State Consumer Disputes Redressal Commission
Dr.Harprit Singh And Another vs Kulwant Kaur And Another on 8 December, 2025
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
(1)
First Appeal No.216 of 2021
Date of institution : 18.06.2021
Reserved on : 03.10.2025
Date of Decision : 08.12.2025
1. Dr. Harprit Singh, MBBS, MS (Ortho), Orthonova Joint &
Trauma Hospital Pvt. Ltd., Nakodar Road, Near Nari Niketan,
Jalandhar City
2. Orthonova Joint & Trauma Hospital Pvt. Ltd., Nakodar Road,
Near Nari Niketan, Jalandhar City through its Director Dr. Harprit
Singh
....Appellants/Opposite Parties No.1&2
Versus
Kulwant Kaur (since deceased) wife of Late S. Pritam Singh through
her LRs:-
(i) Sukhwinder Singh son of Pritam Singh,
(ii) Bhupinder Singh son of Pritam Singh,
(iii) Surinder Kaur daughter of Pritam Singh,
Residents of 46-A, Court Road, Mohindra Colony,
Amritsar-1, District Amritsar
(iv) Pinky Kapoor wife of Surinder Singh, daughter of Pritam
Singh, Resident of House No. 5, Circular Road, Amritsar-
1, District Amritsar.
....Respondent No.1/Complainant
2. New India Assurance Co. Ltd., BMC Chowk, Lally Building,
G.T. Road, Jalandhar
....Respondent No.2/OP No.3
(2)
First Appeal No.295 of 2021
Date of institution : 20.08.2021
Reserved on : 03.10.2025
Date of Decision : 08.12.2025
First Appeal No. 216 of 2021 2
Kulwant Kaur (since deceased) wife of Late S. Pritam Singh through
her LRs:-
(i) Sukhwinder Singh son of Pritam Singh,
(ii) Bhupinder Singh son of Pritam Singh,
(iii) Surinder Kaur daughter of Pritam Singh,
Residents of 46-A, Court Road, Mohindra Colony,
Amritsar-1, District Amritsar
(iv) Pinky Kapoor wife of Surinder Singh, daughter of Pritam
Singh, Resident of House No. 5, Circular Road, Amritsar-
1, District Amritsar.
....Appellant/Complainant
Versus
1. Dr. Harprit Singh, MBBS, MS (Ortho), Orthonova Joint &
Trauma Hospital Pvt. Ltd., Nakodar Road, Near Nari Niketen,
Jalandhar City
2. Orthonova Joint & Trauma Hospital Pvt. Ltd., Nakodar Road,
Near Nari Niketan, Jalandhar City
3. The New India Assurance Co. Ltd., BMC Chowk, Lally Building,
G.T. Road, Jalandhar being Insurer of the opposite party No. 1 &
opposite party no. 2.
....Respondents/OPs No. 1 to 3
First Appeals under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 20.04.2021 passed by the District
Consumer Disputes Redressal Commission,
Jalandhar in C.C. No. 453 of 2017.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mr. Vishav Kant Garg, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No First Appeal No. 216 of 2021 3 Present in F.A. No. 216 of 2021:-
For the appellants : Sh. Nakul Sharma, Advocate For respondent No.1(i) to (iv): Sh. Akhilesh Vyas, Advocate For respondent No.2 : None Present in F.A. No. 295 of 2021:-
For the appellant (i) to (iv): Sh. Akhilesh Vyas, Advocate For respondent No.1 : Sh. Nakul Sharma, Advocate For respondent No.2 : None (Proforma Respondent vide Order dated 16.04.2025) VISHAV KANT GARG, MEMBER :
By this order of ours, two Appeals i.e. First Appeal No.216 of 2021 and First Appeal No.295 of 2021 shall be disposed off as common questions of law are involved therein. However, the facts are being extracted from First Appeal No.216 of 2021.
2. Appellants-Dr. Harprit Singh & Anr. have filed F.A. No. 295 of 2021 to challenge the impugned order dated 20.04.2021 passed by the District Consumer Disputes Redressal Commission, Jalandhar (in short, "the District Commission"), whereby the Complaint filed by the Complainant had been Allowed.
3. It would be apposite to mention here that hereinafter the parties will be referred, as were arrayed before the District Commission.
