State Consumer Disputes Redressal Commission
Siddarth Ultrasound And Colour Doppler ... vs Harjinder Kaur on 10 April, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.418 of 2015
Date of Institution: 20.04.2015
Order Reserved on : 03.04.2017
Date of Decision : 05.04.2017
Siddharth Ultrasound and Colour Doppler Scan Center, Near Civil
Hospital, opposite Government Girls Secondary School, Abohar,
District Fazilka, through Dr. C.L. Bhargawa.
Appellant/Opposite party no.2
Versus
1. Harjinder Kaur wife of Iqbal Singh, resident of village Kattian
Wali, Tehsil Malout, District Muktsar.
Respondent no.1/Complainant.
2. Sai Hospital and Laparoscopy Surgery Center, College Road,
Abohar, District Fazilka, through Dr. Vinod Pal Sethi.
3. The New India Assurance Company Limited , opposite Raja
Cinema, Fazilka, through its Authorized Signatory.
4. The United India Insurance Company Limited, Thana Road,
Near Sandeep Cinema, Abohar, District Fazilka, through its
Authorized Signatory.
Respondents no.2 to 4/Opposite parties no.1,3 and 4
First Appeal against order dated
16.02.2015 passed by the District
Consumer Disputes Redressal Forum,
Ferozepur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt.Surinder Pal Kaur, Member Present:-
For appellant : Sh.S.K. Yadav, Advocate For respondent no.1 :.Sh.R.S. Aulakh, Advocate For respondent no.2 : Sh.A.K. Batra, Advocate For respondent no.3 : Sh.B.S.Taunque, Advocate For respondent no.4 : Sh. Munish Goel, Advocate ............................................ First Appeal No.418 of 2015 2 J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellant challenged the order dated 16.02.2015 of District Forum Ferozepur, mulcting the appellant with consolidated compensation of Rs. 1 lac for mental harassment to respondent no.1 of this appeal by giving liberty to appellant to claim above referred amount from New India Assurance Company/OP no.3 its insurer in this appeal. The appellant of this appeal is opposite party no.2 in the original complaint before District Forum and respondent no.1 of this appeal is the complainant therein and respondents no.2 to 4 of this appeal are opposite parties no.1,3 and 4 in the complaint and they be referred as such, hereinafter for the sake of convenience.
2. The complainant has filed the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that she suffered from abdominal disorder and was admitted at hospital of OP no.1 on 14.10.2013. OP no.1 assured her the best treatment and referred her for ultrasound scan to OP no.2 representing him as a specialist and skilled doctor in that field. Ultrasound test was performed on 14.10.2013 by OP no.2 on the complainant due to negligence by preparing false report despite the fact of payment of Rs.500/- by her to it. OP no.1 treated the complainant for one week by charging Rs.10,000/- and thereafter declared her healthy and discharged her from the hospital. The complainant suffered pain again on 23.10.2013 and visited the hospital of OP no.1. OP no.1 gave injection and declared her as O.K. First Appeal No.418 of 2015 3 The complainant got no relief therefrom and was admitted at Dr. Sukhwinder Singh's Hospital, where ultrasound was again conducted on her considering the previous ultrasound report given by OP no.2 and it was declared that something was wrong with the complainant and she was referred to get CT Scan from Adesh Spiral CT Scan Center Kotkapura Road Muktsar. The doctor opined that the complainant suffered from Heterogeneously Enhancing SOL in upper pole of right kidney with exopytic component as described above. The CT Scan report declared that complainant was in serious condition and required urgent operation and she was advised for treatment from Sri Ganga Ram Hospital New Delhi, where she was operated for cancer tumor near her right kidney by paying Rs.30,000/- in advance and later on Rs.1,00,000/- to the above hospital. She was having tumor near right kidney and due to negligent and wrongful treatment of OP no.1, her tumor became cancerous, which was endangering her life. Right kidney of the complainant was removed due to wrongful treatment provided to her. The complainant also sent legal notice dated 27.01.2014 to OPs, but to no use. The complainant has, thus, filed the instant complaint directing the OPs to pay Rs.1,30,000/- as expenses incurred on her treatment, Rs.1 lac as compensation for mental harassment and Rs.11,000/- as cost of litigation
3. Upon notice, OP no.1 appeared and filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that complaint has been filed without any First Appeal No.418 of 2015 4 cause of action and she has no locus standi to file the complaint. She is estopped by her act and conduct from filing the complaint. Any medical negligence was denied by OP no.1 on its part. On merits, it was pleaded that on 14.10.2013 after checking her, by Dr.V.P Singh, she was advised for complete ultrasound test. She got her ultrasound test from OP no.2. On the basis of the ultrasound test given by OP no.2, OP no.1 Dr. V.P Sethi provided the best treatment to the complainant. OP no.1 charged fee of Rs.100/- only from the complainant and gave the treatment to her as per prevailing condition. Any medical negligence was vehemently denied by OP no.1 on its part. OP no.1 is duly qualified doctor having requisite experience in the field and hence it prayed for dismissal of the complaint.
