State Consumer Disputes Redressal Commission
P.D.Hinduja National Hospital & ... vs Smt.Sangeeta R.Sharma And Ors on 27 February, 2024
A/22/538, A/22/734.A/22/607
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
(1) Appeal No.A/22/538
1. Smt.Sangeeta Rajendra Sharma,
B-704, Om Shanti Tower, Shanti park,
M.T.N.L. Road, Mira Road (East),
Thane - 401 107.
2. Yash Rajendra Sharma,
B-704, Om Shanti Tower, Shanti park,
M.T.N.L. Road, Mira Road (East),
Thane - 401 107. ....... Appellant(s)
Versus
1. P.D. Hinduja National Hospital and Medical
Research Center,
Veer Savarkar Marg,
Mahim, Mumbai - 400 016.
2. Dr.Devendra Desai (Gastroenterology),
P.D. Hinduja National Hospital and Medical
Research Center,
Veer Savarkar Marg, .........Respondent(s)
Mahim, Mumbai - 400 016.
(2) Appeal No.A/22/734
P.D. Hinduja National Hospital and Medical
Research Center,
Veer Savarkar Marg,
Mahim, Mumbai - 400 016. ....... Appellant(s)
Versus
1. Smt.Sangeeta Rajendra Sharma,
1
A/22/538, A/22/734.A/22/607
2. Yash Rajendra Sharma,
Both residing at:
B-704, Om Shanti Tower, Shanti park,
M.T.N.L. Road, Mira Road (East),
Thane - 401 107.
3. Dr.Devendra Desai (Gastroenterology),
Veer Savarkar Marg, .........Respondent(s)
Mahim, Mumbai - 400 016.
(3) Appeal No.A/22/607
Dr.Devendra Desai (Gastroenterology),
Veer Savarkar Marg,
Mahim, Mumbai - 400 016.
....... Appellant(s)
Versus
1. Smt.Sangeeta Rajendra Sharma,
B-704, Om Shanti Tower, Shanti Park,
M.T.N.L. Road, Mira Road (East),
Thane - 401 107.
2. Yash Rajendra Sharma,
B-704, Om Shanti Tower, Shanti Park,
M.T.N.L. Road, Mira Road (East),
Thane - 401 107.
3. P.D. Hinduja National Hospital and Medical
Research Center,
.........Respondent(s)
Veer Savarkar Marg,
Mahim, Mumbai - 400 016.
BEFORE:
Justice S.P.Tavade - President
Poonam V. Maharshi - Member
2
A/22/538, A/22/734.A/22/607
For the Appellant (s) : Complainant No.1 - Ms.Sangeeta Sharma present for herself
And Complainant No.2.
For the Respondent(s) : Advocate S.B. Prabhavalkar for P.D. Hinduja Hospital &
Research Center - Opponent no.1.
Advocate Ms.Bindu Jain for Dr.Devendra Desai -
Opponent no.2.
COMMON ORDER
(27/02/2024)
Per Hon'ble Mr.Justice S.P. Tavade - President:
(1) The above three appeals are arising out of order dated 26/05/2022 passed by the District Consumer Disputes Redressal Commission, Central Mumbai in Complaint Case No.RBT/CC/19/2018.
(2) The Appeal bearing No.A/22/538 is filed by original Complainants, Appeal bearing No.A/22/734 is preferred by original Opponent No.1 - P.D. Hinduja National Hospital and Medical Research Center and Appeal bearing No.A/22/607 is preferred by original Opponent No.2 - Dr.Devendra Desai. The original Complainants and both the opponents have challenged the impugned order passed by the District Commission. Hence, the parties to these appeals shall be called and referred as per their status in the complaint.
(3) The Complainant no.1 had taken appointment of Opponent No.2 at Opponent No.1 Hospital (hereinafter called as 'Hinduja Hospital') on 03/02/2018 for the treatment of her son i.e. Complainant no.2 as emergency case. The Complainant No.1 paid Rs.2,600/- for consultation. Accordingly, the opponent no.2 who examined Complainant no.2, asked 3 A/22/538, A/22/734.A/22/607 him to undergo various tests and directed Complainant no.1 to bring reports along with Complainant no.2 on 06/02/2018 at Hinduja Health Care and Research Centre at Khar. It was contended that the Complainant No.2 underwent the test prescribed by Opponent no.2 on 05/02/2018. The Complainant no.1 was asked to collect the report on 08/02/2018. Accordingly, the Complainant no.1 collected the reports of Complainant no.2. Complainant no.1 enquired on the help desk counter of Hinduja Hospital about availability of Opponent no.2, she was informed that the opponent no.2 would be available on 08/02/2018 from 05.00 p.m. onwards in IBD (Inflammatory Bowel Disease) clinic. Accordingly, she went to IBD Clinic to see Opponent no.2 Doctor. It was contended that nurse collected the test papers from Complainant no.1 and went inside the chamber of opponent no.2. She came back and informed Complainant no.1 that she had not taken appointment and Complainant No.2 has not accompanied her, therefore, opponent no.2 refused to see the test papers. Hence, the Complainants alleged that the opponents have committed deficiency in service as well as unfair trade practice and she claimed compensation and costs.
