State Consumer Disputes Redressal Commission
Fortis Hospital & Anr. vs Karthik Goel & Ors. on 22 December, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1466 of 2013
Date of institution: 31.12.2013
Date of Decision: 22.12.2015
1. Fortis Hospital, Sector 62, Mohali, Phase VIII, Tehsil & District SAS
Nagar (Mohali) through its Managing Director.
2. Dr. Anant Joshi, Specialist Orthopedic, Fortis Hospital, Mohali,
Phase VIII, Tehsil & District SAS Nagar, Mohali.
Appellants/Op Nos. 1 & 3
Versus
1. Kartik Goel S/o Prem Goel, Resident of H. No. 203, Indrabashi, Near
Satpal Nursing Home Sunam, District Sangrur, presently residing at
H. No. 609, 1st Floor, Sector 33-B, Chandigarh.
Respondent No.1/Complainant
2. The New India Assurance Company Ltd., Branch Office, 353503,
Opp. Madhu Palace, Jagadhari Road, Yamunanagar 135 001,
Haryana, through its Divisional Manager/Branch Manager.
3. The Oriental Insurance Company Ltd., Branch Office No. 12, 3rd
Floor, Above LIC Building, M.G. Road Fort, Mumbai 400 001 through
its Divisional Manager/Branch Manager.
4. Dr. Manuj Wadhawan, Specialist Orthopedic, Fortis Hospital, Mohali,
Phase-VIII, Mohali now Director & Head, Department of
Orthopaedics & Joint Replacement, Max Hospital, Phase 6 (Near
Civil Hospital), Mohali, Punjab.
Respondent Nos. 2 to 4/Op Nos. 2, 4 & 5
First Appeal against the order dated 12.8.2013
passed by the District Consumer Disputes
Redressal Forum, SAS Nagar (Mohali).
First Appeal No. 1466 of 2013 2
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Munish Kapila, Advocate
For respondent No.1 : Sh. Y.S. Dhillon, Advocate
For respondent No.2 : Sh. Vinod Gupta, Advocate
For respondent No.3 : Ex.-parte.
For respondent No.4 : None.
2nd Appeal
First Appeal No. 1295 of 2013
Date of institution: 26.11.2013
New India Assurance Company Ltd., Branch Office, 353503, Opp. Madhu
Palace, Jagadhari Road, Yamunanagar, Haryana, Haryana, through its
duly Authorised Officer, Sector 17/A, Chandigarh.
Appellant/Op No. 4
Versus
1. Kartik Goel S/o Prem Goel, Resident of H. No. 203, Indrabashi, Near
Satpal Nursing Home Sunam, District Sangrur, presently residing at
H. No. 609, 1st Floor, Sector 33-B, Chandigarh.
Respondent No.1/Complainant
2. Fortis Hospital, Sector 62, Mohali, Phase VIII, Mohali through its
Managing Director.
3. Dr. Manuj Wadhawan, Specialist Orthopedic, Fortis Hospital, Mohali,
Phase-VIII, Mohali
4. Dr. Anant Joshi, Specialist Orthopedic, Fortis Hospital, Mohali,
Phase-VIII, Mohali.
5. The Oriental Insurance Company Ltd., Branch Office No. 12, 3rd
Floor, Above LIC Building, M.G. Road Fort, Mumbai 400 001 through
its Divisional Manager/Branch Manager.
Respondent Nos. 2 to 6/Op Nos. 1 to 3 & 5
First Appeal No. 1466 of 2013 3
First Appeal against the order dated 12.8.2013
passed by the District Consumer Disputes
Redressal Forum, SAS Nagar (Mohali).
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Vinod Gupta, Advocate
For respondent No.1 : None.
For respondent Nos.2&4 : Sh. Munish Kapila, Advocate
For respondent No.3 : None.
