State Consumer Disputes Redressal Commission
Dr. Anil Baghi Hospital And Another vs Lovepreet Singh And Others on 14 October, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR -37 A, CHANDIGARH
First Appeal No.315 of 2021
Date of Institution : 08.09.2021
Reserved on : 22.09.2022
Date of Decision : 14.10.2022
1. Dr. Anil Baghi Hospital, Ferozepur City, through its authorized
signatory Dr. Kamal Baghi son of Satya Pal Baghi, District
Ferozepur.
2. Dr. Anil Baghi Hospital, Ferozepur City, through its
Radiologist/Dr. Parveen Popli, Consultant/Radiologist.
........Appellants/Opposite Parties No.1 and 2
Versus
1. Lovepreet Singh aged 17 years minor son of Karnail Singh,
resident of Village Saidan Wala, Tehsil and District Ferozepur,
through mother and next friend/natural guardian Gurmeet Kaur.
.....Respondent No.1/Complainant
2. The Additional Chief Secretary, Health and Family Welfare
Department, Room No.510, 5th Floor, Mini Secretariat, Sector 9,
Chandigarh.
3. Civil Surgeon, Ferozepur District Administrative Complex,
Ferozepur.
4. The New India Assurance Company Limited, 195, Soti Ganj,
Bdgampul Road, Meerut, Uttar Pardesh-250001.
.....Respondents No.2-4/Opposite Parties No.3-5
First Appeal under Section 41 of
Consumer Protection Act, 2019 against
orders dated 13.07.2021 passed by the
District Consumer Disputes Redressal
Commission, Ferozepur.
2
First Appeal No.315 of 2021
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mrs. Urvashi Agnihotri, Member
Present:-
For the appellants : Sh. Parvez Chugh, Advocate For respondent No.1 : Sh. Ajay Bajaj, Advocate for Sh. G.L. Bajaj, Advocate with Mrs. Gurmeet Kaur, Guardian in person.
For respondents No.2&3:Sh. Karnail Chand, Authorized Representative.
For respondent No.4 : Ms. Tarranum Madan, Advocate for Sh. P.S. Saini, Advocate.
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No JUSTICE DAYA CHAUDHARY, PRESIDENT:-
The appellants/opposite parties No.1 and 2 i.e. Dr. Anil Baghi Hospital, Ferozepur City and another have filed the present appeal under Section 41 of the Consumer Protection Act, 2019 as amended upto date (in short the 'Act') to challenge the impugned order dated 13.07.2021 passed by the District Consumer Disputes Redressal Commission, Ferozepur (hereinafter referred as the "District Commission") in Consumer Complaint No.514 of 2019 whereby the complaint filed by respondent No.1/complainant Lovepreet Singh has been allowed against the appellants/OPs No.1 and 2 by awarding an amount of Rs.50,000/- as compensation for causing mental agony, pain and harassment as well as by awarding 3 First Appeal No.315 of 2021 Rs.20,000/- towards litigation expenses and Rs.20,000/- which was spent for obtaining opinion from the various diagnostic centres.
However, the complaint qua to OPs No.3-4 was dismissed. A liberty was given to OP No.1 to claim the awarded amount from OP No.5- Insurance Company after its payment to the complainant as per the terms and conditions of the Insurance Policy.
2. Briefly, the facts of the case as made out by the complainant before the District Commission are that the complainant alongwith his father were going on the Motorcycle and a car hit the Motorcycle due to which the complainant received multiple injuries. Thereafter, the complainant got treatment from various doctors. Someone recommended the names of OPs No.1 and 2. After check- up, the MRI was suggested and it was done by OP No.2 reflecting "Anterior Cructate Ligament Tear and Mild Joint Effusion". Meaning thereby there was a problem of Ligament tear. It was further mentioned in the complaint that on getting MRI report from the Doctors of OP No.1 Hospital it was recommended Surgical Operation for the torn Ligament. Thereafter to clear the doubt the complainant got conducted further scannings and consulted with a number of doctors of Atulaya Health Care, Muktsar, Nijjar Scan and Diagnostic Centre, Amritsar, Ohri Chest and Multispecialty Hospital, Sandhu Hospital Sri Muktsar Sahib, GGS Medical College and Hospital, Faridkot. In all the reports of said hospitals, it was found that there was no problem of Ligament tear. Further it was mentioned that reports of OPs No.1 and 2 were not found to be correct. Stating to be 4 First Appeal No.315 of 2021 a case of 'deficiency in service' and 'unfair trade practice' the prayer in the complaint was made for issuance of directions to the OPs to pay Rs.4,50,000/- as compensation and damages on account of mental pain and harassment and also to pay Rs.22,000/- as legal expenses.
3. Notice was issued to the OPs and the complaint was contested by way of filing separate written replies.
4. In the reply filed by OP No.1 certain preliminary objections were raised regarding maintainability of the complainant and other averments made in the complaint were denied. On merits, it was mentioned in the reply that scanning and consultation was done after a period of 25 days and there was every possibility that tear Ligament might be healed. It was also mentioned in the reply that the complaint was filed with ulterior motive just to extract money. The reply that MRI was done on 23.01.2019 and the complainant was diagnosed for partial tear (Grade II) as it was clearly mentioned in the 1st line of the report. It was further mentioned in the reply that it was only a case of partial tear and not the complete. Denying any 'deficiency in service' and 'unfair trade practice' dismissal of the complaint was prayed for.