(4) Notice was issued to the opponents. Both the opponents appeared in the complaint. They filed their written versions.
(5) The Hinduja Hospital contended that the complaint is not maintainable.
The Hinduja Hospital was not service provider of Complainants. It was contended that the Complainant no.2 alone was entitled to file the complaint against the opponent no.2 for alleged deficiency in service and unfair trade practice. It was contended that there are no specific allegations against the Hinduja Hospital. It was contended that only 4 A/22/538, A/22/734.A/22/607 allegation against the opponent no.2 was that his failure to entertain Complainant no.1 out of turn without prior appointment to show reports of Complainant no.2 on 08/02/2018. It was contended that the Complainants are guilty of filing of this frivolous and vexatious complaint within the meaning of Section 26-A of the Consumer Protection Act. It was contended that the Complainants have not substantiated the allegations of deficiency in service on the strength of cogent or documentary evidence. It was contended that the Complainant no.1 had given letter dated 22/02/2018 whereby she made allegations against opponent no.2 and claimed compensation of Rs.3,00,000/-. It was contended that after receiving letter of Complainant no.1, Hinduja Hospital sought explanation from opponent no.2. Opponent no.2 gave his explanation on 08/03/2018 which was correct and proper. Said explanation was communicated to Complainant no.1 by letter dated 08/03/2018. So, there was no deficiency in service committed by Hinduja Hospital and prayed for dismissal of complaint with compensatory costs.
(6) Opponent no.2 appeared and filed written version and denied all allegations made against him. It was contended that the Complainants are not Consumers of opponent no.2. It was contended that on 08/02/2018 complainants had not approached opponent no.2 to hire any services. It was contended that on 08/02/2018 no consideration was paid by complainants to opponent no.2. There was no cause of action to file complaint. It was alleged that the Complainants have suppressed large number of material facts. It was contended that the opponent no.2 is highly qualified medical practitioner. He is well and experienced gastroenterologist duly registered on the rolls of the Maharashtra Medical 5 A/22/538, A/22/734.A/22/607 Council and is working as consultant gastroenterologist with opponent no.1 hospital.
(7) It was contended that on 03/02/2018 at about 02.00 p.m. he examined Complainant no.1 as a walk-in patient after payment of fees to Hinduja Hospital. It was contended that Complainant no.1 informed him that Complainant no.2 was his son who was having six months' history of gastrointestinal symptoms and was previously admitted at another hospital. She showed him discharge summary of Complainant no.2. It was contended that on going through the Discharge Card the opponent no.2 examined Complainant no.2. On physical examination, opponent no.2 found that complainant no.2 was comfortable and had no guarding, tenderness or organomegaly. On examination, opponentno.2 advised Complainant No.2 to undergo blood investigations and a CT Scan. He asked Complainant no.2 to show test reports on 06/02/2028 at Hinduja Health Care Surgical, Khar for perusal of blood investigations and CT Scan reports. It was contended that the Complainants failed to turn up for the scheduled appointment on 06/02/2018 at Hinduja Healthcare Surgical, Khar. It was contended that the Complainant failed to follow his instructions. He was unaware about the health of Complainant no.2 after 03/02/2018. It was contended that on 08/02/2018 opponent no.2 had no routine clinic work and hence, it was not possible for him to attend to walk- in patient. It was contended that on 08/02/2018 as opponent no.2 was attending his patients who had taken appointment in his IBD clinic in Hinduja Hospital. It was contended that Nurse at the clinic had informed him that Complainant no.1 wanted to meet him as she had collected reports of Complainant no.2 and wanted the opponent no.2 to examine the said reports. It was contended that on inquiry with the nurse, opponent no.2 6 A/22/538, A/22/734.A/22/607 came to know that Complainant no.2 was not accompanied by Complainant no.1 and there was no emergency. Similarly, it was impossible for opponent no.2 to peruse the report in absence of the patient's hospital file and Doctor's notes in the said file maintained by the Hinduja Hospital. it was contended that files were stored in Medical Records Department of opponent no.1 and brought only when there is scheduled appointment. It was contended that in absence of patient and earlier medical reports it was not possible for opponent no.2 to see the reports. It was contended that opponent no.2 had informed the nurse that as there was no emergency, he asked Complainant no.1 to come with Complainant no.2 together with reports after taking appointment with Hinduja Hospital. It was contended that it was also impossible for opponent no.2 to peruse the reports as he was in the midst of his IBD Clinic where patients with prior appointments were waiting and their appointments were already fixed by the Hinduja Hospital.
