State Consumer Disputes Redressal Commission
New India Assurance Company Ltd, ... vs 1.Shingara Singh Son Of Shri Maggar ... on 16 May, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,
PANCHKULA
First
Appeal No.702, 1592, 1820 of 2006
Date
of Institution: 10.03.2006:26.6.2006:24.07.2006
Date of Decision: 16.05.2012
Appeal No.702 of
2006
New India
Assurance Company Ltd, Regional Office, SCO 36-37, Sector 17-A, Chandigarh.
Appellant
(OP-2)
Versus
Shingara Singh son of Shri Maggar Singh, Resident of Village
Guledwa Tehsil Pehowa District Kurukshetra.
Respondent
(Complainant)
Dr. Kulbhushan Jain, Jain Nursing Home and Clinical Laboratory Kurukshetra Road,
Pehowa, Main Chowk Pehowa Tehsil and District Kurukshetra.
Respondent (OP-1)
For the
Parties: Shri R.K. Sharma, Advocate for appellant.
Shri Rakesh
Gupta, Advocate for respondent No.1.
Shri Jaswant
Jain Advocate for respondent No.2.
Appeal No.1592
of 2006
Dr. Kulbhushan
Jain, Jain Nursing Home and Clinical Laboratory
Kurukshetra Road, Pehowa, Main Chowk Pehowa Tehsil
and District Kurukshetra
Appellant
(OP-1)
Versus
Shingara Singh son of Shri Maggar Singh, Resident of Village
Guledwa Tehsil Pehowa District Kurukshetra.
Respondent
(Complainant)
New India Assurance Company Ltd, Regional Office, SCO 36-37,
Sector 17-A, Chandigarh.
Respondent (OP-2)
For the Parties: Shri
Jaswant Jain, Advocate for appellant.
Shri Rakesh
Gupta, Advocate for respondent No.1.
Shri R.K.
Sharma Advocate for respondent No.2.
Appeal No.1820
of 2006
Shingara Singh
son of Shri Maggar Singh, Resident of Village Guledwa Tehsil Pehowa District
Kurukshetra
Appellant
(Complainant)
Versus
Dr. Kulbhushan Jain, Jain Nursing Home and Clinical Laboratory Kurukshetra Road,
Pehowa, Main Chowk Pehowa Tehsil and District Kurukshetra.
New India Assurance Company Ltd, Regional Office, SCO 36-37,
Sector 17-A, Chandigarh.
Respondents (OPs)
For the
Parties: Shri Rakesh Gupta, Advocate for appellant.
Shri Jaswant
Jain, Advocate for respondent No.1.
Shri R.K.
Sharma Advocate for respondent No.2.
BEFORE:
Honble Mr.
Justice R.S. Madan, President.
Mr. B.M.
Bedi, Judicial Member.
O R D E R
Justice R.S. Madan, President:
These three appeals bearing nos.702,1592 and 1820 of 2006 have arisen out of the order dated 19.01.2006 passed by District Consumer Forum, Kurukshetra in complaint No.12/2003, therefore, we proceed to decide all these appeals vide this common judgment/order.
There is delay of 128 days in filing of appeal no.1592 and delay of 151 days in filing of appeal no.1810. Since all these appeals are being disposed of together vide common order, therefore, the delay in filing of these two appeals no.1592 and 1810 is condoned in the interest of justice.
The case of the complainant before the District Consumer Forum was as under:-
The complainant was suffering from kidney problem due to developing of stones in the kidney i.e. renal area of right side. The complainant was admitted in the hospital of the opposite party no.1 on 22.5.2002 for treatment and operation and remained admitted upto 29.05.2002.
Three doctors i.e. Dr.Y.R. Sarmal, Shah Hospital, Kaithal, Dr. Saraswati Mission Hospital, Pehowa and Dr. Nalin Sharma, M.D. OF Modern Diagnostics, Kaithal had given reports dated 07.09.2000, 20.05.2002 and 21.05.2002 respectively, the complainant was suffering of pain at right renal side and the above said reports were shown to the opposite party no.1. All the reports showed calculus in pelvic of right kidney. Dr. Kulbhushan Jain, after seeing the reports, admitted the complainant in his hospital and operation of right side kidney of complainant was conducted by the opposite party no.1 to remove the calculus/stones from pelvic of right kidney on 23.05.2002.
