State Consumer Disputes Redressal Commission
Dr. S.K. Gulati vs Balwinder Singh on 21 April, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.147 of 2006
Date of institution : 31.1.2006
Date of decision : 21 .4.2010
DR. S.K. GULATI, GENERAL AND PLASTIC SURGEON, EX-MEDICAL
SUPERINTENDENT, VIDYALA HOSPITAL/CENTRAL KHALSA
HOSPITAL, JANDIALA ROAD, TARN TARAN, DISTRICT AMRITSAR
PRESENTLY ASSOCIATE PROFESSOR, DEPARTMENT OF SURGERY,
GURU GOBIND SINGH MEDICAL COLLEGE & HOSPITAL, FARIDKOT,
PERMANENT RESIDENT OF 25-A, CIRCULAR ROAD, OPPOSITE
MEDICAL ENCLAVE, AMRITSAR.
.......Appellant
Versus
1. BALWINDER SINGH S/O S. CHANAN SINGH, RESIDENT OF
VILLAGE BATH, TEHSIL TARN TARAN, DISTRICT AMRITSAR.
2. THE ORIENTAL INSURANCE CO. LTD., OPPOSITE CIVIL
HOSPITAL, BRANCH OFFICE TARN TARAN, DISTRICT AMRITSAR
THROUGH ITS BRANCH MANAGER.
......Respondent
First Appeal against the order dated 19.9.2005 of
the District Consumer Disputes Redressal Forum,
Amritsar.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Present :-
For the appellant : Shri Updip Singh, Advocate. For respondent No.1 : Shri Suvir Sehgal, Advocate. For respondent No.2 : Shri Munish Goel, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:
This order will dispose of two appeals, namely, First Appeal No.147 of 2006 (Dr. S.K. Gulati v. Balwinder Singh and anr.) and First Appeal No.299 of 2006 (Balwinder Singh v. Dr. S.K. Gulati and anr.) as both these appeals are First Appeal No.147 of 2006. 2 directed against the same impugned judgment dated 19.9.2005 passed by the District Consumer Disputes Redressal Forum, Amritsar (in short "District Forum"). The facts are taken from First Appeal No.147 of 2006 and the parties would be referred by their status in this appeal.
2. Balwinder Singh respondent no.1 (in short "the respondent") aged 45 years, farmer, met with an accident on 28.7.2000, as a result he suffered pain in his right leg. He was unable to put weight on his right leg. He was unable to walk. He went to the appellant for his medical treatment in his hospital as it was nearer to the residence of the respondent.
3. It was further pleaded that the appellant advised x-ray. It was got done by the respondent from the local x-ray centre. It was revealed that it was a fracture of upper and mid shaft of right femur. The appellant was just a general surgeon. He had no experience in orthopaedic surgery. He was not qualified to perform the operation. Without getting the normal and routine medical tests, the appellant operated the respondent without any investigation and without consulting any orthopaedic surgeon. He also did internal fixation himself. He had no arrangement for proper treatment of the respondent nor there was any operation theatre nor he had any equipment for this purpose. The appellant was bound to refer the respondent to the Orthopaedician. He even did not call any qualified Orthopaedician for conducting the operation of the respondent nor he consulted any Orthopaedician.
4. It was further pleaded that the appellant had put the life of the respondent to stake and himself conducted the operation on the respondent in a careless and negligent manner. The respondent remained admitted in the hospital of the appellant from 28.7.2000 to 12.8.2000. Even thereafter the respondent never became healthy nor he was able to walk due to the severe pain in his right leg. The appellant did not issue any discharge slip to the respondent nor he provided any prescription slip for follow-up treatment. The respondent was discharged. In order to cheat and defraud the respondent and to extract money by way of First Appeal No.147 of 2006. 3 commission, the appellant got the x-ray and prescribed other medicines which the respondent purchased from the shops at Tarn Taran and the appellant collected the commission from the different centres/medical shops.