5. OP No.2 has also raised certain preliminary objections stating that the complaint was liable to be dismissed as it was an abuse of process of law. It was further mentioned in the reply that no evidence documentary or otherwise was produced by the 5 First Appeal No.315 of 2021 complainant regarding medical error on the part of OP No.2. On merits also OP No.2 denied the averments made in the complaint. It was mentioned that complaint was frivolous and filed by the complainant just to harm the reputation of OP No.2.
6. OPs No.3 and 4 also raised certain preliminary objections that the complainant never hired the services of OPs No.3 and 4 and no cause of action accrued in favour of the complainant to file the complaint against answering OPs and the same was not maintainable against them. On merits, the answering OPs denied the other averments made in the complaint and prayed for dismissal of the complaint with special cost.
7. However, OP No.5 filed its separate written reply mentioning therein that the complainant did not avail the services of OP No.5 and there was no 'deficiency in service' on the part of answering OP. The recommendation of the Doctor of Anil Baghi Hospital was a matter of record. Denying the other averments made in the complaint. OP has prayed for dismissal of the complaint qua to him.
8. After considering the averments made in the complaint as well as the written replies filed by the OPs and also the arguments raised by the counsel representing the parties and also by considering the documents available on the file, the complaint filed by the complainant was allowed against OPs No.1 and 2 and dismissed qua OPs No.3 and 4 vide order dated 13.07.2021.
6First Appeal No.315 of 2021
9. Aggrieved by the said order passed by the District Commission, the appellants/OPs No.1 and 2 have filed the present appeal for setting aside the same.
10. Mr. Parvez Chug, Advocate learned counsel for the appellants submits that it was a case of partial tear not a complete ACL Rupture and a Mild Joint Effusion was also seen but the same has not been dealt properly by the learned District Commission whereas a sufficient medical literature (Ex.OP1/3) was supplied on the relevant subject. Learned counsel also submits that in case of partial tear end of the torn ligament fibres do not go apart and it remains in close approximation to get it healed. The patient was having a low risk and there was no instability of joint being Grade III tear. Moreover there are more chances of healing process in fast manner in case of children. Learned counsel further submits that the repeat MRI was done on 16.02.2019 after a gap of 25 days and enough time was there for healing of partial tear ligament. The effusion was reduced due to treatment. There was no relevancy for comparison of two MRI reports done at a gap of 25 days for the injury of soft collagenous structure as soft tissue injury is healed when the tear is only partial. Learned counsel further submits that in the present case it was only isolated partial ACL tear and there was no associated fracture or any other Ligament injury. There was no instability of the knee joint. Learned counsel has relied upon medical literature of "Orthopaedics and Traumatology (2020) 21:11" in support of his arguments. Learned counsel also submits that patient was on 7 First Appeal No.315 of 2021 conservative treatment for a period of approximately four weeks. Learned counsel further submits that as per Medical Literature a partial ACL injury can be healed by way of conservative treatment. There was a difference in the opinion of the two radiologists who performed MRI after a gap of 25 days. At the end learned counsel submits that the District Commission has completely ignored the relevant Medical Literature relevant in the case which has resulted into miscarriage of justice.
11. Mr. Ajay Bajaj, Advocate appearing on behalf of Mr. G.L. Bajaj, Advocate submits that the order passed by the District Commission is a well reasoned and there is no illegality and infirmity therein as adequate opportunity was given to the appellants/OPs No.1 and 2 and all facts and circumstances of the case were taken into consideration supported by the Medical Literature. The District Commission has given opportunity to the appellants to claim the amount so awarded from respondent No.4 Insurance Company after payment to respondent No.1/complainant as per the terms and conditions of the Insurance Policy.
12. Mr. Karnail Chand, Authorized Representative of respondents No.2 and 3 submits that no order has been passed against the answering respondents by the District Commission and the appeal is liable to be dismissed qua respondents No.2 and 3.
13. Ms. Tarranum Madan, Advocate appearing on behalf of Mr. P.S. Saini, Advocate learned counsel for respondent No.4 8 First Appeal No.315 of 2021 submits that it has been mentioned in para 18 of the impugned order passed by the District Commission that the appellant No.1/Hospital was insured under the Doctor Indemnity Policy with the Insurance Company (respondent No.4) and the appellant No.1 Hospital was at liberty to claim the awarded amount from the Insurance Company after payment of the awarded amount to the complainant as per terms and conditions of the policy. Learned counsel also submits that since the hospital was not insured with respondent No.4/Insurance Company and only Dr. Parveen Popli, Radiologist was insured with respondent No.4 in his individual capacity as a Ragiologist under the Professional Indemnity Insurance Policy (Doctors and Medical Practitioners) and Dr. Parveen Popli's declared business premises was Popli Hospital, 5-Greater Kailash, Ludhiana (Punjab) not OP No.1 Hospital. Said policy covers the claim arising out of bodily injury and/or death of any patient caused by or alleged to have been caused by error, omission or negligence in professional duty/service rendered or which should have been rendered by the insured professional.