The grievance of the complainant is that Dr. Kulbhushan Jain (OP no.1) removed the right side kidney of complainant without the consent of the complainant and without any reason despite the fact that his kidney was working properly and he was in good health with respect to the functioning of his kidney and there was no need to remove the kidney. Complainant further alleged that even after removal of his kidney, his pain did not subside and he was suffering with the same problem from which he was suffering prior to conducting the operation by the opposite party no.1. The complainant was charged Rs.30,000/- for the above said operation. After coming to know about the wrong operation, the complainant served the treating doctor with legal notice demanding compensation of rupees five lacs as damages as the complainant was departed with an organ without his consent. Complainant got X-rayed and ultrasound at Alfa Radiological Centre at Patiala on 4.7.2002 which showed that there was a Radio-Opaque Shadow in right renal area i.e. calculus. The complainant again got X-ray from LNJP Hospital Kurukshetra on 26.08.2002 which also showed that there was a calculus in right renal area. Thus, the opposite party no.1 operated the complainant negligently without care and caution and failed to remove the calculus and instead the doctor removed the right side kidney of the complainant. Thus, alleging medical negligence and deficiency in service on the part of the opposite party no.1, the complainant invoked the jurisdiction of the District Consumer Forum seeking direction to the opposite parties to pay compensation of rupees five lacs as damages and loss for treatment expenses, removal of kidney, pain and suffering expenses charges for operation with interest.
Upon notice, the opposite parties appeared and contested the complaint. Opposite Party no.1 in his written statement denied the version of the complainant and stated that as per the reports mentioned in para no.2 of the complaint, the kidney of the complainant was enlarged and dilated and its functioning was poor. He further stated that before the operation, the kidney was not functioning properly and this fact was also disclosed by Dr. Y.R. Sarmal Shah and Dr. Saraswati. It was denied that the consent of the complainant was not taken before conducting the operation of the complainant, rather, it was stated that the opposite party got consent of complainant to conduct the operation and the opposite party had told to the complainant and his attendants that the kidney of right side of the complainant was not functioning properly, as per the reports mentioned above. It was further disclosed to the complainant and his attendants that the exact position of the calculus and kidney was to be seen at the time of operation. However, during the operation of the complainant, it was disclosed to the attendants of the complainant that the kidney of the complainant was not functioning and there was no stone in the kidney and the other kidney i.e. left side kidney was functioning properly and for that reason the attendants of the complainant were advised for removal of the right side kidney. Thus, after taking consent of the attendants of the complainant, the right side kidney of the complainant was removed and the same was handed over to the patient and his attendants to get the same tested if they desired. Thus, the opposite party no.1 denied any kind of medical negligence and deficiency in service on his part for removing the kidney of the complainant which according to the opposite party no.1 was removed with the consent of the complainant as well as his attendants.
It was further stated that the complainant was also operated from Medical College Kanpur about twenty years back for right kidney calculus and his kidney was enlarged and it was functioning poorly. Due to the damage of the kidney, the complainant was suffering from pain. Though the kidney was handed over to the complainant/his attendants, but they did not get tested the same as per the advice of the opposite party no.1. At the time of operation, the kidney was found enlarged and it was full of pus and upper uriten was fibrosed. It was stated that the complainant was charged Rs.7,000/- only for the operation including expenses of medicines and fee of operation and the fee for stay in the hospital and for anesthesia and denied the charging of rupees thirty thousands. Thus, denying any kind of medical negligence and deficiency in service on his part, the opposite party no.1 prayed for dismissal of the complaint.
Opposite Party no.2 in its written statement stated that the complaint was not maintainable before the Consumer Forum as complicated question of law and facts is involved in this case. It was further stated that the complaint was filed to extort money from the Insurance Company because neither the complainant nor the treating doctor had informed the Insurance Company about the admission of the complainant in the hospital and the operation of the complainant.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Consumer Forum, accepted complaint and granted following relief:-
.we accept the complaint and direct the Ops to pay a sum of Rs.two lacs ac compensation for removal of kidney and Rs.5000/- as expenses incurred by complainant on treatment with interest @ 9% per annum from the date of filing the present complaint i.e. 20.1.2003 till realization. Ops are further directed to pay Rs.2000/- as litigation expenses. This order be complied within a period of 30 days from the date of preparation of copy of this order, failing which the penal action under Section 27 of Consumer Protection Act will be taken.
Aggrieved against the order of the District Consumer Forum, the opposite party no.1 Dr. K.B. Jain has filed appeal no.1592/2006 and opposite party no.2 The New India Assurance Company Ltd filed appeal no.702/2006 for setting aside the impugned order whereas the complainant has filed appeal no.1820/2006 for enhancement of compensation.