For respondent No.5 : Ex.-parte
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
This order will dispose of both the above mentioned two appeals as both the appeals are arising out of the impugned order dated 12.8.2013 passed in Consumer Complaint No. 178 dated 9.5.2012 by the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (in short the "District Forum") vide which the complaint filed by the complainant was allowed with a direction to Ops to pay compensation of Rs. 3,00,000/- for mental agony and harassment and Rs. 25,000/- towards the cost of litigation. It was further ordered to comply with the order within one month.
2. Complainant filed complaint against Ops under Sections 12 to 14 of the Consumer Protection Act, 1986 (in short 'the Act') on the averments that the complainant felt pain in his left knee and for First Appeal No. 1466 of 2013 4 check up he had approached Op No. 1 and he was referred to Op No. 2, who after check up told that there was serious problem of left ACL of knee and advised him for proper treatment by way of surgery, which will be conducted by the special Doctor of Mumbai Branch, namely, Dr. Anant Joshi Op No. 3. He was further intimated that he will visit Op No. 1 on 12.8.2010. On 28.7.2010, complainant sent an email to Op No. 1 to confirm the charges of ACL and Op No. 2 replied through email on 29.7.2010, intimated the charges as Rs. 88,000/-. On 12.8.2010, complainant booked an appointment after paying a sum of Rs. 1,000/- vide receipt No. 00258779 dated 12.8.2010 and he was advised to come empty stomach on 14.8.2010 at 12.00 noon. On 14.8.2010, the complainant had gone to Op No. 1 as per their directions. A sum of Rs. 88,000/- was deposited vide receipt No. FHM/10-11/Dp/14052 dated 14.8.2010. He was admitted in Room No. 129-A and UHID No. 00258779 but upto 10.30 a.m. nobody had approached the complainant. Father of the complainant had a talk with Op No. 3 about the exact timing but Op No. 3 disclosed that name of the patient Kartik was not in the list. Thereafter, immediately he approached the authorities of Op No. 1 and he was taken for operation at about 1.00 p.m.. Op No. 3 started operation but after a few minutes, Op No. 3 stopped the operation in between and told the complainant that there is also problem of PCL with ACL and he asked Op No. 3 to operate for PCL with ACL also. But Op No. 3 stated to the family members that he is in hurry and operation of PCL will take a long time and advised the complainant that in case the complainant wanted ACL and PCL surgery then he should come to Mumbai after First Appeal No. 1466 of 2013 5 taking prior appointment as there was lack of equipment and surgeon with Op No. 1. Complainant was shifted to Room No. 126/A and on the next morning he was discharged. Complainant suffered huge pain due to incomplete surgery. He again approached Op through email with a request to refund his money deposited by the complainant for his surgery. However, a sum of Rs. 48,590/- was refunded vide cheque No. 319985 dated 2.9.2010 and a sum of Rs. 39,410/- was illegally retained by Ops. Vide email dated 3.9.2010, complainant was asked that he should deposit Rs. 2,50,000/- as Op No. 3 was coming next week and the operation will be done. Then the complainant approached Kokilaben Dhirubhai Ambani Hospital and Research Institute, Mumbai and got himself operated from there. He remained admitted there for 7 days, where the Doctor disclosed that due to his previous incomplete surgery, he was suffering a lot. Act of Ops amounted to deficiency in their services as the operation was left in between. Accordingly, the complaint was filed with a direction to Ops to pay a sum of Rs. 4,00,000/- on account of physical pain, torture, loss of study and future aspects, medical expenses and transport expenses and Rs. 21,000/- as litigation expenses.