4. Briefly, the facts of the case as made out by the Respondent No.1/Complainant-Kulwant Kaur in the Complaint filed before the District Commission are that she was having problem of Knees. In the month of September, 2016, the Complainant had consulted OP No.1, being Ortho Specialist in OP No.2 Hospital for the treatment of the same. OP No.1 after examining had advised her for the replacement of both the knees. OP No.1 had intimated the total expenses of Rs.3 lakh for the treatment of both knees. On the assurance of OP No.1, the Complainant had got herself admitted in the OP No.2 Hospital and her both the knees were replaced on First Appeal No. 216 of 2021 4 19.09.2016 & 20.09.2016. She was discharged from the Hospital on 25.09.2016 with the advice to do exercise for knees at home and to come after few days for further check-up. Afterward due to suffering with pain, she had visited OP No.2 Hospital and tried to consult OP No.1. But OP No.1 had not attend her, only the Junior Doctor had attended and advised to follow up exercises and prescribed some medicines. On this, the Complainant had approached Dr. Guriqbal Singh Chhina, M.Ch Ortho at Amritsar, who had informed her that her left knee was not proper in angle, due to which shape of her left leg had been tilted. Thereafter, she had consulted Dr. Sanjeev Kumar Singh Marya at Medanta Hospital, New Delhi. Said Doctor had advised that her left knee will have to be replaced again. Her left total knee replacement was done in Medanta Hospital and bones which were damaged due to wrong replacement of knee were wrongly operated on 08.12.2016 by the said Doctor of Medanta. After said surgery, the Complainant had received relief from pain and had been able to walk. On the treatment in Medanta Hospital, she had incurred an expenses of Rs.5,70,000/- on knee replacement and had also incurred Rs. 2 lakh on travelling to Delhi.
5. It was alleged that OP No.1 Doctor had not attached the knee properly in the bones and during that process, her knee was badly damaged. Due to said act of the OPs No.1&2, she had suffered with physical pain and harassment, as well as mental agony and inconvenience. Therefore, it was averred that the Opposite Parties were medically negligent in treating the Complainant so it was a case of 'medical negligence, 'deficiency in service' and also 'unfair trade practice'. It was prayed in the Complaint that the OPs be directed to refund Rs. 8,70,000/- i.e. the treatment charges of Rs.3,00,000/-, incurred First Appeal No. 216 of 2021 5 during treatment with OPs No.1&2 and Rs.5,70,000/- at Medanta Hospital, New Delhi, along with interest @ 18% p.a. Rs.2 lakh be demanded as compensation for mental pain and harassment and Rs.22,000/- as litigation expenses.
6. Upon issuance of notice in the Complaint, the Appellants/ Opposite Parties No. 1 & 2 had filed the written statement by raising certain preliminary objections to the extent that the Complainant had no cause of action to file the Complaint. It was admitted that the Complainant had been admitted in OP No.2 Hospital where OP No.1-Doctor had treated her on 19.09.2016. The surgery was successful and thereafter, she was discharged on 26.09.2016 from the Hospital. At the time of discharge, she was walking comfortably. On this, she had given the statement that she was quite satisfied with the treatment/services of the OPs. After surgery, X- rays were again taken and the condition of the patient regarding operation part was found good and proper. At the time of discharge, the patient and her attendants were informed regarding the things/precautions to be taken at home and the Complainant had gone out of Hospital in walking condition without any pain. The Complainant was discharged in a fully satisfied condition. She was advised for exercise of knees at home and was asked to come after a few days for follow up. After discharge when she had visited the OPs for check-up, in the X-ray and Fluoroscopy examination, everything was found fine/OK. As the Complainant had not followed the exercise as advised, hence, after 01.11.2016, she had not approached the OPs for further check-up. During the check-up, the Complainant had never complained any problem. At one point of time, the Complainant had