We have heard learned counsel for the parties and perused the case file.
It is admitted case of the parties that the complainant was operated by Dr. K.B. Jain, on account of stones in the kidney i.e. renal area of right side of the complainant and his right side kidney was removed by way of operation. It is the case of the complainant that his kidney was functioning properly and he was only suffering from pain due to stone but the opposite party no.1 Dr. K.B. Jaian removed his kidney without his consent as well as the consent of his attendants when he was admitted in the hospital of the opposite party no.1 and his operation was conducted by the opposite party no.1 on 23.05.2002.
On the other hand Dr. K.B. Jain has taken the plea that as per the reports mentioned in para no.2 of the complaint, the kidney of the complainant was enlarged and dilated and its functioning was poor and for that reason the kidney was not functioning properly and the kidney was removed with the consent of the complainant as well as his attendants for better life of the complainant in future.
In order to arrive at a net conclusion, we feel that the District Consumer Forum has recorded a well reasoned finding in the impugned order, the relevant part of which is reproduced as under:-
6. We have heard Ld.counsel for the parties and have gone through the record available on file carefully. On perusal of report dated 20.5.2002 Ex.C-4, it is clear that right kidney with hydronephrosis with size of 16 m x 8 mm in Pelvis advised IVP and another report of Dr. Nalin Sharma, Modern Diagnostics dated 21.5.2002 proves that calculus in right renal area. OP-1 on perusal of these reports conducted the operation of complainant. The only defence of OP1 is that kidney was removed after perusal of reports mentioned in para-2 of complaint i.e. report dt.20.5.2002 and dt.21.5.2002 given by different doctors.
The only defence of OP-1 is that both these reports clearly shown that the kidney was enlarged and functioning of kidney was poor, therefore, it was not functioning properly before operation. On perusal of report of Dr. Y.R. Sarmal, Radiologist Dt.7.9.2000 Ex.C-5 and report of Saraswati Mission Hospital dated 20.5.2002 Ex.C-4 and report dt.21.5.2002 Ex.C-7 of Dr. Nalin Sharma, there is no such detail as mentioned by OP-1, none of report provides that the kidney enlarged and non functioning of kidney. Report dated 21.5.2002 of Dr. Nalin Sharma provides that X-ray KUB. A.R.O. Calculus seen in right renal area. Are like calaficahon seen over left facral ala. IVP prompt excretion and good. Concentration of contrast seen in left kidney. Slight stretches of upper and middle calycus area. X/o hydronephrosis or hydrouretor visible. Delayed appearance of contrast seen in right kidney. Grade-II-III hydronephroles calculus is in pelvis of right kidney. Right ureter not followed, remaining bladder normal. Imp. Right Renal Calculus. This report does not provide any enlargement of Kidney or non-functioning of kidney. Moreover, the report Ex.C-4 Dt.20.5.2002 advised IVP. OP-1 has not got done IVP before operation.
7. The other defence of OP-1 is that the Kidney was removed after getting consent from complainant and his attendants and the Kidney was removed with a view to save the complainant from other problems. Complainant has placed on record a lot of documents from the very beginning uptill last. The report dated 7.9.2000 of Shah Hospital provides that Right kidney shows moderate hydroncphrosis in pelvis. A 32x8 MM size calculus is seen at pelvis renal of right kidney. Report dated 20.5.2002 of Saraswati Mission Hospital and report dated 21.5.2002 of Dr. Nalin Sharma also show the presence of calculus in right kidney. The defence of Op-1 is that there was no calculus in kidney when he opened it for operation, rather it was found enlarged kidney and the kidney was full of push and upper unten was fibrosed and this condition of kidney was explained to the complainant and his attendants and the consent of complainant and his attendants was taken before removal of kidney and thereafter the operation of complainant was conducted. OP-1 alleged that the kidney was enlarged and it was not functioning properly before operation, then it was the duty of OP-1 to prove that the consent of complainant and his attendants has been taken, but OP-1 to prove his contention has not placed on record any consent letter obtained from complainant or his attendants. Whereas, the complainant in his affidavit has clearly stated that the kidney has been removed by OP-1 without his consent. He also placed on record the report dated 4.7.2002 of Alfa Radiological Centre which provides that A radio Opaque shadow is seen in right renal area Calculus. On 26.8.2002 he was again X-rayed by LNJP Hospital Kurukshetra and referred to PGI, Chandigarh for I.V.P. Report and after investigation of IVP, it is clear that Right kidney not visualized only R.O. Shadow is present in the renal fosses. Right kidney ahrent in fossa. Report of PGI dt.29.1.2004 provides that right kidney is not visualized eve in delayed film. Irunary bladder is normal in outline and capacity when no significant residual urine sees post