3. Op Nos. 1 to 3 in their joint reply took the preliminary objections that the complaint was hopelessly mis-conceived, unwarranted and not maintainable as there was no negligence on the part of Ops or deficiency in service rendered by them to the complainant; complaint was fragrant abuse of process of law filed just to harass, malign and blackmail Ops; the complaint was false, frivolous and vexatious, therefore, liable to be dismissed on that First Appeal No. 1466 of 2013 6 ground that there was no expert evidence to prove that there was any lapse on the part of Ops; complaint was bad for non-joinder of necessary parties i.e. Kokilaben Dhirubhai Ambani Hospital and Research Institute, Mumbai; complainant had not approached the Forum with clean hands and had concealed the material facts. In fact the complainant was called for ACL surgery alone and when Arthroscopy was done, PCL were also found damaged, therefore, surgery was not completed. Ligaments in the knee were called Anterior Cruciate (ACL) and Posterior Cruciate (PCL) and injury to these ligaments can cause loss of joint stability, excessive and abnormal side to side or forward and backward motion repeated damage to other internal structures of the joint, disturbance of normal joint movement and early wear and tear of the joint. MRI is definitely helpful in adding or confirming of clinical diagnosis but it has its own limitations. Whereas Arthroscopy allowed a more complete and precise diagnosis, picking up damage that may not have been suspected. The Surgeon could view all tissue inside the knee and it is helpful for precise diagnosis and it is most superior diagnosis. During clinical examination, the complainant was suspected to have ACL tear only. MRI of the knee indicated chronic sprain of the ACL with suspicion of lateral meniscus injury. There was no mention of injury to the PCL or laxity of capsular structures. During the course of Arthroscopy by Op No. 3, it revealed that there was a large bucket handle tear of the lateral meniscus, which was chronic stucking between the centre of the joint, explaining why clinical tests were not able to detect the complexity of the problem. In addition, it also First Appeal No. 1466 of 2013 7 revealed torn PCL, which was more serious injury. In such like eventuality, patient like complainant had to be first counselled about the outcome of multi ligament reconstructive procedures and prior consent to operate non-involved extremity was not obtained prior to surgery. Accordingly, CD was handed over to the patient in addition to illustrated record of the intra-operative findings and surgical procedure performed. Op No. 3's contact details and email address was also clearly mentioned on this booklet. After complainant's surgery, complainant never contacted Orthopaedic Surgeons at Fortis Hospital nor Op No. 3. In the Dhirubhai Ambani Hospital and Research Institute, Mumbai; the complainant had undergone left knee arthroscopic posterior cruciate ligament reconstruction + anterior cruciate ligament reconstruction + partial medial meniscectomy done under G.A. on 7.12.2010, therefore, medically and legally correct procedure was adopted to deal with the situation according to the skill possessed by Ops. In case the complainant was alleging any case of medical negligence, he will have to give specific instances of the act of omission and commission on the part of the Doctor and hospital. Hon'ble Supreme Court time and again has held that a medical professional is to exercise a requisite degree of skill and knowledge and reasonable degree of care and that procedure was followed by Op No. 3. Op No. 3 is a graduate and post graduate from University of Mumbai and is qualified Orthopaedic Surgeon, who completed his Post Graduate Degree in 1982 to 1984. He completed Master's Degree in Sports Science from United States Sports Academy. He is practising Arthroscopic surgery since then and kept himself abreast First Appeal No. 1466 of 2013 8 with newer trends by visiting specialized centres. He has his own private clinic in Mumbai since 1986 and is Consultant to Bombay Hospital, Dr. B. Nanavati, Lilavati & Shushrusha Citizen's Co-op. Hospitals and has been operating in various cities in India like Srinagar, Guwahati, Kolkata, Rajkot etc.. On merits, the averments taken in the preliminary objections were reiterated. It was reiterated that the complainant was admitted for surgery for ACL but during arthroscopy, his PCL was also found damaged and both were required to be operated. Accordingly, the surgery of ACL was not completed. After that the complainant had neither approached Orthopaedic Surgeon at Mohali nor Op No. 3 at Mumbai. There was no deficiency in services or any negligence in the procedure adopted by Op No. 3. Complaint was filed just to harass and to extract monetary gain from Ops. Complaint was without merit and it be dismissed.
4. Op No. 4 in its written reply denied the averments of the complaint. It was submitted that the complaint was without merit and it be dismissed.
