State Consumer Disputes Redressal Commission
Dr.Pawan Jain vs Greater Kailash Hospital on 11 March, 2026
M.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)
COMPLAINT CASE NO. 01/2010
Instituted on 12.01.2010
Decided on 11.03.2026
Dr. Pawan Jain
C/o Dr. V.K. Jain
Haat Road
Guna - 473 001 (M.P.) ... Complainant
VERSUS.
1. Greater Kailash Hospital
Through the Medical Director
11/2, Old Palasia
Indore - 452 018
2. Dr. Ashutosh Soni
Yash Diagnosis Centre
Minimal Invasive Surgery Centre
Metro Towers, 1st floor
AB Road, Vinay Nagar Square
Indore - 452 010 (M.P.)
3. United India Insurance Company Ltd.
City Branch Office II,
32, Jaora Compound
Opp. MY Hospital
Indore (M.P.)
4. Oriental Insurance Company Ltd.
Branch Office No.5,
655, Gole Bazar
Jabalpur (M.P.) ... Opposite parties
BEFORE;
HON'BLE JUSTICE SUNITA YADAV, PRESIDENT
HON'BLE DR. MONIKA MALIK, MEMBER
: 2 :
COUNSEL FOR THE PARTIES:
SHRI DEEPESH JOSHI, LEARNED COUNSEL FOR COMPLAINANT.
MS. ANKITA PARMAR, LEARNED OCUNSEL APPEARS ON BEHALF OF
SHRI RAHUL GUPTA, LEARNED COUNSEL FOR OPPOSITE PARTY NO. 1.
SHRI SHREYANSH JAIN, LEARNED COUNSEL APPEARS ON BEHALF OF
SHRI R.S. CHHABRA, LEARNED COUNSEL FOR OPPOSITE PARTY NO.2.
SHRI PANKAJ KUMAR, LEARNED COUNSEL APPEARS ON BEHALF OF
SHRI MOHAN CHOUKSEY, LEARNED COUNSEL FOR OPPOSITE PARTY
NO.3.
SHRI RAVINDRA TIWARI, LEARNED COUNSEL FOR OPPOSITE PARTY
NO.4.
ORDER
( 11.03.2026 ) The following order of the Bench was delivered by Dr. Monika Malik, Member.
This complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as 'Act'), is filed by the complainant alleging deficiency in service against the opposite parties in his treatment.
2. Brief facts of the complaint are that the complainant was a diagnosed case of Intestinal obstruction with adhesions and he was earlier operated for the same in the years 1962, 1964 and 1992. It is submitted that all the previous surgeries were carried out by opening the abdomen. On 27.12.2007 the complainant consulted opposite party No.2/Doctor for symptoms of swelling in umbilical region since 4 months and mild tenderness. The opposite party No.2/Doctor diagnosed the complainant as (?) Obstructed Umbilical Hernia and : 3 : advised hospitalization at the opposite party No.1/Hospital with an intention to operate upon the patient next day, without making any attempt to confirm the said diagnosis. On the instruction of opposite party No.2/Doctor the complainant was admitted in opposite party No.1/Hospital on 27.12.2007. The complainant informed the opposite party No.2/Doctor about his earlier surgeries and the same was recorded in the discharge card also. Despite the significant surgical history, opposite party No.2/Doctor proceeded to operate upon the patient laparoscopically on 28.12.2007 at about 5.15 P.M. During laparoscopic procedure opposite party No.2/Doctor encountered multiple intestinal adhesions inside. It is stated that no detailed information regarding risks, complications or alternative modes of treatment was explained to the complainant prior to surgery. It is submitted that despite encountering dense adhesions, opposite party No.2/Doctor continued with blind adhesiolysis, during which he perforated the coils of the intestines leading to seepage of intestinal contents into the abdominal cavity resulting in perforation peritonitis. The complainant was again posted for a repeat surgery on 31.12.2007 due to the intestinal perforation caused : 4 : during the first surgery for closure of the perforation and during second surgery also the opposite party No.2/Doctor adopted the laparoscopic approach instead of open laparotomy. It is submitted that due to repeated negligent procedures the complainant's condition further deteriorated but the opposite parties did not seek consultation from any senior or experienced surgeon.
