State Consumer Disputes Redressal Commission
Ramjilal Parashar vs Dr.Sandeep Saraf on 2 January, 2024
Daily Order M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PLOT NO.76, ARERA HILLS, BHOPAL FIRST APPEAL NO. 37 OF 2014 (Arising out of order dated 13.12.2013 passed in C.C.No.447/2013 by District Commission, Gwalior) DR. SANDEEP SARAF, S/O SHRI K. L. SARAF, SARAF HOSPITAL, OLD HIGH COURT LINE, LASHKAR, GWALIOR (M.P.) ... APPELLANT. Versus 1. RAMJILAL PARASHAR, S/O SHRI RAJARAM PARASHAR, R/O A-39, SURYA NAGAR COLONY, SHABDA PRATAP ASHRAM ROAD, GWALIOR (M.P.) 2. UNITED INDIA INSURANCE CO.LTD, THROUGH REGIONAL MANAGER, PARYAWAS BHAWAN, ARERA HILLS, BHOPAL (M.P.) .... RESPONDENTS. FIRST APPEAL NO. 113 OF 2014 (Arising out of order dated 13.12.2013 passed in C.C.No.447/2013 by District Commission, Gwalior) RAMJILAL PARASHAR, S/O SHRI RAJARAM PARASHAR, R/O A-39, SURYA NAGAR COLONY, SHABDA PRATAP ASHRAM ROAD, GWALIOR (M.P.) ... APPELLANT. Versus 1. DR. SANDEEP SARAF, S/O SHRI K. L. SARAF, SARAF HOSPITAL, OLD HIGH COURT LINE, LASHKAR, GWALIOR (M.P.) 2. UNITED INDIA INSURANCE CO.LTD, OFFICE NO.7, GF-150, BBC COMPLEX, KILOKI RING ROAD, OPPOSITE MAHARANI BAG, NEW DELHI-14 THROUGH MANAGER .... RESPONDENTS. BEFORE : HON'BLE SHRI A. K. TIWARI : ACTING PRESIDENT HON'BLE DR. SRIKANT PANDEY : MEMBER-2-
COUNSEL FOR PARTIES :
None for the complainant.
Shri Mohan Chouksey, learned counsel for the opposite party no.1.
Shri Mahavir Bhatnagar, learned counsel for the opposite party no.2.
O R D E R (Passed On 02.01.2024) The following order of the Commission was delivered by A. K. Tiwari, Acting President:
Aforesaid appeals arises out of the order dated 13.12.2013 passed by the District Consumer Disputes Redressal Commission, Gwalior (for short 'District Commission) in C.C.No.447/2013 whereby the complaint filed by the complainant has been allowed.
2. The opposite party no.1-Doctor has filed First Appeal No.37/2014 for setting aside the order whereas the complainant has filed First Appeal No.113/2014 for enhancement of compensation. Since both appeals arise out of impugned order, therefore they are taken up together and are decided by this order. Facts of the case are taken from First Appeal No.37/2014 unless otherwise stated.
3. The brief facts giving rise to the complaint before the District Commission are that the complainant on 03.06.2011 with ultrasonography report approached the opposite party no.1-Doctor (hereinafter referred to as 'Doctor'), who after going through the report stated that he had 9mm stone in his upper ureter. It is also not in dispute that the complainant admitted in -3- the hospital of opposite party no.1 on 05.06.2011 for treatment and thereafter discharged on 07.06.2011. The complainant paid Rs.13,000/- towards medical expenses to the Doctor. It is stated by the complainant that the Doctor operated him for stone but when he could not get any relief, he approached the Doctor on 18.06.2011 and told him about his condition, the Doctor prescribed some medicines. Thereafter when still there was pain, the complainant approached Dr. J. S. Namdhari and got done ultrasonography on his advice on 20.06.2011, the stone was found of 8.5mm. The complainant with the said report again approached the Doctor on 25.06.2011, who advised him to continue the medicines. It is alleged that again on 20.07.2011 from the ultrasonography report, 8 mm stone was found of which complaint was made to the Doctor, but he did not treat him. Thereafter he approached Dr. Preetesh Jain who prescribed some medicines on 08.02.2012 and on his advice, got done ultrasonography from which the stone was found of 7mm. It is alleged by the complainant that the Doctor without performing any operation charged fees from him and has not treated well due to which he had to face excessive physical pain for a period of one year. Thereafter legal notice was also sent to the Doctor but he did not reply the same. The complainant therefore alleging deficiency in service against the Doctor filed a complaint before the District Commission seeking -4- refund of fees charged Rs.13,000/- with compensation of Rs.75,000/- and costs Rs.6,500/-.
