National Consumer Disputes Redressal
Akhilesh Jain vs Nobel Hearing & Anr. on 21 May, 2014
NATIONAL CONSUMER DISPUTES REDRESSALCOMMISSION
NEW DELHI
REVISION PETITION NO. 2908 OF
2013
(Against order dated 10.05.2013 in
First Appeal No. 1599 OF 2011 of the
Madhya
Pradesh State Consumer Disputes Redressal Commission, Bhopal)
Akhilesh Jain,
Son of Sagarmal Ji,
R/o 7B, Suraj Nagar Colony,
Ujjain, Madhya Pradesh
Petitioner
Versus
1. Nobel
Hearing & Speech Therapy Clinic
8, South
Tukoganj,
201-A,
Ronak Plaza,
In
front of Nath Temple, Indore
2. Dr.
Jagdish Jain,
Clinic
cum Residence,
13-B/4,
Ratlam Kothi
Kanchan
Bagh Road
Bank
of India, Near Geeta Bhavan Square,
Indore Respondents
BEFORE:
HONBLE MR.
JUSTICE J. M. MALIK, PRESIDING MEMBER
HONBLE DR. S. M. KANTIKAR, MEMBER
For the Petitioner : Mr. Anurag Gohil, Advocate
Ms. Ruchika Gohil, Advocate
For the Respondents : Mr. Mohit Singh, Advocate
PRONOUNCED ON MAY, 2014
ORDER
PER DR. S.M. KANTIKAR, MEMBER
1. The present Revision Petition has been filed under Section 21 (b) of the Consumer Protection Act, 1986 against the impugned order dated 10.05.2013 passed by the State Consumer Disputes Redressal Commission (in short, State Commission) in First Appeal No. 1599 of 2011, wherein the State Commission has erroneously appreciated the facts and grounds, and upheld the order of the District Consumer Disputes Redressal Forum, (in short, District Forum). The District Forum dismissed the complaint no. CC/587/2011 on 21.10.2011.
2. Facts in brief: On 05.05.2009, the Petitioner Akhilesh Jain took his son, about 7 months age to ENT Specialist, Dr. Jagdish Jain, (OP-2). The OP-2 referred him to Nobel Hearing & Speech Therapy Clinic, the OP-1. The Brainstem Evoked Response Audiometry (BERA) test was conducted, and the report showed that the left ear was normal, whereas the right ear had minor hearing defect. The OP-2 assured the complainant that, the child would start hearing and talking very soon and there was nothing to worry about. However, as the child did not show any improvement, he consulted Dr. Satya Prakash Dubey at Bhopal who advised a CT Scan and another BERA Test. The BERA report showed that the child had profound sensory neural hearing loss in his left ear. Hence, the complainant/ Petitioner filed a complaint before the District Forum alleging that OP-1 and OP-2 are negligent in diagnosis, issued wrong report by which his child was deprived of specific treatment.
3. The District Forum dismissed the Complaint summarily on the basis of the report of the medical expert committee. The State Commission also confirmed the order of District Forum.
4. Aggrieved by the order of State Commission, the Complainant is before this Commission, through the present revision.
5. We have heard the Counsel for the parties. The counsel for the complainant vehemently argued about the different opinions in two BERA reports and made his best efforts to establish negligence of OPs. The counsel for OPs submitted that, on 05.05.2009, the 1st BERA test was conducted, thereafter, after lapse of two years, the complainant sought second opinion from Dr. Dubey at Bhopal, as per his advice the complainant got done the HRCT of Temporal Bone, on 03.05.2011; and BERA Test on 05.05.2011.
6. The counsel brought our attention to the prescription of Dr. Jagdish Jain, who asked the complainant to bring the child again for a follow up after 6 months and to get a Bone Conduction ABR to assess the cochlear function and ascertain the type of hearing loss. The complainant did not come for follow up and did not get done the tests after the lapse of two years.
7. We have perused all the reports dated 5.5.2009, 3.5.2011,5.5.2011 and the opinion of Medical Board of ENT Department, MGM Medical College and MY Hospital, Indore. The BERA test performed on 5.5.2009, shows that Left ear has hearing sensitivity within normal Limits, while the report dated 3.5.2011 shows clearly show that, the left ear has Profound Senorineural Hearing Loss and the HRCT report diagnosed as Malformed external ear with aberrant middle ear cavity as described.
8. It is important to note relevant paragraphs of medical board report which are reproduced as;
Complainant has not conducted Bone Conduction ABR and has also not done follow up after 6 month as suggested by Dr. Jagdish Jain, Mr. Salaj Bhatnagar who conducted the test is an Audiologist technician and not the Doctor.
Children with left ear having inner ear normal as shown in Imaging, and with the time weak nerve of ear can also be developed with the time.
9. The counsel for OP relied upon few Judgments of Honble Supreme Court and this Commission, namely:
a) Mrs. Rubi (Chandra) Dutta vs. United India Insurance Co. Ltd., 2011 (3) Scale 654
b) ICICI Prudential Life Insurance Company Ltd. vs. Bimal Kanta Kharab, (2012) NC840.
c) Vijay Kumar Jain vs. Union of India (2012) NC 261.
d) Jacob Mathews vs. State of Punjab (2005) 6 SCC 1.
e) Bolam vs. Frien Hospital Management Committee (1957) 2 {All ER 118}.
f) Kusum Sharma vs. Batra Hospital, (2010) 3 SCC 480.
The above judgments are not similar to the facts of this case.
10. Therefore, we do not find any negligence caused by the OPs and there is no error in any of the reports. The complainant did not follow up the advice of OP-2. He had slept for 2 years, without any proper follow-up and check up of his child, for which we cannot hold the OP s liable.
11. On the basis of foregoing discussion, we do not find any merit in this revision, hence, endorse the view taken by both the fora below, without any interference and dismiss this revision petition. No order for the costs.
...
(J. M. MALIK, J.) PRESIDING MEMBER ...
(DR.
S. M. KANTIKAR) MEMBER Mss/5