State Consumer Disputes Redressal Commission
Dr. Sunil Bhagat vs Sandip Kaur on 5 February, 2016
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1472 of 2011
Date of Institution: 03.10.2011.
Date of Decision : 05.02.2016.
Dr. Sunil Bhagat, Civil Hospital Hariana, Hariana Tehsil & Distict
Hoshiarpur, Punajb.
.....Appellant/opposite party no.1
Versus
1. Sandip Kaur W/o Sh. Daljit Singh, R/o Village Raguwal P.O.
Gardiwala, District Hoshiarpur, Punjab.
.....Respondent no.1/complainant
2. Civil Hospital Haryana, Haryana through CMO having its office at
Civil Hospital Hoshairpur, Punjab.
.....Respondent no.2/opposite party no.2
First appeal against order dated
19.08.2011 passed by the District
Consumer Disputes Redressal
Forum, Hoshiarpur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri H.S. Guram, Member.
Present:-
For the appellant : Sh. G.K. Saini, Advocate For respondent no.1 : None For respondent no.2 : Ex-parte ................................................... J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellant of this appeal (opposite party no.1 in the complaint) has directed this appeal against respondent no.1 of this appeal (the complainant in the complaint) and respondent no.2 herein (opposite party no.2 in the complaint), assailing order dated 19.08.2011 of District Consumer Disputes Redressal Forum Hoshiarpur (in short the "District Forum"), accepting the complaint of the complainant by directing OP no.1 to pay a sum of Rs.2,32,554/-
towards expenditure on treatment, Rs.50,000/- as compensation and First Appeal No.1472 of 2011 2 Rs.10,000/- as litigation expenses to the complainant, failing which,OP no.1 shall be liable to pay interest @9% per annum on the above said amounts till realization.
2. The complainant has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that she was admitted in Civil Hospital Hariana, OP no.2 on 08.03.2001 and Dr. Sunil Bhagat, OP no.1 conducted operation for removal of the gall bladder of complainant. OP no.1 conducted the operation in a negligent and careless manner by cutting down the crucial nerve. The complainant was discharged on 17.03.2010, but she continued feeling pain in the stomach due to negligent operation conducted by OP no.1. OP no.1 suggested that it was only minor pain and it would be treated in 2-3 days, but pain did not subsidize and even on 21.07.2010, she was again brought to Civil Hospital Hariana for check up, but she was taken up in a casual manner by OP no.1. She was again brought to Civil Hospital Harianan on 28.03.2010 with complaint of severe stomach pain. It was found that she was having fluid in her stomach and OP no.1 removed the fluid from her stomach, but to no effect. It was further averred that complainant went to private hospital namely KDM Hospital Tanda Bye Pass Chowk Hoshiarpur on 28.03.2010, and she was suggested to get complete treatment from the operating surgeon. She was again brought to OP no.2 hospital and she was discharged on 01.04.2010. She was again brought to Civil Hospital Hariana and after check up, she was referred to Oxford Hospital First Appeal No.1472 of 2011 3 Jalandhar on 09.04.2010 where ERCP was conducted and an abrupt cut of mid CBD level was found and complainant was then taken to DMC Hospital Ludhiana on 10.04.2010, where she remained admitted on 10.04.2010 to 23.04.2010. On 10.04.2010, the complainant was brought to DMC Ludhiana and immediately she was shifted to surgery ICI department. On 11.04.20101, explorditory laparotomy was done and doctors of DMC Ludhiana told complainant that her condition was worsened due to cutting of nerve during the operation conducted by OP no.1. She further stated that OP no.1 and OP no.2 are jointly and severally liable to pay her compensation for medical negligence. She has, thus, sought for compensation from OPs no.1 and 2 of Rs.5 lakhs for medical expenses and Rs.50,000/- for pain and suffering and Rs.50,000/- for mental harassment.
3. Upon notice, OPs appeared and filed written reply by raising preliminary objections that complaint is not maintainable in the present Forum. The complainant has concealed the material facts from the Forum. Any medical negligence was vehemently denied by the answering OPs. The complaint was alleged to be not maintainable. It was admitted that CBD was cut down by OP no.1 for which complainant sought treatment from DMC Ludhiana, as pleaded in her complaint. The complainant concealed the material facts from the Forum. The complainant firstly went to K.D.M. Hospital Tanda Bye Pass, Hoshiarpur on 28.03.2010 and was admitted there without the advice of OP no.1 and when the doctor of that hospital First Appeal No.1472 of 2011 4 demanded money from her, then she contacted OP no.1. It was further averred that OP no.1 is an honest doctor and he demanded nothing from the complainant for her treatment, like private hospitals. She came in the hospital of OP no.1 leaving the KDM Hospital without advice of doctor of that hospital and doctor of that hospital written L.A.M.A. on her prescription slip. It was further averred that complainant remained admitted in the hospital OP no.2 upto 01.04.2010 and her condition improved and she was discharged on 01.04.2010. The OPs denied any medical negligence on their part in this case. They controverted the other averments of complainant and prayed for the dismissal of the complaint.
