Date of filing: 26.11.2021
Date of Disposal: 25.04.2023
BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU – 560 027.
DATED THIS THE 25TH DAY OF APRIL, 2023
CONSUMER COMPLAINT NO.441/2021
PRESENT:
SRI.RAJU K.S,
SMT.REKHA SAYANNAVAR,:MEMBER
Mr. Rudra Pratap Patra,
S/o. Shri Uma Charan patra,
Aged About 36 Years,
R/at: No.224/B, Gangamma
Layout, Near Ganesh Temple,
Guddadahalli, Hebbal,
Bangalore North, Bangalore,
(Rep by Sri. Appu Kumar, Advocate)
1) Dr. Jyothi Prakash,
Clinic Address, Parvathi Piles Clinic,
Sultanpalya Main Road, 2nd Cross,
Bhuveswari Nagar, 6th Main,
R.T. Nagar, Post Hebbal,
Bangalore, Karnataka-560032.
(Rep. by Sri.Kiran.B, Advocate)
2) Dr. V.K. Pandey,
Clinic Address, Parvathi Piles Clinic,
Sultanpalya Main Road, 2nd Cross,
Bhuveswari Nagar, 6th Main,
R.T. Nagar, Post Hebbal,
Bangalore, Karnataka-560032.
(Rep. by Sri.Kiran.B, Advocate)
3) Parvathi Piles Clinic,
Sultanpalya Main Road, 2nd Cross,
Bhuveswari Nagar, 6th Main,
R.T. Nagar, Post Hebbal,
Bangalore, Karnataka-560032.
(Rep. by Sri.Kiran.B, Advocate)
//JUDGEMENT//
BY SRI.SHIVARAMA K, PRESIDENT
01. The complainant has filed this complaint Under Section 35 of the Consumer Protection Act, 2019 seeking for a direction to the opposite parties to pay compensation of Rs.10,00,000/- and such other relief as this Commission deems fit in the circumstances of the case.
02. It is not in dispute that, opposite party No.1 has been doing internship under opposite party No.2 and opposite party No.3 is a clinic which does Piles operation.
03. The case of the complainant is that, he was suffering from Piles and Anal Fissure and after reading in the website the complainant approached opposite party No.1 at opposite party No.3 clinic on 07.08.2021 and opposite party No.1 had assured the complainant that, “without operation life time guarantee” and he would cure without any operation the disease in respect of Piles, Fissure and Fistula. Further opposite party No.1 told the complainant that, he would perform non-surgical procedure in just 10 minutes with 03 procedures and the complainant will be alright within 10 days. Further the complainant noticed the prescription issued by opposite party No.1 in the name of opposite party No.2. Further opposite party No.1 had informed the complainant that, opposite party No.2 was his brother and he sits in the clinic occasionally and opposite party No.1 had passed out from Siddhartha Medical College, Tumakuru City and had treated thousands of patients of the same type of disease.
04. Further opposite party No.1 told the complainant that, the said medical procedure would cost Rs.18,000/- and the same shall be payable in 03 instalments. On 08th August opposite party No.1 had performed first procedure in the afternoon at opposite party No.3 clinic. Thereafter the complainant faced severe pain, burning and full of discomfort and opposite party No.1 had prescribed pain killer medicine and there was no improvement in the complainant’s medical condition. Further opposite party No.1 had assured the complainant that, he would be alright after the second procedure in his health. On 08.08.2021 the complainant had transferred a sum of Rs.9,000/- through phone-pay. Further on 15.08.2021 opposite party No.1 had performed the second procedure and the complainant had paid a sum of Rs.5,000/-, even then the pain has not been cured and the situation has become more worst after the second procedure. Further on 23.08.2021 opposite party No.1 had performed 3rd procedure and the complainant had made the remaining payment of Rs.4,000/-, even then the pain has not been cured.
