State Consumer Disputes Redressal Commission
Vimal Kumar Nautiyal vs Mrs. Anita Chopra on 2 May, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 231 / 2014
1. Sh. Vimal Kumar Nautiyal (age 63 years) S/o Late Sh. P.R. Nautiyal
R/o 20 Balbir Road, Dehradun
2. Param Hospital
20 Balbir Road, Dehradun
Through its owner
Sh. Vimal Kumar Nautiyal (age 63 years) S/o Late Sh. P.R. Nautiyal
R/o 20 Balbir Road, Dehradun
......Appellants / Opposite Parties
Versus
Smt. Anita Chopra W/o Sh. Naresh Chopra
R/o Ansals Green Valley, Jakhan, Dehradun
......Respondent / Complainant
Sh. Praveen Julka, Learned Counsel for the Appellants
Sh. Ashish Chakravaty, Learned Counsel for the Respondent
Coram: Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 02/05/2016
ORDER
Per: Mr. D.K. Tyagi, Member:
This appeal is directed against the impugned judgment and order dated 05.09.2014 passed by the District Forum, Dehradun in consumer complaint No. 285 of 2013; Smt. Anita Chopra vs. Dr. Vimal Kumar Nautiyal and another. By the impugned order, the District Forum has allowed the consumer complaint ex-parte against the appellants- opposite parties and directed them to pay a sum of Rs. 34,000/- towards medical expenses, Rs. 1,50,000/- for compensation and Rs. 5,000/- for litigation expenses to the complainant within 30 days from the date of order.2
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant is employed with the State Bank of India and is currently working as a cashier and currently posted at Jakhan, Rajpur Road, Dehradun Branch of the State Bank of India. On 30.11.2012, the complainant was coming from Jammu to Haridwar alongwith her family members by a Suzuki Swift Car, which was being driven by her brother in law and unfortunately at about 04:00A.M. in the early morning, the said vehicle went out of the driver's control and it collided with a tree and all the passenger of the car suffered injuries of all sorts in the said road accident. Due to this collision/accident the complainant smashed her right forearm inside the car and suffered some grievous/minor injuries. After the said accident, the complainant was in a lot of pain and needed medical intervention immediately, as she was feeling excruciating pain in her right forearm. The complainant's brother in law took her to the nearest local hospital immediately, i.e. Samudayik Swasthya Kendra Fatehpur, Saharanpur where the complainant received much needed first aid etc. for the first time and her hand was hung in a splint. The abovementioned hospital referred the complainant to a specialist orthopaedic, because it was still too early in the morning and barely no modern medical facilities/doctors available in the hospital. The complainant then sought the emergency services of the "Ramkrishna Mission Sevashram" at Kankhal, Haridwar. The attending doctors and staff of the "Ramkrishna Mission Sevashram" Kankhal fearing the extent of injuries of the complainant, advised her to seek expert opinion of a specialist orthopaedic doctor. The complainant and her family members decided to meet the specialist orthopaedic doctor and as such they met with the opposite party No. 1-Dr. Vimal Kumar Nautiyal at his hospital, i.e. Param Hospital, 20 Balbir Road, Dehradun. According to the complainant the opposite party No. 1-Dr. Vimal Kumar Nautiyal claims to be an expert and specialist orthopaedic doctor further he claims that he is the one who owns, manages and runs the daily affairs of the opposite party No. 2. The complainant met the opposite party No. 1 at 3 opposite party No. 2 on 06.12.2012 where opposite party No. 1 prescribed the complainant to get an X-ray test of her forearm done from his hospital which the complainant did immediately at the opposite party No. 2 and the opposite party No. 1 after checking and viewing the X-ray image of the complainant's forearm, told the complainant that she was suffering from a soft tissue injury and there were no fracture(s) of any sort and the opposite party No. 1 told her to daily massage of her forearm thrice a day and also prescribed her hot fomentation thrice a day for her injured forearm apart from some painkillers to take for a few days to ease her pain. The opposite party No. 1 told the complainant that she would get absolutely well within a month or so and her pain would gradually subside and it would stop hurting within a month or so. The opposite party No. 1 told the complainant that she should continue and do about her daily activities like she used to and she did not need to keep her hand in any sling or immobilize it and furthermore the complainant had suffered a very minor injury and that the complainant need to relax and not to worry about her injury as it would heal by itself and due to wintertime the injury of the complainant might take more time to heal than a usual soft tissue injury take, but she should not worry as there was no reason to be worried. The attitude of the opposite party No. 1 was extremely casual towards the matter of the complainant and he could not see/realize the pain of the complainant and the opposite party No. 1 told the complainant that he was sure that she would not even have to visit the opposite party No. 1 again, as it was a very minor injury and he or any other orthopaedic doctor for that matter would pretty much prescribed the same treatment as these type of soft tissue injuries heal by themselves and with time. The complainant kept on following the treatment of the opposite party No. 1 for more than a month, but her condition gradually kept on getting from bad to worse and she could barely use her right hand and that almost all of her daily activities had taken a back seat, as she had very little use left of her right hand due to excruciating pain in her right forearm, which only subsided temporarily 4 with painkillers. The complainant could not even ride with her husband on his motorcycle as a pillion as she had no confidence now on her right