4. The complainant tendered in evidence affidavit and documents Ex.C-1 to C-121 alongwith ERCP report Ex.CW-1 and closed the evidence. As against it, OPs tendered in evidence affidavit and documents Ex.OP-1, Mark C-2 to Mark C-4 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainant against OP no.1, as referred to above. Dissatisfied with the order of District Forum, OP no.1, the present appellant carried this appeal against the same.
5. We have heard the learned counsel for the appellant, as none appeared for respondent no.1 in this appeal since after 7th August, 2015. Many adjournments were granted, but nobody put in appearance for respondent no.1. Respondent no.2 is ex-parte in this appeal and hence, we proceed to decide this appeal on merits with the aid of evidence on the record. Assuming arguendo, and not First Appeal No.1472 of 2011 5 admitting the complainant to be consumer, even then it is a case of CBD cut by the operating surgeon, while performing the operation of cholecystectomy. The National Commission has held in "Tilat Chaudhary & another Vs. All India Institute of Medical Sciences & another" 2012-IV CPJ-610 that CBD injury is well known complication of laparoscopic cholecyctetomy procedure (LCP). It must be presumed that incidence of CBD injury is a well known risk when patient undergoes LCP. Same cannot be correlated on part of operating surgeon. Merely because the laparoscopic cholecystectomy had to be converted to open cholecystectomy procedure, it cannot be said that LCP adopted by surgeon was counter indicative. On the basis of law laid down by the National Commission in this authority, it has been held that CBD injury is well known complication of LCP and it cannot be said to be a case of medical negligence. In the instant case, from perusal of material evidence on the record, we find that it is the case of CBD injury, the CBD injury resulted into the complication leading to treatment of the complainant. It is well known complication of laparoscopic surgery of gallbladder and hence it cannot be presumed to be medical negligence, as submitted by counsel for the appellant. On the basis of law laid down by the National Commission in the above referred authority, the findings recorded by the District Forum Hoshiarpur under challenge in this case are hereby reversed in this appeal. The submission of counsel for the appellant is that appellant is a government employee as doctor in Civil Hospital Hariana, is under Director Health Services- Punjab Government. It was forcibly First Appeal No.1472 of 2011 6 submitted by counsel for the appellant that there is no question of buying the services of OPs no.1 and 2 by the complainant in this case for consideration. We have examined the material evidence on the record in this regard. There is nothing on the record that complainant now respondent no.1 of this appeal paid any charges at Government Hospital of OP no.2, whereof OP no.1 now appellant is employed as government employee. We have carefully examined the record with the able assistance of counsel for appellant. Neither in pleadings of the complainant nor in the affidavit of complainant nor in any evidence, it has been proved on record that complainant purchased the services of OP no.1 for consideration. Consumer has been defined in Section 2 (d) of the Act is as under:
"(i) Any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such good other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];
[Explanation - For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment;] It is, thus, evident that before complainant can be held to be consumer, it must be proved that complainant paid consideration for First Appeal No.1472 of 2011 7 hiring the services of OP no.1. The matter has been exhaustively dealt with by the Hon'ble Apex Court in "Indian Medical Association Vs. V.P. Shantha & others" 1996 AIR (SC)-550. The Apex Court has held in this authority that where doctors render services without charging, such services not covered by service under Section 2 (1)(o) of the Act. The government hospital renders free services, where nothing is charged from the patients, except some token charges of registration and no consideration is received by the doctor and other staff, who performed operation. Consequently, OPs no.1 and 2 cannot be held to be service provider to complainant as consumer within the ambit of Act for consideration. On this point, reference may be made to Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal in "N. Rohan Yadav Vs. Manorama Tamrakar & others" 2001(2) CLT-499. Reference may be made to law laid down by the National Commission in revision petition no.4734 of 2012 decided on 05.11.2014 titled as "Major Singh Vs. State of Punjab & others". The National Commission has also held in "Consumer Unity & Trust Society, Jaipur Vs. The State of Rajasthan & others"
I(1992) CPJ-259 (NC) that a person who avails facility of medical treatment in Government Hospital is not a consumer and no complaint is maintainable under the Act. On the basis of law laid down in the above referred authorities, the services rendered by the government hospitals are outside the purview of the definition of Consumer under Section 2(d) of the Act. Consequently, the District Forum overlooked this important aspect of the matter and First Appeal No.1472 of 2011 8 erroneously held the complainant to be the consumer of OPs. The finding of District is reversed on this count.
6. As a result of our above discussion, we accept the appeal of the appellant and by setting aside the order of District Forum Hoshiarpur dated 19.08.2011, the complaint of the complainant now respondent no.1 in the appeal is hereby ordered to be dismissed. The complainant now respondent no.1 is at liberty to seek Redressal of her grievance from competent Court of law, if so wished. She can invoke the provision of Section 14 of Limitation Act, 1963 before competent Forum.
7. The appellant had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount with interest, which accrued thereupon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days
8. Arguments in this appeal were heard on 01.02.2016 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S.GURAM) MEMBER February 05, 2016.
(MM)