05. It is the further case of the complainant that, when the complainant asked opposite party No.1 about the bleeding and the pain, opposite party No.1 had prescribed some medication even then the problem remained and bleeding continued. Further when the complainant tried to reach opposite party No.1, opposite party No.1 ignored the complainant’s appointment and left him under severe pain and sufferings. Even opposite party No.1 had administered medicine for 50 days there was no improvement in the health condition of the complainant. Further even on 29.09.2021 the complainant tried to approach opposite party No.1 thrice by calling over phone and sending the Watsapp messages, there was no revert back from the opposite party No.1 and opposite party No.1 asked the complainant to consult other doctor. Thereafter the complainant consulted a Doctor at Ramakrishna Hospital and he suggested the complainant to undergo medical surgery and after surgery it was informed that, the internal anal root was damaged due to the procedure performed by the Doctor and Anal root was completely constricted.
06. It is further contended that, when the complainant had asked for the report of the treatment given, opposite party No.1 had sent one medical report dated: 05.10.2021 with the seal of opposite party No.2. When the complainant asked for the same opposite party never responded. Hence, since the opposite party No.1 under the guidance of opposite party No.2 had performed the treatment without having any medical qualification had put the complainant’s life at risk and performed the said surgery. Hence there is deficiency of service on the part of opposite party No.1 to 3. Hence the present complaint came to be filed.
07. Opposite party No.1 to 3 have denied the averments of the complaint and contended that, the nature of grievance sought by the complainant is a mere case of medical negligence and other consequential reliefs and this Forum has no jurisdiction to entertain the complaint. Further the complaint presented by the complainant comes under the purview of medical negligence which should have been filed before the Karnataka Medical Board. Further opposite party No.1 was intern doing his internship with opposite party No.2 and opposite party No.2 has not done any treatment to the complainant. Opposite party No.1 was only taking the practice as a intern and he was helping the opposite party No.2 in doing the procedure as a intern and on the instructions given by the opposite party No.2 opposite party No.1 has suggested the medication to the complainant.
08. Further since opposite party No.1 was doing internship with opposite party No.2 giving treatment by opposite party No.1 does not arise and if there was any such thing made by opposite party No.1 the complainant should have file a complaint before the jurisdictional police station. Further the averments stated by the complainant in the complaint is a created one and concocted story only to harass the opposite parties. Hence, sought to dismiss the complaint.
09. To prove the case, the complainant (PW.1) has filed affidavit in the form of his evidence in chief and has got marked EX.P.1 to EX.P.6 documents. The opposite party No.1 (RW.1) has filed affidavit in the form of his evidence in chief and has got marked EX.R.1 & EX.R.2 documents.
10. Counsels for both the parties have filed their respective written arguments. Counsel for opposite party has filed citations.
11. Heard the counsels for both parties.
12. The points that would arise for consideration are as under:-
(1) Whether there is deficiency of service on the part of the opposite parties?
(2) Whether the complainant is entitle for the
relief sought ?
(3) What order ?
13. Our findings on the aforesaid points are as follows:-
POINT NO.1:- In affirmative
POINT NO.2:- Partly in affirmative
POINT NO.3:- As per the final order for the following:-
REASONS
14. POINT NO.1:- The complainant (PW.1) and the opposite party No.1 (RW.1) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.
15. In support of the contention that, the complainant took treatment at opposite party No.3 clinic from opposite party No.1 the complainant has produced EX.P.1 prescription. On perusal of EX.P.1 it appears that, the letter head of prescription stands in the name of opposite party No.3. It is not in dispute that, opposite party No.3 does treatment for Piles, Fissure and Fistula. In EX.P.1 it appears that, opposite party No.3 clinic is specialized for that. It further appears in EX.P.1 that, on 07.08.2021 and 08.08.2021 and on 12.08.2021 medicine was prescribed and opposite party No.2 had signed the prescription. Apart from that, opposite party No.1 had deposed in his evidence that, he was doing internship under opposite party No.2. The above said documents coupled with oral evidence of PW.1 and RW.1 is sufficient to hold that, complainant had obtained treatment for Piles at opposite party No.3 clinic.
