State Consumer Disputes Redressal Commission
United India Insurance Co. vs Seena Rani on 22 February, 2018
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,PANCHKULA First Appeal No. 106 of 2016 Date of Institution: 03.02.2016 Date of Decision: 22.02.2018 Dr. Jyotika Kapoor, MD (Medicine), Kap's Diagnostic Centre 1637 Sector-4, Panchkula. .....Appellant Versus Seema Rani W/o Rajnish Kumar R/o H.No.1662, Sector-26, Panchkula. General Hospital, Sector-6, Panchkula, through its Civil Surgeon. Government dispensary, Sector 26, Panchkula, through Medical Officer. Dr. Poonam Gupta, Gupta Nursing Home # 576, Sector 16, Panchkula. Dr. Dev Batra, M.D. (Radio-Diagnosis), Batra Diagnostic Centre, SCO No.129, Sector-5, Panchkula. Dr.Vikas Kaushal, Care Diagnostic Centre, infront of K-Area, Baltana,Tehsil Dera Bassi District SAS Nagar, Mohali. United India Insurance Company Ltd. 42-C, 3rd Floor, Moolchand Commercial Complex, New Delhi through its authorization Signatory. .....Respondents CORAM: Mr.R.K.Bishnoi, Judicial Member Mrs. Urvashi Agnihotri, Member
Present:- Mr. Nitesh Singhi, Advocate for appellant. Mr. Tarun Gupta, Advocate for respondent No.1. Dr. Rajiv Kapoor, representative of respondent No.2. Dr. Rekha, representative of respondent No.3.
Mr. Ajay Singh Rawat, proxy counsel for Mr. V.P. Singh, Advocate for respondent Nos.4 & 5.
Respondent No.6 already ex-parte.
Mr. Satpal Dhamija, Advocate for Respondent No.7.
Appeal No.214 of 2016Date of institution:- 14.03.2016 Date of Decision:- 22.02.2018 United India Insurance Company Ltd. 42-C, 3rd Floor, Moolchand Commercial Complex, New Delhi through its authorization Signatory, through authorized signatory of Chandigarh regional office Smt. Sunita Sharma.
.....Appellant.
Versus Seema Rani W/o Rajnish Kumar R/o H.No.1662, Sector-26, Panchkula.
General Hospital, Sector-6, Panchkula, through its Civil Surgeon.
Government dispensary, Sector 26, Panchkula, through Medical Officer.
Dr. Poonam Gupta, Gupta Nursing Home # 576, Sector 16, Panchkula.
Dr. Dev Batra, M.D. (Radio-Diagnosis), Batra Diagnostic Centre, SCO No.129, Sector-5, Panchkula.
Dr. Jyotika Kapoor, MD (Medicine), Kap's diagnostic Centre # 1637, Sector-4, Panchkula.
Dr.Vikas Kaushal, Care Diagnostic Centre, infront of K-Area, Baltana,Tehsil Dera Bassi District SAS Nagar, Mohali.
.....Respondents CORAM: Mr.R.K.Bishnoi, Judicial Member Mrs. Urvashi Agnihotri, Member Present:- Mr. Satpal Dhamija, Advocate for appellant. Mr. Tarun Gupta, Advocate for respondent No.1. Dr. Rajiv Kapoor, representative of respondent No.2. Dr. Rekha, representative of respondent No.3.
Mr. Ajay Singh Rawat, proxy counsel for Mr. V.P. Singh, Advocate for respondent Nos.4 & 5.
Mr.Nitesh Singhi, Advocate for Respondent No.6.
Respondent No.7 already ex-parte.
Appeal No.230 of 2016Date of institution:- 16.03.2016 Date of Decision:- 22.02.2018 Dr. Dev Batra, M.D. (Radio-Diagnosis), Batra Diagnostic Centre, SCO No.129, Sector-5, Panchkula.
Dr. Poonam Gupta, Gupta Nursing Home # 576, Sector 16, Panchkula.
.....Appellants Versus Seema Rani W/o Rajnish Kumar R/o H.No.1662, Sector-26, Panchkula.