5. It was further pleaded that the respondent reposed faith in the appellant and got the treatment from him for the period from 28.7.2000 to 14.12.2000. The respondent visited the appellant at his residence and in the hospital also. On every visit, the appellant used to charge Rs.1,000/- from the respondent. The respondent must have visited the appellant for 30/40 times and he had to pay thousands of rupees to the appellant. In spite of that, there was no improvement in his condition. Rather it became critical and painful. It had become impossible for the respondent to survive.
6. It was further pleaded that finding no other alternative, the respondent got himself admitted in Sri Guru Teg Bahadur Hospital, Amritsar where he remained admitted from 14.12.2000 to 18.2.2001 under the treatment of Dr. R.P.S. Boparai in the Orthopaedics Department Unit-II. During this period, Dr. R.P.S. Boparai removed all the old fixations/plates from the right leg of the respondent as these were not fitted properly by the appellant. The respondent was again operated by Dr. R.P.S. Boparai and the respondent was discharged from the said hospital on 18.2.2001. He was again admitted in Sri Guru Teg Bahadur Hospital, Amritsar on 5.1.2002 where he remained admitted upto 2.2.2002. During this period also the respondent was operated. He was unable to move freely without support of an escort. If the appellant had given the proper treatment, the respondent would have not faced this problem.
7. It was further pleaded that the respondent had suffered due to carelessness, negligence and fraud committed by the appellant. He has committed unfair trade practice and extracted huge money from the respondent.
8. Alleging deficiency in service and medical negligence on the part of the appellant, the respondent filed the complaint against him in the District Forum First Appeal No.147 of 2006. 4 claiming a sum of Rs.2 lakhs incurred by him on his medical treatment. Rs.2 lakhs were also claimed as compensation. Interest and costs were also prayed.
9. The appellant filed the written statement. It was denied for want of knowledge if the respondent was a petty farmer or if he was injured in the road accident on 28.7.2000.
10. It was pleaded that the respondent was an overweight person. He had multiple injuries after he had a fallen in the well in drunken condition. It was admitted that the respondent had come to the appellant in the Central Khalsa Hospital (Vidyala), Jandiala Road, Tarn Taran where the appellant was working on deputation as Medical Superintendent and Super Specialist Surgeon (being M.S. (General Surgery) and M. Ch. (Plastic Surgery).
11. It was further pleaded that since the respondent had suffered multiple fracture he needed immediate surgery by an orthopaedician. The respondent was admitted in the hospital. Dr. Gurvinder Singh (M.S. Ortho), who was a competent Orthopaedic Surgeon was requisitioned from Amritsar who had conducted proper surgery of the respondent. The hospital had properly equipped operation theatre. After the x-ray examination and after conducting other investigations in the pre-operative period, proper anaesthesia was given to the respondent by Dr. S.P. Singh (M.D.), Anaesthesiology. He was qualified and competent anaesthesiologist of Amritsar.
12. It was further pleaded that the appellant had assisted the orthopaedic surgeon during the surgery. The respondent had not produced any medical record. Therefore the appellant was unable to give details of treatment given to the respondent. The appellant completed his deputation from 1.7.1999 to 31.10.2000 and had gone to back to his parent department i.e. Health Department. At the time of filing of the written reply, the appellant was working as Senior Lecturer in the Department of Surgery, Government Medical College, Amritsar.
13. It was further pleaded that after the operation, the appellant did not have any access on the respondent, treatment record or other record of the hospital First Appeal No.147 of 2006. 5 where the respondent had got medical treatment. However after analyzing Sciagrams of x-rays as well as various documents placed on record and after refreshing his memory on the basis of the documents placed on the court file by the respondent, the appellant remembered that the respondent had suffered fracture of right femur SUBTROCHENTRIC & LONG OBLIQUE FRACTURE SHAFT OF FEMUR for which internal fixation at Trochenteric region and shaft of femur was done by Dr. Gurvinder Singh after the respondent was given proper anaesthesia.
