Delhi District Court
Shri Arvind Ramola vs Rockland Hospital on 11 January, 2017
IN THE COURT OF SHRI VIRENDER BHAT:
ADDL. DISTRICT JUDGE-04 : SOUTH-WEST
DISTT:DWARKA COURTS:NEW DELHI:
CS No.16716/2016 (Old No.274/2014)
SHRI ARVIND RAMOLA
S/O SHRI K.C. RAMOLA,
R/O B-61, SECTOR-5,
PLOT NO.20, EDEN TOWER,
DWARKA,NEW DELHI-110075 .....PLAINTIFF
VERSUS
1.ROCKLAND HOSPITAL,
(THROUGH ITS MD/DIRECTOR/CEO),
SECTOR-12, HAF-B, PHASE-I,
DWARKA, NEW DELHI
2.DR.KAUSHAL KEJRIWAL,
GENERAL & LAPAROSCOPIC SURGEON,
C/O ROCKLAND HOSPITAL,
SECTOR-12, HAF-B, PHASE-I,
DWARKA, NEW DELHI
3.DR. ALOK RANJAN SINHA,SENIOR CONSULTANT,
C/O ROCKLAND HOSPITAL,
SECTOR-12, HAF-B, PHASE-I,
DWARKA, NEW DELHI AND
4.THE PAUL PHARMACY
C/O ROCKLAND HOSPITAL,
SECTOR-12, HAF-B, PHASE-I,
DWARKA, NEW DELHI ....DEFENDANTS
Date of filing of suit/petition: 13.12.2012
Date of reserving the judgment: 07.01.2017
Date of pronouncement of judgment: 11.01.2017
SUIT FOR RECOVERY OF DAMAGES/COMPENSATION\
OF RS.12,50,000/-
Arvind Ramola vs Rockland Hospital & Ors 1 of
12
JUDGMENT
1. The plaintiff, in this case, has sought damages from the defendants for medical negligence.
2. There does not appear to be any dispute between the parties regarding the fact that the plaintiff had been suffering from piles disease and accordingly had undergone surgery for the same in the Defendant No.1 Hospital on 14.09.2012. The surgery was conducted by Defendant Nos.2 and 3 and an apparatus namely Ethicon having Code No.PPH03, LOT-J4A666 was implanted inside the body of the plaintiff.
3. It is the case of the plaintiff that the said instrument/ apparatus was defective which resulted in the failure of the surgery and he had to suffer severe physical as well as mental pain and agony. It is stated in the plaint that after the aforesaid failed surgery, his hemoglobin was reduced to just 5 which means that he was at the verge of death and got saved only by dint of providence. Besides this, the plaintiff is also stated to have been confined to bed for almost one month after the said surgery during which period he was unable to do his daily chores which also caused mental pain and agony to him. He was also to visit Brazil in October 2012 for his business tour but could not go there on account of ill effects of the failed surgery which adversely affected his business. He further states that he has been given to understand that the instrument implanted in his body was part of lot which had been Arvind Ramola vs Rockland Hospital & Ors 2 of 12 recalled by M/s Johnson & Johnson during the period April to August, 2012 as it was a defective lot and despite such recall, this defective instrument was implanted in his body.
4. It is stated that M/s Johnson & Johnson being the manufacturer of the said defective instrument, defendant no.4 M/s Paul Pharmacy being its supplier, defendant nos.2 and 3 being the two doctors who have implanted the defective instrument in the body of the plaintiff and the defendant no.1 being the Hospital where the surgery was conducted are all jointly liable to compensate the plaintiff for the loss/damages suffered by him.