General Hospital, Sector-6, Panchkula, through its Civil Surgeon.
Government dispensary, Sector 26, Panchkula, through Medical Officer.
Dr.Jyotika Kapoor, MD (Medicine), Kap's Diagnostic Centre # 1637, Sector-4, Panchkula.
United India Insurance Company Ltd. 42-C, 3rd Floor, Moolchand Commercial Complex, New Delhi through its authorization Signatory.
.....Respondents
6. Dr. Vikas Kaushal, Care diagnostic Centre, in front of K-Area, Baltana, tehsil Dera Bassi, District SAS Nagar, Mohali.
.....Proforma Respondents Present:- Mr. Ajay Singh Rawat, proxy counsel for Mr. V.P. Singh, Advocate for appellant.
Mr. Tarun Gupta, Advocate for respondent No.1.
Dr. Rajiv Kapoor, representative of respondent No.2.
Dr. Rekha, representative of respondent No.3.
Mr. Nitesh Singhi, Advocate for respondent No.4.
Mr. Satpal Dhamija, Advocate for Respondent No.5.
Respondent No.6 already ex-parte.
ORDER R.K.BISHNOI, JUDICIAL MEMBER:
Vide this common order above mentioned three appeals bearing No.106 of 2016, F.A. No.214 of 2016 and F.A. No.230 of 2016 will be disposed off as all appeals are preferred against the order dated 17.12.2015 passed by the District Consumer Disputes Redressal Forum, Panchkula (in short 'District Forum').
2. As per complainant she went to opposite party No.3 i.e.Dr. Poonam Gupta for check-up and she referred her to O.P.No.4 i.e.Dr. Dev Batra who conducted ultrasound on 25.12.2013, copy of which is Ex.C-8. At that time pregnancy was more than seven weeks. It was reported that fetus was normal. As she was feeling problem she again went to O.P.No.3, but, she advised routine check-up. Ultimately she went at O.P.No.1-General Hospital and was referred to O.P.No.4. He again conducted ultrasound Ex.C-10 on 01.03.2013. At that time pregnancy was of more than 16 weeks. Everything was reported normal by him. Lateron she went at O.P.No.2 and was again advised ultrasound. On 16.05.2014 O.P.No.5-Dr.Jyotika Kapoor conducted ultrasound copy of which is Ex.C-12 and everything was reported normal. At that time pregnancy was 26 weeks. No abnormality was shown in any ultrasound report. After the birth of child following abnormalities were found:-
"The Bowel gas is excessive with air filled bowel loops seen herniating into the left hemiscrotum.
There is absence of femur seen bilaterally with narrow cylindrical pelvis and under developed acetabulum bilaterally-Bilateral Femoral agenesis.
There are two bones (Tibia and Fibula) seen in the shortened lower limb bilaterally. The femur is not visualized bilaterally.
There is an irregular shaped hypo echoic area with internal speckled echoes seen between the tibial end and acetabulum measuring about 20X18X9 mm on right side and 20X20X10 mm on left side-Cartilaginous tissue.
The acetabuli are small, shallow, and more vertical bilaterally, Bilateral congenital femoral aplasis.
It shows a large cystic dilatation of the pelvicalyceal system in mid pole and lower pole region. The Parenchyma is visualized in upper pole region only with rest of it seen as a thin rim. The proximal ureter is mildly dilated in right kidney.
There is splitting of the sinus of fat seen in left kidney."
Due to wrong reports, a deformed child was born and he has to live life as crippled man. They be directed to pay compensation as detailed below:-
"i To pay an amount of Rs.15,00,000/- (rupees Fifteen lacs only) as compensation to the complainant alongwith interest @ 18% from the date of birth of the child till actual realization.
ii. To direct the O.Ps. to provide free treatment whole life to the minor child Adarsh as well complainant by issuing the necessary card in this regard.
iii. To pay Rs.2,00,000/- on account mental, physical agony suffered and to be suffered by the complainant and the minor in future.
iv. to bear the expenses of educational, school and barding expenses of the said child.
v. To pay Rs.2,00,000/- as legal expenses, as well as cost of the complainant."
