State Consumer Disputes Redressal Commission
Sri Guru Harkishan Sahib (C) Eye ... vs Balwant Singh on 7 June, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.722 of 2011.
Date of Institution: 29.04.2011.
Date of Decision: 07.06.2013.
1. Sri Guru Harkishan Sahib (C) Eye Hospital Trust, Sohana, through its
Secretary.
2. Dr. K.S. Basra R/o H.No.1627, Sector 36-D, Chandigarh.
3. Rajbir Kaur, Counsellor, Sri Guru Harkishan Sahib Eye Hospital
Trust, Sohana.
.....Appellants.
Versus
1. Balwant Singh S/o Sh. Kehar Singh, R/o Village Jamitgarh, P.O. Badali
Ala Singh, District Fatehgarh Sahib.
2. The Oriental Insurance Company Limited, through its Manager, SCO
20, Phase-I, SAS Nagar.
...Respondents.
First Appeal against the order dated
29.03.2011 of the District Consumer
Disputes Redressal Forum, SAS Nagar,
Mohali.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Ms Adarsh Pal Kaur, Advocate, counsel for the appellants.
Sh. Palwinder Singh along with Sh. Charanjit Singh, representatives of respondent no.1 along with respondent no.1 in person.
Sh. D.P. Gupta, Advocate, counsel for respondent no.2.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Sri Guru Harkishan Sahib (C) Eye Hospital Trust, Sohana through its Secretary and others, appellants (In short "the appellants") have filed this appeal against the order dated 29.03.2011 passed by the learned First Appeal No.722 of 2011 2 District Consumer Disputes Redressal Forum, SAS Nagar, Mohali (in short "the District Forum").
2. Facts in brief are that Sh. Balwant Singh, respondent no.1/complainant (hereinafter called as "respondent no.1") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellants and respondent no.2, asserting that he is a poor and Harijan person, working as agriculture labourer in the village. He visited the appellant hospital for the operation of eye along with Sh. Charanjit Singh in March, 2010. He discussed with the counsellor, appellant no.3 regarding the problem of the eye and told her that being a poor person, he cannot afford expenditure of the operation. Appellant no.3 gave the assurance to Sh. Charanjit Singh that the appellant hospital will implant a good quality lens, costing Rs.5,500/- and they have to pay part of the price and concession in the cost of the lens shall be given by the hospital.
3. Respondent no.1 was asked to come to the hospital on19.03.2010 and he reached there and met appellant no.3 and reminded her that she has promised to give concession. Appellant no.3 agreed with the concession and asked them to deposit Rs.2,700/- and the rest of the cost was to be borne by the hospital. Respondent no.1 accordingly deposited Rs.2,700/- as part of the cost of the lens, costing Rs.5,500/-, but the hospital cheated him. Without getting his consent, the appellant hospital and the doctors used the lens, costing Rs.2,700/- during the operation of his eye. The said lens was of poor quality. Nobody opts for this lens. During the operation, a big cut is needed to insert the lens in the eye and it takes months to recover after the operation.
4. Appellant no.2 operated his eye in the end of the day when all other patients had already been operated. Respondent no.1 was made to sit for the whole day, although he reached the hospital in the morning, ahead of other patients. Respondent no.1 was ignored by the doctor, being a poor Harijan labourer. Respondent no.1 was called at operation theatre at 2.00 First Appeal No.722 of 2011 3 P.M. and it took about three hours for the operation, whereas in the case of other patients, operation lasted for about 15 minutes only. During the operation, he suffered a lot of pain. After the operation also, no help was provided nor any pain killer was given to him. Now seven months have passed since the operation of the eye, but still there is pain in the eye and eyesight has not been restored. Respondent no.1 consulted 2-3 other doctors of the appellant hospital, who told him that the operation has not been done correctly and there will be no improvement in the eyesight. His eyesight has decreased after the operation. After the scanning done on 04.05.2010, it was confirmed that the operation of the eye has not been correctly done. Due to the use of the poor quality of lens by the appellants, inspite of the assurance given of using good quality lens, he has lost his eyesight. The respondent has already lost the eyesight of the second eye and is unable to work as labourer and to earn his livelihood.
5. It was prayed that the compensation of Rs.2.00 lacs may be awarded to him.
6. In the written version filed on behalf of the appellants, preliminary objections were taken that appellant no.1 hospital has taken the policy for professional indemnity from the Oriental Insurance Company and the said insurance company is necessary party. Respondent no.1 has no cause of action and the complaint is not maintainable. There is no negligence or deficiency in service on the part of the appellants.