4. The opposite party-1 doctor resisted the complaint stating that he had obtained insurance policy for a sum of Rs.20,00,000/- from the opposite party no.2-insurance company (hereinafter referred to as 'insurance company') for his medical profession, therefore, if any liability comes, then the insurance company is liable to pay the same. The complainant failed to prove that he wrongly operated him or what negligence has committed. He, with the consent of the complainant performed Lithotripsy for breaking and to displace the stone. It is further submitted that he has 18 years' medical experience and his hospital is facilitated with modern machines. He had received Rs.13,000/- from the complainant towards medical expenses. After 25.06.2011, the complainant never consulted him despite advice otherwise looking to his condition, he will treat him by Lithotripsy method or telescope method. Stone of the complainant was broken due to Lithotripsy and its size became lesser thus it cannot be said that he received consideration without treating the complainant. It is therefore prayed that the complaint be dismissed with costs.
5. The opposite party no.2-insurance company in their reply before the District Commission has submitted that under the insurance policy no risk is covered for the work which has not been done and therefore prima -5- facie the complaint deserves to be dismissed against it. As per policy condition no.10.1, the Doctor should have informed the insurance company about such expected claim but the Doctor despite receipt of notice from the District Commission did not inform the insurance company and therefore since there is violation of policy condition, the insurance company is not liable to pay any compensation. It is thus prayed that the complaint against it be dismissed.
6. The District Commission after appreciation of evidence available on record found that the opposite party no.1-doctor was negligent in performing operation and guilty of deficiency in service. The District Commission therefore allowed the complaint filed by the complainant against the opposite party no.1-Doctor directing him to pay compensation of Rs.20,000/- to the complainant within a period of 30 days failing which the opposite party no.1-Doctor is liable to pay interest @ 8% p.a. on the aforesaid amount. Costs of Rs.1,200/- is also awarded.
7. Heard learned counsel for the parties. Perused the record.
8. None appeared for the complainant however, in his appeal he prayed for enhancement of compensation for a sum of Rs.2,00,000/- in addition to Rs.20,000/- already awarded by the District Commission to be paid jointly and severally by the opposite parties.
-6-9. Learned counsel for the opposite party-1 Doctor argued that the impugned order passed by the District Commission is against the principles of natural justice and is liable to be set-aside. The District Commission has erred in not considering the documents available on record. The District Commission did not consider this aspect that the complainant failed to prove that the opposite party no.1-Doctor wrongly operated him and what negligence was committed. The opposite party no.1-Doctor with consent of the complainant tried to break and displacing the stone by Lithotripsy method and due to Lithotripsy the size of the stone was reduced from 9mm to 8.5mm. He argued that the complainant never turned up after 25.06.2011 despite advice otherwise again Lithotripsy will be performed. He argued that the opposite party no.1-Doctor is an experienced doctor and has not committed any negligence. He further argued that the opposite party no.1-Doctor is indemnified by the insurance policy of the insurance company but the District Commission has committed grave error in exempting the insurance company from the liability of payment of compensation. He therefore argued that the impugned order deserves to be set-aside.
10. Learned counsel for the opposite party no.2-insurance company supporting the impugned order argued that the District Commission has rightly dismissed the complaint against the insurance company as there was violation of policy condition on part of opposite party no.1-Doctor in not -7- informing the insurance company about the expected claim as per policy condition. He argued that both appeals filed by the complainant and opposite party no.1-Doctor deserve to be dismissed.
11. On perusal of record, we find that complainant has filed his affidavit along with documents marked as C-1 to C-9 including different prescriptions, reports and legal notice. The opposite party doctor has filed is affidavit, affidavits of Dr. Preetesh Jain and Dr. Brijesh Singhal along with documents marked as R-1 to R-8 as per list including his registration copy of case-sheet and medical literature. Dr. Sandeep Saraf and Dr. Preetesh Jain also replied to the queries made on affidavits. F-1 is medical expert report dated 28.11.2013 of BIMR Hospitals, Gwalior obtained by the District Commission.
12. It is an admitted fact that the complainant admitted in the hospital of opposite party no.1-Doctor on 05.06.2011 where he underwent Lithotripsy on 06.06.2011 by the opposite party 1-Doctor and he was discharged on 07.06.2011. It is also admitted that the complainant paid Rs.13,000/- towards medical expenses. It is alleged by the complainant that after alleged operation he could not get any relief and either the opposite party no.1-Doctor did not perform the alleged operation or performed negligently. On the other hand, the defense of the opposite party-1 Doctor -8- is that he performed Lithotripsy and due to which the size of the stone reduced from 9mm to 8.5mm.