alleged that Dr. Harpreet Singh had not checked her but on the other hand pleaded that one Junior Doctor had checked her but she was not satisfied. First Appeal No. 216 of 2021 6 Both the statements were contradictory to each other. Only Dr. Harpreet Singh had checked the patient. There was no Junior Doctor in the Hospital as all the prescriptions bear the handwriting and signatures of Dr. Harpreet Singh. There was no report of Dr. Guriqbal Singh Chinna that replacement of left leg knee was not in proper angle and tilted. Neither any X-ray in this regard taken by Dr. Chhina had been attached nor any report of Radiologist was annexed. In the report dated 24.11.2016 of Fortis Memorial Research Institute, Gurgaon, no loosening had been reported. Only in the discharge summary dated 06.12.2017 of Medanta Hospital (Pg. 140 of Appeal file), it was reported that there was depression/compression fracture of the lateral TIBIAL Condyle on left side, resulting in mis- alignment of the knee replacement Prosthesas on left side. However, the report of Orthonova was shown as normal. It was possible that the problem occurred to the Complainant could be happened afterwards, which may get due to any injury on account of fall or striking with some hard object. OP No. 1 did not want to comment upon if anything had happened afterwards the discharge from their Hospital. It was specifically pleaded that the acceptance time of knee replacement was from six months to one year, which fact was proved from the medical studies. It was necessary for the patient to be in contact with the Surgeon during that period apart from Physiotherapy to be carried out as advised. Conducting of Revision Surgery itself reflected that the patient had not followed the advice of her Surgeon. It was clear that there was no fault on the part of OP No.1 in conducting surgery. It was pleaded that the patient had not given the adequate time of acceptance to the knee replacement and in hurriedly got operated on a perfect implanted knee, for the reasons best known to her. No nuclear scan of the implant was done to prove that the knee First Appeal No. 216 of 2021 7 replacement was loose or infected. OP No. 1 had a vast experience in knee replacement and his success rate was 98%. If the patient had approached her for the treatment and if any revised surgery was required in her case, the Hospital had done the same free of cost but the Complainant had not approached the OPs with any such problem. It was pleaded that there was no medical negligence in the treatment of the Complainant and also during post-operative care. The Complainant was discharged from the Hospital in a satisfactory condition and thereafter the Complainant had failed to continue the follow-up. It was prayed that the Complaint being devoid of any merit, be dismissed.
7. OP No.3-Insurance Company pleaded that there was no privity of contract between it and the Complainant, hence, they were not liable to compensate the Complainant in any manner. It was prayed that the Complaint be dismissed against it.
8. After considering the contents of the Complaint and the replies thereof filed by the Opposite Parties as well as on hearing the oral arguments raised on behalf of the parties, the Complaint filed by the Complainant was allowed by the District Commission vide order dated 20.04.2021. The relevant portion of the said order as mentioned in Para-18 is reproduced as under:
"18. Keeping in view the facts and circumstances of the case, we allow the present complaint and OPs no. 1 and 2 are directed to refund Rs.3,00,000/- which has spent by complainant on her treatment for knee replacement, as per certificate Ex. C-6 placed on record. The complainant is also entitled Rs.7000/- as compensation for mental harassment and physical harassment faced by complainant including cost of litigation. The opposite parties No. 1 and 2 are also directed to deposit Rs.3,000/- as costs in the Consumer Legal Aid Account maintained by this Commission.First Appeal No. 216 of 2021 8
9. The aforesaid order dated 20.04.2021 passed by the District Commission has been challenged by the Appellants/OPs No.1&2 by way of filing the present Appeal by raising a number of arguments, seeking setting-aside of the same.