7. On merits, it was admitted that respondent no.1 visited the appellant hospital on 16.03.2010 and was examined by the doctor-on-duty in the OPD. As per the report of Optometrist, his vision in the left eye could not improve due to the advance stage of the cataract. Respondent no.1 was advised cataract surgery (Phacoemulsification with posterior chamber Intra Ocular Lens). Respondent no.1 was explained about the surgery as well as the expenses involved. Respondent no.1 showed his inability to meet the total cost of the operation and sought concession in the surgery charges, including First Appeal No.722 of 2011 4 the cost of the lens and the same was granted by the appellant hospital, being a charitable institution. The amount of Rs.5,500/- includes the total surgery expenses including the cost of lens, medicines used in the surgery and stay in the hospital. In the case of respondent no.1, he was asked to deposit only Rs.2,700/- and the rest of the cost was met by appellant no.1. The patient is always first explained the procedure involved and type of cost of suitable lens and the patient decides the lens to be used in consultation with the counsellor.
8. The operation costing Rs.5,500/- is done with ultrasonic machine and is known as Phacoemulsification and the operation costing Rs.2,700/- is done by giving sutures (ECCE). In both the cases, the quality of the lens is the non-foldable variety. Since respondent no.1 was given concession by appellant no.1, as such, Phacoemulification surgery costing Rs.5,500/- was done and he was charged only Rs.2,700/-. The non-foldable lens of good quality was used. The said lens is used in the large number of patients and has shown very good results. The patient has to present himself early in the morning for pre-surgery examination of the vitals. The patient is sent for surgery after the pupil is dilated sufficiently for the surgery. It was denied that respondent no.1 was made to sit and wait. The operation of respondent no.1 lasted for 30-40 minutes and he has concocted the story. No surgery is done after 3.00 p.m. It is impossible to do surgery if the patient feels pain. Local anesthesia is given before surgery. All required medicines are given to all the patients by the appellant's staff and respondent no.1 was also given pain killers and other required medicines.
9. The OPD card attached by respondent no.1 itself shows that his vision of the left eye improved to 6/12 with glasses on 17.01.2011 from 1/60 before surgery which is a vast improvement and good vision for a person of the age, who has got degenerated changes in the eye. The operation of respondent no.1 was successful and was done with best care and caution by appellant no.2. It was admitted that scanning was done on 04.05.2010 in First Appeal No.722 of 2011 5 order to detect any swelling/edema in the macular area which are very common in surgical procedure. Small amount of swelling found was treated and removed with medicines. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
10. In the written version filed on behalf of respondent no.2 (opposite party No.4), preliminary objections were taken that the complaint is false and frivolous and the answering respondent has been impleaded with the intention to extract more money. Respondent no.1 is trying to take advantage of his own wrongs which cannot be allowed and the complaint deserves dismissal.
11. Appellant no.1 purchased Professional Indemnity Insurance Policy in the name of the hospital. There is no contract between appellants no.2 & 3 and the answering respondent. The contract, if any, is between the appellant no.1 and the answering respondent. Respondent no.2 has no liability to pay any compensation or liability, if fastened on the appellants. The District Forum has no jurisdiction. The matter cannot be adjudicated upon in summary manner.
12. On merits, similar pleas as taken in preliminary objections were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
13. Parties led evidence in support of their respective contentions by way of affidavits and documents.
14. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the appellants have categorically stated that respondent no.1 was giving concession by appellant no.1 and Phacoemulsification surgery costing Rs.5,500/- was done and respondent no.1 was charged only Rs.2,700/-. This is a false stand taken by the appellants, contrary to their own medical record. Discharge and follow-up card, copy of which is Ex.C-2, clearly shows that the procedure/operation to which respondent no.1 was subjected First Appeal No.722 of 2011 6 to, was ECCE with Intra Ocular Lens implantation in his left eye for his Grade- III nuclear cataract. Medical Board of Govt. Medical College & Hospital, Sector-32, Chandigarh in its report dated 10.12.2010 reported that respondent no.1 underwent ECCE with Intra Ocular Lens Implantation in his left eye for his Grade-III Nuclear cataract. This is an act of unfairness amounting to medical negligence and deficiency in service. The appellants have not proved the catalogue or list of charges showing cost of operation by Phacoemulsification and by ECCE. They have also not proved any catalogue showing price of the lens for use. Material evidence has been withheld. The appellants subjected respondent no.1 to a procedure different and inferior from the one than they promised to him. Lens of inferior quality was implanted in his left eye. The appellants have not produced account books to show that they really granted 50% concession in the cost of operation/lens as promised to him. No document has been produced, showing any order of the competent authority of the appellant hospital for charging lesser amount and they are liable to compensate respondent no.1. Cover note issued by respondent no.1 in favour of appellant no.1 is valid from 22.11.2010 to 21.11.2011 and the procedure in the present case was done on 19.03.2010. The policy of Professional Indemnity is of a subsequent period and does not indemnify the liability of appellant no.1. The complaint was allowed against the appellants, directing them to pay Rs.50,000/- as compensation for medical negligence and deficiency in service and Rs.3,000/- as cost of litigation. Appellants no.2 & 3 were also directed to deposit Rs.5,000/- in the Legal Aid Account of the Forum. Liability of the appellants was held joint and several.