3. On 13.1.2008, the complainant was referred to Jaslok Hospital, Mumbai, where he was admitted under the care of Dr. S.K. Bhansali, who on examination opined that when previous surgeries where done by open laparotomy, subsequent surgeries should not have been performed laparoscopically and that too, twice. The patient developed intestinal fistula post- operatively. The complainant was discharged on 6.5.2008 with an open abdominal wound. The complainant was readmitted in Jaslok Hospital on 11.7.2008 due to discharge coming out of the wound. He was managed conservatively and was discharged on 17.7.2008. The complainant's condition again worsened and he was again admitted on 10.9.2008 with a foul- smell coming from infected wound and mesh. The mesh was removed on 13.9.2008 and the complainant was : 5 : discharged on 12.10.2008. It is submitted that during follow- ups, the doctors at Jaslok Hospital informed the patient that no further surgical intervention was possible and that he would have to remain on liquid diet for life and that all complications had occurred solely due the laparoscopic surgeries conducted by the opposite party No.2/Doctor. It is submitted that the complainant consulted specialist doctors at different Hospitals, who also confirmed that laparoscopy should not have been performed and that the complainant would require lifelong liquid diet. The complainant returned to Indore in a permanently disabled physical and mental condition. Therefore, alleging deficiency in service against the opposite parties, the complainant filed instant complaint, seeking relief.
4. The complainant sought Rs.16 lakhs towards compensation for medical expenses. Rs.50,000/- towards cost of the complaint is also sought. He also sought non-pecuniary losses to the tune of Rs.22 lakhs towards expectancy of life and for permanent disability. Interest @ 18% per annum is also sought on the said amount along with any other relief, which the Commission deems fit.
: 6 :
5. The complainant has filed his affidavit in support of the complaint.
6. The opposite party No.1/Hospital in its reply submitted that there is not a single allegation by the complainant of any deficiency in service against the Hospital. It has also been submitted that there is no relationship of employer and employee between the Hospital and opposite party No.2/Doctor, as he is only a Consultant Surgeon, who uses the facilities of the Hospitals for carrying out surgeries on their patients. On merits it has specifically denied that the opposite party No.2/Doctor is the 'Doctor Incharge of its Surgical Unit'. In this regard it has been stated that the Hospital does not have any doctor incharge of the surgical unit. It has been stated that the opposite party No.2/Doctor was having his own independent establishment, where he was independently seeing patients and treating them. It is submitted that so far as the permanent staff of the hospital is concerned, there is a contract of service and in the instant matter proper care and treatment has been given by the hospital staff and therefore, the hospital cannot be made liable for negligence. Prayer for dismissal of complaint is thus made. : 7 :
7. The opposite party No.1 has filed affidavit of Dr. Anil Bandi, Managing Director of opposite party No.1/Hospital, in support of the written statement filed by it.
8. Opposite party No.2/Dr. Ashutosh Soni filed reply and has raised preliminary objection and stated that the present complaint has been filed with an exaggerated and inflated claim of Rs.38 lakhs to invoke the pecuniary jurisdiction of this Commission and has deprived his statutory right of appeal available under the Consumer Protection Act, 1986 (for short 'Act'). It is thus submitted that the issue relating to pecuniary jurisdiction needs to be decided first. It is further submitted that the complainant consulted him on 27.12.2007, for symptoms of swelling in umbilical region for last 4 months and mild tenderness. It is submitted that he planned laparoscopic surgery for obstructed umbilical hernia on 28.12.2007. The complainant wanted to have Laparoscopic Surgery done expeditiously as he wanted to return to Guna at the earliest and in view of the express desire and willingness shown by the complainant, the opposite party No.2 planned surgery laparoscopically. The complainant was informed about the procedure, its risk and complications and written consent was : 8 : also taken from the complainant. No perforation was caused during the procedure. The alleged perforation peritonitis is said to have occurred on 30.12.2007 i.e. after more than 48 hours after the surgery and therefore cannot be attributed on the part of opposite party No.2/Doctor. For repair of perforation, surgery was again done on 31.12.2007 laparoscopically because open surgery with mesh was difficult. The complainant was not satisfied with the laparotomy done in the past and had shown willingness for laparoscopic surgery. The opposite party No.2/Doctor when put a Laparoscope, he observed that there was 'Herina' from the scar of the surgeries near umbilical region and the intestines were adhered to the abdominal wall. Adhesiolysis was done to separate intestines from the abdominal wall. The perforation peritonitis was certainly not on account of any alleged perforation but because of his multiple previous surgeries, the intestines had become friable, which gave way to perforation. The opposite party No.2/doctor denied that no consultation was sought from any senior and more experienced Laparoscopic Surgeon in the city and submitted that he had consulted Dr. C.P. Kothari, Senior Laparoscopic Surgeon and Dr. Dilip Acharya General : 9 : Surgeon. Dr. C.P. Kothari has also filed his affidavit stating that there was no negligence on part of the opposite party No.2.