5. Parties tendered their respective evidence in support of their contentions.
6. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. CW-1/1, bill/receipt Ex. C-1, Doctors notes Ex. C-2, receipt Ex. C-3, discharge summary Ex. C-4, email Exs. C-5 to 11, bills Exs. C-12&13, Kokilaben Dhirubhai Ambani Hospital report Ex. C-14, MRI left knee Ex. C-15, knee arthroscopy Ex. C-16, discharge summary of Kokilaben Dhirubhai First Appeal No. 1466 of 2013 9 Hospital Ex. C-17, CD Ex., C-18. On the other hand, Op Nos. 1 to 3 had tendered into evidence affidavit of Col. H.S. Chehal, Director Ex. RW-1/1, affidavit of Dr. Manuj Wadwa Ex. RW-2/1, affidavit of Dr. Anant Joshi Ex. Rw-3/1. Op No. 4 had tendered into evidence affidavit of Shri Ram, Sr. DM Ex. RW-4/1, affidavit of Ram Avtar, Dp. Manager Ex. RW-5/1, Authorization for & consent to Administration of Anaesthesia Exs. R-1/1 & 2, General consent Ex. R-1/3, Surgery/observation counselling form Ex. R-1/4, physical examination of the knee Ex. R-3/1, record of Arthroscopic Surgery Ex. R-4, bill cum receipt Ex. R-5, medical slip Ex. R-6, Arthroscopy report Ex. R-7, proposal form of New India Assurance Ex. R-8, insurance policy Ex. R-9.
7. After going through the allegations in the complaint, written versions filed by OPs, evidence and documents brought on the record, learned District Forum allowed the complaint after observing that the plea taken by Ops that the complainant required counselling or prior surgical planning but no such note was given in the discharge summary. In fact, Op No. 3 was in hurry to go back to Mumbai, therefore, he did not go for PCL reconstruction surgery. No other Doctor/trained Surgeon was available at the time of ACL surgery, therefore, plea of non-availability of trained Surgeon at the time of PCL is devoid of merit. Therefore, Ops were required to complete the surgery. Therefore, it is a case of medical negligence as well as deficiency in service.
First Appeal No. 1466 of 2013 10
8. Aggrieved with the order passed by the learned District Forum, Appeal No. 1295 of 2013 has been filed by Op No. 4 whereas Appeal No. 1466 of 2013 has been filed by appellants/OPs No. 1 & 3.
9. We have heard the learned counsel for the parties. FIRST APPEAL NO. 1466 OF 2013
10. This appeal has been filed on the ground that the District Forum has ignored the judgment of "Samira Kohli vs. Dr. Prabha Manchanda", (2008) 2 SCC 1. They have also referred to the judgment of the Hon'ble National Commission in "St. Antony Hospital vs. C.L. D'Silva", 2013(2) CLT 265 and "M/s Manipal Hospital Banglore & Others versus Alfred Benedict & Others" 2013(3) CLT 357 which are not applicable to the facts of this case. Even the judgment of "Indian Medical Association Vs. V.P. Shantha" (1995) 6 SCC 651 was cited out of the context. The consent of the patient for PCL was necessary, which was not on the record and the consent cannot be taken when the patient was on the table because the patient may not be truly willing at that time and according to this judgment, the Doctor cannot approach for the consent to be taken from the patient before undergoing the surgery. As per the history of this case, the patient was admitted for surgery for ACL but during the Arthroscopy, it was found that he had torn PCL, Arthroscopy showed significant medial capsular stretching, postero lateral capsular laxity, chondromalacia patellae, osteophyteover the medial femoral condyle. It called different surgery but the complainant had not consented for that surgery, therefore, surgery of ACL was left. He was advised to again contact Op Hospital. Op hospital had tried to contact the First Appeal No. 1466 of 2013 11 complainant but complainant did not report and he had undergone the requisite surgery in Dhirubhai Ambani Hospital and Research Institute, Mumbai. There was reason to leave the surgery in between, which cannot be categorized as a case of medical negligence. There is no expert opinion to say that in the given circumstances surgery was possible. The findings given by the District Forum are based upon surmises and conjectures. The principal of 'Res Ipsa Loquitor' was wrongly applied when the complainant had failed to lead any evidence pertaining to the negligence and deficiency in service.