5. It needs note here that initially the plaintiff had claimed a sum of Rs.19 lacs as damages. In the said original plaint, M/s Johnson & Johnson was shown as Defendant no.1, Rockland Hospital as defendant no.2, Dr. Kaushal Kejriwal as Defendant No.3, Dr. Alok Ranjan Sinha as Defendant No.4 and M/s Paul Pharmacy as Defendant No.5. However, it appears that at the very initial stage of the suit, some settlement had taken place between the plaintiff and M/s Johnson & Johnson whereunder the company paid a sum of Rs.6.5 lacs to the plaintiff. Accordingly the plaintiff filed an application under Order 1 Rule 10 CPC seeking deletion of M/s Johnson & Johnson from the array of parties. This application was allowed by the court on 15.02.2013 and the plaintiff was directed to file amended memo of parties as well as amended plaint. Accordingly the amended plaint came to be filed by the plaintiff wherein he has restricted his claim to the sum of Arvind Ramola vs Rockland Hospital & Ors 3 of 12 Rs.12.5 lacs only. M/s Rockland Hospital, Dr. Kaushal Kejriwal, Dr. Alok Ranjan Sinha and M/s Paul Pharmacy have been shown as Defendant Nos.1,2,3 and 4 respectively in this amended plaint.
6. The defendant nos.1 to 3 have filed joint written statement denying that there has been any medical negligence on their part. It is stated that the defective instrument had been supplied to the hospital despite the same having been recalled by the company M/s Johnson & Johnson Ltd vide a Global Recall Notice which clearly shows that only M/s Johnson & Johnson Ltd which responsible for the failed surgery. It is stated that plaintiff has been already compensated by M/s Johnson & Johnson Ltd by paying him Rs.6.5 lacs as compensation and, therefore, no cause of action survived thereafter for the plaintiff to continue this suit.
7. The defendant no.4 also has, in his separate written statement, stated that plaint is devoid of any cause of action qua him. He has further stated that he has supplied the instrument in question to the hospital as it was received by him from the company and there was no reason or occasion for him to believe that it is a defective instrument.
8. In the replications filed by the plaintiff, he has denied the contents of the two written statements and has reiterated the averments contained in his plaint.
9. Following issues were framed on 25.02.2014:
Arvind Ramola vs Rockland Hospital & Ors 4 of 12
1.Whether plaintiff has suppressed the material facts from the court as alleged by defendant nos.1 to 3 in their written statement? If so, what facts and it effect? ....................OPD
2.Whether plaintiff has alternative and efficacious remedy as alleged by defendants? .....OPD No.1 to 3
3.Whether there is no privity of contract between plaintiff and defendant no.4 and therefore, defendant is not liable to pay any amount of compensation to plaintiff? .............OPD no.4
4.Whether plaintiff is entitled to recover a sum of Rs.12,50,000/- from defendants as prayed in the suit? .....................OPP
5.Relief.
10. The plaintiff entered the witness box himself as PW1 to prove his case.
11. On behalf of the defendant nos.1 to 3, Dr. Vivek Singh has been examined as the only witness. Defendant No.4 also examined himself as witness in support of his contentions.
12. I have heard learned counsel for the plaintiff, learned counsels for the defendants and have perused the entire record.
13. My issue-wise findings are as follows :
Arvind Ramola vs Rockland Hospital & Ors 5 of 12 Issue No.1:
Whether plaintiff has suppressed the material facts from the court as alleged by defendant nos.1 to 3 in their written statement? If so, what facts and it effect? ....................OPD
14. Onus of proving this issue was upon the defendant nos.1 to 3 as the same has been framed on the basis of preliminary objection no.1 raised by them in their written statement to the effect that the plaintiff has concealed the fact that he had not paid even a single penny to the hospital for his surgery. The said preliminary objection raised by defendant nos.1 to 3 appears to be frivolous and baseless. It has been mentioned by these defendants themselves that the plaintiff had paid Rs.28,000/- to the hospital as an initial deposit for the surgery. The plaintiff too has mentioned in the plaint that he had paid a sum of Rs.28,000/- to the hospital which was repaid to him lateron by way of Cheque No.127844 dated 24.09.2012. Therefore, it does not lie in the mouth of these defendants to say that the plaintiff had not paid even a single penny to the hospital for the surgery or that he had concealed any fact in this regard from the court.
