State Consumer Disputes Redressal Commission
Leela Jha vs Union Of India on 23 August, 2011
To IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 23.08.2011 Complaint Case No.113/2003 Mrs. Leela Jha . Complainant. W/o Late Sh. V.K. Jha Village & P.O. Panchobh Distt. Darbhanga, Bihar THROUGH HER ATTORNEY Sh. Abhay Kumar Jha, B-40, Gulab Bagh, Navada, Uttam Nagar, New Delhi. Versus 1. Union of India . Opposite Parties Through its Secretary Ministry of Health, Nirmal Bhawan, New Delhi 2. All India Institute of Medical Sciences, Through Its Director, A.I.I.M.S., New Delhi. 3. Dr. Ashmit Chaudhary, S/O Sh. Ashok Chaudhary, Presently working at CHIL Apollo Hospital, Opp. Anup Nagar, Near LIG Square, Indore 4. Medical Superintendent, Safdarjung Hospital, Opp. AIIMS., New Delhi CORAM: Mrs. Kanwal Inder . Presiding Member
Mrs. Salma Noor . Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Kanwal Inder, Member (Judicial)
1. The complainant through her General Attorney has filed this complaint u/s 12 of the Consumer Protection Act on 17.07.2003 claiming compensation of Rs. 25 lacs on account of loss, mental pain and agony sustained by her alleging sheer negligence and wrongful act on the part of the OPs towards her husband leading to his demise.
2. The OPs no. 1 & 4 failed to file reply despite opportunity granted. Their defence was struck of vide orders dated 15.04.2005. The case is being contested by the OPs No. 2 & 3 who have filed replies to which Re-joinders were filed on behalf of the complainant. Evidence has been led by way of affidavits.
3. We have heard arguments and have gone through the record.
4. There is no dispute regarding the facts that Sh. V.K. Jha, husband of the complainant aged 43 years a Post-Graduate, was employed as Section Officer in MSLM College, District Darbhanga, Bihar drawing salary of Rs.8,500/- per month. On account of severe pain in the abdomen, he along with complainant came to the AIIMS, Delhi OP No. 2 on 27.04.2000, got OPD card no. 3265 and was referred to the OP No. 3 for treatment, who prescribed some medicines and instructed him to see him after about two months. Mr. V.K. Jha along with the complainant again visited AIIMS on 09.06.2000 and met the OP No. 3 who advised him certain medical test including UGI Endoscopy. The complainant got the said tests done but no abnormality was detected. The OP No. 3 prescribed capsule and advised CT Scan abdomen. Mr. Jha again approached the OP no. 2 in August 2000. As no beds were available there he was referred to OP No. 4 Safdarjung Hospital where he was admitted on 20.08.2000. The OP No. 4 suggested CT Scan upper abdomen after seeing his brief history and reports. The patient got it done on 24.08.2000 at Delhi MRTC Scan Centre which diagnosed the patient to have cancer of Pancreas which was at the last stage. He was again referred to OP No. 2 where he was examined on 19.09.2000 and was sent to Shanti Avedna Ashram near Safdarjung Hospital where he breathed his last in the night of 20.09.2000.
5. Allegation in the complaint are that Sh. V.K. Jha was not properly diagnosed by the OP no. 3 when he was approached in the month of April, his precious life could have been saved as well as his family could have been saved from the economic disaster as Mr. Jha was the sole earning person in the family. It is stated that Mr. Jha felt unbearable pain in his abdomen in the month of February-March, 2000. He was examined in Darbhanga Medical College by Dr. A.M. Jha, M.D., Associate Professor of Medicine. After examining him for about two months, pain in his abdomen did not relent. Therefore Dr. A.M. Jha referred him to OP no. 2 for appropriate medical attention and prescribed Endoscopy on his prescription dated 15.04.2000 which contained his brief medical history also. This prescription was shown to OP no. 3 on 27.04.2000 but he did not pay any attention to it and prescribed some pain killers and gastric medicine. The approach of OP no. 3 in treating the patient was absolutely casual, ordinary and reflected sheer negligence from such specialist doctors who was supposed to be aware of serious repercussions, as the test prescribed in the prescription of Mr. A.M. Jha was enough indication that the patient carried some serious ailment. The OP no. 3 also demanded Rs.25,000/- for extending services in special manner and on their refusal to grease his palms, he started avoiding them and his act of negligence is highly uncondonable. In August 2000 the OP no. 2 denied admission in the hospital on the ground that no beds were available despite his serious and acute condition. The doctors at Casualty Ward did not pay any attention to the request of the complainant and without providing treatment to Sh. V.K. Jha, he was referred to Safdarjung Hospital on the pretext that there is scarcity of the beds with the OP no. 2 both in ordinary as well as in Casualty Ward. The OP no. 2 failed to provide a minimal medical attention and care to the patient even at Casualty Ward. The complainant having left with no alternative after being virtually turned out by the OP no. 2 and with a view to save life of her husband, rushed to Safdarjung Hospital in absence of any alternative remedy before them. The contentions of the complainant are that the OPs did not provide proper medical attention/care to Sh. V.K. Jha.
