State Consumer Disputes Redressal Commission
Syad Aijaz vs Dr. H. R. Jhunjhunwala on 18 September, 2017
1 [CC/02/38]
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/02/38
Sayyad Aijaz Ali (since deceased through his L/R's)
1.Smt.Kishver Ali (wife)
2.Mr.Sayyad Arif Ali (son)
3.Smt.Uzma Rehman Wife of M.I.Rehman
(Daughter)
All complainants R/at-
H.No.MIG 136, Anand Nagar,
Old Water Tank, Adhartal,
Jabalpur M.P. 482004. Complainant(s)
Versus
1.Dr.H.R.Jhunjhunwala
Arthopedics' Expert & Surgeon,
Bombay Hospital and Medical
Research Centre,
12, New Marine Lines,
Mumbai 400 020.
2. Bombay Hospital and Research Centre,
12, New Marine Lines,
Mumbai 400 020. Opponent(s)
BEFORE:
Hon'ble Mr.P.B.Joshi, Presiding Judicial Member
Hon'ble Mr.D.R.Shirasao, Judicial Member
PRESENT:
For the
Complainant(s) : Advocate Ms.Sheetal Ubale i/b Advocate Mr.R.V.Bansode
For the
Opponent(s) : Advocate Ms.Antima Dalal for Opponent No.1
Advocate Mr.G.N.Shenoy for Opponent No.2
JUDGMENT
Per: Hon'ble Mr. D.R.Sirasao, Judicial Member
[1] Original Complainant Sayyad Aijaz Ali filed complaint for getting compensation of Rs.16,76,951/- on account of deficiency of service given by the Opponents. Complainant submitted that he was working as Senior Auditor in the office of the Accounts and Audit Gun Carriage Factory at Jabalpur Tahsil. He 2 [CC/02/38] was suffering from Arthritis knee pain since last five years of filing of complaint and in that respect, he was taking medical treatment in Nurjahan Siraj Ahmed Memorial Hospital and Medical Research Centre (N.S.C.B College), Jabalpur under the supervision of Dr.H.K.T.Raza, Associate Professor and H.O.D., Department of Orthopedics N.S.C.B.Meical college, Jabalpur. After taking prolong treatment complainant was referred to the hospital of Opponent No.2 at Mumbai by the Joints Director of Government of India, Office of the Central Govt. Health Scheme 323, Jabalpur. After coming to the hospital of opponent No.2, he was under observation and treatment of opponent No.1. He had directed various pathological tests to be carried out in respect of complainant. On the basis of those pathological tests, opponent No.1 had come to conclusion that complainant had bilateral painful knees and bilateral knee stiffness generalized joint pain and morning stiffness and final diagnosis was bilateral chronic osteo-arthritis knees. Accordingly, opponent No.1 had advised bilateral total knee replacement of complainant. For that purpose complainant remained admitted in the hospital of opponent No.2 from 16/2/1998 to 12/3/1998. During this period initially the right knee of complainant was replaced on 18/2/1998 and left knee on 22/2/1998 by the Opponent No.1. After discharge from the hospital on 12/3/1998 complainant returned back to Jabalpur. However, at that time, he was not in position to walk and he had to take help of two persons for standing and walking. Complainant also sustained severe pain in both of his knees although both of his knees were replaced. Complainant submitted that hence he had again come to the hospital of Opponent No.2 for taking further medical treatment and remained admitted in that hospital from 2/3/2000 to 1/4/2000. Opponent No.1 after making careful observation had given opinion of total hip replacement of complainant. Accordingly, initially the left hip of complainant was replaced on 4/3/2000 and subsequently right hip was replaced on 16/3/2000. Complainant submitted that at that time Opponent No.1 had assured that after replacement of hip, complainant will be in position to walk normally.