15. Aggrieved by the impugned order dated 29.03.2011, the appellants have come up in appeal.
16. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have perused the written arguments First Appeal No.722 of 2011 7 filed on behalf of the appellants and heard the arguments advanced by the representative of respondent no.1 and counsel for respondent no.2.
17. In the written arguments filed on behalf the appellants, it was submitted that respondent no.1 has badly failed to establish any negligence or deficiency in service on the part of the appellants. The surgery was successful and his eyesight improved after the surgery from 1/60 to 6/12 with glasses. The District Forum has also mentioned so in its order. The expert opinion was sought from the Govt. Medical College & Hospital, Sector-32, Chandigarh and the report was given on the basis of the record i.e. discharge card etc. There is no mentioning of any negligence or deficiency on the part of the appellants in the report. Nothing is mentioned about the quality of the lens. False allegations have been levelled.
18. Respondent no.1 being a poor person was given rebate of 50% for operation charges and was charged only Rs.2,700/- for removal of cataract through Phacoemulsification procedure. This amount is charged for cataract removal by ECCE, which is a conventional method. The Phacoemulsification is done through ultrasonic machines and is a costly procedure, but the lens used is same in both the cases. Respondent no.1 was asked to deposit Rs.2,700/- and the clerical staff, on seeing the receipt of Rs.2,700/-, took it to be a case of ECCE and mentioned the same on the card, but appellant no.2 had promised to conduct Phacoemulsification, so surgery through Phacoemulsification procedure was done and the same was mentioned above the word "ECCE" mentioned by the clerical staff. The said card has been produced by respondent no.1 himself. The doctors of the Govt. Medical College & Hospital also went through the record casually and read the ECCE written in bold letters and missed the noting given above in the doctor's handwriting. The District Forum has imposed heavy costs. The factum of conducting Phacoemulsification can be clearly established from the examination of the operated eye of respondent no.1 even now. Respondent no.1 has failed to submit any expert report in support of his contentions. The First Appeal No.722 of 2011 8 report of medical board was also not in the knowledge of the appellants, so the appellants never got any chance to rebut the same. The District Forum did not take notice of the duly sworn affidavit of the operating surgeon wherein he has clearly explained the procedure adopted by him and the condition of the eye of respondent no.1. Respondent no.1 has filed a false affidavit of his own and of another person namely Sh. Charanjit Singh, who has also filed a false affidavit, alleging damage and loss of eyesight. The order passed by the District Forum is not sustainable and the appeal may be accepted.
19. On the other hand, Sh. Palwinder Singh along with Sh. Charanjit Singh, representatives of respondent no.1 contended that the District Forum has passed a detailed and speaking order. The discharge and follow-up card Ex.C-2 of the appellants itself shows the procedure followed which was ECCE and respondent no.1 suffered lot of pain and he has lost the eyesight and is unable to working and earn his livelihood. The medical board has also opined that ECCE procedure was done. The appeal being without any merit may be dismissed.
20. We have considered the written submissions submitted on behalf of the appellants and the arguments advanced on behalf of respondent no.1 and have minutely scrutinized the entire record.
21. The arguments raised on behalf of the appellants that the operation of the eye of respondent no.1 was conducted by Phacoemulsification method, is against the evidence and the expert opinion given by the Govt. Medical College & Hospital (in short "GMCH"), Sector-32, Chandigarh. The perusal of the discharge and follow-up card Ex.C-2 shows that the procedure and operation was ECCE (by giving sutures). Although, on the above in the column of Diagnosis, 'Phaco' is mentioned, but this is not signed by any doctor. The version of the appellants is also falsified by the report of GMCH, Sector-32, Chandigarh. The District Forum requested the Director, GMCH, Sector-32, Chandigarh vide letter dated 03.11.2010 to First Appeal No.722 of 2011 9 appoint a committee to inquire into the allegations in the complaint filed by respondent no.1 and after reminder dated 07.12.2010, the report was filed by the Three Members Committee of the doctors, headed by Dr. Sunandan Sood, Prof. & Head, Chairman, Special Medical Board and it was observed by the Committee as follows:-
"He underwent ECCE with Intra Ocular Lens implantation in his left eye for his Grade III nuclear cataract. The IOL used was Appa Lens ( +21.5 D) Biconvex ModC type. There is no record available regarding his ocular condition including visual acuity before and after surgery. Hence as per available records, it appears that patient has been operated for left eye cataract using conventional IOL as mentioned above, which is used routinely. We can not comment on the promise of implanting lens worth Rs.5,500/- on discounted rate, as no records are available to substantiate his claim. It is also not possible to comment on any negligency committed by the operating doctor as no record of the eye condition is available after the said operation".