10. Mr.Nakul Sharma, Advocate, learned Counsel for the Appellants has argued that the Complainant had failed to lead any expert opinion in support of her allegations. The Appellants have vast experience in the field of knee replacement and had provided the best services to the Complainant during treatment. During treatment and post operative care, the patient was normal and on 24.09.2016, the patient had walked in the morning feeling better. At the time of discharge, the Complainant had not reported any kind of pain or other problem, rather she had walked out of Hospital herself. She was advised to do exercises for knees at home and was asked to visit after some days for follow up. X-ray taken after surgery on 26.09.2016 shows that there was no defect. In the report of Dr. Guriqbal Singh Chhina nowhere was mentioned that replacement of left leg knee was not in proper angle and the same was tilted. Report dated 24.11.2016 of Fortis Memorial Research Institute, Gurgaon had not reported any kind of loosening. Only in the discharge summary dated 06.12.2017 of Medanta Hospital, it was reported that there was doubtful depression/compression fracture of the lateral Tibal Condyle on left side, resulting in misalignment of the knee replacement prosthesas on left side. If anything wrong had happened afterwards the discharge, the Appellants were not in a position to comment upon. However, it looked like that the patient might had got any injury on account of falling or striking with some hard object. Degree tilt had been given as per procedure No.7 for the long life of the implant. There was very minimum chances of error during surgery because the First Appeal No. 216 of 2021 9 same had been done through Computer (Navigation System). The Complainant had failed to approach OP No. 1 for follow up, as per advice. She had also failed to continue physiotherapy as per advice. It was settled practice that acceptance time of knee replacement was 6 months to 1 year. It was proved on record that there was no damage to the Complainant due to the surgery conducted by the Appellant. Nowhere it has been brought on record that the implant was loose, infected or broken. The Complainant instead of consulting the OP No.1 about any problem had hurriedly got operated a perfect implanted knee, whereas the implant was neither loose nor infected. The Complainant had not consulted OP No.1 before approaching for 2nd surgery. It was argued that sometimes the angle of the implant has to be put in a specific degree, which depends on the surgeon and differs from case to case. The District Commission had wrongly opined that the Appellants have not done the replacement properly. Affidavits of Dr. Mohit Arora and Dr. Guriqbal Singh Chhina were contrary to the clinical tests. The Complainant had procured said affidavits only to take undue advantage in his case against the correct facts. District Commission without considering/deciding the contents of the important pending applications of the OPs, straightway had decided the Complaint, which had caused great prejudice to the Appellants. The impugned order was passed ignoring the sufficient material on record, which might have proved that the Appellants had no medical negligence in treatment or post- operative care of the patient. No medical evidence had proved the negligence of the Appellant, hence, it was prayed that the Appeal be accepted and the impugned order be set-aside.
11. Complainant-Kulwant Kaur being not satisfied with the compensation awarded by the District Commission has filed F.A. No. 295 First Appeal No. 216 of 2021 10 of 2021, seeking enhancement of the amount of compensation as well as refund of Rs.5,70,000/- incurred in Medanta Hospital. Mr.Akhilesh Vyas, Advocate, learned Counsel for the Complainant/Respondent No. 1 has submitted and argued that due to medical negligence of OPs No.1&2, the Complainant was operated again for knee problem. However, the District Commission inspite of recognizing the medical negligence on the part of OP No.1 had awarded very meagre amount on account of compensation and also failed to award Rs.5,70,000/-, spent on treatment at Medanta Hospital, New Delhi. Due to wrong act of OP No.1, the Complainant was forced to spend huge amount again on the treatment at Medanta Hospital. It was prayed that the impugned order be modified by allowing amount spent at Medanta Hospital as well as compensation amount in toto.
12. We have heard the oral arguments of learned Counsel for the parties and have also carefully perused the impugned order passed by the District Commission, written arguments submitted by the parties and all the relevant documents available on the file. We have also gone through the judgments cited by both the parties.
13. There is no dispute between the parties that the Complainant had approached the OPs No.1&2 with the both knees problem and OP No.1 had advised her to get replaced both the knees. On 19.09.2016, her knees were replaced and thereafter, she was discharged from the OP No.2 Hospital on 25.09.2016. At the time of discharge, the Complainant was advised to do knees exercise at home.
14. From the perusal of the case summary of the patient-Kulwant Kaur, it was noticed that she had a history of pain in both joint knee for the last 2-3 years, swelling and had faced problem in walking at the time of consultation with OP No.1. Number of investigations had been conducted First Appeal No. 216 of 2021 11 (pg. 115 of DC file). Under the column of operation notes, it was mentioned S/A TKR B/L done. Thereafter, during the Course in Hospital, it was mentioned as uneventful. Under medical context, "uneventful" means that during procedure or patient stay, recovery occurred without any complications. It signifies a normal surgery with no complications, patient's recovery without fever or other issues and a discharge from the hospital without any problems.
