State Consumer Disputes Redressal Commission
Dr. Jai Gopal vs Arvind Kumar on 13 June, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND DEHRADUN
FIRST APPEAL NO. 145 / 2013
Dr. Jai Gopal (Radiologist and Imagine Specialist)
Prop. Kiran X-ray and Ultrasound
40 Civil Line, Roorkee
Between Roorkee Court and Petrol Pump
Pargana and Tehsil Roorkee, District Haridwar
......Appellant / Opposite Party
Versus
Sh. Arvind Kumar S/o Sh. Jai Pal Singh
R/o House No. 315, Ganeshpur, Roorkee
Post Khas, Pargana and Tehsil Roorkee, Haridwar
......Respondent / Complainant
Sh. T.S. Bindra, Learned Counsel for the Appellant
None for Respondent
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 13/06/2017
ORDER
(Per: Mr. D.K. Tyagi, Member):
This appeal has been filed under Section 15 of the Consumer Protection Act, 1986 arise out of the order dated 02.05.2013 passed by the District Forum, Haridwar in consumer complaint No. 37 of 2012. By the order impugned, the District Forum has allowed the consumer complaint and directed the opposite party to pay to the complainant a sum of Rs. 50,000/-, within one month from the date of order.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that X-ray of complainant's son named Ashwin was conducted in the opposite party's center named Kiran Digi-X-Rays & Ultrasound Clinic, Roorkee on the advice of Dr. A.K. Maulik on 13.05.2011. The opposite party had told the complainant that in the report, size of heart of complainant's son is 2 larger than normal. The opposite party advised to the complainant that he should go to higher center P.G.I. Chandigarh for treatment and also advised for Echocardiography. On the advice of opposite party, the complainant brought his son to the higher center P.G.I. Chandigarh for treatment and showed the X-ray report to the doctor of P.G.I. Chandigarh, then the doctor said that the Kiran Digi-X-Rays & Ultrasound Clinic, Roorkee had conducted wrong X-ray and advised him for X-ray again. Again X-ray and Echocardiography was conducted at Chandigarh and report was normal. Doctor of P.G.I. Chandigarh said that the report of Kiran Digi-X-Rays & Ultrasound Clinic, Roorkee was wrong and his son is healthy. The complainant come back to his home and met with the opposite party and asked about wrong X-ray and wrong report. Instead of giving answer, the opposite party and his staff members misbehaved with the complainant and throw away him from Kiran Digi-X-Rays & Ultrasound Clinic, Roorkee. The said act of the opposite party comes under deficiency in service. On 13.06.2011 the complainant sent a legal notice through his advocate to the opposite party, which was not replied by the opposite party. Alleging deficiency in service on the part of the opposite party, the complainant has filed a consumer complaint before the District Forum, Haridwar.
3. The opposite party-Dr. Jai Gopal Garg has filed his written statement before the District Forum and has pleaded that para Nos. 1 to 8 of the complaint are not admitted. In additional pleas, the answering opposite party has admitted that he conducted digital X-ray of complainant's son's chest on 13.05.2011 on the prescription of Dr. A.K. Maulik, Homeopath Doctor. The answering opposite party very carefully and efficiently conducted the X-ray of complainant's son and on the same date he prepared report of X-ray and handed over to the complainant. In the X-ray report, he suggested the complainant for ECG of heart of his son. The answering opposite party was competent to give such suggestion to the complainant. ECG is a very simple test, which is easily available in the town of Roorkee. The answering opposite party conducted X-ray of the chest of the son of the complainant with advanced X-ray machine with reasonable care. Name of the patient with date and 3 position of X-ray was written on the X-ray plate. It is wrong to say that the false report was given by the answering opposite party. The answering opposite party had never suggested for Echocardiography in the X-ray report. The answering opposite party has shown the actual condition in the X-ray report according to X-ray film. X-ray report is correct even today. The answering opposite party has pleaded that he is X-ray expert and doing this job for the last 36 years as expert. There is no animosity with the complainant or his son. He conducted X-ray and prepared X-ray report bonafidely. There is no carelessness or negligence in conducting X-ray. The complainant sent a legal notice dated 13.06.2011 through his advocate Sh. Amit Verma, which was replied by the answering opposite party on 27.06.2011. Reply of notice was served on the complainant, even then he filed a consumer complaint to harass the answering opposite party after eight months of X-ray. Therefore, consumer complaint is liable to be dismissed.