11. Whereas on the other hand counsel for the respondent No.1/complainant Mr. Y.S. Dhillon, Advocate has argued that he had approached Op No. 1 on 10.7.2010, his OPD slip is Ex. C-2 in which ACL + PCL tear with OA changes with tal meniscous tear (talofibular ligament tear) was mentioned. It was advised PCL and ACL reconstruction but lateron PCL reconstruction was struck out and he was ordered admission for left ACL, which makes it clear that from the very beginning the Doctor had a suspicion of PCL tear. When the complainant was recommended for surgery after depositing of requisite charges vide receipt Ex. C-3, in the diagnosis deficiency ACL, PCL has been mentioned and under the column "course in the hospital", it was mentioned arthroscopy was done, surgery was left in between as ACL surgery and PCL surgery was also required to be done. There is email Ex. C-8 on the record vide which complaint was made against the Doctor that Doctor left the surgery that he did not have the sufficient time and he was advised to come to Mumbai for the surgery. He contended that the District Forum has rightly First Appeal No. 1466 of 2013 12 observed that he did not conduct the surgery as he was in hurry to go as his flight was scheduled to go to Mumbai, otherwise counselling of the patient, surgical planning and management requirement of trained Surgeon are afterthought. The District Forum had rightly returned the findings in favour of the complainant and those findings be affirmed.
12. We have heard the contentions as raised by the counsel for the parties. As per the pleadings of the parties, a few facts are admitted that on 10.7.2010, complainant approached Op No. 1 and he was referred to Op No. 2, who had advised PCL reconstruction and ACL reconstruction but lateron PCL was struck down and he was referred for left ACL on 13th evening. However, the complainant was admitted in Op No. 1 on 14.8.2013 for ACL surgery but during the surgery Arthroscopy was done, which was the most superior diagnosis because it allows one to look into the joint and feel the structures. On Arthroscopy, ACL/PCL bucket handle tear of lateral meniscus found and PCL and MCL injury found post conservatively with IV widcef, analgesics alongwith other supportive measures. Patient was being discharged in a stable condition with the advice to follow up in OPD after 10 days after prior appointment under Dr. Manuj Wadhwa for suture removal/further management. In case of any problem report to emergency. Keep the operated side elevated on a pillow for 10 days and follow the instructions as given in protocol given by Op No. 3.
13. Now some pleas have been taken by the complainant why further surgery was not conducted by Op No. 3. It has been stated by the counsel for the complainant that complainant had come First Appeal No. 1466 of 2013 13 for surgery of ACL and in case in the Arthroscopy, it was found that there is tear of PCL, the same could be done at the same time but it was not done; perhaps, Op No. 3 did not have the time as his flight was scheduled. It has been so complained by the complainant in his email dated 14.8.2010 on the date of operation stating that the concerned Authority were expressing no surety of operation as his name was not listed in the list for surgery, even after paying the surgery charges. If the Doctor had the sufficient time, he would have conducted the surgery otherwise he will have to wait for other day. It is an admitted fact that Op No. 3 had come from Mumbai, his flight was already scheduled, therefore, he was to leave Fortis Hospital on the day given.
14. The counsel for the appellants/Ops have taken the plea that there was no consent for PCL surgery, which was necessary for operation of the complainant in addition to any surgery for ACL. He has made a reference to the judgment "Samira Kohli vs. Dr. Prabha Manchanda" (supra) wherein the Hon'ble Supreme Court has observed that consent of the patient was required for surgical procedure. Nature of consent and extent of information necessary to be furnished. The consent should be expressed. An unauthorised further or additional procedure can, in an action for negligence be justified under the principle of necessity only when the patient was temporarily incompetent to permit the same and delaying of that procedure would be unreasonable because of imminent danger to the life or health of the patient. In the present case, Ops had taken three First Appeal No. 1466 of 2013 14 consent forms from the complainant, those are Exs. R-1/1 to R-1/3. In Ex. R-1/3, it has been mentioned as under:-
"I hereby full consent to doctors of this hospital to perform treatment as discussed. I understand that the institution will take utmost care of me/my patient. I do understand that there is always the possibility of unexpected complication which may necessitate procedures different from those contemplated and I hereby consent to the performance of additional procedures or operations or blood products transfusion that the doctor considers urgent necessary."