3. O.P.Nos.1 and 2 filed joint reply and alleged that there was no allegation of negligence against them and they are not liable to pay any compensation.
4. It was alleged by O.P.No.3 that she asked complainant for USG level-II on 01.03.2014, which is clear from the perusal of Ex.C-6, but, she did not produce that prescription slip before O.P.No.4 and produced advise of Government Hospital. She gave treatment as per ultrasound report and there was no fault on her part.
5. It was alleged by O.P.No.4 that he conducted ultrasound examination as advised by the doctors and there was no negligence on his part. He was never asked to perform Level-II ultrasound. It was not possible to detect deformities in ultrasound Level-I and they could be detected in ultrasound Level-II only. He followed all the guidelines issued by the authorities and was not liable to pay compensation.
6. O.P.No.5 alleged that she conducted ultrasound as per prescription slip and cannot be blamed for any fault. Even otherwise pregnancy could not be terminated after 20 weeks, whereas complainant was carrying pregnancy of 27 weeks. Complainant opted for ultrasound level-I, so ultrasound level-II was not done. It could not be expected that all the deformities could be detected at the time of ultrasound. There was no negligence on her part and she was not liable to pay any compensation.
7. O.P.No.6 alleged that no negligence was attributed to him and he was not liable to pay any compensation.
8. O.P.No.7 granted insurance cover to O.P.No.4 upto Rs.10,00,000/- only.
9. After hearing both the parties District Forum allowed the complaint and directed as under:-
"For the reasons recorded in the earlier paras of this judgment, we are of the opinion that he present complaint deserves to succeed and we would allow the complaint in favour of the complainant and against OPs No.3,4,5 and 7. The OPs are directed as under:-
The OP No.3 shall pay the amount of Rs.2,00,000/- to the complainant. The OP No.4 shall pay the amount of Rs.5,00,000/- to the complainant. The OPs No.5 and 7 shall pay the amount of Rs.5,00,000/- to the complainant. The O.P.No.7 is the insurer of the O.P.No.5 and hence O.Ps. No.5 and 7 are jointly and severally liable. The liable OPs shall also pay a sum of Rs.1,50,000/- (OP No.3 shall pay Rs.30,000/-, OP No.4 shall pay Rs.60,000/- and OPs No.5 and 7 shall pay Rs.60,000/-) as compensation for mental agony and harassment. The liable OPs shall also pay a sum of Rs.11,000/- (O.P.No.3 shall pay Rs.3,000/-, OP No.4 shall pay Rs.4,000/- and OPs No.5 and 7 shall pay Rs.4,000/-) as cost of litigation."
10. Feeling aggrieved therefrom, O.P.Nos.4, 5 and 7 have preferred aforesaid appeals.
11. For convenience sake relevant portion of ultrasound reports Ex.C-8 dated 25.05.2013, Ex.C-10 dated 01.03.2014 and Ex.C-12 dated 16.05.2014 are reproduced as under:-
" Ex.C-8 dated 25.05.2013 Uterus:- Anteverted & anteflexed.
A gestational sac is seen in the uterus.
A single foetus measuring 11 mm in length (C.R.L.) & G.A.-7.3wks +_4Ds, is seen in the G.S. F.Cardiac activity is normal"
"Ex.C-10 dated 01.03.2014 Respiratory movements- Normal Stomach bubble+ MEASUREMENTS E.G.A. Biparietal diameter..... 33mm 16.0+-1 Wks Head circumference ..... 124mm 16.2+-1 Wks Abdominal circumference ...106mm 16.2+-1 Wks Femus length..... 20 mm 15.6+-1Wks Best Estimated G.A. 16 Wks, 1 Ds. +-1 WKS Weight-150 gms. Evidence of I.U.G.R.-Nil Pl. Location-POosterior & Fundal. Pl. Maturity-Gr.1 PL. PREVIA-Nil.
No Sub-Chorionic/retro-Placental fluid collection is seen.