arm and the general condition and pain of her was getting from bad to worse on a daily basis. However, the complainant because of the assurances and prescription of the opposite party No. 1 kept on following the same treatment, as he had specifically told her and because the opposite party No. 1 is a specialist orthopaedic doctor and because she had no reason to disbelief the advice and treatment of the opposite party No. 1 and because she was assured that it was a soft tissue injury, which would heal by itself and with time. The condition and pain of the complainant gradually went from bad to worse and now even a bone protrusion was visible in the upper forearm of the complainant and that even when after almost a period of two months had passed, the complainant finally decided to seek a second opinion and she went to Dr. H.K. Joshi on 04.02.2013, who after viewing the same X-ray image of her forearm, which was viewed by the opposite party No. 1, told the complainant for the first time that she was suffering from a fractured bone and the diagnosis of the opposite party No. 1 was not correct, as the complainant was clearly suffering the pain of fracture. The complainant was totally flabbergasted and shocked at this revelation, however, Dr. H.K. Joshi made the complainant view the X-ray image of her right forearm in which it was apparent to a layman like the complainant that she was suffering from fracture. Dr. H.K Joshi told the complainant that she should immediately stop massaging her forearm, as it is strictly prohibited to do so in case of fracture and as it is worsening her condition and Dr. H.K. Joshi further told her that she should continue hot fomentation and gave some pain killers for her pain. Dr. H.K. Joshi had told the complainant while diagnosis her fracture and treating her that whatever damage could happen had already happened to her fracture due to repeated daily massages and that once she stops it, no further damage could occur to her fracture due to massage and the protrusion which was present in the upper forearm was because of bone growth at the fracture site which is direct 5 consequences of the massage, she had been doing for so long. Dr. H.K. Joshi advised the complainant not to lift anything heavy and to keep her hand relaxed as much as possible and to put it in a sling and to revert back to him in about a month or so, as conservative approach would be preferred first and in case the fracture fails to heal by itself then surgery would be the only option. After a period of about two months had passed by, the pain of the complainant instead of subsiding gradually remained almost stagnant and the complainant almost had no use of her right arm remaining. The complainant decided to seek opinion of another orthopaedic specialist. Due to some unavoidable family function at Madhya Pradesh, the complainant went and sought medical opinion at Shri Anandpur Trust Charitable Hospital, Sukhpur, P.O. Shri Anandpur District Ashok Nagar, M.P. and the attending doctors over there asked the complainant to take another X-ray test, so as to determine the current position of the fracture. That to utter dismay and shock to the complainant, the doctors of Shri Anandpur Trust Charitable Hospital after examining the current X-ray image of the complainant's forearm/elbow informed the complainant that due to completely wrong diagnoses and treatment, the fractured bone had completely deformed and surgical correction was the only alternative remaining with the complainant, as nothing else would or could heal the fractured bone. The doctors of the said hospital told the complainant that not only she had to undergo surgery, but they also told the complainant that she would have to undergo LCP Fixation in addition to bone grafting etc. etc. for a comprehensive solution of her problem. The complainant was shocked and realized that she had become a victim of wrong diagnosis of the opposite parties and due to their gross negligence, something as apparent as a fracture could also not be diagnosed by the opposite parties. The opposite party No. 1 could not view and analyse even a simple X-ray image and he, in clear contravention of the settled norms of the medical world not only advised the complainant to massage a fracture daily but also instructed her to relax and forget about her pain and told her to be patient as any 6 other orthopaedic doctor would also adopt a very similar methodology of treating the problem of the complainant due to simple nature of complainant's injury. The complainant has since then visited three orthopaedic surgeons/specialists in order to discover any other alternative to surveyor, but after consulting all the specialist doctors including orthopaedic surgeon in Doon Hospital, she came to know that the condition in which her fracture is at the moment, surgery is the only remaining option for treating the complainant's condition. According to the complainant, the Max Hospital gave her an estimate of approximately Rs. 68,000/- and Dr. Johri gave an estimate of Rs. 28,000/- approximately will be spent on the corrective surgery to save her arm in addition to such sum which will be spent on hospitalization, medication, dressing, physiotherapy, etc. not to forget the costs of disablement and future costs, which cannot be even calculated in monetary terms. The complainant came to know that besides surgery she has no other option left she had to undergo surgery for her forearm on 24.05.2013 at Dr. Johri's Nursing Home, as the doctor had advised surgery should be done without any delay, as it may lead to more complications and she is presently under the treatment of Dr. Johri and she is on leave from her job, which she has been since the date of her operation. From the date of meeting the opposite parties, the complainant had incurred expenses well over Rs. 34,000/- so far, which is attributable directly to the negligence of the opposite parties.