14. Heard the arguments of learned counsel for the parties. We have also perused the evidence/documents available on the record. The admitted facts of the case are that the complainant suffered multiple injuries in an accident and he got treatment from various doctors. On advice of someone, he approached OPs No.1 and 2. MRIs were conducted by OP No.2 on 25.01.2019 and the 9 First Appeal No.315 of 2021 report reflected "(1) Anterior Cructate Ligament Tear (2) Mild Joint Effusion".
15. The grievance of the appellants/OPs No.1 and 2 is that MRI (Ex.C-2) was done by OP No.2 on 23.01.2019 and complainant got conducted repeat MRI on 16.02.2019 after a gap of 25 days (almost 4 weeks).
16. From perusal of MRI report Ex.C-2, it is apparent the MRI was done on 25.01.2019 not on 23.01.2019. The second MRI was got done by the complainant on 16.02.2019 i.e. after 21 days not after 25 days. Accordingly, we find no force in this submissions raised by learned counsel for the appellants.
17. It is the argument of learned counsel for the appellant that it was a case of Isolated Partial Anterior Curciate Ligament Tear (ACL tear). From the perusal of report of MRI Ex.C-2, it is apparent that complainant suffered from "Anterior Curciate Ligament Tear and Mild Joint Effusion". Moreover in the prescription slip (Ex.C-
1) of Anil Baghi Hospital (OP No.1) the words were reflected as "MRI - ACL tear" not partial ACL tear or isolated ACL tear.
Moreover, as per Medical Literature relied upon by the appellants/OPs No.1 and 2 (Ex.OP.1/3) "in the case of an isolated ACL tear with no other ligamentous or cartilage involvement, the associated pain and dysfunction can be successfully treated with physical therapy". In case it was a case of isolated ACL tear the Doctor should have recommended physical therapy but the same 10 First Appeal No.315 of 2021 had not been recommended, as the same was not mentioned in the prescription slip and written reply filed by the appellant/OPs No.1 and
2. In the Medical Literature (Ex.OP1/3) it has specifically been mentioned that if a non-surgical approach is chosen, it is imperative to maintain the strength, balance, and range of motion gained in physical therapy to avoid further injury. But in the prescription slip Ex.C-1 no physical therapy was recommended by the Doctor of OP No.1 Hospital to the complainant for successful treatment of isolated ACL Tear.
18. Under the head of Recovery/Time Off work in the said Medical Literature, it has been mentioned that some people can cope with their injury and return to sports but typically require at least 8-10 weeks of physical therapy and such recovery differs from person to person. It has further been mentioned that in case of conservative treatment of ACL tear of Grade I and II, rest, long leg casts for 4 to 6 weeks, NDAIDs, physiotherapy, etc. are required. The appellants/OPs No.1 and 2 have not produced on record any evidence that the Doctors of OP No.1 prescribed the above said line of treatment as mentioned in the Medical Literature to prove that the they treated the patient conservatively as per Medical Literature. The subsequent reports of MRI dated 16.02.2019 (Ex.C-4) and 18.02.2018 (Ex.C-5) were normal which were got conducted by the complainant just after a period of 21 days from the date of MRI dated 25.01.2019, which was conducted by OP No.2. One of the doctors i.e. Dr. Sandeep Singh Sandhu of Sandhu Hospital advised CT 11 First Appeal No.315 of 2021 Angiography to the complainant, which was got conducted by the complainant on 14.02.2019 and report dated 14.02.2019 (Ex.C-3) was normal. To prove his version, there was no problem of Ligament tear partial or complete, the complainant had relied upon various MRI and CT Angiography reports as mentioned above. The appellants/OPs No.1 and 2 have failed to produce on record any cogent evidence to rebut the evidence of the complainant. Even the appellants/OPs No.1 and 2 have not prescribed the treatment of line for isolated ACL as mentioned in the said Medical Literature. Accordingly, we are of the considered opinion that there is no material infirmity in the order passed by the District Commission from this angel.
19. As far as the question of claim of awarded amount from the Insurance Company (OP No.5) by the appellants/OPs No.1 and 2 is concerned, it is pertinent to mention that it is an internal matter between the insurer and insured. The appellants/OPs No.1 and 2 are bound to pay the awarded amount to respondent No.1/complainant as per order passed by the District Commission. The appellants/OPs No.1 and 2 are at liberty to claim the awarded amount from Insurance Company (OP No.5) separately if permissible, as per terms and conditions of the policy.
20. In view of above detailed discussion, we do not find any merit in the contentions raised by the learned counsel for 12 First Appeal No.315 of 2021 the appellants and appeal filed by the appellants is hereby dismissed being devoid of merits.
21. Since the main case is decided, the pending applications, if any, are also disposed of.
22. The appellants had deposited an amount of Rs.45,000/- at the time of filing of the appeal with this Commission. Said amount, alongwith interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. Respondent No.1/complainant may approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law.
23. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases and due to pandemic of Covid-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) MEMBER October 14, 2022 (MM)