15. In case this consent was ACL, similar was the procedure for PCL, therefore, consent to the performance of additional procedure or operation referred above was there. In "Samira Kohli vs. Dr. Prabha Manchanda" (supra), it has been observed that consent for diagnostic procedure/surgery would not amount to authorisation to perform theoretic surgery except of life threatening, therefore, in that judgment, the procedure was different for which clear cut consent was required. Even otherwise, the patient was there and his father was also there. In case the patient was not competent to give the consent on account of anaesthesia then in that situation, the consent of the father could be taken but that was not taken. Therefore, plea of consent is just one excuse to justify to defer the surgery.
16. Ops have also taken the plea that surgery cannot be completed as the patient was required to be counselled about the PCL surgery and surgical planning and management was required and there was non-availability of the trained Surgeon. However, in First Appeal No. 1466 of 2013 15 case we go through the discharge summary Ex. C-4, no such reason was given. In case the counselling was given to the patient for ACL surgery, then PCL was on the similar lines for which no special counselling was required. Similarly, with regard to the planning and management, in case all planning and management was done for ACL surgery the similar procedure was to be adopted in PCL surgery. In case Op No. 3 himself was competent to conduct the ACL surgery for which planning was made, no reason has been assigned what was the need of trained surgeon and when he himself is a trained surgeon and specialist in conducting the surgery, otherwise Op No. 2 Dr. Manuj Wadhawan, Specialist Orthopaedic Surgeon was there and in case of need, his services can be taken by Op No. 3. In fact all these pleas have been taken to justify to avoid the surgery, perhaps the Surgeon was short of time and could complete the surgery within the given time. In case it was so then he should not have taken the case. It has been argued by the counsel for Ops that the judgment i.e. "St. Antony Hospital vs. C.L. D'Silva" (supra) relied upon by the District Forum is not applicable to the facts and circumstances of the case. In that case, the patient had a small Cyst on her right ovary. Doctor advised the patient to postpone the surgery as reputed and experienced Doctor was visiting their hospital to demonstrate his skills. Doctor claimed that he would remove the Cyst by laparoscopy, however, the patient died due to complications. Hon'ble National Commission did not agree with the plea taken by Dr. Parra that serious technical defects were involved while conducting the laparoscopy. It was further observed that the Doctor used the patient First Appeal No. 1466 of 2013 16 as a 'guinea pig' as and failed to check whether equipments were working. Similarly in the judgment "M/s Manipal Hospital Banglore & Others versus Alfred Benedict & Others" (supra) the Doctor was held negligent as due care was not taken during the invasive procedure. No doubt that there was complication in the procedure as PCL reconstruction was also involved due to which surgery was not completed and it was left in between. But we have to see, whether there was any valid reason to leave the surgery in between and whether the objections on the basis of which the surgery was left are sufficient for the doctor. The reasons were proper consent form was taken from the patient as well as his father. As referred above, sufficient consent was given to undertake additional procedure or the operations in Ex. R-1/3. It was given by Mr. Prem Goel, father of the patient and in case some additional consent for specific PCL reconstruction was required that can be taken from the patient or the father. There are no pleadings that the consent was sought or it was not given. So far as counselling and management is concerned, in case proper counselling was done for ACL, PCL is in the same knee and somewhat similar to ACL, therefore, in case proper counselling was given to the patient for treatment of the knee, PCL was part of the same knee, therefore, no separate counselling for that purpose was required and similarly, in case surgical planning and management was done for ACL, same surgical planning and management was required for PCL. Ops have not given any detail what additional equipment was required for PCL, which was not required for ACL. Similarly with regard to the non-availability of the First Appeal No. 1466 of 2013 17 trained Surgeon, OP No. 3 is a specialist in the field and he had specially come from Mumbai to conduct these surgeries. In case he himself was competent to conduct the ACL, no reason has been explained what other help of any other trained Surgeon was required. Moreover, other Surgeons i.e. Op No. 2 was available in Op No. 1. In case of need his help could be taken. These pleas were taken by Ops, just to cover their lapses. When a patient was admitted for any surgical procedure, he is mentally prepared to go for surgery and in case surgery is left in between for no convincing reason then it is a clear cut case of medical negligence because the patient had to go for tremendous mental harassment and trauma in case surgery is left in between without any convincing reason. We are of the opinion that it is a clear cut case of medical negligence and deficiency in service. We affirm the findings so recorded by the District Forum.