22. The above report of the Committee of GMCH, Chandigarh clearly shows that as per the record, the patient has been operated for left eye cataract, using conventional IOL as mentioned above which is used routinely. Thus, the claim of the appellants that Phacoemulsification procedure was used for conducting the operation of the eye of respondent no.1, is falsified. The mere writing over the follow-up card Ex.C-2 is not sufficient to rebut the opinion of the Committee.
23. Respondent no.1 has been reporting for follow-up treatment and from the medical record attached with Ex.C-2 and Ex.C-3, it is clear that he kept on taking the treatment till 18.02.2011. The appellants have relied upon the medical literature Ex.R-1 which is regarding "Cystoid Macular Edema" and it deals with certain complications which can occur after the operation. Ex.R-2 is the extract from the Text Book of Ophthalmology by Payman, which also First Appeal No.722 of 2011 10 deals with Age-related Cystoid Macular Edema and Macular Holes. Both these literatures are of not much help to the appellants, as the complications can be there after the operation of the eye but in the present case, it is not the question of complications, whereas it is the question of the procedure. Respondent no.1 was assured that the operation of his eye shall be carried out by Phacoemulsification surgery and instead of Rs.5,500/-, Rs.2,700/- will be charged. The appellants have not rebutted the report of the medical board of the GMCH, Chandigarh and as per the prevalent law, the principle of res- ipsa-luquitur is applicable which means that once a person alleges the medical negligence, then it is for the respondent doctor to rebut the same and to prove that there was no negligence on his part. The Supreme Court in case "V. Kishan Rao Vs Nikhil Super Speciality Hospital & Anr.", 2010(2) RCR (Civil) 929 (SC) held that the expert witness is not required to be examined in all cases of medical negligence. In Paras No.47 to 49, the Hon'ble Supreme Court observed as follows:-
"47. In a case where negligence is evident, the principle of res-ipsa- loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case, it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.
48. If the general directions in paragraph 106 in D'souza's (supra) are to be followed, then the doctrine of res-ipsa-loquitur which is applied in cases of medical negligence by this Court and also by Courts in England, would be redundant.
49. In view of the discussions aforesaid, this Court is constrained to take the view that the general direction given in paragraph 106 in D'souza (supra) cannot be treated as a binding precedent and those directions must be confined to the particular facts of that case.
24. No record that any concession was given and the orders were obtained from any competent authority, has been brought on record. The District Forum has awarded the compensation of Rs.50,000/- for medical negligence and deficiency in service as well as costs of litigation to the tune of Rs.3,000/- and further directed the appellants to deposit a sum of Rs.5,000/- First Appeal No.722 of 2011 11 in the Legal Aid Account of the Forum. The award of the compensation is on the higher side and the order, directing the appellants also to deposit Rs.5,000/- in the Legal Aid Account of the District Forum is required to be modified. In our opinion, the compensation of R s.25,000/- will meet the interest of justice.
25. Accordingly, the appeal filed by the appellants is partly accepted and the impugned order under appeal dated 29.03.2011 passed by the District Forum is modified to the extent that the amount of compensation is reduced from Rs.50,000/- to Rs.25,000/- and the order directing the appellants to deposit a sum of Rs.5,000/- in the Legal Aid Account of the District Forum is not, at all , justified and is set aside.
26. The appellant hospital is having the Professional Indemnity Insurance Policy under which the sum insured is Rs.20.00 lacs and the period covered is from 22.11.1010 to 21.11.2011, but this policy does not cover the case of respondent no.1 as the operation was conducted on 16.03.2010. The appellants have not placed any cover note or insurance policy prior to this period on record. Therefore, respondent no.2 Insurance Company cannot be held liable in any manner.
27. Except for the above modification, the remaining part of the order under appeal is affirmed and upheld.
28. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
29. Remaining amount as per the order of the District Forum, as modified vide this order, shall be paid by the appellants to respondent no.1/complainant within 45 days of the receipt of copy of the order.
30. The arguments in this appeal were heard on 05.06.2013 and the order was reserved. Now the order be communicated to the parties. First Appeal No.722 of 2011 12
31. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member June 07, 2013.
(Gurmeet S)