4. OP no.2 filed its separate written reply by raising preliminary objections that complaint has been filed just to blackmail OP no.2 and is not maintainable. This fact was admitted that Harjinder Kaur complainant came to OP no.2 with the prescription slip of OP no.1. OP no.2 never gave guarantee to her. It was denied that it prepared the report in a negligent manner. OP no.2 always tried to give his best service to the patients. OP no.2 charged a sum of Rs.500/- form the complainant. It was averred that upper poles of both right and left kidneys are difficult to comment for radiologists due to technical deficiency of ultrasound scanning. The rays bent due to refraction at the lower surface of liver and spleen, where these kidneys lie, and there seems a mass though if it is not there so of the pain persist First Appeal No.418 of 2015 5 then they refer these patients for C.T Scanning, which is superior technically. OP no.2 is a qualified radiologist, who can only suggest and cannot diagnose any disease, moreover the reports are always 90% accurate. OP no.2 denied any deficiency in service on its part and prayed for dismissal of the complaint.
5. OP no.3 appeared and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable. There is neither any deficiency in service nor any unfair trade practice on the part of OPs. No cause of action has arisen to complainant to file the present complaint and she has not come to the forum with clean hands. On merits, it was averred that no original insurance policy and other relevant documents have been supplied by the complainant to OP no.3. As per policy terms pertaining to the doctors indemnity insurance, it is mandatory to immediately inform the insurance company regarding any claim, but in the present case, neither the complainant nor OP no.1 has ever informed OP no.3 regarding any negligence in the treatment taken by the complainant. Rest of the averments were denied by OP no.3 and it prayed for dismissal of the complaint
6.` OP no.4 appeared and filed its separate written reply by raising preliminary objections that complaint is not maintainable. The complainant has not come to the Forum with clean hands. Any deficiency in service on the part of OP no.4 was vehemently denied. On merits, it was averred that OP no.2 never gave guaranteed anything, as alleged at any point of time and always performed his First Appeal No.418 of 2015 6 professional duties to the best of his knowledge and skill. Rest of the averments were denied by OP no.4 and it prayed for dismissal of the complaint.
7. The complainant tendered in evidence her affidavit Ex.C-1 along with copies of documents Ex.C-2 to Ex.C-30. As against it; OP No.1 tendered in evidence affidavit of Dr. Vinod Pal Sethi Ex.OP-1/1 along with copies of documents Ex.OP-1/2 to Ex.OP-1/6. OP no.2 tendered in evidence affidavit of Dr. C.L. Bhargawa Siddharth Ultrasound and Colour Doppler Scan Center Near Civil Hospital Abohar Ex.OP-2/1 along with copies of documents Ex.OP-2/2 to Ex.OP-2/3. OP no.3 tendered in evidence affidavit of Dindayal Aggarwal Divisional Manager NIA Feorzepur Ex.OP-3/1. OP no.4 tendered in evidence affidavit of P.L Dhingra Divisional Manager United India Insurance Company Limited Ex.OP-4/1 along with copy of document Ex.OP-4/2 and closed the evidence. On conclusion of evidence and arguments, the District Forum Ferozepur accepted the complaint of the complainant. Dissatisfied with the order of the District Forum Ferozepur dated 16.02.2015, opposite party no.2 now appellant, carried this appeal against the same. 8 We have heard learned counsel for parties at considerable length and have also examined the record of the case.