14. It was specifically denied if the appellant had operated the respondent for orthopaedic surgery or if the surgery was done without proper investigation of the respondent or if the appellant had done the internal fixation of the fracture injury himself. It was also denied if the hospital was not having facility for proper treatment/operation or if the operation theatre was not equipped with the proper equipments. It was also denied if the appellant was not a qualified orthopaedic surgeon or if the life of the respondent was put on stake or if the surgery was done in a careless and negligent manner.
15. It was repeatedly pleaded that the surgery was performed by Dr. Gurvinder Singh who was a qualified Orthopaedic Surgeon. Even the appellant was a qualified surgeon. He was having sufficient experience during the course of his post graduation.
16. It was denied for want of knowledge if the respondent remained admitted in the hospital from 28.7.2000 to 12.8.2000 as the respondent had concealed material record. At the time of discharge of the respondent, he was given proper discharge card by the hospital. He was also given the follow-up prescription. During the admission of the respondent in the Hospital, he had not lodged any complaint in regard to his treatment or of surgery with the appellant who was a Medical Superintendent of that Hospital nor he lodged any complaint with the Management of the Hospital. It was denied if the appellant had collected any commission from investigations/medicines prescribed. The appellant also reserved his right to sue First Appeal No.147 of 2006. 6 the respondent for making the frivolous and derogatory remarks to him. It was denied if the respondent was referred to any particular clinic or investigation centre or if he got done investigations from a private laboratory or if he purchased the medicine from a particular store. The whole story was concocted by the respondent.
17. It was denied if the respondent had ever visited the appellant at his residence for follow-up treatment. He always used to come in the hospital. He was examined properly and follow-up treatment was prescribed to him. He was on the way to recovery till the respondent had been coming to the appellant. The last follow-up treatment was taken by the respondent on 25.10.2000 from the appellant. Thereafter either the respondent had not come to the appellant or the record has been concealed by him.
18. It was denied for want of knowledge if the respondent had taken medical treatment from Sri Guru Teg Bahadur Hospital, Amritsar. The record has been withheld by the respondent with a mala fide intention. After fixation the condition of the respondent was normal and the progress was satisfactory. The respondent was advised routine pain killer with proper exercises after three months from operation.
19. It was denied if the appellant has committed any carelessness or negligence or fraud or unfair trade practice or if the respondent was operated by the appellant. The present condition of the respondent was not known to the appellant. It was denied for want of knowledge if the respondent had spent any money on medical treatment afterwards or if the appellant has committed any medical negligence or if he committed any deficiency in service or if the respondent was entitled to any compensation. Dismissal of the complaint was prayed.
20. Balwinder Singh respondent filed his affidavit dated 30.7.2002. The respondent examined Dr. Surinder Singh Kainth, Medical Superintendent, Central Khalsa Hospital, Tarn Taran. The respondent also examined Dilbagh Singh from First Appeal No.147 of 2006. 7 Central Khalsa Hospital, Tarn Taran who produced the original file containing the operation and medical treatment of the respondent.
21. On the other hand, Dr. Sudesh Kumar Gulati appellant appeared as RW-1 and proved his affidavit Ex.R-1. He tendered himself for cross-examination and was cross-examined at length. The appellant also produced the affidavit of Dr. Gurvinder Singh, M.S. (Orthopaedics) as Ex.ADR. He also tendered himself for cross-examination and was cross-examined at length.
22. The Oriental Insurance Company Ltd. respondent No.2 filed the affidavit of V.K. Bhoocher, Divisional Manager as Ex.RX.
23. After considering the pleadings of the parties and the affidavits/documents placed on file by them, the learned District Forum partly accepted the complaint with costs of Rs.3,000/- vide impugned judgment dated 19.9.2005 and directed the appellant to make the payment of Rs.50,000/- to the respondent with interest at the rate of 6% per annum.
24. Hence the appellant filed the appeal (First Appeal No.147 of 2006) with the prayer that the appeal be accepted and the impugned judgment dated 19.9.2005 be set aside.