4. The District Forum, on an appreciation of the material on record, has allowed the consumer complaint, vide order dated 02.05.2013 in the above manner. Aggrieved by the said order, the opposite party-appellant has filed this appeal.
5. We have heard Sh. T.S. Bindra, learned counsel for the appellant and have also gone through the entire record of the District Forum and perused the material placed on record. None appeared on behalf of respondent.
6. Learned counsel for the appellant has submitted before this Commission that the District Forum has over looked the material available on record and has misconstrued the evidence and other material available on record. The complainant had failed to prove any negligence or deficiency in service on the part of the appellant. Appellant was not negligent in any manner and neither there was any deficiency in service on the part of the appellant. The appellant after seeing the X-ray of the patient had come to the conclusion that there was evidence of increased cardiac shadow seen in transverse diameter and which was suggestive of cardiomegaly and to rule out any dysfunction in the heart, 4 the appellant in due discharge of his professional duties had suggested the patient to undergo an E.C.G. test on 13.05.2011. The patient did not come back to the appellant after 13.05.2011 and no E.C.G. report was shown to the appellant. The complainant claims that his son had undergone a High Resolution Harmonic Echocardiography test on 18.05.2011, but this test was not suggested by the appellant. It appears that the complainant must have shown the patient Master Ashwin to some other doctor and it must have been on the advice of the said doctor that the patient was taken to Chandigarh for Echocardiography. There was no expert report available on record to establish that the findings and the conclusions given by the appellant were incorrect. Although the report given by the appellant and the findings arrived by him are correct, but even otherwise it is settled proposition of law that wrong diagnosis does not amount to deficiency. There was no justification for the District Forum to allow the complaint and the amount awarded by the Forum as compensation is also unjustified, exaggerated and exorbitant. The complaint filed by the complainant was frivolous, vexatious and without any merit. The District Forum has exercised its jurisdiction with material illegality and irregularity. The District Forum has not acted in accordance with the provisions of law and justice.
7. There is no dispute with regard to the fact that the complainant- respondent came to Kiran Digi-X-Rays & Ultrasound Clinic, Roorkee of opposite party-appellant Dr. Jai Gopal Garg, Radiologist & Sonologist for X- ray of his son's chest on 13.05.2011. It is also undisputed that the appellant conducted X-rays Chest, P.A. View, Erect Posture of Master Ashwani on 13.05.2011 and prepared X-ray report on the basis of X-ray film. There is also no dispute that on the basis of X-ray film, the appellant gave inference that there is evidence of increased cardiac shadow, i.e. Cardiomegaly and also suggested E.C.G. of heart of respondent's son. Now it is to be seen whether Dr. Jai Gopal Garg-appellant conducted a wrong X-ray and had given wrong X-ray report and also to be seen whether the appellant suggested E.C.G. of heart or Echocardiography of respondent's son. It is also to be seen whether there is any expert report available on the record to show that X-ray report as 5 well as wrong suggestion was given by the appellant comes under deficiency in service.