6. The OPs no. 2 & 3 have denied the claim and contentions of the complainant and have pleaded that Mr. V.K. Jha approached the hospital with pain in upper abdomen for last two months associated with burning. There was no sign observed to indicate any serious symptom of dysphagia, weight loss, pain radiating to the back, recurrent vomiting, Haematemesis, Malena or Jaundice, there was no sign of abdominal mass, ascitis were absent and therefore, the patient being less than 50 years, was diagnosed as Non Ulcer Dysepsia. The prescription dated 27.04.2000 specifically mentions drugs viz. Famocid (Anti Acidity), Syrup Digene (Anta Acid) and Fiadiet Powder (stool softner) No pain killers as alleged were prescribed. It was neither necessary nor was clinically observed for any kind of further investigation at that moment of time. On their request that they reside far away from Delhi, review was advised after two months. The alleged prescription dated 15.04.2000 of Dr. Anand Mohan Jha is an after thought and has been got prepared with ulterior moto. It does not find mention in the Writ Petition 5129/01 filed by the complainant nor in the notice sent and this was never shown to the OP no.
3. When the patient visited the OP no. 3 on 09.06.2000 and still complained pain after meals and radiation of pain to head, back and legs, he was advised Endoscopy, Ultrasound, Sigmoidoscopy and Barium test but all the reports were found normal. Therefore the allegations, that if this investigation would have been carried out at the first instance, the life of the patient could have been saved, do not carry any weightage. On 19.06.2000 when patient approached for the first time with complaint that pain also radiates to the back, therefore he was advised for CT Scan but he got it done on 24.08.2000. It is well settled that cancer of Pancreas grows rapidly and is nearly universally fatal. The tumor doubling time of pancreatic cancer is in range of 64 to 245 days and the disease might have progressed in from 19.06.2000 to 24.08.2000. It is evident from Medical Journals that the Pancreatic adenocarcinoma is a dreaded disease and surgical curative resection is very difficult, with very low survivor and at the time of diagnosis only 5-10% patients are suitable for surgical intervention. Even the patient treated with endoscopic drainage and best palliative care, has a maximum survival of about 4-5 months. There was no act or omission or negligence on the part of the OPs. On the contrary the patient was given treatment which in ordinary circumstances would have been to any other patient complaining such problems. Due and proper diagnosis and care was done in accordance with the well recognized line of treatment. The allegation of demand of Rs.25,000/- is wrong and is nothing but an endeavour to malign the OP no. 3. The complaint is silent about any consideration having being paid to the OPs and hence complainant is not consumer.
7. In rejoinder contentions of the OP are denied and it is inter-alia pleaded that husband of the complainant had paid the requisite charges to the OPs for his treatment, besides incurring substantial expenditure on various test conducted on advice of OP no. 2 to 4. It is strange that report of UGI Endoscopy did not show any apparent problem which ultimately was detected in 24.08.2000 but it came too late in the day to save his life. After seeing the Endoscopy report, the OPs advised the patient not to go for CT Scan examination even after prescribing the same and in these circumstances the patient did not get the CT scan conducted and the disease aggravated. If it was a such a dreaded disease, the OPs ought to have handled it with utmost care and caution but they treated him in such a callous and a careless manner that nothing could be detected in a first instance although subsequently when the disease was detected, it was at a very advanced and irreparable stage.