9. We have referred to evidence on the record with the able assistance of counsel for the parties. Affidavit of complainant in support of her case is Ex.C-1 on the record. She has testified in her affidavit that she suffered from abdominal problem and was admitted First Appeal No.418 of 2015 7 at hospital of OP no.1 on 14.10.2013. OP no.1 assured her to provide best treatment and referred her for ultrasound at the scan center of OP no.2. OP no.2 assured her for giving correct report and conducted above scan on her on 14.10.2013 in a negligent manner by preparing false report, despite receiving charges of Rs.500/- from her. she paid Rs.10,000/- to OP no.1 for treatment taken from her for a week. She was discharged from the hospital stating to be in a sound condition by OP no.1. On 23.10.2013, at midnight she suffered severe pain and she visited the hospital of OP no.1, who gave injection to her and asked her to return home. She got no relief and was admitted at Dr. Sukhwinder Singh's Hospital at Muktsar, who advised her for fresh ultrasound test after considering the previous scan, which he declared to be erroneous and she was then referred to Adesh Spiral CT Scan Center Muktsar and she was found to be suffering from "Heterogeneously Enhancing SOL in upper pole of right kidney with Exopytic component, as described above : likely Neoplastic Etilogy and Milled Hepatomegaly." CT Scan report conducted by Adesh Spiral CT Scan Center found serious matter in her health whereupon OP no.1 asked her to get treatment from Sri Ganga Ram Hospital Rajinder Nagar New Delhi. She was admitted there and operated for cancer tumor near right kidney and she incurred expenses of Rs.30,000/- on her treatment. She has alleged medical negligence on the part of OP no.1. Ex.C-2 is ultrasound report dated 24.10.2013. Ex.C-4 is legal notice sent by the complainant to OP no.1. Ex.C-5 is Postal receipt thereof. Ex.C-6 First Appeal No.418 of 2015 8 is legal notice dated 27.01.2014 sent by the complainant to OP no.2. Ex.C-10 and Ex.C-11 are receipts issued by Sir Ganga Ram Hospital New Delhi in favour of complainant. Ex.C-12 and Ex.C-13 are prescription slips of doctor. Ultrasound report of complainant given by Dr.C.L Bhargava of Siddharth Ultrasound & Colour Doppler Scan Centre is Ex.C-14 on the record. Ex.C-17 is ultrasound report of Harjinder Kaur complainant. Ex.C-19 is report of CECT Abdomen on CT Scanner for Adesh Spiral CT Scan Centre dated 24.10.2013 on the record. Similarly, we have examined other documents Ex.C-20 to Ex.C-30 on the record.
10. To refute this evidence, OP no.1 tendered in evidence affidavit of Dr.Vinod Pal Sethi Ex.OP-1/1 on the record. Ex.OP-1/2 is registration certificate of additional medical qualification of Dr. Vinod Pal Sethi issued by Punjab Medical Council. Ex.OP-1/3 is master of surgery in favour of Dr. Vinod Pal Setlhi. Ex.OP-1/4 is Dispensary Register & Out-door patients. Policy schedule for professional indemnity insurance is Ex.OP-1/6. OP no.2 tendered in evidence affidavit of Dr.C.L. Bhargawa of Siddharth Ultrasound and Colour Doppler Scan Center Ex.OP-2/1 on the record. Ex.OP-2/2 is medical literature and policy issued by UIIC in favour of Dr. C.K. Bhargav Ex.OP-2/3 on the record.
11. From hearing respective submissions of counsel for the parties and perusal of record, we find negligence on the part of OP no.2 now appellant in this case. The complainant went to OP no.2 for ultrasound test as advised by OP no.1. Ultrasound report issued by First Appeal No.418 of 2015 9 Op no.2 of the complainant is Ex.C-14 on the record, which is reproduced as under :-
"Liver. Normal in echotexture. Nofocal or generalized lesion seen.
Intrahepatic biliary radicals are normal. Gall B. Normal in distension. Normal in distension. NO intraluminal echogenic mass seen. Gall bladder wall is thickened.
CBD Normal in Calibre. No intraluminal enchogenic mass seen.
Pancreas Normal in dimensions & echotexture. Right Kid Normal in dimensions & in echotexture. Cortico-
medullary differentiation is maintained. Renal sinus is normal.
Left Kid. Normal in dimensions & in echotexture. Cortico-
medullary diffferntation is maintained. Reneal sinus is normal.
Spleen Normal in dimensions & in echotexture plenic vein is normal.
Urinary b Normal in distension. No intraluminal enchogenic mass seen.
Uterus Anteverted. Normal in dimensions & echotexture. No focal lesion seen. Endometrium s normal.
Right Ov Normal in dimensions & echotexture
Left Ov Normal in dimensions & echotexture
First Appeal No.418 of 2015 10
No fluid in cut-de-sae.