15. Therefore, this issue is decided against the defendants and in favour of the plaintiff.
Issue No.2:
Whether plaintiff has alternative and efficacious remedy as alleged by defendants? .....OPD No.1 to 3
16. The onus of proving this issue was also upon Arvind Ramola vs Rockland Hospital & Ors 6 of 12 defendant nos.1 to 3. It is stated by these defendants in their written statement that the efficacious remedy for the plaintiff was to approach the consumer forum with his grievance. It is true that the plaintiff could have approached the consumer forum with his grievances but this suit can not be thrown out merely on this ground. The suit does not become not maintainable or barred merely for the reason that the plaintiff was having an alternative remedy available to him to approach the consumer forum. The plaintiff had two alternatives available to him and if he chose to file the instant suit of recovery before this court instead of approaching the Consumer Forum, nothing illegal or perverse can be found in the choice of the plaintiff. Hence, I do not find any merit in the objections raised on behalf of defendant nos.1 to 3.
17. This issue is also decided against the defendants and in favour of the plaintiff.
Issue No.3:
Whether there is no privity of contract between plaintiff and defendant no.4 and therefore, defendant is not liable to pay any amount of compensation to plaintiff? .............OPD no.4
18. The onus of proving this issue was on the defendant no.4. Admittedly, the defective instrument was supplied to the hospital by defendant no.4. Therefore, it can not be said that there was no privity of contract between the plaintiff and the defendant no.4. Whether or not is the defendant no.4 liable to pay any compensation to the plaintiff would be seen during the discussion on issue no.4. However, I do not find any merit in the contention raised by Arvind Ramola vs Rockland Hospital & Ors 7 of 12 defendant no.4 that he has no privity of contract with the plaintiff.
19. Hence, this issue is decided against defendant no.4 and in favour of the plaintiff.
Issue No.4:
Whether plaintiff is entitled to recover a sum of Rs.12,50,000/- from defendants as prayed in the suit? .....................OPP
20. This is the crucial issue for adjudication before this court. Onus of proving this issue is upon the plaintiff.
21. The plaintiff is seeking compensation from the defendants on the ground that a defective instrument namely Ethicon having Code No.PPH03, LOT-J4A666 was implanted inside his body during a surgery in defendant no.1 hosital which was conducted by defendant nos.2 and 3. The defendant no.4 has been impleaded in this suit as being the supplier of the said defective instrument to the hospital. It is the case of the plaintiff that the said defective instrument was implanted in his body despite the fact that it had been recalled from the market by its manufacturer M/s Johnson & Johnson Ltd and, therefore, all the defendants are guilty of medical negligence and thus liable to compensate him for the loss/ damages suffered by him on account of the failed surgery.
22. As already noted hereinabove, the manufacturer of the defective equipment M/s Johnson & Johnson Ltd had been impleaded as defendant no.1 in the original plaint but Arvind Ramola vs Rockland Hospital & Ors 8 of 12 was lateron deleted from the array of defendants pursuant to a settlement reached between the company and the plaintiff whereunder the company had paid a sum of Rs.6.5 lacs to the plaintiff. It is thus evident that the company M/s Johnson & Johnson Ltd had duly compensated the plaintiff for the loss/damages suffered by him on account of the fact that a defective equipment had been implanted in his body. Therefore, once the plaintiff had received compensation from the one of the defendants, the suit could not have proceeded against the other defendants. Nothing has been brought on record by the plaintiff to show that the settlement reached between him and M/s Johnson & Johnson was not full and final in respect of the loss/damages suffered by him or that he had accepted the amount of Rs.6.5 lacs from the company only as partial settlement and had reserved his right to claim further compensation from the remaining defendants. The terms of settlement reached between the plaintiff and M/s Johnson & Johnson Ltd have been surreptitiously concealed from this court. He has deposed in his cross-examination that he had signed a settlement deed with M/s Johnson & Johnson Ltd but has not filed the same in this suit. No reason has been given by him for not filing the said settlement deed before this court. He has not even explained the terms of settlement either in his pleadings or in his evidence.