3 [CC/02/38] Complainant was discharged from that hospital on 1/4/2000. However, he was not in position to walk on his own and he was walking with the help of supporter and Baisakhi. Thereafter, complainant returned back to his native place at Jabalpur. However, his health was gradually deteriorating. Complainant submitted that at the time of operation of his hip replacement, opponent No.1 had left one hole at the corner of left thigh. When he was discharged from hospital. At that time there was continuous bleeding from that hole. Later on there was thick discharge of puss from the hole. Complainant submitted that, for that purpose he had again contacted his doctor H.K.T.Raza at Medical College, Jabalpur. Dr.H.K.T.Raza had given treatment to the complainant for that purpose. Complainant submitted that in that respect he had given repeated letter to the opponent doctor on 10/5/2000, 15/6/2000 and 18/6/2000. However, Opponent No.1 did not respond to him. Complainant submitted that although his knees were replaced and operation of replacement of hip bone was conducted on him, he was not in a position to walk. Hence, complainant filed this complaint claiming expenditure made by him on operations along with compensation and costs of litigation. In that respect, he had given notice on 22/9/2001. As Opponents did not comply the notice complainant has filed this complaint against the Opponents for getting compensation of Rs.16,76,951/- from them.
[2] After filing of complaint, original complainant died and legal heirs were brought on record as per the order passed on 31/7/2015.
[3] Opponent No.1 contested the complaint by filing written version on record. Initially he submitted that the case of the complainant is based on different facts concerning with medical problems. The same cannot be adjudicated under the provisions of the Consumer Protection Act, 1986. For resolving such complicated issues matter must be referred to the Civil court. Opponent No.1 submitted that the complainant was referred to him by Dr.H.K.T.Raza of Jabalpur. Complainant was known patient of RA and poly 4 [CC/02/38] arthritics. He was taking medical treatment for that purpose since last five years from Dr.H.K.T.Raza. Opponent No.1 submitted that because of the same the immune system of the complainant was affects and his multiple joints were affected. He submitted that, hence, there was need of replacement of his both the knees. Accordingly he was advised and he had become ready for total replacement of his both knees. He submitted that at that time complainant was informed that after replacement of both the knees there will be reduction of pain but he will have to change his life style and he will not be in position to squat, sit on the ground and use Indian type commode or toilet. As he was ready for the same, his both knees were replaced. He submitted that, after replacement of both the knees complainant was in position to walk and he was totally satisfied with the operation. Hence, he was discharged from the hospital on 12/3/1998 by giving appropriate direction to him to take medical therapy and instructions regarding his life style. At that time patient was walking with the help of stick. He submitted that at that time complainant had not informed about any pains in his joint. He submitted that subsequently because of disease of poly arthritics Complainant had against come to him for replacement of hip bone. He submitted that at that time also it was informed to the complainant that replacement of hip will relieve him from pain. But he will have to change his life style and he will not be in position to squat, sit on the ground or to use Indian type commode or toilet. Accordingly, left hip of complainant was replaced on 4/3/2000 and right hip on 16/3/2000. He submitted that thereafter complainant was discharged from hospital on 1/4/2000. At that time also he was totally satisfied with the operation and he had not made any complaint about the same. At that time complainant was walking with the help of stick and was having no pain in joint. Opponent No.1 submitted that by letter dated 15/6/2000 complainant for the first time informed about infection in left thigh and also informed that there is oozing of puss from the same. He submitted that he had informed the complainant to contact Dr.H.K.T.Raza at Jabalpur and to take 5 [CC/02/38] proper medical treatment in that respect from him. Opponent No.1 submitted that the hole which was in the left thigh of complainant and oozing of puss from the same, he had no concern with that hole and he had not kept the same while performing operation of hip replacement of complainant. Hence, Opponent No.1 submitted that the contention of complainant cannot be accepted that the operation was not performed on him properly. Hence, he submitted that the complaint filed against him be dismissed.