9. Opposite party No.2-Dr. Ashutosh Soni has filed his affidavit and opinion by way of affidavit of Dr. C.P. Kothari in support of his reply.
10. The opposite party No.3-United India Insurance Company Ltd. has filed reply and has admitted issuing Professional Indemnity Policy for opposite party No.1/Hospital for the period from 23.8.2007 to 22.8.2008 and it is further stated that in the entire body of the complaint, there is not a single statement by the complainant as to how opposite party No.1 was deficient in service. Prayer for dismissal of complaint is thus made.
11. Opposite party No.4-Oriental Insurance Company Ltd. in its reply submitted that the Insurance Company has insured opposite party No.2-Dr. Ashutosh Soni under its Professional Indemnity Policy for the period from 3.12.2007 to 2.12.2008, under which if any medical negligence is proved then only, the Insurance Company is liable to pay the damages.
12. Shri R.K. Chourasia, Divisional Manager has filed an affidavit on behalf of the opposite party No.4. : 10 :
13. The points for determination which arise in the instant matter are:-
(a) whether the opposite parties have been negligent and deficient in service in performing their duties and in treating the patient.
(b) whether the complainant deserves to be granted any relief;
14. Heard. Perused the record.
15. Learned counsel for complainant argued that the opposite parties are grossly negligent in the instant matter, since all previous surgeries were done by open laparotomy, subsequent surgeries should not have been performed laparoscopically and that too twice. He submitted that no proper informed consent was obtained from the complainant before performing surgeries. The opposite party No.2-Doctor and opposite party No.1-Hospital continued to manage the complainant without seeking consultation from any senior or experienced surgeon and detained him till 13.1.2008, during which period the complainant's condition became critical. Only on 13.1.2008, the complainant was referred to Jaslok Hospital, Mumbai and referral certificate issued by the : 11 : opposite party No.2-doctor categorically stated that the patient was critically ill and required air travel. The complainant was referred with accompanying doctors for medical assistance, which shows the condition of the patient, when he was discharged from the opposite party No.1/Hospital. Therefore, the opposite parties were negligent in posting the complainant for surgery without confirming the diagnosis. They failed to conduct proper pre-operative evaluation and risk management. Hospital records also suggest that there is manipulation. Inadequate and untrained medical staff are kept in the hospital to look after seriously ill patients.
16. He argued that it is an established principle of surgery that multiple prior laparotomies lead to dense intra-abdominal adhesions and constitute a strong contraindication for laparoscopic intervention. Ignoring this crucial medical history reflects willful disregard of standard surgical practice. Opposite party No.2/Doctor encountered multiple intestinal adhesions but negligently continued with blind adhesiolysis and therefore perforated the intestinal coils, resulting in perforation peritonitis. Such injury clearly establishes lack of reasonable skill on part of opposite party No.2/Doctor. Also : 12 : the patient was merely made to sign a blanket consent form, which does not satisfy the legal requirements of informed consent. Dr. R.S. Bangal in his opinion has specifically stated that the entire chain of events, including bowel perforation, peritonitis, repeated surgeries, formation of intestinal fistula, prolonged hospitalization, open abdominal wound and permanent disability are direct consequences of the initial wrong judgment and wrong operation performed by opposite party No.2/Doctor. Due to act of negligence committed by the opposite parties, the patient developed severe intra-abdominal infection, dense adhesions, intestinal fistula, non-healing open abdominal wound and permanent digestive disability. Learned counsel on these grounds prayed that the complainant be granted relief in terms of complaint filed by him. He referred judgments of Hon'ble Supreme Court in the case of Samira Kohli v. Dr Prabha Manchanda & Anr. AIR 2008 SC 1385, Post Graduate Institute of Medical Education and Research & Ors. V. Jaspal Singh & Ors., AIR 2009 SC 2687, Nizam's Institute of Medical Sciences : 13 : V. Prasanth S. Dhananka & Ors. AIR 2009 SC 301, M/s Spring Meadows Hospital & Anr. V. Harjol Ahluwalia & Anr. AIR 1998 SC 1801, Achutrao Haribhau Khodwa V. State of Maharashtra & Ors. AIR 1996 SC 2377, to support his arguments.
