Haryana

Ambala

CC/255/2019

Mejor Singh - Complainant(s)

Versus

Dr. S.K. Gupta - Opp.Party(s)

Jahar Singh

03 Apr 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	255 of 2019
Date of Institution	:	19.08.2019
Date of decision	:	03.04.2023

 

Mejor Singh S/o Sh. Mohinder Singh R/o Vill. Chhoti Kohri, Tehsil Naraingarh Distt. Ambala.

…..Complainant

versus

Dr. S.K. Gupta, C/o Gupta Nursing Home, Naveen Colony, Naraingarh Tehsil Naraingarh Distt. Ambala

….…. Opposite Party

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Jahar Singh, Advocate, counsel for the complainant.  

                                   Ms. Kanupriya, Advocate, counsel for the OP.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to it:-

1. To pay Rs.1,00,000/-, for the deficiency in service, alongwith interest @ 18% p.a.
2. To pay Rs.50,000/- as general and special damages for mental pain and suffering etc.
3. To Pay Rs,20,000/- as cost of litigation.

 

2.             Brief facts of this case are that the complainant is working as a clerk in Dharam Kanta Ruchira Paper Mills, Kala Amb. On 03.12.2018 he got injured due to some mis-happening and his left arm was broken. He got himself admitted in the hospital of OP for treatment. On 03.12.2018 the OP suggested the complainant for X-Ray of his arm and thereafter plaster was done. Assurance was given by the OP that he will soon be fit. The complainant was treated for about 52-53 days by the OP. However, despite the fact that the complainant paid Rs.50,000/- to the OP, yet, his left arm was not concrescence due to the negligence of the OP. The OP is not a bone specialist and cheated the complainant as he did not advice the complainant to visit the bone specialist.  Due to non Union of Fracture of the Left Arm, complainant visited the Indus International Hospital Dera Bassi (Pb.), wherein, the bone specialist treated the complainant and plate was inserted in his left arm for which he spent huge amount. Thus, it was on account of medical negligence on the part of the OP that the complainant faced a great harassment, mental agony, income loss and remained bed ridden. The complainant has also sent a legal notice to the OP through his counsel on 16.07.2019, to compensate him but to no avail. Hence this complaint.   
3.           Upon notice, OP appeared and filed written version and raised preliminary objections to the effect that the present complaint is not maintainable as the OP has the insurance cover (Profession Indemnity-doctor & medical Practitioner) with National Insurance Company, which is a necessary and proper party, but complainant has not impleaded it in the arrays of the opposite parties in the head note of the complaint; there is no error of judgment or medical negligence as the OP is fully professionally competent; the complainant has concealed the material facts from this Commission etc. On merits, it has been stated that the complainant has suffered injury during road side accident. He suffered multiple injuries including ribs fracture. The complainant used to come for treatment of ribs subsequently and he was satisfied regarding the plastered arm and has categorically stated that there is no pain and recovering speedily. The complainant visited the hospital on 03.12.2018 as outdoor patient; he was checked and given treatment and also medicines were prescribed. He never remained in the hospital and was directed to come on the next day i.e. 04.12.2018 and thereafter he visited the OP on three different occasions i.e. 13.12.2018, 25.12.2018 and 11.01.2019 and thereafter he never visited the nursing home of the OP. Complainant has wrongly alleged that he was treated for 52 to 53 days. Complainant was never admitted in the nursing home and he was an outdoor patient only. The purpose of plaster was to immobilize the movement so that fracture gets healed up. It is known to medical science that fractures do heal of their own. The complainant got himself checked from Indus International Hospital on 04.02.2019 and as per the record he was discharged on 09.02.2019. The diagnosis shows NON UNION FRACTURE LEFT ULNAR SHAFT. The non union of fracture is a complication of fracture itself. The function of plaster is only to restrict the movement of the fractured portion. It is wrong to say that the OP is not a specialist. While doing the course of MBBS, training of orthopedic is given to every student and even in hospitals the doctors having MBBS, treat the patients with respect to fracture etc. The OP is master of Surgery in general surgery and also has at his credit orthopedic training in Post Graduation Courses. The OP has worked in Rajinder Hospital Patiala and worked as PCMS Doctor for more than 8 years in various hospitals of Punjab and has credit of treating many patient during his long tenure, At present, the OP is having an experience of more than 30-35 years. The complainant has been insured with Employees State Insurance Corporation Ltd. He was covered under the said insurance Corporation Ltd., wherefrom the bills were paid by the insurance company to hospital. The OP has categorically informed the complainant that in the cases of fracture, sometimes non union may occur which is a known phenomena. Rest of the averments of the complainant were denied by the OP and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainant tendered affidavit of the complainant and affidavit of Shri Mohinder Singh son of Rikhi Ram R/o Village Chhoti Kohri, Tehsil Naraingarh District Ambala as Annexure CW1/A and CW2/A alongwith documents as Annexure C-1 to C-4 and closed the evidence on behalf of the complainant. Learned counsel for the OP tendered affidavit of Dr. S.K. Gupta, C/o Gupta Nursing Home Naraingarh, District Ambala as Annexure OP-A alongwith documents Annexure OP-1 to OP-4 and closed the evidence on behalf of OP.          
5.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
6.           Learned counsel for the complainant submitted that it was on account of medical negligence on the part of the OP that the complainant has to approach another hospital for getting the right treatment of his fractured arm. He further submitted that the OP is thus entitled to compensate the complainant for the financial loss suffered by him and also the agony, harassment and pain.  In support of his contention, the learned counsel for the complainant has placed reliance on the judgment dated 14.05.2009, passed by the Hon’ble Supreme Court of India, New Delhi, in the case of Nizam Institute of Medical Sciences Versus Prasanth S. Dhananka and Others.
7.           On the other hand, learned counsel for the OP submitted that the mere fact that the fractured arm of the complainant took some time for recovery did not mean that there was any deficiency on the part of the OP in treating him. She further submitted that the NON UNION FRACTURE LEFT ULNAR SHAFT in itself is a complication of fracture itself and as such, it cannot be said that it was on account of any medical negligence on the part of the OP. She further submitted that in the cases of fracture, sometimes non union may occur which is a known phenomena. From the medical expert report dated 24.02.2023, it is quite clear that there is no medical negligence on the part of the OP and the complaint is thus liable to be dismissed. In support of her contention, the learned counsel for the OP has referred the order dated 11.10.2006 passed by the Hon’ble State Consumer Disputes Redressal Commission Uttaranchal, Dehradun, in the case of Shri Ujjawal Sharma Versus Dr. Rajendra Pal and another.
8.           Since, neither the treatment given by the OP in the first instance, qua the fractured arm of the complainant nor the further treatment given by Indus International Hospital Dera Bassi (Pb.), where the doctors concerned, inserted plates in the left arm of the complainant, in the manner referred to in the main complaint, are in dispute, as such, the moot question which falls for consideration is, as to whether, there was any  medical negligence on the part of OP in treating the complainant or not. It is significant to mention here that to come to any definite conclusion, this Commission, vide order dated 03.08.2022, referred the case to Chairman, Civil Surgeon, District Medical Board, Ambala, to submit a report/opinion, as to whether the OP was negligent in performing his duties, while giving treatment to the complainant or as to whether, he acted with normal care in accordance with the recognized practice accepted as proper, by responsible body of Medical Men’s in the particular field. Resultantly, the Chairman, District Medical Board, Ambala, submitted its report dated 24.02.2023, stating therein that after the above investigation, all the members of the inquiry committee have come to the conclusion that Dr.S K Gupta is well qualified and experienced in the treatment, he has given to the patient and there was no negligence in the treatment. According to the patient himself, his ribs were joined with this treatment, but the ulna was not joined even after two months, which can be a possibility (delayed or non-joining of bone) in any type of treatment. Relevant part of the said report is reproduced hereunder:-