[4] Opponent No.2 contested the complaint by filing their written version on record. They submitted that the Opponent No.2 is a Charitable Trust and they have not employed Opponent No.1 as doctor in their hospital. They submitted that for taking medical treatment the patient contact the doctors and the doctors are admitting their patients in hospital of Opponent No.2. They submitted that as per the agreement that had taken place in between them and the Opponent No.1, Opponent No.2 is responsible only for providing basic paramedical and administrative facility to complainant as per directions given by the doctor. Hence, they submitted that for the acts and omissions of doctor, Opponent No.2 cannot be held responsible. They also submitted that as the Opponent No.2 is Public Trust registered under the provisions of Bombay Public Trust Act, no proceeding cannot be filed against them without obtaining permission from Charity Commissioner. For all these reasons they submitted that complaint filed by the complainant against them is not tenable. They also submitted that complainant has not stated the specific negligence caused by the Opponent No.2 to him. They submitted that for these reasons also complaint filed by the complainant against them is not tenable.
[5] Considering the submissions made before us, following points arise for our determination and our findings thereon are noted as against them for the reasons herein below :-
6 [CC/02/38]
Sr.No. POINTS FINDINGS
1 Whether the complainant is 'consumer' of In the affirmative
Opponents?
2 Whether the Opponents have caused In the negative
deficiency in service to the complainant?
3 Whether the complainant is entitled to get In the negative
compensation from the Opponents as
claimed?
4 What order? As per final order.
REASONS-
As to the Point No.1-
[6] Original complainant Sayyad Aijaz Ali died during the pendency of complaint, and hence, his legal heir Sayyad Arif Ali filed affidavit of evidence on record in support of the complaint. He had also filed various documents on record. Opponent No.1 has also filed his affidavit of evidence on record supported by the documents. He had also filed affidavit of Dr.H.K.T.Raza on record in support of his contention. One Mr.De, authorized representative of the Opponent No.2 has also filed affidavit of evidence on record in support of Opponent No.2.
[7] Heard Ld.Advocate appearing for the complainant. He submitted that the complainant was working in government office. However, he was suffering from Arthritis and having pain in both of his knees. For that purpose, he was taking medical treatment in Nurjahan Siraj Ahmed Memorial Hospital and Medical Research Centre (N.S.C.B College), Jabalpur under the supervision of Dr.H.K.T.Raza, Associate Professor and H.O.D., Department of Orthopaedics N.S.C.B.Medical college, Jabalpur. He was sent to the hospital of opponent No.2 for taking further medical treatment. At that time, he was under the medical treatment of Opponent No.1. Complainant was admitted in the hospital of opponent No.2 from 18/2/1998 to 27/2/1998 and during this period both of his knees were replaced. He submitted that subsequently complainant was again 7 [CC/02/38] admitted in the hospital of Opponent No.2 from 2/3/2000 to 1/4/2000. During this period his right and left hip bone was replaced. He submitted that at the time of operation of left hip replacement, Opponent No.1 had left kept the hole at the corner of left thigh of complainant. When complainant was discharged from the hospital, at that time, there was continuous oozing of blood from that wound and subsequently puss was coming out of the wound. He submitted that the opponent No.1 had assured the complainant that after replacement of his knees and after replacement of his hip joints, he will be in a position to walk on his own and there will not be pain at the time of walking. He submitted that, however, complainant was not in a position to walk and his health continuously deteriorated since when he was discharged from the hospital of opponent No.2. Hence, he submitted that complainant was entitled to get the expenditure made by him for his medical treatment and he was also entitled to get compensation and costs of litigation. He submitted that as during the pendency of complaint, complainant died, the legal heirs of complainant are entitled to get that amount from the Opponents.
[8] Heard Ld.Advocate appearing for the Opponent No.2. She submitted that the hospital of Opponent No.2 is run by the Trust and different doctors for the purpose of giving medical treatment to their patients keep their patients admitted in the hospital. Hospital is giving para medical and administrative facility to the patients as per the directions of doctor. For the act of omission of doctor, the hospital is not responsible. Opponent No.2 also submitted that, complainant has not specifically alleged any sort of negligence against opponent No.2. Hence, she contended that the Opponent No.2 is not responsible to pay any amount to complainant.
