the nursing home after 4-5 days and the medical record was handed over to the complainant. The answering opposite party has no knowledge as to for which ailment the complainant was treated by Dr. R.K. Karoli. It is emphatically denied that the opposite party was careless in any manner while treating the complainant. It is also emphatically denied that the complainant has suffered any mental, physical and monetary loss due to any act of the answering opposite party. It is only admitted that the complainant had sent a notice dated 17.09.2007 which was duly replied by the answering opposite party. It is emphatically denied that the opposite party ever approached the complainant for a settlement. The allegations show the corrupt mentality of the complainant. It appears that the only intention of the complainant to file the present complaint is to extract money from the answering opposite party. The complainant has not shown any cause of action for the present case. It is further submitted that the present consumer complaint has been filed beyond the statutory period of two years and hence the present complaint is barred by limitation and is liable to be rejected. In additional pleas, the answering opposite party has pleaded that the complaint is misconceived and not legally maintainable. The complainant was admitted to M.K. Surgical Clinic and Nursing Home on 03.02.2006 with complaint of chest pain. All necessary tests were carried out and after keeping the complainant in the nursing home for about 4-5 days the complainant was discharged. It is absolutely wrong to allege that the complainant was administered an injection, as a result of which the complainant had gone into Coma and the answering opposite party had sought apology from the family members of the complainant for being negligent. At the time of discharge, the complainant was advised to get himself examined in specialty government hospital, as the complainant had informed that he is a government employee. Since then the complainant has not come back to the answering opposite party for any consultation. The answering opposite party has no knowledge as to where and for what ailment the complainant got himself treated at New Delhi. It would be pertinent to mention here that the answering opposite party is one 4 of the leading cardiologist of the town and has been in practice for more than 25 years and there has been no complaint by any of his patients. The present complaint has been made with ulterior motives and with the intention to extract money from the answering opposite party. The complaint of the complainant being false, frivolous and vexatious and is liable to be dismissed.
4. The District Forum, on an appreciation of the facts and circumstances of the case, has dismissed the consumer complaint vide impugned order dated 06.10.2009 in the above manner. Aggrieved by the said order, the complainant
-appellant has filed the present appeal.
5. Sh. Ajay Singh Verma, learned counsel for the appellant and Sh. S.M. Joshi, learned counsel for respondent appeared. We have heard learned counsel for the parties and have gone through the entire record of the District Forum and perused the material placed on record.
6. Learned counsel for the appellant has submitted that the impugned judgment and order dated 06.10.2006 passed by the District Forum, Dehradun is against the facts and law. The District Forum has not applied its jurisdictional mind. The appellant had approached to the opposite party on 02.02.2006 due to some restlessness and was admitted in the M.K. Surgical Clinic and Nursing Home, where some tests were conducted on 03.02.2006 and the respondent administered an injection resulting deterioration of condition of the appellant. There was no complaint of blood pressure and sugar, even then the respondent kept him in his nursing home for 5 days and was discharged on 07.02.2006. He became surprised to see the discharge card that there was no name of any injection administered to the appellant by the respondent. Due to wrong injection administered to the appellant and deteriorating condition, the appellant approached to Dr. R.K. Karoli at Delhi where he was treated for 5 months. In the written statement, the respondent-opposite party has denied to administer any wrong injection to the appellant. The District Forum has wrongly appreciated the documents filed by the appellant. The Forum below has wrongly appreciated that from the perusal of the documents filed by the 5 appellant, it is not clear that the condition of the appellant deteriorated due to wrong injection administered by the respondent. The District Forum has wrongly appreciated the fact that the respondent had not administered any wrong injection. The District Forum has wrongly appreciated that the appellant has not filed any expert report on the record to show that there was any medical negligence on the part of the respondent. The District Forum has not appreciated the fact that after wrong injection administered by the respondent, the appellant went into Coma and has also not appreciated why did the respondent kept the appellant in his nursing home for 5 days.