17. Learned counsel for opposite party No.1/Hospital argued that at first, the complaint is not maintainable, since relief claimed has been made by the complainant in order to fall under the pecuniary limits of the State Commission. On this ground alone the complaint deserves to be dismissed. She further argued that the opposite party No.2/Doctor is only a consultant surgeon employed in their hospital. In the entire body of complaint there is not a single statement by the complainant, as to how the opposite party No.1/Hospital was deficient in offering its services. Neither is there any allegation that the equipments of the hospital were of a poor quality/busy, on account of which the consultant could not give proper treatment to the complainant. The complainant has wrongly stated that all complications, which arose were due to laparoscopic surgery conducted in the opposite party No.1/Hospital. The complainant has wrongly attempted to : 14 : give impression that the hospital was responsible for his situation. It is further stated that decision to operate laparoscopically was not taken by the Hospital and it was agreed between the complainant and the opposite party No.2/Doctor. In fact the complainant did not even pay the entire hospital treatment bill despite assurances. The complainant has not given any instance of any error committed on part of the nursing staff in the complaint filed by him and all other allegations are also unsubstantiated. She, therefore, argued that since no negligence is established on part of the opposite party No.1/Hospital, the complaint against them be dismissed.
18. Learned counsel for opposite party No.2/Doctor argued that as pleaded earlier, the complaint is exaggerated and has been deliberately valued at Rs.38 lakhs. No disability certificate showing any kind of temporary or permanent disability has been filed by the complainant. Income Tax Returns showing nil income in the said period has also not been filed along with the complaint. He further argued that the query mark was put to see whether Umbilical Hernia is obstructed or strangulated or some other kind of hernia. The : 15 : complainant was informed about the procedure, its risk and complications and written consent was also taken from him. No perforation was caused during the procedure, as has been alleged. The alleged peritonitis occurred after more than 48 hours of surgery and the same was not due to surgery, which was done. The complainant was no satisfied with the laparotomy done in the past and with the experience and expertise the said decision was taken. Dr. C.P. Kothari, Senior Laparoscopic Surgeon and Dr. Dilip Acharya, General Surgeon were consulted. Dr. C.P. Kothari has filed affidavit, which is on record at page No.34-37 of the paper book and he specifically suggested that there is no negligence on part of the opposite party No.2/Doctor. No affidavit of Dr. Bhansali has been filed along with the complaint, nor the hospital and doctors are made parties in the instant complaint, in order to hold opposite party No.2/Doctor negligent. The opposite party No.2/Doctor cannot be held responsible for any complication arisen out of open surgery performed by Dr. S.K. Bhansali, since development of fistula and infection could be due to mesh. Also, Medical Science does not prohibit the repair of perforation of intestine by laparoscopy. With the detailed : 16 : written arguments, learned counsel has placed reliance on the judgments of Hon'ble Supreme Court in the case of He referred judgments of Hon'ble Supreme Court in the case of K. Sagar, Managing Director, Kiran Chit Fund, Musheerabad vs. A. Bal Reddy and another (2008) 7 Supreme Court Cases 166, Kusum Sharma vs. Batra Hospital (2010) 3 SCC 480 and Jacob Mathew vs. State of Punjab and another (2005) 6 SCC 1, judgments of Hon'ble National Consumer Disputes Redressal Commission, New Delhi in cases of Gaurav Aneja vs. Supertech Limited, 2017 SCC OnLine NCDRC 1859, Chl Apollo Hospital vs. Dr. (Mrs.) Jasbir Gupta and others, (2009) NCDRC 77, Satya Prakash Pant vs. Dr. P.N. Joshi II (2015) CPJ 676 (NC), Ramesh Kumar Sihan Hans vs. Goyal Eye Institute, II (2012) CPJ 676 (NC), Tapan Banerjee vs. Dr. Jayanta Basu, III (2005) CPJ 631 and Prafulla Kumar Das vs. Apollo Hospitals II (2002) CPJ 106 (NC), judgment of State Consumer Disputes Redressal Commission, UP in the case of Umesh Maheshwari vs. Sr. Divisional Manager L.I.C. in First Appeal No. C/2014/138 and judgment of M.P. State Consumer Disputes Redressal Commission in the case of : 17 : Satyendra Singh vs . Dr. Mohit Bhandari and others in complaint case No. 22/2013, passed on 2.4.2015, to support his arguments.