15. The allegation of the Complainant was that after surgery, she had suffered with pain and when tried to consult OP No.1-Doctor, she was not attended by OP No.1. Moreover, Junior Doctor of OP No.2 had not attended her properly. Dis-satisfied with the services of OPs No.1&2 and to get relief from her pain, the Complainant was forced to approach another Doctors/Hospitals. As such, she had approached Dr. Guriqbal Singh Chhina, M.Ch Ortho, Amritsar. Said Doctor after examination had informed her that her left knee was not proper in angle and shape of her left leg had tilted. On this the Complainant had approached Medanta Hospital, New Delhi where Dr. Sanjeev Kumar Singh Marya had advised her for the replacement of her left knee again, which she did from there.
16. To examine the allegations of the Complainant, we have perused the medical record available on the file first. After operation, when the patient was discharged, OP No.1 had advised some precautions/exercises to be followed by the patient at Home. In this regard, there is one page dated 25.09.2016 (Ex. C-5) available on the file, wherein it was mentioned "Orthonova 'No Infection" Guidelines, to be followed strictly at Home to prevent infection. On page No. 123 of file, there is prescription slip of OP No.1 Doctor dated 01.11.2016, which proves that after the operation, the Complainant had approached OP No.1 on First Appeal No. 216 of 2021 12 01.11.2016 in the Hospital of OP No.2. In the said prescription slip, the Doctor had advised her some medicines and had asked for the Scan of Lt. Knee, Lt. Tibia and Rt. Knee. Therefore, it is apparent that when the patient had approached OP No.1, she was having some problem. Said slip of the Complainant was valid upto 05.11.16. Instead of approaching OP No.1 with the Scan Report, as advised, the Complainant had approached Tuli Heart Care Centre on 03.11.2016 in other Hospitals. In the Tuli Heart Care Centre, the Doctor had examined her with regard to cause of abnormal heart rhythm and advised some medicines. Thereafter, the Complainant had contacted Dr. Guriqbal Singh Chhina on 14.11.2016 (Pg.
125). Said Doctor noted X-ray both knees and advised CT/MRI for MCL/LCL integrity. CT was one of the methods for checking the knee problem of the patient. It was also noted in the said prescription slip that Loosened infant (L) knee. After trying to find out the meaning of Loosened infant (L) knee, we observed that it means knee dislocation. On the next day i.e. 15.11.2016, the Complainant had approached another Ortho Doctor, namely, Mohit Arora, working in Fortis Escorts Hospital, Amritsar.
Said Doctor had also mentioned in his slip "Loosening of Tibial Implant"
and advised X-ray, both lower limbs and revision of TKR Lt. side. Thereafter the Complainant had approached the Medanta Hospital and got her left knee replaced against on 08.12.2016.
17. As per discussions held in para No. 10, the District Commission had reached to the conclusion of medical negligence by OPs No. 1 and 2 in treatment of the Complainant. Para No. 10 of the impugned order is reproduced for reference:-
"10. From perusal of entire record, it has revealed that the complainant admitted in the hospital of OPs no. 1 & 2 for treatment of his both knee problem. She admitted in the hospital of OPs on 19.09.2016 and discharged on 26.09.2016, First Appeal No. 216 of 2021 13 this fact is clear from document Patient Medical Record as Ex.OP1&2 on the record. The complainant spent Rs. 3 lakh on his treatment, this fact is clear from copy of certificate Ex. C-6 on the record. This document issued by OPs/Institute of Orthonova, in this document it has been mentioned that it is to certify that patient named Kulwant Kaur w/o S. Pritam Singh is admitted in our Hospital from 19.09.2016 to 25.09.2016 for (B/L TKR) Total knee replacement. We have received total amount of Rs. 3 lakh. The treatment of knee replacement taken by complainant from OPs is not successful, as such, she consulted with other doctor in this regard. If, OPs no.1 and 2 operated the knee replacement of the complainant in a well manner, then why she consulted with other doctor in this regard. The complainant also produced on record affidavit of Dr. Guriqbal Singh Chhina Ortho M.Ch Ortho at Amritsar as Ex. CW-2/A this doctor stated that "complainant's knee tibial component was malpositioned due to which she was having pain and problems in walking. After examining the complainant, prescribed some medicines and also advised her to get further operated upon her knees for permanent solution of her problem. Further, the complainant has produced on record affidavit of Dr. Mohit Arora MBBS MS (Ortho) Amritsar as Ex. CW-3/A on the record, this doctor also stated that "upon examining complainant's knee, came to know that her knees tibial component was malpositioned due to