(8) It was contended that on 07/02/2018 the Complainant no.2 was examined by Dr.Murdul at Wockhardt Hospital (Mira Road) which confirmed that the Complainant had jaundice and Complainant no.2 had started his treatment. It was contended that Complainant no.2 was already being treated by Dr.Murdul on 07/02/2018 i.e. prior to 08/02/2018 when allegedly according to the Complainants the opponent no.2 refused to see Complainant no.1. It was contended that on 09/02/2018 the Complainant by their own admission consulted Dr.Aabha Nagral. So, it was contended that the Complainant no.1 was doing doctors shopping. It was contended that the Complainant no.1 had filed several complaints against different doctors and individuals. She is in habit of filing false complaints. Hence, it was prayed that the complaint be dismissed.
7A/22/538, A/22/734.A/22/607 (9) The Complainants and opponents have led their evidence by way of affidavits. On going through the said evidence, the District Commission has allowed the complaint partly and held opponent nos.1 and 2 guilty for deficiency in service and unfair trade practice towards the complainants and directed them to pay Rs.20,000/- towards compensation and Rs.10,000/- towards costs of litigation. The said order is under challenge.
(10) Heard Complainant No.1 in person. She has taken us through the complaint as well as the impugned order. According to her the District Commission has held the opponents guilty for deficiency in service but failed to award compensation claimed by her. She also submits that the compensation awarded by the District Commission is meagre. Hence, she preferred the appeal. On the other hand, the learned advocates for the opponent nos.1 and 2 submit that the District Commission has not considered the facts of the case and wrongly held the opponents guilty of deficiency in service.
(11) On going through the facts of the case it appears that on 03/02/2018 the complainant no.1 had taken appointment by paying emergency charges of Rs.2,600/- and accordingly, Opponent no.2 had examined Complainant no.2. He had also perused the earlier summary and reports of Wockhardt Hospital. The opponent no.2 had directed the Complainant no.2 to undergo blood tests and C.T. scan and asked the complainant no.2 to visit the hospital on 06/02/2018. It is also admitted fact that the Complainants did not see opponent no.2 on 06/02/2018. The complainants have explained that the Complainant no.2 underwent blood test on 05/02/2018 and she did not receive report on 06/02/2018. Therefore, she came to 8 A/22/538, A/22/734.A/22/607 hospital on 08/02/2018. Admittedly, the Complainant no.1 had not taken prior appointment of opponent no.2 but fact remains on record that the opponent no.2 had come to hospital for IBD Clinic from 5.00 p.m. to 07.00 p.m. It is established on record that the Complainant no.1 had been to the IBD clinic for showing report to Opponent no.2. On inquiry, the opponent no.1 came to know that complainant no.1 had come without patient. Similarly, the earlier case papers were also not placed before him.
(12) On the basis of the above facts the advocate for the opponent no.2 has vehemently submitted that the opponent no.2 had not taken any fees on 08/02/2018 from the complainants. It is true that the Complainant no.1 simply walked-in IBD clinic for showing report of Complainant no.2. Admittedly, the Complainant no.2 was not present along with complainant no.1. Similarly, there was no prior appointment taken by Complainant no.1. Therefore, the opponent no.2 has simply said that he was not in a position to see the papers in absence of the patient as well as the earlier noting made by him on the case papers. The said refusal cannot be called as deficiency in service on the part of the opponents. In fact, it was proper on his part to ask the Complainant no.1 to bring Complainant no.2 for examination together with reports.
(13) It appears that on 07/02/2018 the Complainant no.1 had taken complainant no.2 to Dr.Murdul at Wockhardt Hospital (Mira Road) and he was diagnosed suffering from jaundice and treatment was started. It is also admitted fact that on 09/02/2018 the Complainants had consulted with Dr.Abha Nagral and continued her treatment. So, it can be said that the Complainant no.1 had taken Complainant no.2 to three doctors for treatment. It was expected from Complainant no.1 to bring Complainant 9 A/22/538, A/22/734.A/22/607 no.2 for examination along with reports which she failed because Complainant no.2 had started his treatment of some other Doctors. It appears that the Complainant no.1 was trying to get opinion of opponent no.2 without patient and on the basis of reports only. She had not paid fees for the same. Admittedly, the Complainants had paid Rs.2,600/- for walk-in treatment on 03/02/2018, on the same day the Complainant was examined by opponentno.2 so, it can be said that the opponentno.1 has accepted the fees and asked opponent no.2 to examine the patient. Accordingly, the patient was examined. So, there was no deficiency in service as opponent no.2 had performed his duty.