[9] Heard Ld.Advocate appearing for the Opponent No.1. He submitted that the complainant was known patient of RA and poly arthritics. Hence, the immune system of complainant was affected and he was having pan in joints. For that purpose, complainant was already taking medical treatment in Nurjahan 8 [CC/02/38] Siraj Ahmed Memorial Hospital and Medical Research Centre (N.S.C.B College), Jabalpur under the supervision of Dr.H.K.T.Raza, Associate Professor and H.O.D., Department of Orthopaedics N.S.C.B.Meical college, Jabalpur. Complainant was referred to the Opponent No.1 by Dr.H.K.T.Raza. After verifying medical reports of complainant, he had advised complainant for replacement of both of his knees, and accordingly, his both knees were replaced by him. He submitted that, however, Opponent No.1 had informed the complainant that it will only reduce his pain and he will be in a position to walk with the help of stick and he will have to change his life style and he will not be in position to sit on ground and will not be in position to use Indian toilet. Complainant was discharged from the hospital and at that time he was walking with stick and was completely satisfied with operation. Subsequently, complainant was again referred to him by Dr.H.K.T.Raza for replacement of hip joint. Accordingly, he had replaced both the hip joints of complainant. At that time also Opponent No.1 had informed the complainant that it will reduce his pain. However, he will have to walk with the help of support and will not be in a position to sit on ground and will not be in a position to use Indian toilet. When he was discharged from hospital he was completely satisfied with operation and was walking with the help of stick. He specifically denied that at the time of operation any hole was left by the opponent No.1 at the inner corner of left thigh of complainant. He specifically denied that wound was bleeding when complainant was discharged from the hospital and subsequently there was oozing of puss from that wound. He submitted that the Opponent No.1 had received this information from complainant by letter and accordingly he had directed complainant to take treatment from Dr.H.K.T.Raza. He submitted that accordingly Dr.H.K.T.Raza had given treatment to the complainant and in that respect he had given affidavit in support of opponent No.1. It is submitted that there is no evidence on record that operation conducted on both of knees and hip joints of complainant were not properly conducted by the Opponent No.1 and he 9 [CC/02/38] had caused any negligence while conducting the same. Hence, he submitted that, the complainant is not entitled to claim compensation in respect of the same from the Opponent No.1.
[10] For that purpose, he relied on the order passed by the Hon'ble Supreme Court of India in Civil Appeal No.1386 of 2001 between Ms.Ins.Malhotra versus Dr.A.Kriplani & ors., decided on 24/3/2009. In this case sister of complainant by same Priya Malhotra was admitted in the Bombay Hospital in the month of May 1989 for vomiting and diarrhea. For that purpose she had given medical treatment in the hospital by Dr.Chabul as Dr.Ramamoorthy was out of station. On 16/17-7-1989, Dr.Jain suspecting kidney problem referred Priya Malhotra to Dr.A.Kriplani, a Nephrologist. On 18/7/1989 Dr.A.Kriplani informed appellant that Priya Malhotra had kidney failure and chronic renal failure. She was given continuous medical treatment. On 31/7/1989 operation was conducted on Priya Malhotra and subsequently her health was deteriorated and she died due to intestinal fistula and she developed serious infections septicemia. On 24/8/1989 Priya Malhotra expired. The complaint filed by Priya Malhotra was dismissed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, by passing order on 15/9/2000 by relying on the Judgment given in the case of Jacob Mathew versus State of Punjab (2005) 6 SCC. The Hon'ble Apex Court considered that no negligence can be attributed against the doctor in respect of giving medical treatment to Priya Malhotra. [11] Perused record of the case, evidence of both the parties filed on record along with the documents relied on by them. On perusal of the same, it has become clear that the original complainant Sayyad Aijaz Ali was regular patient of RA and for taking medical treatment he got himself admitted in the hospital of Opponent No.2 under the supervision of Opponent No.1. Initially when he was admitted in the hospital of Opponent No.2 at that time his both knees were replaced in that hospital by the Opponent No.1. Subsequently, complainant got himself admitted in the hospital of Opponent N.2 and at that time, there was 10 [CC/02/38] replacement of both of his hip joints in that hospital under the supervision of Opponent No.1. It is the contention of complainant that, although both of his knees and hip bones were replaced, he was not in position to walk on his own and after discharge from the hospital his health was deteriorated. Hence, he was not satisfied with the operation conducted by the Opponent No.1 in the hospital of Opponent No.2. Moreover, it is his contention that at the time of replacement of his left hip joint one hole was kept in the internal portion of his left thigh and it was continuously bleeding after operation and it started oozing puss when he was discharged from the hospital. Contention of the complainant that in that respect no medical treatment was given by the Opponent No.1. We are of the opinion that as the complainant had taken medical treatment in respect of replacement of both of his knees and hip joints from the Opponent No.1 in the hospital of Opponent No.2 and paid charges for the same, he is 'consumer' of Opponents. As he was not satisfied with the operations conducted on him. He has filed this complaint against the Opponents. Hence, we are of the opinion that the complainant being 'consumer' of opponents, he is entitled to file this complaint against the Opponents, hence, we answer point No.1 in the affirmative.