“…….For this, the inquiry committee had given three days time to the complainant so that the condition of the bone of the patient could be estimated before the operation, but even after three days, the complainant did not submit any X-rays. For which the complainant was contacted telephonically, in which the complainant told that X-ray is not available with him. During the examination, an X-ray of the patient's arm was done and it was found that a plate had been inserted in the patient's left arm and bone had joined it. The patient was checked up by the investigation committee whose report is attached herewith.

After the above investigation, all the members of the inquiry committee have come to the conclusion that Dr. K Gupta is well qualified and experienced in the treatment he has given to the patient and there was no negligence in the treatment. According to the patient himself, his ribs were joined with this treatment, but the ulna was not joined even after two months, which can be a possibility (delayed or non-joining of bone) in any type of treatment.

 

Screening Committee Member

Dr. Balvinder, Deputy Civil Surgeon, Ambala.

Dr. Vijay Basal, SMO District Civil Hospital, Ambala

Dr. Arun Kumar Sharma, MO., District Civil Hospital, Ambala City

Dr. Shivit, M.O., District Civil Hospital, Ambala City

Dr. R. C. Jindal, I.M.A. Member, Ambala….”

 

9.           Thus, the report referred to above, leaves no doubt with this Commission to hold that there was no medical negligence on the part of the OP while giving treatment to the complainant and that since the ribs were joined but the ulna was not joined even after two months, there can be a possibility (delayed or non-joining of bone) of the same, in any type of such treatment.  It is significant to mention here that the complainant has neither challenged this report nor has produced any contrary documents to this report. Thus, in the face of the report referred to above, it can easily be said that there was no medical negligence on the part of the OP.
10.           It may be stated here that the facts of the present case are different from the facts of the case titled as Nizam Institute of Medical Sciences Versus Prasanth S. Dhananka and Others (supra), relied upon by the complainant, therefore, no help can be drawn by the complainant from the said case. 
11.           In this view of the matter, it is held that since the complainant has failed to prove his case, as such, no relief can be granted to him. Resultantly, this complaint stands dismissed with no order as to costs.  Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

 Announced:- 03.04.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President