8. Photocopies of all the prescription and treatment given to Late Sh. V.K. Jha have been made available on record which support the version of the OPs regarding diagnosis and treatment given to him. Photocopies of the relevant literature have also been placed on record. At the instance of the complainant, the reference was made to Dr. Ram Manohar Lohia Hospital and a Board of experts doctors of that hospital have given report refuting the allegation of the complainant and supporting the version of the OPs. They have given their expert opinion that the OP no. 3 was not negligent in providing treatment to Late Sh. V.K. Jha, the OP no. 2 was not negligent while conducting Endoscopy test dated 14.06.2000 and have stated that cancer may not be detected in early stages by initial investigation. Objections filed thereto are argumentative and not as per facts on record, besides the fact that these have been under the signature of the attorney and counsel of the complainant who are not experts in the line.
9. The main thrust of the complaint is that prescription of Dr. A.M. Jha dated 15.04.2000 advising Endoscopy was shown to the OP no. 3 but he ignored the same, had the test been done at that time the ailment could have been detected earlier, OP No. 3 himself advised not to go for CT Scan examination even after prescribing the same and that he illegally demanded Rs.25,000/-. All this has been denied by the OPs who have filed affidavit of OP No.3 and that of Sh. S.K. Acharya, Professor and Head, Department of Gast. And Human Nutrition Unilt of OP No.2. As against this the only evidence led on behalf of the complainant is affidavit of her attorney Sh. Abhay Kumar Jha, who has not disclosed his relationship with the complainant and states that he had been authorized to sign, verify, institute and pursue the complaint on behalf of the complainant vide her General Power of Attorney dated 14.03.2001. He has verified the contents of his affidavit tendered in evidence as ture and correct to his knowledge. It is pertinent to note that as per the version in the complaint, the complainant along with her husband Late Mr. V.K. Jha had visited the OPs. It is nowhere pleaded that they were accompanied by anybody else. Obviously in these circumstances it is now only the complainant alone who could plead and prove deficiency if any in the treatment given to her husband by the OPs but this has not been done. No reason have been assigned for not tendering any evidence of affidavit of the complainant herself who alone was present during all the alleged happenings and hence was the only competent witness in her own complaint. In the circumstance tender of affidavit of her attorney is of no avail, who had verified the contents of his affidavit as true and correct to his knowledge without any explanation as to how he was testifying so. Hence the version stated in his affidavit cannot be relied upon and cannot be taken as proof of the facts stated therein. Hence allegations in the complaint cannot be held to be substantiated.
10. It is further significant to note that neither the complaint nor the rejoinder have been filed or signed by the complainant nor supported by her affidavit. The pleadings have been signed and verified by her attorney as correct to his knowledge for which there is no explanation.
11. Even if version in the complaint were to be accepted that prescription of Mr. Jha, advising the endoscopy was shown on 27.04.2000 but still OP No.3 did not prescribe the same, no prejudice has been caused, as even Endoscopy conducted on 14.06.2000 did not show any abnormality. The allegations that it was not conducted properly, in absence of any material on record to substantiate the same is of no avail. It is further worth mentioning that there appears to be substance in the submission of the OPs regarding this prescription as it was nowhere pleaded by the complainant in the Writ Petition filed earlier in this regard.
12. It is further worth noting that despite specific objections raised by the OPs regarding the complainant being not consumer as entire services were free of cost, the complaint has not led any evidence for having paid consideration for the services availed. It is pertinent to note that the complainant is silent on this aspect.
13. For the reasons stated above, we come to the conclusion that the complainant has failed to prove her complaint against the OPs.
14. It is pertinent to note that as per the case pleaded in the complaint Mr. V.K. Jha has been survived by his parents and his three adult children also, but none of them has come out with any complaint, nor have they been added as party, though as per law they were entitled to share of the compensation if awarded.
15. In view of the above finding, this complaint is dismissed.
16. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record room.
(Kanwal Indier) Presiding Member (Salma Noor) Member Tri