8. We have gone through the affidavit of Sh. Arvind Kumar-respondent (paper No. 11/1 on the District Forum's record) filed in evidence. In para No. 3 of the affidavit, respondent deposed that the appellant, after conducting X-ray, had suggested him to bring his son to higher center P.G.I. Chandigarh for the treatment of his son and also advised him for Echocardiography of heart of his son and on the advice of appellant-Dr. Jai Gopal Garg he brought his son to P.G.I. Chandigarh, where he showed X-ray report of Kiran Digi-X-Rays & Ultrasound Clinic, Roorkee, where doctor of P.G.I. Chandigarh after perusal of the X-ray report had suggested for another X-ray. In para No. 5 of the affidavit, respondent has deposed that on the suggestion of doctor of P.G.I. Chandigarh another X-ray as well as Echocardiography was conducted. The report of X-ray as well as Echocardiography was normal. In the affidavit, the deponent Sh. Arvind Kumar has also deposed that doctor of P.G.I. Chandigarh told that X-ray report as well as X-ray conducted by Dr. Jai Gopal Garg were wrong. From the perusal of the X-ray report and X-ray conducted at Kiran Digi-X-Rays & Ultrasound Clinic, Roorkee (paper No. 6/9 on the District Forum's record), we do not find any suggestion by the Radiologist-appellant for Echocardiography. It is a simply report in which doctor had written that in skiagram there is evidence of increased cardiac shadow seen in transverse diameter, hence, cardiomegaly. Doctor-appellant had suggested only E.C.G., which is easily available in the town of Roorkee. There is no suggestion or advice for conducting Echocardiography of the heart of son of the respondent or to take his son for higher center P.G.I. Chandigarh. This was a simple advice and suggestion that as increased cardiac shadow was seen in the X-ray film, therefore, to verify any abnormality in the heart, he suggested a simple test of E.C.G., but instead of E.C.G. respondent went to P.G.I. Chandigarh for treatment, where another X-ray as well as Echocardiography was conducted. It was not necessary according to the appellant, as he did not suggest for such type of test. Appellant-Dr. Jai Gopal Garg is a senior Radiologist & Sonologist and is having 36 years of experience in X-ray and ultrasound. He did not give 6 any treatment to the son of the respondent. No medicine or surgery was administered to the patient by the appellant. He simply conducted X-ray of the chest of the patient and gave his X-ray report on the basis of X-ray film and suggested merely an E.C.G. to verify any abnormality in the heart of patient. Respondent has failed to adduce any expert evidence to show that the report of Dr. Jai Gopal Garg was wrong.
9. In the case of Martin F. D'souza vs. Mohd. Ishfaq; 2009 (74) ALR 802 (SC), the Hon'ble Apex Court has held that like all professionals doctors too can make errors of judgment - If punished for this, no doctor can practice his vocation with equanimity. Medical practitioner not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.
10. In the case of Mrs. Indira Kartha & Ors. vs. Dr. Mathew Samuel Kalarickal & Anr.; I (2006) CPJ 62 (NC), the Hon'ble National Commission has observed that the complainants have not been able to produce any expert evidence in support of their allegations, nor have they referred to any standard book on medicines. Burden of proving that Dr. Mathew was negligent rests with the complainant and it is not for Dr. Mathew to show that he was not negligent. In the other case of Smt. Vimlesh Dixit vs. Dr. R.K. Singhal; I (2004) CPJ 123, it was held that unless it is proved by reliable evidence and supported by expert evidence, case of negligence is not made out.
11. For the reasons aforesaid, we are of the view that the District Forum has not properly considered the facts and circumstances of the case and has not passed a reasoned order. There is illegality on the part of the District Forum. The District Forum has overlooked the X-ray report given by the appellant- Dr. Jai Gopal Garg that there was evidence of increased cardiac shadow and to rule out any dysfunction in the heart the appellant in due discharge of his professional duties had suggested the patient to undergo an E.C.G. test. In 7 these circumstances, the appeal deserves to be allowed and the consumer complaint is liable to be dismissed.
12. In view of the above, the appeal is allowed. Impugned judgment and order dated 02.05.2013 passed by the District Forum, Haridwar is set aside and the consumer complaint No. 37 of 2012 is hereby dismissed. No order as to costs. The amount deposited by the appellant be released in appellant's favour.
(MRS. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.S. VERMA)