25. On the other hand, the respondent filed the appeal (First Appeal No.299 of 2006) with the prayer that the appeal be accepted and the impugned judgment dated 19.9.2005 be modified and the amount of compensation be enhanced.
26. Record has been perused. Submissions have been considered.
27. Admittedly Balwinder Singh respondent had met with an accident and had suffered leg fracture on 28.7.2000 on which he had reached Central Khalsa Hospital, Jandiala Road, Tarn Taran where Dr. S.K. Gulati appellant General Surgeon was working as Medical Superintendent.
28. The respondent has alleged that he had suffered the fracture in a road accident but the appellant has pleaded that the respondent had fallen in a well when he was in drunken condition.
First Appeal No.147 of 2006. 8
29. The respondent has pleaded that he was operated by Dr. S.K. Gulati appellant who was not an Orthopaedic Surgeon nor he was competent to perform the operation. The appellant has denied if he had operated the respondent. He has pleaded that he had called Dr. Gurvinder Singh, M.S. (Orthopaedic Surgeon) from Amritsar and the respondent was operated by Dr. Gurvinder Singh M.S. (Ortho). Dr. Gurvinder Singh filed his affidavit Ex.ADR where he deposed that he was called by Dr. S.K. Gulati on 28.7.2000 in Central Khalsa Hospital, Tarn Taran. He had reached Tarn Taran. The disease was already diagnosed and investigated. He was also accompanied by Dr. S.P. Singh, M.D. Anaesthesiology. Internal fixations at Trochenteric region and shaft femur was done by him (Dr. Gurvinder Singh) under anaesthesia by Dr. S.P. Singh and with the assistance of Dr. S.K. Gulati. The surgery was successful and it was uneventful. During the admission period of the respondent from 28.7.2000 to 12.8.2000 he (Dr. Gurvinder Singh) had visited the hospital for 2/3 times for post operative examination of the patient.
30. Dr. Gurvinder Singh had also tendered himself for cross-examination. He examined the bed-head ticket and admitted his signatures on certain portions of the bed-head ticket. He maintained in the cross-examination also that the patient was operated by him and not by Dr. S.K. Gulati.
31. The respondent has not produced any medical evidence to prove if the operation done on his person by Dr. Gurvinder Singh was defective in any manner or if Dr. Gurvinder Singh or Dr. S.K. Gulati (appellant) had committed any medical negligence while performing operation on the person of Balwinder Singh respondent.
32. The whole case of Balwinder Singh respondent is false that he was operated by Dr. S.K. Gulati appellant. Rather he was operated by Dr. Gurvinder Singh who had admitted having performed the operation.
33. Dr. Gurvinder Singh has also deposed in his affidavit that the operation theatre of Central Khalsa Hospital, Tarn Taran was fully equipped with requisite First Appeal No.147 of 2006. 9 facilities for the type of surgery undertaken by him during the relevant time. Proper aseptic conditions were maintained in the operation theatre and proper treatment was given to the respondent on accepted scientific lines. Therefore it is also not proved by the respondent if the operation theatre was not properly equipped or if hygienic conditions did not prevail at the time of treatment of the respondent.
34. In view of the discussion held above, the respondent has failed to prove if any medical negligence was committed by Dr. S.K. Gulati appellant.
35. This appeal (First Appeal No.147 of 2006) is accordingly accepted and the impugned judgment dated 19.9.2005 is set aside.
36. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal (First Appeal No.147 of 2006) on 31.1.2006. This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
FIRST APPEAL NO.299 OF 2006:
37. For the reasons recorded in First Appeal No.147 of 2006 above, there is no merit in the present appeal and the same is dismissed.
38. The arguments were heard in these cases on 8.4.2010 and the orders were reserved. Now, the orders be communicated to the parties.
39. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL) PRESIDENT April 21, 2010 (MRS. AMARPREET SHARMA) Bansal MEMBER First Appeal No.147 of 2006. 10