7. There is no dispute with regard to the fact that the appellant-complainant approached to the respondent-opposite party and was admitted in the M.K. Surgical Clinic & Nursing Home of the opposite party. There is also no dispute that some pathological tests were conducted on 03.02.2006. It is also undisputed that the appellant remained under the treatment of respondent up to 07.02.2006 when he was discharged. The actual dispute is with regard to the fact that whether any injection was administered to the appellant by the respondent on 03.02.2006 and due to side effect of the injection, condition of the appellant deteriorated and he went into Coma and recovered consciousness after 13 hours' time. We have perused the discharge card given by respondent- Dr. Kuldeep Datta (paper No. 6Kha/2 on the District Forum's record). From the perusal of this discharge card, it is evident that respondent has noted the medicines, which were to be taken by the patient (appellant). There is no mention of any injection in this discharge card. The respondent has also advised the appellant for Coronary Angiography. The respondent has filed written statement alongwith affidavit in evidence (paper No. 12Ka/1 on the District Forum's record). In the said affidavit, the respondent has deposed on oath that the appellant was admitted with a complaint of chest pain. In the affidavit, he has deposed that it is absolutely wrong to allege that the appellant was administered an injection, as a result of which the appellant had gone into Coma. The appellant has admitted in his complaint that after discharged from M.K. Surgical Clinic & Nursing Home of the respondent on 07.02.2006, he had gone to Delhi for treatment by Dr. R.K. Karoli and took treatment from 6 Dr. Karoli for about 5 months. It is surprising that the appellant had not disclosed the ailment, for which he was treated by Dr. R.K. Karoli. We have perused the document filed by the appellant vide list Nos. 14Kha/1 to 14Kha/2. These are the documents regarding pathological tests as well as so many Echocardiography Reports of Delhi Cardiac Diagnostic Centre etc. From the perusal of these documents, during the treatment by Dr. R.K. Karoli, it is clear that the appellant was treated for some ailment regarding heart. The appellant has approached the Consumer Forum merely regarding some injection administered by respondent, which is not mentioned in the discharge card. The appellant has not proved that any such injection was given/administered by respondent and his condition was deteriorated due to the same. So far qualification of respondent-Dr. Kuldeep Datta is concerned, he is M.D. (Med.) FICA, FICC, Consultant Cardiologist and one of the leading cardiologist of town and has been in practice for more than 25 years.
8. The Hon'ble Supreme Court in the case of Jacob Mathew (Dr.) Vs. State of Punjab and another; III (2005) CPJ 9 (SC), has clearly observed in sub-para (3) of para 49 that, "a professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.
The Hon'ble National Commission in the case of Smt. Leela Devi vs. Dr. Shatrughan Ram & Anr.; IV (2012) CPJ 194 (NC), has held that skill of medical practitioners differs from doctor to doctor, the very nature of the profession is such that there may be more than one course of treatment, which may be advisable for treating a patient and negligence cannot be attributed to a doctor so long, as he is performing his duty to the best of his ability and with due care and caution. In citation 2012 HVD (MNC) 207, Himachal Pradesh State Commission, Shimla, Madan Lal & Others vs. Dr. R.K. Chaudhary & Others, the State Commission has expressed its view that if basic principle relating to medical negligence, which is known as BOLAM Rule are not observed that heavy onus lies upon the complainant to prove medical negligence, which can be discharged by cogent evidence. Mere averment in 7 the complaint, which is denied by other side, is no evidence by which complainant's case can be proved.
9. We are convinced with the citations discussed above. The appellant has not proved his case by a cogent evidence. No expert evidence regarding medical negligence has been filed against the respondent by the appellant. Even no evidence has been filed by the appellant to show that Dr. R.K. Karoli had observed that the condition of the appellant deteriorated due to after effect of any injection administered by the respondent.
10. In the present facts and circumstances of the case, we are of the view that the impugned judgment and order dated 06.10.2009 passed by the District Forum, Dehradun, thereby dismissing the consumer complaint filed by the complainant, does not suffer from any infirmity and illegality and the same cannot be interfered with. Appeal lacks merit and liable to be dismissed.
11. For the reasons aforesaid, the appeal is dismissed. The impugned judgment and order dated 06.10.2009 passed by the District Forum, Dehradun in consumer complaint No. 70 of 2008 is hereby confirmed. No order as to costs.
(D.K. TYAGI) (JUSTICE B.S. VERMA)