17. It was also argued by the counsel for the appellants that a sum of Rs. 3,00,000/- awarded as compensation and Rs. 25,000/- towards the cost of litigation is on the higher side. In the complaint, they had demanded litigation expenses of Rs. 21,000/- whereas the District Forum has allowed Rs. 25,000/-.
18. It is fundamental principle under the CP Act that compensation should be in consonance with the injury caused to the complainant. In this case, only the surgery was deferred otherwise there was no negligence with regard to giving the treatment. A sum of Rs. 88,000/- was taken from the complainant, out of which a sum of Rs. 48,590/- was refunded to the complainant for not conducting the surgery. In these circumstances, the compensation allowed to the First Appeal No. 1466 of 2013 18 complainant to the tune of Rs. 3,00,000/- is on the higher side. To be just and reasonable, it is ordered to be reduced to Rs. 2,00,000/- whereas the litigation expenses are ordered to be reduced to Rs. 11,000/- only.
19. In view of the above discussion, we partly accept this appeal and the order of the learned District Forum is modified to the above extent. No order as to costs.
20. The appellants-Fortis Hospital in F.A. No. 1466 of 2013 had deposited an amount of Rs. 25,000/- and Rs. 2,50,000/- with this Commission in the appeal. The insurance company had deposited a sum of Rs. 50,000/-(Rs. 25,000/- + Rs. 25,000/-), which has been ordered to be paid to the complainant. The remaining liability of the complainant comes to Rs. 1,61,000/-, therefore, out of the deposited amount of Rs. 2,75,000/-, a sum of Rs. 1,61,000/- alongwith interest accrued thereon, if any, be paid by the registry to respondent No.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court. These appellants/Ops will be at liberty to claim this amount from their insurance company according to the terms and conditions of the policy.
FIRST APPEAL NO. 1295 OF 2013
21. It has been argued by the counsel for the appellant that learned District Forum has not given the findings that there is excess clause in the policy. Otherwise, they have to cover the negligence, if any, of all the Doctors in the hospital, therefore, the order passed by First Appeal No. 1466 of 2013 19 the District Forum is modified to the extent that liability of the insurance company will be according to the terms and conditions of the policy.
22. The appeal filed by the appellant-New India Assurance Co. Ltd. is partly accepted and the order of the learned District Forum is modified to the above extent.
23. The appellant-New India Assurance Co. Ltd. in F.A. No. 1295 of 2013 had deposited an amount of Rs. 25,000/- and Rs. 25,000/- with this Commission in the appeal. This amount be remitted by the registry to respondent No.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court. The remaining amount will be claimed by the insured from this Op according to the terms and conditions of the policy.
24. The arguments in these appeals were heard on 10.12.2015 and the orders were reserved. Now the orders be communicated to the parties as per rules.
25. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
26. Copy of this order be placed on First Appeal No. 1295 of 2013.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member December 22, 2015. (Surinder Pal Kaur) as Member First Appeal No. 1466 of 2013 20