16. According to PW.1, opposite party No.1 had performed three procedures of treatment for the problem of Piles on 07.08.2021, 08.08.2021 and 12.08.2021 and later on since the pain was accelerated and opposite party No.1 did not respond for further treatment and asked the complainant to consult other doctor, the complainant approached the Ramakrishna Hospital and on diagnose it was found that, the internal anal root was damaged due to the procedure performed by the doctor (opposite party No.1) and the Anal was completely constricted. To substantiate that the complainant had obtained treatment at Ramakrishna Hospital he has produced EX.P.3 the prescription given at Ramakrishna Hospital dated: 29.09.2021, 28.10.2021. Further it appears that, on 06.11.2021 the complainant had undergone for ultrasound USG abdomen + pelvic and on 01.10.2021 he was admitted as an inpatient and discharged on 06.10.2021 and in the final diagnose it was found that, anal stricture with ulceration and the same is mentioned in the discharge summary. Further in the discharge summary it was the findings that, “Anoscopy shows Anal Stricture with Ulceration” and the complainant has produced the Limited Video Colonoscopy Report.
17. The above said documents issued by Ramakrishna Hospital are sufficient to hold that, the complainant had obtained treatment for Piles at Ramakrishna Hospital and there was damage to the Anal and it was done at the time of treatment given by the earlier doctor (opposite party No.1).
18. According to PW.1 opposite party No.1 had performed the treatment. According to RW.1 he did not perform any treatment and he was intern under opposite party No.2. Further opposite party No.2 did not give any evidence before the Commission to discharge his responsibility that, complainant has not at all taken treatment at opposite party No.3 clinic. Opposite party No.1 had relied the prescriptions issued by opposite party No.3 clinic said to have been signed by opposite party No.2. Opposite party No.2 did not disown the said signatures found in the prescription.
19. On perusal of the documents it appears to us that, complainant was not properly treated at opposite party No.3 clinic and as the complainant had approached opposite party No.1 and since opposite party No.1 was an internship under opposite party No.2, there was deficiency of service on the part of opposite party No.1 to 3 in not treating the complainant properly and there was negligence on the part of opposite party No.1 & 2 in the treatment given by them. Further Section 2(11) of Consumer Protection Act, 2019 contemplates that, any fault, imperfection, short coming or inadequacy in the quality …. amounts to deficiency of service.
20. It is the further contention of the learned counsel for the opposite party that, the complainant has failed to prove the deficiency of service alleged against opposite party. In support of the contention counsel relies the judgment rendered by Hon’ble Apex Court in Civil Appeal No.5759/2009 SGS India Limited Vs. Dolphin International Limited, dated: 06.10.2021. In the said judgment the issue was with regard to quality test of groundnut. In the case on hand, the quality of service is with regard to medical treatment. Hence the facts of the case in the cited judgement is entirely different and the same is not applicable. Further counsel also relies the judgment rendered by Hon’ble National Consumer Disputes Redressal Commission on 09.12.1998 reported in 1999 1 CLT (NC) 107, in between Calcutta Medical Research Institute Vs. Bimalesh Chatterjee. In the said judgment it is held that, onus of proving negligence and resultant deficiency in service is on complainant. Further counsel also relies the Judgment rendered by Hon’ble Apex Court reported in (2009) 3 SCC 1 Martin F D’Souza Vs. MOHD. Ishfaq. In the said judgment it is held with regard to the test to determine professional negligence is that, it is not the highest expert skill but the standard of ordinary skilled doctor exercising and professing to have that special skill. Further simply because a patient has not favourably responded to a treatment given by a Doctor on a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying Doctrine of res ipsa loquitur. We have considered the principles discussed in the judgments cited. In the case on hand we feel the complainant has proved the negligence on the part of opposite party No.1 to 3 for the reasons stated above. Hence we answer this point in affirmative.
