State Consumer Disputes Redressal Commission
Smt. Anita vs Bindi Nursing Home on 26 September, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.696 of 2010.
Date of Institution: 29.04.2010.
Date of Decision: 26.09.2013.
Smt. Anita wife of Sh. Rajesh Nayyar, R/o House No.42, Factory Area,
Patiala.
.....Appellant.
Versus
1. Bindi Nursing Home, through its Proprietor, 112, Ajit Nagar,
Patiala.
2. New India Assurance Company Limited, Divisional Office,
Patiala.
3. Alfa Radiological Centre, through its Proprietor, 1 Jagdish
Ashram Road, behind Rajindra Hospital, Patiala.
...Respondents.
First Appeal against the order dated
29.03.2010 passed by the Additional
Bench of the District Consumer
Disputes Redressal Forum, Patiala at
Patiala.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. Harsh Manocha, Advocate, counsel for the appellant.
Sh. R.K. Bashamboo, Advocate, counsel for the respondents no.1 & 2.
Respondent no.3 Exparte.
INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
This order will dispose of the two (2) appeals i.e. F.A. No.696 of 2010 (Smt. Anita Vs Bindi Nursing Home & Ors.) and F.A. No.871 of 2010 (New India Assurance Company Limited & Anr. Vs First Appeal No.696 of 2010 2 Smt. Anita & Anr.) as both the appeals are directed against the same order dated 29.03.2010 passed by the learned Additional Bench of the District Consumer Disputes Redressal Forum, Patiala, at Patiala (in short "the District Forum"). Facts are taken from F.A. No.696 of 2010 and the parties would be referred by their status in this appeal.
2. Facts in brief are that Smt. Anita, appellant/complainant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents/opposite parties (hereinafter called as "the respondents"), on the grounds that about four years back, she was in advance stage of pregnancy and due to some problem, she was admitted in the hospital at Coimbatore (Madras) and she was operated for abortion and was advised to avoid pregnancy for 3-4 years, as giving birth to the child will be dangerous to the life of the baby and the mother. On the advice of the doctor, lapro-tubectomy was done in Coimbatore. After the expiry of four years, the appellant desired to have a baby, as they were issueless. She along with her husband consulted the Gynecologist Dr. Mohini, Head of the Department of Gynecology in Rajindra Hospital, Patiala, in the month of February, 2008. The appellant was advised that she can give birth to a child through the process of laparoscopic recanalizatrion and there will be no problem. The appellant as per the recommendation of Dr. Mohini, underwent all the tests and it was told that the appellant will be operated upon on 19.08.2008. The agent of the respondent Bindi Nursing Home, Patiala told the appellant that she should not take the risk of operation in Govt. Hospital, as the doctors are negligent and sanitation conditions are not good and instigated the appellant to take advice from a private doctor and suggested the name of Bindi Nursing Home, Ajit Nagar, Patiala and the appellant on the instigation of the First Appeal No.696 of 2010 3 agent of Bindi Nursing Home, Patiala visited the same on 19.08.2008 at about 8.00 A.M. for consultation only.
3. On 19.08.2008, the doctor of Bindi Nursing Home told the appellant that laparoscopic recanalization is not a good surgery and the appellant should go for operation through open surgery and advised that their hospital has expert surgeons and assured the appellant about 100% success of operation and recanalization through open surgery. Respondent no.1 gave some medicines to the appellant and she was not allowed to consult her husband, who was accompanying her and was very much present in the premises of the hospital and was waiting outside and got some certificates and blank papers signed. Respondent no.1 directed the appellant to lay on the bed and started giving glucose against the will of the appellant and respondent no.1 operated the appellant for recanalization through open surgery without recommending any test on that very day and charged Rs.10,000/- from the appellant.
4. On 21.08.2008, there was no recovery in the health of the appellant and she was not able to move, but respondent no.1 forcibly discharged the appellant in a bad health condition, whereas she needed the medical help. At the time of discharge and after the discharge, the appellant suffered many problems. Her belly was inclined to one side and whole body swelled and was aching. The appellant has to visit respondent no.1 every now and then, after every 2 or 3 days, but no improvement in the health took place by the medicines prescribed by respondent no.1. On every visit, respondent no.1 assured the appellant that she has been successfully operated and she will recover from illness and will lead a normal life and will become able to give birth to the child.