which she was having pain and problems in walking. After examining the complainant, prescribed some medicines and also advised her to get further operated upon her knees for the permanent solution of her problem." Dr. Mohit Arora MBBS MS (Ortho) Amritsar is senior consultant, Department of Orthopedics & Joint Replacement Surgery, Fortis Escorts Hospital, Amritsar. He is competent in his field and working as Doctor in a renowned hospital. This doctor has also given prescription slip to the complainant regarding medicines, which is Ex. C-13 on the record. The affidavit of Dr. Guriqbal Singh Chhina Ortho M.Ch Ortho at Amritsar as Ex. CW-2/A and affidavit of Dr. Mohit Arora MBBS MS (Ortho) Amritsar are the vital documents on the record. If OPs no. 1 and 2 operated knee replacement of the complainant in a well manner then why Dr. GuIriqbal (Guriqbal) Singh Chinna and Dr. Mohit Arora MMBS (MBBS) gave his different opinion from the opinion of OPs. The complainant consulted Dr. Sanjeev Kumar Singh Marya and upon checking this document advised her that her left knee will have to be replaced again. The said doctor told her that bones were damaged due to wrong replacement of knee. The complainant admitted in the Medanta Hospital New Delhi, this fact is clear from discharge summary Ex. C-34 on the record. In this document, the date of admission of the patient/complainant is mentioned as 06.12.2016 and date of discharge as 12.12.2016. From perusal of this document, it is clear that complainant consulted Dr. Sanjeev Kumar of Medanta Bone & Joint First Appeal No. 216 of 2021 14 Institute New Delhi after getting treatment from OPs no. 1 and 2 hospital. Firstly, the complainant admitted in the Hospital of OPs no. 1 and 2 on 19.09.2016 and discharged on 26.09.2016 and after that she admitted on 06.12.2016 and discharged on 12.12.2016 further treatment. It proves medical negligence on the part of OPs no.1 and 2 in performing their duties."
18. Thereafter, the District Commission had relied upon the judgments relating to medical negligence and granting compensation and had directed the OPs No.1&2 to refund the treatment charges. Rs.7,000/- was also awarded on account of compensation.
19. From the above, it has been noticed that the problem was that there was Loosened Infant (L) Knee i.e. left knee dislocation, which had occurred in the surgery performed by OP No.1. Knee dislocation had occurred when a person's patella (kneecap) slipped out of place. This problem might have occurred due to a hard blow or fall. Dr. Mohit Arora had also noticed Loosening of Tibial Implant, which means total knee replacement implant becomes unstable. Therefore, it is clear that after replacement of the knees, the patient was also facing some problem in her left knee.
20. After discharge from OP No.2 Hospital, the Complainant before approaching Medanta Hospital, had approached different Hospitals/Clinics to get relief from her pain. But she had not taken the continuous treatment from OP No.1 for the relief of her pain. From the documents available on the record, it was clearly proved that after the discharge from OP No.2-Hospital within few days she had visited to different Hospital/Clinics for taking up the treatment of her pain in left knee. Said fact had been authenticated from the prescription slips annexed on the file. No test report of any of the test conducted on the advice of above mentioned Doctors are available on the file. Therefore, in our opinion in the First Appeal No. 216 of 2021 15 absence of the same, we are unable to reach to some conclusion without knowing the exact reason of the pain whereas in the prescription slips the Doctors had advised some tests. Therefore, it is appropriate that the Complainant for the relief of her pain had changed/approached the different Doctors very quickly.
21. It is not disputed that the Complainant had remained admitted in Medanta Hospital on 06.12.2016 and her left total knee replacement was again done in the said Hospital on 08.12.2016. From the said Hospital, she was discharged in a stable condition, which had been reflected in her discharge summary (pg. 221 of LCR). To find out the noted problem of the Complainant by Medanta Hospital, we have gone through the Orthopaedic Discharge Summary of Medanta Hospital, in which it was mentioned as under:-
"Diagnosis & Co-morbidities : Follow up case of Left Total Knee Replacement with Implant Loosening Procedure or surgery : Revision Left Total Knee Replacement done on 08/12/2016 under SA Medical History & Presenting : Mrs. Kulwant Kaur, 78 years female is follow up Complaints case of bilateral total knee replacement on 20/09/2016, presented with complaints of pain in left knee, the pain increased on walking & restrict the daily activity. The patient is now admitted here for further evaluation and management.