No adenexal mass seen.
IMPRESSION CH.CHOLECYSTITIS
The subsequent ultrasound report of the complainant conducted by Adesh Spiral CT Scan Centre is Ex.C-19 on the record. Dr. C.L Bhargava OP no.2, vide his scan report Ex.C-14, found no serious abnormality in the complainant. Right kidney : Normal in dimensions and in echotexture. Cortico medullary differentiation is maintained. Renal sinus is normal. Left Kidney : Normal in dimensions and in echotexture. Cortico-medullary differentiation is maintained. Renal sinus is normal. Ex.C-19 is the report of CECT Abodmen on CT Scanner by Adesh Spiral CT Scan Centre dated 24.10.2013, which is reproduced as under :-
Right Kidney : Heterogeneously enhancing SOL is seen involving upper pole of right kidney with exophytic component. The lesion measures 66 mm (AP) mm (TR) x 6.1 cms (SI) in size. No abnormal necrosis seen within the mass.
The mass lesion is abutting the inferior surface of right lobe of liver with focal loss of cleavage planes.
Superiorly the lesion is abutting the right adrenal gland. Rest of the right renal vein show normal opacificaton with contrast.
It is thus evident that OP no.2 in ultrasound report Ex.C-14 dated 14.10.2013 found the right kidney of complainant as normal in dimensions and in echotexture. Cortico-medullary differentiation is First Appeal No.418 of 2015 11 maintained. Renal sinus is normal. As per document Ex.C-28 on the record, the right nephrectomy specimen measures 13x7x5.5 cm. Outer surface is smooth. Cut surface shows a tumour corresponding to the bulge measuring 6x5.54. cm. Cut surface of the tumor is soft with areas of hemorrhage and necrosis. From perusal of copy of Discharge Summary Ex.C-30 issued by Department of Urology Unit IA, Sir Ganga Ram Hospital New Delhi, it reveals that the complainant was admitted in the said hospital on 28.10.2013 and was diagnosed as case of Right Renal Tumor and her Laparoscopic right radical nephrectomy was done on 28.10.2013 and thereafter she was discharged on 1.11.2013, whereas, the ultrasound scan report dated 14.10.2013 Ex.C-14 conducted by OP no.2 i.e. only a few days before the operation of the complainant. In these circumstances, it reveals that OP no.2 committed negligence in conducting the ultrasound scan of the complainant and gave a wrong report without due diligence and care. Had OP no.2 conducted the ultrasound scan of the complainant with due diligence and care and given the correct report, required treatment could have been given by OP no.1 to complainant promptly. We thus, affirm the findings of the District Forum with regard to negligence on the part of OP no.2 now appellant by giving the wrong report because the report of OP no.2 has been proved be erroneous by the ultrasound report of Adesh Spiral CT Scan Centre Muktsar Ex.C-19, which has further received corroboration from the record of Sir Ganga Ram Hospital Rajindera Nagar New Delhi, vide Ex.C-23 to Ex.C-30 on the record. First Appeal No.418 of 2015 12 Negligence on the part of OP no.2 in preparing this report is proved on the record.
12. Now, we have come to the point of quantum of compensation in this case. The District Forum awarded compensation of Rs.1 lac to the complainant from OP no.2. We found that had OP no.2 gave ultrasound report negligently and against facts with regard to the condition of complainant's body and the same could have been avoided, had the correct report been given necessitating the prompt treatment therefor. Much water had flown under the bridge by the time, the appropriate treatment was provided to complainant by the competent doctors to save her life. The District Forum rightly awarded compensation of Rs.1 lac to complainant from OP no.2 in this case. There is no ground to interfere with the same in this appeal.
13. As a result of our above discussion, we find no merit in the appeal and same is hereby dismissed by affirming the order of District Forum Ferozepur dated 16.02.2015 under challenge in this appeal.
14. The appellants had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal and further deposited an amount of Rs.30,000/- in compliance with order of this Commission. Both these amounts with interest, if any, accrued thereon, be refunded by the registry to the respondent no.1/complainant by way of crossed cheque/demand draft after 45 days from receipt of copy of this order. Remaining amount, if any, shall be paid to complainant First Appeal No.418 of 2015 13 by the appellants of this appeal, as per order of District Forum within 45 days from receipt of certified copy of this order.
15. Arguments in this appeal were heard on 03.04.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
16. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER April 5, 2017 (ravi)