As to the Point Nos.2 and 3- [12] In this case it is an admitted fact that the complainant who was aged about 57 yrs. at the time of filing of complaint, was regular patient of RA and poly arthritics. For that purpose, he was regularly taking medical treatment from Dr.H.K.T.Raz of Nurjahan Siraj Ahmed Memorial Hospital and Medical Research Centre (N.S.C.B College), Jabalpur. It is the contention of Opponent No.1 that because of the same immune condition of complainant was affected and he had become susceptible to the environmental infection. As per the advice of Dr.H.K.T.Raza he had come to the hospital of Opponent No.2 for taking further medical treatment under the supervision of Opponent No.1. As complainant had bilateral painful keens and stiffness to the knee joints, 11 [CC/02/38] Opponent No.2 had advised total knee replacement to the complainant. It appears that, at that time, Opponent No.1 had advised complainant that, after replacement of knees, he will be in a position to walk by taking support. However, his pains in the knee will be minimized. It appears that the complainant had accepted the same and agreed for total knee replacement. Accordingly, both of the knees of complainant were replaced in the hospital of opponent No.2 under the supervision of Opponent No.1. For that purpose, he remained admitted in that hospital from 16/2/1998 to12/3/1998. It is the contention of the Opponent No.1 that at the time of discharge from the hospital, complainant was in a position to walk by taking support. However, it appears that at that time complainant had not made any grievance about the pains in both of his knees and about the failure of operation of replacement of both the knees either to the opponent No.1 or Opponent No.2. Thereafter he had gone to his native place at Jabalpur. It appears that as complainant was a regular patient of RA and poly arthritics, subsequently, he had come to the hospital of opponent No.2 for replacement of both of his hip joints. It appears that at that time also, he was under the supervision of Opponent No.1 and opponent No.1 had advised complainant that after replacement of both of his hip joints, there will not be pain in his hip joints and he will be in a position to walk by taking support. It appears that the complainant had accepted the said advice given by the Opponent No.1 and agreed for replacement of both of his hip joints. For that purpose, he remained admitted in the hospital of opponent No.2 from 2/3/2000 to 1/4/2000. During this period, both of his hip joints were replaced by the Opponent No.1. It is the contention of the opponent No.1 that at the time of discharge, complainant was in a position to walk by taking support and he had no pain in hip joints. It is not appearing that at the time of discharge complainant had made grievance about pain in both of hip joints and both of his operations of replacement of hip joints either to the opponent No.1 or to the 12 [CC/02/38] opponent No.2. After discharge from hospital he had gone to his native place at Jabalpur.