(14) So far as visit of Complainant no.1 on 08/02/2018 is concerned, she had no prior appointment. Similarly, the opponentno.2 was not having his day to examine the patient in his regular clinic. He had come to his IBD clinic. There were patients in the clinic. So, it was not possible for opponentno.2 to spare time for Complainant no.1 to see the reports in absence of patient. The Complainant had paid Rs.25,000/- for reports for which the opponent no.1 had provided service and gave report to her. So, on this count also it cannot be said that by accepting charges the opponent nos.1 and 2 failed to provide service.
(15) The Complainant no.1 had been to hospital on 08/02/2018 to collect the test papers of Complainantno.2 and as a chance she contacted opponent no.2 when he was in his IBD clinic for examination of patients who had taken prior appointments. Therefore, it cannot be said that by refusing to see the test papers the opponents had committed deficiency in service. He had good ground to refuse to see the reports. Patient was not present. Similarly, earlier noting in the case papers was not made available. So, 10 A/22/538, A/22/734.A/22/607 the act of opponent no.2 cannot be called as refusal to examine the papers without any cause. The Hinduja Hospital provides service to patients who come to hospital with prior appointment. In present case, on 03/02/2018 the Complainant nos.1 and 2 had visited and paid requisite fees. Accordingly, service was rendered to them. The Complainants were asked to produce test reports on 06/02/2018 but the Complainants failed to do so. In fact, Complainant no.1 came on 08/02/2018 without prior appointment. She did not pay any charges of the hospital. Therefore, opponent no.1 cannot be held guilty of deficiency in service.
(16) The District Commission has not appreciated the facts of the case properly.
The District Commission has simply held that the opponents are guilty of deficiency in service as it was the duty of opponent no.2 to see the test papers of Complainant no.2 without appointment. In fact, the said observation is not proper and correct because, the Hospital has to follow the procedure. There is procedure to take appointment of Doctors for examination of patients as well as showing test reports along with the patient. The said procedure was not followed by the Complainants. Therefore, finding of the District Commission is not proper and correct. Hence, it requires indulgence. We must mention here that the Complainant No.1 had given letter dated 22/02/2018 to opponent no.1 wherein she alleged misconduct of opponent no.2. Accordingly, Hinduja Hospital had sought explanation of opponent no.2, who gave his explanation dated 08/03/2018. The said explanation was accepted by opponent no.1 and accordingly, informed the Complainant the real facts of the case by letter dated 08/03/2018. So, it can be said that Hinduja Hospital was conscious enough to call explanation of opponent no.2 and satisfied itself to the explanation given by opponent no.2, similarly, the 11 A/22/538, A/22/734.A/22/607 said explanation was forwarded to the complainants for their information. So, the said act can be called as due diligence observed by the Hinduja Hospital.
(17) The learned advocate for opponent no.2 and Hinduja Hospital have vehemently submitted that the Complainant No.1 can be called as dishonest litigant as she has filed several complaints against medical practitioners, private persons and others to earn money. It is also submitted that in present case the Complainant no.1 was not Consumer but still she filed complaint and claimed compensation of Rs.10,00,00/-. It is also contended that the Complainant has filed false and vexatious complaint against the present opponents to create nuisance value to medical professionals. Advocate for Opponent no.2 has relied on the ratio laid down in the following cases:
(i) Dalip Singh vs State of Uttar Pradesh and Others, reported in (2010) 2 SCC 114, wherein the Hon'ble Supreme Court has held that; "the appellants efforts to mislead the authorities and the courts got transmitted through three generations and the conduct of the appellant and his son to mislead the High Court and the Supreme Court cannot but be treated as reprehensible. They belong to the category of persons who not only attempt, but succeed in polluting the course of justice. Therefore, their prayer for setting aside the orders of the prescribed authority and the appellate authority cannot be entertained.12
A/22/538, A/22/734.A/22/607
(ii) Bushan Chimanlal Jain Vs. Dr.Chandru K.M. and Another, reported in 2019 SCC OnLine NCDRC 1258, wherein the Hon'ble National Commission has held in para 20 and 21that;
"20. The complainants have filed the complaint without any medical basis, but it's a frivolous and based on vague assumptions. Such complaint discourages the doctor to provide his services to the society without fear. It clearly signifies the ill intention and greed of the complainants to harass the doctor unnecessarily.