void Right nonvisualized kidney radioloopaque shedow right renal fossa. On perusal of this report, it is clear that radioopaque shadow in right renal fossa. OP-1 Dr. Kul Bhushan Jain has not rebutted the averment of complainant as well as the evidence placed on record by complainant. The discharge slip issued by Op-1 also does not depict the real picture and no enlarged kidney has been mentioned in this discharge card. Complainant in support of his contention has placed on record the affidavit of his son Angrej Singh who stated that he was attendant of his father at the time of treatment from OP-1 i.e. from 22.5.2002 to 29.5.2002 and he also stated that during operation, OP-1 got his signature by saying that the operation to remove calculus is being done and there is a need to fulfill the formalities for operation. OP-1 has not disclosed the removal of kidney of his father and he never gave consent to remove the kidney of his father. Doctor never told that the kidney of his father has been removed he only told that the stones/calculus has been removed nor any kidney was handed over to him. OP-1 has not placed on record his own affidavit to rebut the averment of complainant nor any other document as like consent letter obtained from complainant or his attendant nor any treatment detail or medical literature has been placed on record, which proves that the averment of complainant and evidence placed on record by complainant are un-rebutted. Consent letter and other documents were in possession of OP-1, the adverse inference goes against Op-1 for non production of any document.
8. During pendency of complaint an application dated 10.9.2003 was filed by complainant to get report regarding health of complainant and for report regarding right kidney and calculus. A board of doctors of JNJP Hospital checked the complainant and submitted a report dated 7.1.2004. This report dt.7.1.2004 issued by board of doctors of JNJP Hospital provides that the complainant referred to PGI on 4.12.2003 for further investigation. As per report of investigations, he is having right renal calculus. IVP is to be done there. After IVP report final report will be given. Thereafter, final report dated 29.1.2004 Ex.C-18 was prepared by Radiology Deptt, PGI Chandigarh and thereafter the board of doctors vide report dated 13.2.2004 Ex.C-17 stated that after seeing the report of IVP from PGI Chandigarh dated 29.1.2004. Right Kidney not visualized. Only R.O. Shadow is present in the renal fossa. Right Kidney absent, Report dated 29.1.2004 provides that Right nonvisualised kidney. Radioopaque shadow in right renal fossa. Thereafter, during course of arguments it was noticed that report dated 7.1.2004 required some clarification, then Dr. Sailinder Sharma was summoned, but before the date of summoning Ld. Counsel for Op-1 submitted an application for summoning some other doctor instead of Dr. Sailender Sharma. Thereafter, other two doctors of this report i.e. Dr. G.D. Mittal and Dr. J.C. Grover were summoned for 12.1.2006. On 12.1.2006 Dr. G.D. Mittal appeared and submitted application for exemption of Dr. J.C. Grover as he is busy in family planning camp. Dr. G.D. Mittal explained the report dated 7.1.2004, according to which, the patient was referred to PGI and on report dated 29.1.2004 of PGI, the report dated 13.2.2004 has been submitted and after seeing the report dated 29.1.2004 he started that Intra Venus paleography from PGI Chandigarh dated 29.1.2004, the right kidney not visualizes only radio opaque shedow is present in the right renal fossa. Operation was conducted on 23.5.2002 and he was discharged on 29.5.2002. Thereafter, as per clinical Lab report of Op1 Ex.C-1 12, the urine of complainant was checked and no further examination was conducted. The discharge card provides some date i.e. 11.6.2002 and prescribed some medicine. No further investigation has been conducted by OP-1. Thereafter, complainant approached to Dr. Sandeep Garg. Alfa Radiological Centre. Patiala and report dated 7.4.2002 Ex.C-8 provides that a radio opaque shadow is seen in right renal area- Calculus. No soft tissue mass/calcification. Another report of the same doctor ex.C-9 provides that Right renal fossa is empty-History of Surgery and further provides Impression: U.S.G. findings reveal an empty right renal fossa. On perusal of these reports, it is clear that complainant had some calculus in right kidney before conducting operation by Op-1 and after the operation there is radio opaque shadow seen in right renal area on 7.4.2002. Complainant when got IVP test from PGI Chandigarh, the report reveals that radio opaque shadow in right renal area is present. Whole these reports provide that complainant has some problem in right renal fossa after operation also. OP-1 has not placed on record any medical literature or any evidence in support of his contention and he conducted the operation without getting IVP test as advised by Saraswati Mission Hospital vide report dated 20.5.2002 Ex.C-4. OP-1 removed the kidney of complainant without obtaining consent from complainant or his attendant and no evidence to rebut the evidence of complainant has been placed on record by OP-1.