First Appeal No.696 of 2010 4
5. When the health of the appellant started deteriorating day by day, then she asked respondent no.1 as to why her health was not improving inspite of the fact that she is following the follow-up procedure and taking medicines and precautions as prescribed by respondent no.1 and has spent more than Rs.50,000/- on the medicines and operations, but respondent no.1 again assured the appellant that everything is normal and recommended to get H.S.G. study test from respondent no.3. The appellant went to respondent no.3, who injected some medicines and gave some intramuscular and intravenous injections and after the H.S.G. study test, the swelling on the body of the appellant further increased and she was not able to sit in the toilet. On seeing the H.S.G. study test report, respondent no.1 declared that the operation is very much successful and one side has been opened and other will be opened with the help of medicines in a short time and she will give birth to the child, but the assurance of respondent no.1 remained fake assurances and the health of the appellant kept on deteriorating and her life became hell.
6. Respondent no.1 also asked the appellant that she can consult PGI, Chandigarh and recommended some persons known to respondent no.1. The appellant suspected some foul play and on 04.11.2008, she again visited Dr. Mohini, Gynecologist, Rajindra Hospital, Patiala, who after check-up, disclosed that her open surgery operation of recanalization was not successful and there is infection due to the said operation and she will not be able to give birth to the child. The appellant visited PGI on 15.12.2008 and the doctors of PGI also disclosed that her operation of open surgery was not successful and suggested for IVF for once or twice. The appellant received a shock and she immediately approached respondent no.1 and told her First Appeal No.696 of 2010 5 regarding the facts disclosed by Dr. Mohini and the doctors of PGI. Respondent no.1 admitted the guilt and felt sorry and recommended her to visit Dr. Ruchi Ahuja, Sector-32, Chandigarh or PGI, Chandigarh and told the appellant that only remedy left with the appellant is IVF. The appellant told respondent no.1 that for IVF, a huge amount of money is required and the appellant is not able to spend such a huge amount and requested respondent no.1 to get her treated through IVF at her own cost and she can enjoy the pleasure of motherhood. Respondent no.1 became furious and threatened the appellant and her husband that if they disclosed this fact to any one or complained anywhere, then they will have to bear bitter consequences. The appellant suffered lot of mental tension and harassment and her body posture has been disfigured and there is swelling. Due to deficiency in service and medical negligence on the part of respondents no.1 & 3, the appellant suffered physical and mental tension and is entitled to Rs.1.00 lac as compensation, Rs.1.00 lac as expenditure incurred on medicines, Rs.1.00 as compensation for harassment, Rs.6.00 lacs for IVF treatment and follow up medicines and Rs.11,000/- as litigation expenses, in all Rs.9,11,000/- along with interest @ 18% p.a. Accordingly, the prayer was made.
7. In the version filed on behalf of respondent no.1, it was submitted that the appellant is not a consumer and there is no deficiency in service on the part of the answering respondent. As per the information given by the appellant, she gave birth to two children and thereafter, got done Lapro-tubectomy to avoid pregnancy in future and she came to respondent no.1 with a request for recanalization as she wanted to give birth to the child, as both her previous children had died. There is no doctor namely Dr. Mohini in Gynecology Department First Appeal No.696 of 2010 6 of Rajindra Hospital, Patiala. Treatment of Laparoscopic recanalization is not available in Rajindra Hospital, Patiala. The allegations are wrong and are specifically denied. Bindi Nursing Home itself is known for its success rate of surgery and it has no agent to get the business.
8. In fact, the appellant approached respondent no.1 when she came to know that laparoscopic recanalization is very costly and its success rate is very low. She came and requested respondent no.1 that she cannot afford laparoscopic recanalization and this treatment has high risk for life and she wants to get herself operated by open recanalization. She was in possession of the reports of all the tests required for recanalization and respondent no.1 saved the money of the appellant and on her insistence, for early operation asked her to come on the next morning along with her husband. The appellant along with her husband namely Sh. Rajesh Nayyar came in the clinic of respondent no.1. Dr. Vikram Tondan explained the appellant and her husband that the success rate of open recanalization/tuboplasty is 50% and the husband of the appellant gave consent to do the needful and signed the consent form. The appellant recovered well and catheter was removed on 20.08.2008 and she was discharged in a satisfactory condition on 21.08.2008. The appellant was advised for follow up treatment and she was given the required treatment. The appellant once met respondent no.1 and on her showing the dissatisfaction with the treatment, she was advised to get HSG study test. Due to earlier operation, the tubes were not accurately placed, so operation conducted by respondent no.1 could not succeed. Respondent no.1 is insured with New India Assurance Company Limited, Patiala and the said insurance company is liable to make payment, if any, awarded by First Appeal No.696 of 2010 7 the District Forum. Other allegations were denied and it was prayed that the complaint may be dismissed with costs.