13. We have examined the different documents filed on record. C-1 is prescription dated 07.06.2011 of the opposite party no.1-Doctor wherein he has mentioned Right Upper Ureteric Stone and thereafter it is written DJ Stunting with ECSWL done. There is no discharge card of the said hospital stating the whole summary. C-2 is medical bill dated 07.06.2011 for Rs.13,000/-. C-3 is ultrasonography report dated 03.06.2011 of Delhi Ultrasound Diagnostic Centre, wherein it is stated that a stone 9mm seen in Right Upper Ureter. Thereafter the Lithotripsy was performed by the opposite party no.1-Doctor in order to break and displace the stone on 06.06.2011. From the USG report dated 20.06.2011 (C-4) it is found that stone is of 8.5mm. From the USG report dated 20.07.2011 (C-5) it is found that stone is of 8mm. From the USG report dated 08.02.2012 (C-7) it is found that stone is of 7mm. Thus, from the reports, it is clearly established that there was no progressive reduction of stone by the procedure adopted by the opposite party no.1-Doctor.
14. The complainant has clearly stated in his complaint and affidavit that even after alleged Lithotripsy performed by the opposite party no.1-Doctor when he could not get any relief, and found that stone is still of 8.5mm he approached the opposite party no.1-Doctor with USG reports on -9- 18.06.2011 and thereafter on 25.06.2011 but he advised to continue the medicines. This fact was not controverted by the opposite party no.1-Doctor. He submitted that the complainant never turned up after 25.06.2011.
15. The complainant has filed C-9 wherein Lithotripsy is defined as "Lithotripsy is a procedure that uses shock waves to break up stones in the kidney, bladder or ureter (tube that carries urine from your kidneys to urinary bladder) After the procedure, the tiny pieces of stones pass out from the body in urine." In fact, admittedly, this was not done in the case of the complainant and still stone reduced from 9mm to 8.5mm only.
16. The expert report obtained by the District Commission from the BIMR Hospitals (F-1) dated 28.11.2013 clearly demonstrates that by Lithotripsy according to stone composition, stone can turn into stone powder, break in some parts or it cannot break. Further it is mentioned that the main function of Lithotripsy method is to break and displace the stone and this procedure can be repeated till the object of removing stone is not obtained.
17. However, in the instant complaint, after Lithotripsy which was performed on 06.06.2011, the complainant approached the opposite party no.1-Doctor on 18.06.2011 with complaint that there is no relief and thereafter with USG report dated 20.06.2011 (C-4) showing stone size 8.5mm, on 25.06.2011 but the opposite party no.1-Doctor despite again -10- performing Lithotripsy advised him to continue the medicines only. The opposite party no.1-Doctor in his reply and affidavit himself has stated that the complainant did not consult him after 25.06.2011 otherwise he could have performed Lithotripsy but when the complainant approached him on 18.06.2011 and 25.06.2011 what prevented him to do Lithotripsy of the complainant so that he could get relief.
18. Hon'ble Supreme Court in Harish Kumar Khurana (Dr.) Vs Joginder Singh & Ors. II (2022) CPJ 43 (SC) has held that 'The negligence alleged should be so glaring, in which event the principle of Res ipsa loquitur could be made applicable and not based on perception." Here in the instant matter the negligence alleged is glaring that despite Lithotripsy the object of the Lithotripsy could not be achieved and later again on complaining it was not repeated by the opposite party no.1, Doctor to remove the stone.
19. The Hon'ble Supreme Court in Savita Garg Vs National Heart Institute (2004) 08 SCC 56 has held that "The burden is greater on the institution/hospital than that on the claimant. In any case, the hospital is in better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence." However, in the present matter, the opposite party no.1-Doctor has failed to prove that there was no lack of care -11- or diligence. Even the doctor has not supported his case by way of medical literature that there are chances of failure of particular method.
20. In view of the above discussion we find that the District Commission has rightly held the opposite party no.1-Doctor negligent and deficient in service in treating the complainant. The District Commission has considered all the aspects and evidence available on record and passed a well-reasoned order and has rightly compensated the complainant for the pain he suffered for a long time. The complainant has also filed appeal for enhancement of compensation but we find that the complainant has been adequately compensated and we do not find any cogent reason to enhance the same.
21. Thus, we do not find any illegality or perversity in the impugned order. Accordingly it is maintained.
22. In the result, both appeals fail and are hereby dismissed. No order as to costs.
23. This order be retained in First Appeal No.37/2014 and a copy be placed in First Appeal No.113/2014.
(A. K. Tiwari) (Dr. Srikant Pandey) Acting President Member