19. Learned counsel for opposite party No.3 admitted issuance of Professional Indemnity Policy in favour of the opposite party No.1/Hospital and prayed that since allegations against Hospital have not been proved, the complaint be dismissed.
20. Learned counsel for opposite party No.4 argued that though Professional Indemnity Policy was issued by it in favour of opposite party No.2/Doctor for the period from 3.12.2007 to 2.12.2008, therefore, only in case, opposite party No.2/Doctor is found negligent or deficient in service, in performing his professional duties, opposite party No.4 can be held liable for payment of claim amount for the act committed during the aforesaid duration. After said duration, the opposite party No.4 cannot be held liable. He also prayed that since the complainant has not been able to prove professional misconduct on behalf of opposite party No.2/Doctor in the instant matter, complaint against it be dismissed. : 18 :
21. It is an admitted fact that the complainant approached the opposite party No.2/doctor on 27.12.2007, since he was observing pain in abdomen with other problems. The allegations of the complainant are that two laparoscopic surgeries were carried out over a period of 3 days and they were in contradiction to past history of open abdominal surgeries on the patient for intestinal obstruction and presence of intestinal adhesions, are not supported by any evidence. Also the allegation that no informed consent was obtained before performing the aforesaid surgeries, does not help, since two separate signed consent forms are available on record. Therefore, the laparoscopic surgeries were performed after obtaining consent.
22. The complainant had underwent open laparotomies earlier and there were lots of adhesions. The opposite party No.2/Doctor cannot be held responsible for perforation peritonitis, looking to the condition of the complainant, that he had got done couple of open surgeries earlier also and he had episodes of instestinal obstruction in past. Also perforation and injuries to the intestines is a known complication in both the open as well as laparoscopic surgeries. Laparoscopic : 19 : surgeries are also done for repair of perforation and no contrary evidence has been led in the instant matter. The opposite parties No. 1 and 2 had tried to cure perforation peritonitis and thereafter the complainant was discharged in stable condition, since the same is mentioned in the referral letter. We do not find any evidence to show that the condition of the complainant worsened as a result of staff of the opposite party No.1/Hospital. No such negligence is established in the instant matter.
23. The allegation of the complainant that when Dr. Bhansali saw the patient, he commented that when prior four operations were done by open laparotomy, subsequent operations should not have been done by laparoscopic approach and that too, twice, is merely a bald allegation by the complainant. No evidence to substantiate such alleged statement is available on record. It is pertinent to mention that the complainant had underwent couple of surgeries in past. The opposite parties cannot be held liable for the complications, which arose in the instant matter, since there is no evidence to establish the same. The opposite party No.2/Doctor has placed on record medical literature : 20 : specifying regarding the surgeries and the probable complications.
24. Hon'ble Supreme Court in Jacob Mathew Vs State of Punjab & Anr III (2005) CPJ 9 (SC) has held that true test for establishing medical negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. The accident during the course of medical or surgical treatment has a wider meaning. Ordinarily an accident means an unintended and unforeseen injurious occurrence, something that does not occur in the usual course of events or that could not be reasonably anticipated.
25. Hon'ble Supreme Court in Martin F D'Souza Vs Mohd. Ishaq I (2009) CPJ 32 (SC) has held that simply because the patient has not favorably responded to a treatment given by the doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of Res Ipsa Loquitur. It is further observed therein that sometimes despite best efforts the treatment of a doctor fails and the same does not mean : 21 : that the doctor or the surgeon must be held guilty of medical negligence unless there is some strong evidence to suggest that the doctor is negligent. Hon'ble Supreme Court in Harish Kumar Khurana (Dr.) Vs Joginder Singh & Ors. II (2022) CPJ 43 (SC) has held that 'To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. 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.
26. In view of the foregoing discussion, we conclude that the complainant has not been able to establish the allegations of negligence and deficiency in service against the opposite parties.
27. Therefore, the complaint is dismissed.
28. No order as to costs.
29. Let record be deposited in the record room after noting down the order.
(JUSTICE SUNITA YADAV) (DR. MONIKA MALIK)
PRESIDENT MEMBER
Mercy