22. From the above facts, it is clear that after replacement of both knee, continuous pain had occurred in her left knee. The Complainant being not satisfied with the left knee replacement done and post operative care by OP No.1 on 01.11.2016, had filed the Complaint alleging certain allegations of medical negligence and seeking refund of treatment charges and compensation.
First Appeal No. 216 of 2021 16
23. Admittedly the Complainant was having problem in her both knees and had got replaced the same from OPs No.1&2. She was not having any grievance regarding the treatment/replacement of her right knee but alleged the allegations of pain in her left knee after replacement of the knee of that leg. During the course of arguments, it was the main argument of the learned Counsel for the Appellant-Hospital that the Complainant was discharged from the Hospital in stable condition and she was walking comfortably at that time. She was fully satisfied with the services of the OP No.2-Hospital. At the time of discharge, she was advised to take some precautions at home and also advised to do exercise of the knees, which he failed to do so.
24. It was further argued by the learned Counsel for OP No.1 that for settling the knee to its position a period of 6 months to 1 year time requires in some cases. As the case of the Complainant relates to knee dislocation, we have made efforts to find out from medical literature regarding settling time required and noticed that in the case of Patella dislocation, 6 to 8 weeks' time is required for reaching to normal activities.
25. As the Complainant had got replaced her both knees and had raised dispute about the treatment of left knee replacement, having pain in the same, therefore, in our opinion, it cannot be said to be a case of medical negligence. From the documents/medical documents available on record, it is noticed that some kind of deficiency is there in the treatment of left knee, which had happened during the surgery but stand of OP No.1 was that this problem might have occurred due to hard blow to knee or due to falling of the Complainant. As the Complainant was a Senior Citizen and in the case of recovery, age factor had also played important role. The judgments relied upon by the District Commission are not disputed but First Appeal No. 216 of 2021 17 before declaring medical negligence against OP No.1, some factors requires to be considered thoroughly. It is settled law that no Doctor assure 100% success rate in the treatment. The issue of medical negligence of the Professional to be held liable for medical negligence was discussed by the Hon'ble Supreme Court in the case of "Dr. S.K. Jhunjhunwala vs Mrs. Dhanwanti Kumar", Civil Appeal No. 3971 of 2011, decided on 01.10.2018, and observed as under:-
the Hon'ble Supreme Court decided the issue of medical negligence when confronted with the legal question as to how and by which principle, the Court should decide on the issue of negligence of a doctor and hold him liable for medical negligence. It was held that a Doctor or Surgeon cannot assure and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100 % for the person operated on. The Hon'ble Supreme Court while allowing the Appeal held that a professional may be held liable for negligence on one of two findings: either they did not possess the requisite skills that they claimed to have, or they did not exercise, with reasonable competence in the given case, the skill which they did possess. The fact that a defendant charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. While referring to earlier judgment in the case of Jacob Mathew vs. State of Punjab (2005) 6 SCC 1, the Court held that the human body and its working is nothing less than a highly complex machine and a physician would not assure the patient of full recovery in every case. The only assurance that such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which they are practicing and while undertaking the performance of the task entrusted to them, they would be exercising their skill with reasonable competence.
26. No allegations were levelled by the Complainant with regard to the professional ability of the OP No.1, who was having MBBS MS (Ortho).
There was no allegations of the Complainant that said Doctor was neither possessing the above said qualification nor using the requisite skills of his medical field during the treatment because out of both knee replacements, problem had occurred only in left knee replacement, therefore, in such circumstances, said action of OP No.1 does not fall in the category of First Appeal No. 216 of 2021 18 medical negligence. Rather it may be some deficiency (deficit) occurred in the surgery of her left knee replacement or some instructions might not been followed by the Complainant. After both knee replacements, the Complainant had improved satisfactorily and was discharged from the Hospital in a stable condition as per the version of OPs No.1&2, which fact had not been denied by the Complainant herself. However, after sometime, some problem of pain had occurred in her left knee and the prescription slips of other Doctors had reflected that the left knee was not proper in angle. Therefore, certainly there was some problem in her left knee. The Hon'ble Supreme Court in the judgment of case titled as "Kusum Sharma and others versus Batra Hospital & Medical Research Centre & Others", 2010(3) SCC 480 had issued the guidelines to the effect that the following principles must be kept in mind while deciding whether the medical professional is guilty of negligence. It was mentioned under these guidelines that the medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. It was also held under these guidelines that medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. As out of two knee replacements, the problem had occurred only in one, therefore, in the present case it had not been proved on record that during the treatment the conduct of the OP No.1-Doctor was not upto the mark.