[13] Complainant has mainly made grievance in his complaint that at the time of operation of replacement of hip joints one hole was kept in the interior portion of his left thigh and the blood was oozing from the same when he was discharged from the hospital. It is the contention of the complainant that subsequently there was oozing of puss from that wound. However, to show that this hole was kept by the Opponent No.1 while conducting operation of replacement of left hip joint of complainant, except bear words of complainant, there is no evidence on record. It is the contention of Opponent No.1 that no such opening was left at the time of operation of complainant on his left hip joint. It is his contention that the injury of operation is at the anterior side and the hole is at the internal portion of left thigh. It is not at the sight of operation. Hence, he submitted that, this injury was not created at the time of operation. When complainant was discharged from the hospital, discharge card was given to him. In respect of this injury there is no mention in the discharge card of the hospital. Hence, contention of complainant cannot be accepted that this injury was present on the internal side of left thigh when he was discharged from the hospital. In that respect he has not produced any other evidence on record. In respect of this injury, complainant had taken treatment from Dr.H.K.T.Raza in Nurjahan Siraj Ahmed Memorial Hospital and Medical Research Centre (N.S.C.B College), Jabalpur. In respect of giving treatment to complainant in respect of this injury Dr.H.K.T.Raza has given affidavit in support of Opponent No.1 and Opponent No.1 has filed the same on record. On perusal of the affidavit of Dr.H.K.T.Raza it has become clear that the operational injury was at the different place and injury which is on the inner portion of thigh of complainant, is at different place. It appears that as the immune condition of the complainant had been badly deteriorated and complainant had not taken any proper care after he was discharged from the hospital, this injury had taken place 13 [CC/02/38] to him and he had not taken proper care of that injury as it was infected by e-coil which are generally found in the feaces of person. Dr.Raza had given medical treatment in respect of this injury to the complainant. From the affidavit of Dr.Raza it has become clear that this injury has no concern with the operation of replacement of hip joints which was conducted on complainant in the hospital of Opponent No.2 under the supervision of Opponent No.1. Hence, Opponent Nos.1 and 2 cannot be held responsible for this injury caused to the complainant. This injury was caused to the complainant because of his own ill-health and unhygienic condition of this injury kept by complainant himself. [14] From the documents filed on record, it has become clear that after both the operations, complainant had taken valid discharge from the hospital and thereafter he had gone to his native place at Jabalpur. While taking discharge from the hospital at both the times, complainant had not made any complaint in respect of failure of his operation either with Opponent No.1 or opponent No.2. Hence, the subsequent contention of the complainant cannot be expected that although his knees were replaced and hip joints were replaced he was not in position to walk on his own accord and because of these operations his pain in knees and hip joints were reduced and he was not in a position to walk by taking support. The contention of complainant cannot be accepted that after performing of these operations, he was not in position to do all his normal pursuits as before. Before both the operations, Opponent No.1 had given advice to the complainant that he will have to change his life style and he will not be in position to sit and to use Indian toilet. He was advised that after these operations, his pain will be reduced and he will be in a position to walk by taking support. Accordingly, after performing both the operations, when complainant was discharged, he had not made any grievance about pains in knees and hip joints. He was in a position to walk with support. It appears that because of ill-health of complainant and as he was known patient of RA and poly arthritics, the physical condition of the complainant must have been 14 [CC/02/38] deteriorated. Moreover, injury was caused to the complainant in the inner portion of left thigh and same got infected. Because of this also physical condition of the complainant was deteriorated. In this case, it is pertinent to note that when complainant had taken medical treatment, at that time, complainant was aged about 57 yrs. and after discharge from hospital on 1/4/2000, he had gone to his native place and subsequently he died on 20/5/2010. In respect of cause of death of the complainant, there is no evidence on record. Under such circumstances, we are of the opinion that, original complainant has failed to produce sufficient evidence on record to show that the Opponent Nos.1 and 2 had caused negligence while giving medical treatment to him. Under such circumstances, we are of the opinion that the original complainant was not entitled to get compensation as claimed from the Opponent Nos.1 or 2. Hence, we are of the opinion that the present complainants, who are the legal heirs of the original complainant, are not entitled to get compensation from the Opponents. Under such circumstances, we are of the opinion that the complaint filed by the complainant is to be dismissed. Hence, we answer points Nos.2 and 3 in negative and proceed to pass the following order-
ORDER
1] Complaint is hereby dismissed.
2] Parties to bear their owns costs.
Certified copy of this order be supplied to both the parties free of cost.
Pronounced on 18th September, 2017.
[P.B.JOSHI] PRESIDING JUDICIAL MEMBER [D.R.SHIRASAO] JUDICIAL MEMBER rsc