21. POINT NO.2:- The complainant claimed a sum of Rs.10,00,000/- compensation. The complainant in total has paid a sum of Rs.18,000/- to opposite party No.1 for hospital charges in addition to the medicine obtained. The complainant has produced documents with regard to the amount spent on medicines. EX.P.2 indicates that, the bill summary issued by opposite party No.3 clinic that, in total the complainant had spent Rs.18,000/- towards medicine other than the doctor fee paid. We feel since the complainant has not been cured by the medicine and procedure followed by opposite party No.1 to 3 rather the pain has been accelerated, and the complainant had obtained treatment at Ramakrishna Hospital and got cured, opposite party No.1 to 3 shall return the amount of Rs.18,000/- paid by the complainant. The complainant has produced medical bills for having purchased the medicine as per the instruction of Ramakrisha Hospital and the amount paid to the doctor at Ramakrishna Hospital. The total of the same comes about Rs.16,750/-
22. We feel because of the negligence of opposite party No.1 to 3 the complainant had undergone treatment at Ramakrishna Hospital unnecessarily. According to PW.1 on 08.08.2021 opposite party No.1 has performed the first procedure at opposite party No.3 clinic and 2nd procedure on 15.08.2021 and the 3rd procedure on 23.08.2021 even then the pain has not been reduced. Further after 3rd procedure the complainant was asked to hold motion for 48 hours so that, it will heal and asked not to take any food and the compliant was put on the intravenous medicine to control the motion and he had faced severe pain and bleeding after 48 hours when had motion.
23. Further even after 50 days from the treatment the complainant found no improvement in the medical condition and bleeding continued. The documents issued by the Ramakrishna Hospital indicates that, there was bleeding and there was rupture in the anal. Hence it has a severe pain and the complainant had suffered the same. Therefore we feel opposite party No.1 to 3 have to pay a sum of Rs.1,00,000/- for the sufferings undergone and the mental agony sustained. Further the act of opposite party No.1 to 3 made the complainant to get issued legal notice to opposite party No.1 & 2 vide EX.P.5 and in-spite of that, opposite parties did not pay any compensation and made the complainant to approach this Commission. Hence opposite party No.1 to 3 shall pay litigation cost of Rs.15,000/-. Accordingly we answer this point No.2 in partly affirmative.
24. POINT NO.3:- In view of the discussion made above, we proceed to pass the following:-
ORDER
The complaint is allowed in part.
The opposite party No.1 to 3 are jointly and severally liable to pay a sum of Rs.18,000/- paid by the complainant to opposite party No.1 to 3 and a sum of Rs.1,00,000/- towards sufferings and metal agony undergone by the complainant and a sum of Rs.15,000/- towards litigation cost.
The opposite parties shall comply the order within 30 days. In case, the opposite parties fail to comply the order within the said period, the above said amount of Rs.1,33,000/- carries interest at the rate of 9% p.a. from the date of order till realization.
Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.
Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.
(Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 25th Day of April, 2023)
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
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//ANNEXURE//
Witness examined for the complainant side:
Sri. Radra Pratap Patra the complainant (PW-1) has filed affidavit in the form of his evidence in chief.
Documents marked for the complainant side:
- Prescription given by OP – EX.P.1.
- Payment Receipt – EX.P.2
- Particulars of treatment given by Ramakrishna Hospital and discharge summary including bills – EX.P.3
- Discharge summary given by OP No.1 & 2 – EX.P.4.
- Office copy of legal notice & postal receipt & postal track – EX.P.5.
- Copy of Aadhar Card – EX.P.6.
Witness examined for the opposite parties side:
Sri. Jyothi Prakash Biswas, Trainee of OP No.2 (RW.1) has filed affidavit in the form of his evidence in chief.
Documents marked for the Opposite Parties side:
1. Eligibility certificate issued by Rajiv Gandhi University – EX.R.1.
2. Copy of the Hall ticket for September-2017 examination issued by Rajiv Gandhi University – EX.R.2.
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
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