9. In the written version filed on behalf of respondent no.3, similar preliminary objections were taken and on merits, it was submitted that as per recommendation/prescription of Bindi Nursing Home to get the HSG study test, respondent no.3 conducted the said test and gave the report. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
10. In the written version filed on behalf of respondent no.2, similar preliminary objection were taken. On merits, it was submitted that the appellant has made false and fabricated allegations with malafide intention to make false claim for compensation. It was admitted that respondent no.1 is duly insured with the answering respondent. Denying allegations of the complaint, dismissal of the same was prayed.
11. Parties led evidence in support of their respective contentions by way of affidavits and documents.
12. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that in the present case, conducting the operation on the appellant without the requisite pre-operation tests and taking shelter under the plea that the appellant was already having test reports with her, is a clear-cut case of medical negligence and deficiency in service. The out-patient ticket issued by PGI on 15.12.2008 Ex.C-8 shows that the operation conducted by respondent no.1 was unsuccessful. Respondent no.1 has not produced any medical literature to prove the success or failure rate in such operations. The appellant was compelled to take recourse to IVF First Appeal No.696 of 2010 8 (Invitero Fertility) which is a very costly affair. The complaint was allowed against respondents no.1 & 2 and they were directed to pay jointly and severally Rs.6.00 lacs as compensation along with interest @ 9% p.a. from the date of HSG test conducted by respondent no.3 i.e. 06.09.2008 till realization and Rs.5,000/- as litigation expenses.
13. Aggrieved by the impugned order dated 29.03.2010, the appellant has come up in the present appeal with a prayer to enhance the compensation, as claimed in the complaint.
14. On the other hand, respondents No.1 & 2 have filed cross appeal i.e. F.A. No.871 of 2010 (New India Assurance Company Limited & Anr. Vs Smt. Anita & Anr.), seeking setting aside of the impugned order, on the grounds that the order passed by the District Forum is against the evidence on record and it was wrongly held that the pre-operation tests were not conducted by appellant no.2. Compensation awarded is wrong and the impugned order is against the evidence and material and is liable to be set aside.
15. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard and considered the arguments advanced by the learned counsel for the parties.
16. Appellant along with her husband, in order to have a baby, approached the Head of Department of Gynecology, Dr. Mohini in Rajindra Hospital, Patiala in the month of February, 2008 and they were advised that the appellant could give birth to a child through the process of laparoscopic recanalization and also underwent certain tests. Ex.C-1 is the outdoor ticket of Rajindra Hospital, Patiala and various tests were conducted, but instead of getting herself operated, she was allured to consult respondent no.1 Bindi Nursing Home and she was admitted on First Appeal No.696 of 2010 9 19.08.2008 and was discharged on 21.08.2008 as per the discharge slip Ex.C-2. On the same day, when she consulted Dr. Vikram Tondon of respondent no.1, she was immediately taken for operation of recanalization/tuboplasty. The said doctor of respondent no.1 never conducted the requisite pre-tests for operation and on the basis of tests conducted in Rajindra Hospital, the appellant was operated on the very first day of admission i.e. 19.08.2008, but the operation was not successful as the appellant developed various side effects, like her belly inclined to one side and whole body swelled and started aching and she kept on taking treatment from respondent no.1, as is clear from Ex.C-4, but the appellant did not recover. Respondent no.1 recommended HSG study test and the same was carried out by respondent no.3, who gave the report Ex.C-5 and under the head 'Opinion', it was mentioned as follows:-
"Opinion:- Findings reveal bilateral complete Isthmic block."