Fetal intracranial structures, ventricles & choroids plexus appears to be normal.
Fetal spine, thorax & abdominal organs are normally visualized.
No C.M.F. is detected Biophysical profile scoring 10 IMPRESSION 16 WKS, 1 Ds. +-1 WK SINGLE VIABLE PREGNANCY"
"Ex.C-12 dated 16.05.2014 Growth parameters:-
DLMP 29.10.2013 Biparietal diameter 67.8mm Foetal age 27 w 2 days +2w Femur Length 48.3 mm Foetal age 26w 1 days +2w AC 229.5mm Foetal age 27 w 2 days +2w HC 250.6 mm Foetal age 27 w1 days +2w"
12. Arguments heard. File perused.
13. Learned counsel for appellant- Dr. Poonam Gupta i.e. O.P.No.3 argued that on 01.03.2014 she advised for USG level-II, but, complainant did not produce that prescription slip before O.P.No.4 and produced reference slip of Government Hospital. She gave treatment as per ultrasound report dated 01.03.2014 and there was no fault on her part.
14. On behalf of O.P.No.4 it was argued that ultrasound was conducted as per prescription slip. Had it been advised that ultrasound level-II should be conducted he would have done the same. So there was no negligence on his part. Even otherwise it is not possible to detect all deformities in ultrasound as opined by Honb'le Supreme Court expressed in Senthil Scan Centre Vs. Shanthi Sridharan and Anr. 2010 (15) SCC 193.
15. As far as the case of O.P.No.5 is concerned, it was argued that complainant opted for ultrasound level-I only which is clear from the perusal of consent form Ex.R-1. She might have opted for ultrasound level-I because cost of ultrasound level-II was more. Even otherwise at that time she was having pregnancy of 27 weeks and even if deformities would have been detected she could not have gone for termination as per provisions of law. He also argued that all the deformities cannot be detect as opined by Senthil Scan Centre Vs. Shanthi Sridharan and Anr.'s case (supra). So there was no deficiency on her part and she was not liable to pay any compensation.
16. These arguments are of no avail. When O.P.No.3 advised USG Level-II, but, complainant brought USG report of level-I she should have insisted for ultrasound level-II why she continued with the same treatment is no-where explained by her. In this way she was negligent.
17. Arguments on behalf of O.P.Nos.4 and 5 that all the deformities cannot be detected during ultrasound cannot be accepted because they have clearly mentioned the length of femur. In Ex.C-10 the length is shown 20 mm whereas in Ex.C-12 it is shown as 48.3mm. It cannot be considered as unintentional error on their part. It appears that both of them gave the reports in a routine manner presuming that what should be the length of femur of the pregnancy at that stage. O.P.No.5 cannot allege that vide consent form Ex.R-1 complainant opted for ultrasound level-I because it is not possible for an ordinary person to differentiate in between both the levels. This form was only filed just to complete the formalities. When Doctor of O.P.No.2 advised for ultrasound level-II, O.P.No.5 should have mentioned specifically that why she did not opt for the same. It was bounden duty of O.P.No.5 to give specific reasons for conducting ultrasound Level-I instead of ultrasound level-II. O.P.No.5 cannot take shelter qua termination of pregnancy. She was only to conduct ultrasound and give report whether pregnancy can be terminated or not was not to be decided by her. This defence has been raised just to cover lapse on her part. Learned District Forum has discussed each and every lapse on their part minutely in impugned order. The same is well reasoned based on law and facts and cannot be disturbed. Resultantly, all the appeals fail and they are hereby dismissed.
18. The statutory amount of Rs.25,000/- each deposited at the time of filing of three the appeals bearing No.106 of 2016, F.A. No.214 of 2016 and 230 of 2016 be refunded to the appellant against proper receipt and due verification.
19. The original judgement be attached with appeal No.106 of 2016 and certified copies be attached with F.A.No.214 of 2016 and F.A. No.230 of 2016.
February 22nd, 2018 Urvashi Agnihotri R.K.Bishnoi, Member Judicial Member Addl. Bench Addl.Bench S.K.