21. It is also to be seen here that the time and resources of this Commission have been wasted in such manner and for such evident purpose. It is thus appropriate and albeit necessary to give stern advise of caution to such complainants through imposition of exemplary cost to desist from misusing the statutory processes provided for a consumer for better protection of his interests under the Consumer Protection Act, 1986. This Act is not meant to be a tool to obtain wrong gains from or to create 'nuisance value' to the medical professionals at large in the country."
(iii) Vidya Devi Vs. Dr.(Mrs.) Jatinder Chaddha & Anr., reported in II(2014) CPJ 363 (NC) wherein the Hon'ble National Commission has held in para 11 that;
"11. The complainant has not approached the fora with clean hands; it is a frivolous complaint which deserves penalty. But, considering the circumstances and the disease from which she is suffering, we take a lenient view by not imposing any penalty under section 26 of CP Act. Accordingly, we dismiss this revision. No order as to costs."13
A/22/538, A/22/734.A/22/607
(iv) Saleemuddin & Ors vs Dr.Sunil Malhotra, reported in III (2006) CPJ 396 (NC), wherein the Hon'ble National Commission has held in para 25 that;
"This complaint has not been filed with requisite care and caution and it was filed to harass Dr. Sunil Malhotra, with pre-conceived and misconceived notions. Filing of such complaints and persisting in it by filing an appeal would just amount to abuse of the process of Consumer Fora."
(v) Brij Mohan Kher vs. Dr.N.H. Banka & Another, reported in 1(1995) CPJ 99 (NC). wherein the Hon'ble National Commission has held in para 37 that;
"It is relevant in the contest of our aforesaid findings to refer to the observations of the Supreme Court of India in paragraph 26 of the judgment in Morgan Stanely Mutual Fund V. Kartik Dass and Others (Civil Appeal Nos.4584 and 4587 of 1994) dated May 20, 1994 reported in II(1994) CPJ 7 (SC) wherein it has been observed, "there is an increasing tendency on the part of litigants to indulge in speculative and vexatious litigation and adventurism which the for a seem readily to oblige. We think such a tendency should be curbed. "in our opinion, the present case is a typical instance of such indulgence in speculative litigation and adventurism by the complainant, a tendency which must be put down with a heavy hand.
(18) In view of the submissions of opponent party no.2 and Hinduja Hospital coupled with the case-law cited by them, we have to consider the facts of 14 A/22/538, A/22/734.A/22/607 the present case. We must mention here that the Hinduja Hospital has produced on record the details of the cases filed by Complainants against the various persons including doctors and hospitals. It appears that the Complainant no.1 has filed in all 26 cases against various persons including doctors and she has claimed compensation. According to her, she filed cases against errant persons but it appears that in every case she has claimed huge compensation. Therefore, it appears that the Complainant no.1 is in habit of filing complaints to earn money. In present case also she has claimed exorbitant compensation but she has not proved how she suffered great pecuniary loss due to the alleged acts of opponents.
The opponent no.2 has simply asked her to take proper appointment to show test reports and to bring patient along with her. So, the said act cannot be treated as financial loss to the complainants to claim exorbitant compensation.
(19) On going through the ratio and facts of the present case, we are of the opinion that the Complainant no.1 has filed complaint with ulterior motive to extract money from the opponents. We hold that the Complainants have failed to prove deficiency in service and unfair trade practice against the opponents. Hence, we proceed to pass the following order:
ORDER
(i) Appeal bearing No.A/22/538 filed by original Complainants -
Smt.Sangeeta R. Sharma & Another is hereby dismissed.
(ii) Appeal bearing No.A/22/734 filed by Original Opponent No.1 - P.D. Hinduja National Hospital and Medical Research Centre is hereby allowed.
15A/22/538, A/22/734.A/22/607
(iii) Appeal bearing No.A/22/609 filed by Original Opponent No.2 -
Dr.Devendra Desai is hereby allowed.
(iv) Order passed by the District Commission in Complaint No.RBT/CC/19/158 is hereby set aside. In the result Consumer Complaint is hereby dismissed.
(v) Amounts deposited by the original Opponent nos.1 and 2 while filing appeal in the District Commission, be refunded to them along with accrued interest thereon after appeal period is over.
(vi) Parties to bear their own costs.
(vii) Copies of the order be furnished to the parties.
[Justice S.P. Tavade] President [Poonam V. Maharshi] Member emp 16