National Consumer Disputes Redressal
Jai Prakash Gupta vs Dr. Devendra Lal Chandani on 20 October, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.346 OF 2006 (From the order dated 19.06.2006 in Complaint Case No.03/SC/ 2004 of the State Commission, Uttar Pradesh) Jai Prakash Gupta 113/321, Swaroop Nagar, Kanpur Mahanagar, Kanpur .Appellant Versus Dr. Devendra Lal Chandani 113/58- B, Swaroop Nagar, Kanpur Mahanagar, Kanpur .Respondent BEFORE: HONBLE MR. JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Appellant : Mr. Jai Prakash Gupta, In Person For the Respondent : Mr. Mrinal Lalchandani, Advocate PRONOUNCED ON: 20-10-2011 ORDER
PER MR. VINAY KUMAR, MEMBER
1. The appellant Shri Jai Prakash Gupta was the Complainant in CC-No.03/SC/2004 before the U.P. State Consumer Disputes Redressal Commission. In his complaint against the OP/Dr. Devendra Lal Chandani, the Complainant alleged that he had contacted the OP for treatment of a problem in his nose. He was admitted in the ENT treatment center of OP on 21.01.2002. Due to wrong surgery done by the OP, the Complainant allegedly developed several other problems of serious nature. For the wrong treatment, wrong surgery and resultant suffering undergone by him, the Complainant claimed Rs.1 Crore in damages.
2. The Commission, by a majority order of two Members, dismissed the complaint on 26.5.2006. The third Member, in a separate order of the same day, held that it was not possible to arrive at a clear finding without assistance of an expert. Therefore, as per his decision, the Complainant was required to either examine an expert or provide the name of an expert, who could be summoned and examined by the Commission.
3. Aggrieved by the decision of the State Commission dismissing his complaint, Complainant Jai Prakash Gupta has filed this appeal. We have heard the Complainant in person and counsel for the respondent. We have also perused the records of the cases.
4. As seen from the complaint petition, the case of the Complainant before the State Commission was-
1) The requirement of surgery related to deviated nasal septum but the actual surgery performed was of frontal sinus in the head.
2) From the date of surgery itself, the OP treated the Complainant with DEPOF 37 tablets, which has nearly crippled him and has led to other serious complications.
3) In the surgery not only the frontal sinus was operated upon, even the brain has been damaged due to cutting of the arbitral tract, mucosa, ethimide bone and frontal inner bone.
4) The Complainant also alleged that OP removed CSF (cerebro-spinal fluid) from the brain with ulterior commercial motive.
5) The report of the JK Cancer Institute, Neuro Diagnostic Centre, KG Medical College, Lucknow, shows that frontal sinus was operated- FESS was done.
5. The State Commission, in the impugned order, has observed that notice was sent to the opposite party on the address provided by the Complainant, but there was no response. Therefore, the State Commission has proceeded ex-parte against the OP/Dr. Devendra Lal Chandani. However, the Commission has observed that the Complainant himself stated that the OP has left the country gone to America. However, the address provided by him was the address of the OP at Kanpur, which did not serve any purpose.
6. The State Commission has also observed that the details submitted by the Complainant do not raise the issue of deficiency in service. We find ourselves unable to accept this conclusion. A careful perusal of the complaint petition filed before the State Commission would bring out that five specific issues have been raised by the Complainant, which are directly related to his alleged medical problem, nature of surgery performed and follow up treatment provided to him. We have listed these five issues in earlier part of this order.
7. The State Commission has also observed that no expert has been examined on behalf of the Complainant. Due to this, the State Commission has not been able to reach any conclusion regarding alleged deficiency in service. Further, from the comments of the Commission on the issue of limitation, it is seen that the case of the Complainant is of continuous medical consultation and treatment between the alleged surgery in 2002 and the filing of the consumer complaint in 2004. The State Commission has however not considered the possibility of the case being one of continuous cause of action.
8. In view of the above, we are of the view that the impugned order cannot be sustained. It is therefore, set aside. The matter is remanded back to the State Commission for fresh consideration in the light of observations made above. The State Commission may also, if considered necessary, appoint an independent medical expert to assist in evaluation of the evidence from the record of treatment of the Complainant. The appeal is allowed in the aforesaid terms and the appellant is directed to pursue the matter further with UP State Consumer Disputes Redressal Commission. No orders as to costs.
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(V.R. KINGAONKAR,J.) PRESIDING MEMBER .
(VINAY KUMAR) MEMBER s./-