23. The plaintiff has, thus, concealed a material document from this court and his suit is liable to be dismissed on this very score. In view of the same and also in the absence of any evidence from the plaintiff to the contrary, it has to be Arvind Ramola vs Rockland Hospital & Ors 9 of 12 deemed that he had accepted the amount of Rs.6.5 lacs from M/s Johnson & Johnson Ltd towards the full and final settlement of his claim for loss/damages in this suit. Hence, he is not entitled to claim any further damages from the defendant nos.1 to 4.
24. Even otherwise also the evidence on record does not suggest that any of the defendants had acted with negligence towards the plaintiff. It does appear from the record that the equipment, which has been implanted inside the body of the plaintiff during surgery in defendant no.1 hospital on 14.09.1992, was defective and had been recalled by its manufacturer M/s Johnson & Johnson Ltd. However, the plaintiff has not led any evidence to show as to when exactly had the said equipment been recalled from the market by its manufacturer M/s Johnson & Johnson Ltd and whether the recall notice had been sent to the defendant no.4 or the defendant nos.1 to 3 or that it had been brought to their knowledge. No such recall notice has been produced or proved by the plaintiff. The best witness with regards to this fact would have been an official of M/s Johnson & Johnson Ltd. The plaintiff could have easily summoned any such official from the said company to prove his contention that the defendants were having knowledge that the said equipment was defective and had been realled from the market by its manufacturer. In the absence of any evidence in this regard from the side of plaintiff, it is very difficult to hold that the defendants were aware that the equipment in question was defective and had been recalled from the market by its manufacturer.
Arvind Ramola vs Rockland Hospital & Ors 10 of 12
25. It is also manifest from the record that the defect in question was a latent and not a patent one which could have been detected or preceived by having a mere look upon the same. It is not in dispute that the said equipment was supplied by defendant no.4 to the hospital in sealed condition in which he had received the same from its manufacturer. The packet containing the equipment was desealed by the doctors at the time of surgery of plaintiff and the equipment was implanted in his body. Therefore, none of the defendants can be held responsible for the defect in the equipment which could not have been detected before it was implanted inside the body of the plaintiff. The defendant no.4, appearing as D4W1 has specifically stated in his affidavit in the nature of examination in chief Ex.D4W1/1 that he received the instrument in sealed cover and supplied the same to the hospital in the same condition. In the cross examination also, he has deposed that he had supplied the equipment to the hospital in the same condition in which he had received it from the manufacturer. He further deposed that no information had been received by him from the manufacturer of the equipment regarding any defect in the same.
26. Hence, the evidence on record does not show that the defendants had acted with negligence or carelessness towards the plaintiff. The defect in the equipment was such as could not have been detected or preceived before its implantation inside the body of the plaintiff. Only the Arvind Ramola vs Rockland Hospital & Ors 11 of 12 manufacturer of the defective equipment M/s Johnson & Johnson Ltd was responsible for the same and the said company has already duly compensated the plaintiff by paying him the amount of Rs.6.5 lacs. Therefore, the plaintiff is not entitled to recover any further money from the defendants as compensation/damages.
27. This issue, is decided against the plaintiff and in favour of the defendants.
Issue No.5 : Relief:
28. In view of the decision on issue no.4 hereinaboe, the suit is liable to be dismissed and is hereby dismissed as such.
29. Decree Sheet be prepared accordingly.
30. File be consigned to Record Room after due completion.
Announced in the open court on 11.01.2017 (VIRENDER BHAT) ADJ-04/SW/DWARKA NEW DELHI/11.01.2017 Arvind Ramola vs Rockland Hospital & Ors 12 of 12