27. Further in the above judgment, it was held that it is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. Also held First Appeal No. 216 of 2021 19 that the medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The Complainant nowhere in the Complaint had levelled allegations on the qualification and experience of OP No.1. She had approached OP No.1 having belief on his competence.
28. From the record, it is clear that the Complainant had not provided the sufficient opportunity to the OP No.1 to do the needful in rectifying her problem and had moved to different Doctors one after the other in a day or two days span for her problem. In case any problem had occurred, the same could have been corrected by adopting required method. OPs No.1&2 in their reply had assured to provide the revised surgery, if found necessary, free of cost to the Complainant but she had failed to avail their services after 01.11.2016. Therefore, from the act of the Complainant it is noticeable that the Complainant had not followed the advices given by the OP No.1. This fact had been proved from the prescription slip dated 01.11.2016 wherein the Doctor had advised her for scan but there was no scan report of the Complainant on or after that date. Therefore, certainly to some extent it is noticeable that the Complainant had not followed all the instructions of the OP No.1 and was a fault on some count.
29. In view of the above discussion, we are of the opinion that the action of OP No.1 cannot be said to be a case of 'medical negligence', however, from the documents it is clear that the Complainant had suffered pain in left knee after knee replacement and had moved here and there for getting the relief from the said pain. Therefore, certainly, the Complainant is entitled for getting some relief and refund of the treatment amount. In our opinion, the impugned order requires affirmation to the extent of amount First Appeal No. 216 of 2021 20 awarded by the District Commission. However, with regard to the allegations of medical negligence, the same requires modification and the said problem be considered as 'deficiency' to some extent occurred during the treatment but not a case of medical negligence. Therefore, we hold that there was some deficiency in left knee replacement. The present Appeal (F.A. No. 216 of 2021) is partly allowed and the impugned order is modified only to the extent of above observation regarding medical negligence.
30. The Appellants had deposited a sum of Rs.1,60,000/- at the time of filing of the Appeal. Said amount, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. The Concerned Party may approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law. F.A. No. 295 of 2021
31. In the said Appeal, the Complainant had also prayed for refund of Rs.5,70,000/- spent during the treatment at Medanta Hospital and seeking enhancement of amount of compensation.
32. In view of detailed discussion as held in F.A. No. 216 of 2021, when the action of OP No.1 has not been considered as a case of 'medical negligence' rather it can be considered as "deficiency in the treatment", therefore, the prayer of the Complainant seeking refund of whole amount of the treatment, does not appear to be genuine. Out of total amount of Rs.3,00,000/- spent on treatment with OP No.1, when there was problem occurred in only one knee, therefore, the Complainant was entitled for refund of half of the treatment charges. However, for the treatment of said knee, she had approached different places and had spent more amount, First Appeal No. 216 of 2021 21 therefore, granting of full refund of treatment charges by the District Commission sounds reasonable to compensate the Complainant. Therefore, we are of the opinion that the amount awarded by the District Commission i.e. Rs.3,00,000/- and Rs.7,000/- are justified one to compensate the Complainant in all forms. Accordingly, there is no force in the argument for enhancement of compensation amount as already adequate amount had been granted by the District Commission to the Complainant in the given circumstances. As such, the present Appeal (F.A. No. 295 of 2021) is dismissed, being meritless.
33. Since the main case(s) has been disposed off, so all the pending Miscellaneous Applications, if any, are accordingly disposed off.
34. The Appeal(s) could not be decided within the statutory period due to heavy pendency of Court Cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (VISHAV KANT GARG) MEMBER December 08, 2025.
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