3. The District Forum issued notice to the opposite parties, but the opposite parties after sufficient service did not appear before the District Forum and as such, the District Forum vide order dated 17.07.2014 proceeded the consumer complaint ex-parte against the opposite parties and decided the same vide impugned judgment and order dated 05.09.2014 in the above terms. Aggrieved by the said order, the opposite parties-appellants have filed this appeal.
4. We have heard Sh. Praveen Julka, learned counsel for the appellants and Sh. Ashish Chakravarty, learned counsel for respondent 7 and have also perused the record. It appears from the judgment and order that before the District Forum, the consumer complaint was proceeded ex-parte against the opposite parties. The opposite parties did not file any written statement before the District Forum against the consumer complaint filed by the respondent-complainant. It is a settled principle of law that all the parties involved in the matter in question should get proper opportunity of being heard.
5. We have noticed that the opposite parties could not file written statement before the District Forum and the District Forum did not give opportunity to the opposite parties for adducing evidence on affidavit and disposed of the consumer complaint merely on the basis of the pleadings of respondent-complainant only, which is contrary to the principle of natural justice. The Hon'ble Apex Court in the case of Topline Shoes Ltd. Vs. Corporation Bank; II (2002) CPJ 7 (SC), has observed that "it is for the Forum or the Commission to consider all facts and circumstances along with the provisions of the Act providing time frame to file reply, as a guideline, and then to exercise its discretion as best it may serve the ends of justice and achieve the object of speedy disposal of such cases keeping in mind the principle of natural justice as well."
6 In view of the Hon'ble Apex Court's decision, we are unable to sustain the order passed by the District Forum and set aside the same.
7. The Hon'ble National Commission in the case of Mathura Mahto Mistry Vs. Bindeshwar Jha (Dr.) and another; I (2008) CPJ 109 (NC), has held that disposing of the complaint simply on pleadings without directing the parties to file evidence by way of affidavits is illegal on the face of it. The Hon'ble National Commission in the aforesaid judgment has also held that "moreover without adducing evidence, both the parties obviously did not get an opportunity to prove their respective case, in view of which, we are unable to sustain the order passed by the District Forum, which is set aside and the case is 8 remanded back to the Forum below to give an opportunity to both the parties to lead evidence by way of affidavits and also permit cross- examination through questionnaire and reply and only after completion of all the necessary procedure as per law, the District Forum shall hear the case on merit and dispose it of preferably within a period of three months from the date of receipt of this order."
8. Thus, we are of the view that the consumer complaint be decided on its own merit. Therefore, we set aside the ex-parte judgment and order dated 05.09.2014 passed by the District Forum, Dehradun, subject to the costs of Rs. 10,000/-, which shall be paid by the appellants-opposite parties to respondent-complainant and remanded back the matter to the District Forum to decide the case on its own merit. The appellants-opposite parties shall file the written statement before the District Forum on or before 02.06.2016 positively and thereafter the District Forum shall afford a reasonable opportunity to the parties to adduce evidence in support of their case. The District Forum shall take all sort of endeavour to decide the consumer complaint as early as possible and preferably within a period of three months from the date of filing the written statement by the appellants.
9. With the aforesaid direction, the appeal is allowed. Copy of the order be sent to the District Forum, Dehradun immediately. No order as to costs. The amount deposited by the appellants as statutory amount at the time of filing the appeal and Rs. 75,000/- deposited by the appellants for staying the order be released in appellants' favour.
(MRS. VEENA SHARMA) (D.K. TYAGI)