17. Even after this test, respondent no.1 kept on treating the appellant and Ex.C-6 is the prescription slip.
18. The condition of the appellant did not improve and she again consulted Rajindra Medical College & Hospital, Patiala vide OPD slip Ex.C-6 and she was referred to PGI, Chandigarh for further treatment/IVF and ET. Ex.C-8 is the Out-patient Ticket of PGI, Chandigarh and she was treated for the diseases which were the outcome of the said operation. The doctors of PGI vide Ex.C-8 advised IVF once or twice and if does not conceive, then tuboplasty can be attempted. Vide Ex.C-9, respondent no.1 referred the appellant to Dr. Ruchi Ahuja, Sector-32, Medical College and vide Ex.C-11, referred to PGI.
First Appeal No.696 of 2010 10
19. From the above discussion, it is clear that the operation conducted by respondent no.1 was not successful and the appellant has to consult Rajindra Hospital and then the PGI, Chandigarh, where IVF test was recommended and even if she was not able to conceive after the IVF test, then tuboplasty was to be attempted.
20. To rebut the evidence led by the appellant, respondent no.1 has tendered the affidavit of Dr. Vikram Tondon Ex.RW-1/1, who has deposed as per the written version, consent form Ex.R-1 which is alleged to be signed by the husband of the appellant, but the column of witness is blank and no one has signed on behalf of respondent no.1. Ex.R-2 is the cover note vide which respondent no.1 was insured. Except this, respondent no.1 has not led any evidence. Once the appellant has brought the evidence against respondent no.1 regarding the medical negligence, then it was for respondent no.1 as well as Dr. Vikram Tondon who conducted the operation, to rebut the evidence led by the appellant. The principle of res-ipsa-loquitur is applicable, as enunciated by the Hon'ble Supreme Court in case "V. Kishan Rao Vs Nikhil Super Speciality Hospital & Another", 2010(2) RCR (Civil)- 929(SC), but as stated above, except the affidavit of Dr. Vikram Tondon, there is no evidence to rebut the evidence led by the appellant, whereby the appellant has proved the medical negligence on the part of respondent no.1. Hon'ble Supreme Court in the above mentioned judgment discussed a large number of authorities and in para nos.47 to 49, observed as under:-
"47. In a case where negligence is evident, the principle of res- ipsa- loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case, it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.First Appeal No.696 of 2010 11
48. If the general directions in paragraph 106 in D'souza's (supra) are to be followed, then the doctrine of res-ipsa-loquitur which is applied in cases of medical negligence by this Court and also by Courts in England, would be redundant.
49. In view of the discussions aforesaid, this Court is constrained to take the view that the general direction given in paragraph 106 in D'souza (supra) cannot be treated as a binding precedent and those directions must be confined to the particular facts of that case.
21. In view of above discussion and the fact that the District Forum has written a detailed and speaking order, there is no ground to interfere with the same.
22. There is no ground to enhance the compensation, as the District Forum has awarded the adequate compensation and there is no infirmity in the impugned order under appeal.
23. Sequel of above discussion, the appeal filed by the appellant (F.A. No.696 of 2010) is dismissed and the impugned order under appeal dated 29.03.2010 passed by the District Forum is affirmed and upheld. No order as to costs.
First Appeal No.871 of 2010:-
24. In view of the reasons and discussion held in F.A. No.696 of 2010 (Smt. Anita Vs Bindi Nursing Home & Ors.), the F.A. No.871 of 2010 (New India Assurance Company Limited & Anr. Vs Smt. Anita & Anr.) is dismissed and the impugned order under appeal dated 29.03.2010 passed by the District Forum is affirmed and upheld. No order as to costs.
25. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent no.1/complainant by way of a crossed cheque/demand draft First Appeal No.696 of 2010 12 after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
26. Remaining amount as per the order of the District Forum shall be paid by the appellants to respondent no.1/complainant within 45 days of the receipt of copy of the order.
27. The arguments in both these appeals were heard on 16.09.2013 and the orders were reserved. Now the orders be communicated to the parties.
28. The appeals could not be decided within the stipulated timeframe due to heavy pendency of court cases.
29. Copy of the order be placed in F.A. No.871 of 2010 (New India Assurance Company Limited & Anr. Vs Smt. Anita & Anr.).
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member September 26, 2013.
(Gurmeet S)