After having considered the facts and circumstances of the case, we find that surgery was performed by the opposite party no.1 but inspite of the surgery, the pain in the stomach of the complainant could not be subsided and faced with the situation, the complainant got himself checked up from the other doctors from where he came to know that during the surgery, the opposite party no.1 had removed the right side kidney of the complainant. It has also on the record that the stone which was in the pelvis region of the complainant, was still there. The act and conduct of the treating doctor opposite party no.1 reveals that he had removed the kidney of the complainant to sell the same to somebody else for consideration. The intention of the opposite party no.1 was that the complainant is an old rustic villager of 70 years and he might live for 2-3 years and the removal of his kidney would not be noticed by any one. Opposite Party no.1 has miserably failed to prove that the right side kidney of the complainant was not functioning and further has failed to established on the record that any consent was given by the complainant or his attendants for removal of the kidney of the complainant. The role of the doctor in the instant case has given a bad name to the profession. Learned counsel appearing on behalf of the opposite party Shri Jaswant Jain has only submitted that the appellant is his brother and he is a renowned surgeon in the State of Haryana with respect to these type of operations and he cannot commit any such act or medical negligence, as alleged by the complainant. But the evidence produced by the complainant remained un-rebutted on the record. The treating doctor has miserably failed to defend his case whereas the complainant has been able to prove the guilt of the opposite party no.1 as stated by him in the complaint. Thus, we have no other option but to hold that the District Consumer Forum has rightly held the opposite party no.1 guilty of medical negligence while conducting operation of the complainant and for removing the right side kidney of the complainant without consent of the complainant or his attendants. Hence, the appeal filed by Dr. Kulbhushan Jain (opposite party no.1) is dismissed.
So far as the liability of the appellant-Opposite Party no.2 (The New India Assurance Company Ltd) is concerned, keeping in view the act and conduct of the treating doctor, the Insurance Company cannot be held liable to part with the compensation awarded to the complainant because it is not a case of only medical negligence but is a case of such an act on the part of the treating doctor which is against the law. The treating doctor cannot deprive the patient of his limb unless it is consent and is for the betterment of the patient to save his life. Such types of cases are increasing these days when the culprit doctors are in the race of earning more money by adopting such like illegal measures. The doctor Opposite Party no.1 was insured with the Insurance Company for medical profession and not for such like sin acts. Hence, the liability of The New India Assurance Company Ltd (opposite party no.2) is set aside and accordingly the appeal no.1810/2006 filed by The New India Assurance Company Ltd (opposite party no.2) is accepted complaint against it is dismissed in view of exclusion clause of the Insurance Policy, which reads as under:-
7. EXCLUSIONS
1.
No liability shall attach to the Company in respect of
(i) any criminal act or any act committed in violation of any law or ordinance xxxxxxxxxxxx So far as the appeal filed by the complainant for enhancement of compensation is concerned, under the facts and circumstances of the case, we feel that the complainant has lost important organ of his body which cannot be compensated by way of money nor any amount of compensation can bring back his physical frame to its original position. It is a case in which the doctor has acted in a most inhuman manner by depriving the complainant of his right to use his right side kidney without his consent. We are surprised why the criminal case has not been registered against the doctor so far. In case it is registered, the doctor would be dealt in accordance with law. Doctor-opposite party No.1 cannot escape his liability to pay more compensation to the complainant Singara Singh. Therefore, we enhance the compensation from rupees two lacs to rupees five lacs alongwith interest @ 12% per annum from the date of conducting operation till realization. The cost of litigation is quantified at Rs.11,000/-.
The statutory amount of Rs.25,000/- each deposited at the time of filing of the appeals no.702/2006 and 1592/2006 be refunded to the respective appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
The original judgment/order be attached with appeal no.1810/2006 and certified copies be attached with appeal Nos.702/2006 and 1592/2006.
The summoned record of the District Forum be sent back forthwith.
Announced: Justice R.S. Madan 16.05.2012 President B.M. Bedi Judicial Member