Haryana

StateCommission

A/37/2017

MEHAR CHAND(SINCE DECEASED) - Complainant(s)

Versus

DR.PARVEEN GARG - Opp.Party(s)

NAMIT KHURANA

17 Feb 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                                First Appeal No.37 of 2017

                                                Date of Institution: 11.01.2017

Date of final hearing: 17.02.2023

                                                       Date of pronouncement: 20.03.2023

Mehar Chand (Since deceased) now represented through his legal heirs:-

1. Vinod Kumar son
2. Smt. Krishna Devi widow
3. Rinku Kumar son

          All residents of House No. 20, NalagarhMajra, Ambala Road, Jagadhri, District Yamuna Nagar.

…..Appellant

Versus

1. Dr. Parveen Garg, Rameshwar Dass Memorial Hospital, Near Bus Stand, Bye Pass Road, Jagadhri.
2. Dr. Rajiv Airon, Rameshwardass Memorial Hospital, Near Bus Stand, Bye Pass Road, Jagadhri.
3. The Oriental Insurance Company Ltd. Opposite Madhu Hotel, Yamuna Nagar, through its Branch Manager.

…..Respondents

CORAM:    S.P.Sood, Judicial  Member

                   Suresh Chander Kaushik, Member.

 

Present:-    Mr.Sandeep Sharma proxy counsel for Mr. Namit Khurana, Advocate for theappellant.

                   Ms.Chavi Sharma, counsel for respondent No. 1.

                   Mr. S.S. Sidhu, counsel for respondent No. 2.

 

                                                ORDER

S P SOOD, JUDICIAL MEMBER:

          Delay of 12 days in filing the present appeal has been condoned for the reasons stated in the application for condonation of delay.

2.      The present appeal No.37 of 2017 has been filed against the order dated 28.11.2016of the District Consumer Disputes Redressal Forum, Yamuna Nagar (In short Now “District Commission”) in complaint case No.388of 2010, which waspartly allowed.

3.      The brief facts of the case are thaton 21.07.2009 complainant-Mehar Chand (now deceased) approached opposite party (OP) No.1 for removal of Stones from his Gall Bladder and deposited Rs.6000/- with the hospital of the OP No. 1 & 2 for laparoscopic surgical operation. Immediately after operation, Dr. Rajeev Airon-OP No. 2 treating doctor stated that it was a difficult case and was actually not a case of laparoscopic procedure but he has accomplished successfully. He also stated that in the CT scan, the size of the stone was not clearly visible and informed the complainant that there was no problem with the laparoscopic operation and no open surgery was done. Complainant deposited Rs.9000/- more after his operation but he was surprised to find a catheter with a bag attached to his stomach. It was represented by the doctor that the same was for draining out the bile. Though this raised some suspicion in the complainant’s mind, but the treating doctors continued proclaiming complete success of the operation whereas his health was deteriorating day by day. After being discharged from the hospital on 30.07.2009, complainant could not live well. He could not eat, drink or walk. The complainant not only felt handicapped but also suffered a great physical & mental harassment. Infact complainant did not havieany  relief from the stomach pain despite the treatment given by the Ops no.1 & 2. Thereafter, the complainant’s near & dears suggested him to consult doctors at P.G.I., Chandigarh also. This is how complainant was brought for treatment in PGI on 11.08.2009 and he remained admitted in P.G.I. Chandigarh from 03.09.2009 to 13.09.2009. The complainant spent huge amount on his treatment/medical bills about Rs.70,000/- and  also had to bear the cost of six injections Rs.10,000/- each administered to him. Thus, there was deficiency in service on the part of the O.Ps.

4.      In its written version, OP No. 1 &2  submitted thaton 21.07.2009patient Mehar Chand (now deceased) came to the hospital of OP no.1 with a history of pain in right upper abdomen, off & on for the last 6 months. He was checked by OP No.2 i.e. Dr. Rajiv Airon who is well known surgeon and is master of his field and having expertise of FMAS in Laparoscopic surgery. At the time of his admission his blood pressure was 130/80 and there was no dehydration or Jaundice but complainant was having tenderness in his right hypochondrium. The complainant brought with him the C.T. Scan report dated 14.07.2009, in which it was clearly mentioned that there was polypoidalmass of size 2.1 x 1.2 cm. in posterior wall of gall bladder and rest of viscera was normal. As per this C.T. Scan report, there was no stone, so the complainant was told that an open surgery will be done and was advised for admission. Accordingly, conventional cholecystectomy was done on 22.07.2009. The procedure of open surgery was very well explained to the complainant and he gave his consent and signed the same on 21.07.2009 and no laparoscopy surgery was advised to the complainant. After surgery since the gall bladder was having a polyposis so the same was sent for biopsy to rule out the possibility of  cancer because in the ultrasonography and C.T.Scan report which the patient brought with him on 21.07.2009, there was no sign of malignancy i.e. cancer. Had there been any such sign in the said report then certainly, the operating doctor would not have conducted the surgery.  In the report of biopsy, it was mentioned that there was a cancer of gall bladder and no stone was found in the biopsy report in the gall bladder. Immediately the patient was told about the report and referred to PGI, Chandigarh with all the reports on 06.08.2009 for opinion and management but he got himself admitted in the PGI Chandigarh on 03.09.2009. During that time, the cancer spread as it has been duly mentioned in the Annexure C-3 at page No.1 in the column of diagnosis “Locally advanced carcinoma gall bladder” meaning thereby that cancer had spread during this period for which the doctor of PGI, Chandigarh conducted another surgery on 04.09.2009 and he was discharged on 11.09.2009 and during that admission patient was given cancer medicine which is also clear from the Annexure C-30. A false story has been cooked up just to harass and humiliate and extract the money from the Ops doctor.Thus, there was no deficiency in service on the part of the OP No. 1 & 2 and prayed for dismissal of the complaint.

5.      In its written version, OP No. 3 submitted that it has been admitted that OPNo.1 Dr. Parveen Garg was insured vide insurance policy bearing no. 261700/48/2009/2173 valid from 09.12.2008 to 08.12.2009 for a sum of Rs.15,00,000/- and Dr Rajiv Airon was insured vide insurance policy bearing no. 261700/48/2010/1129 valid from 19.07.2009 to 18.07.2010  for an amount of Rs. 10,00,000/- subject to terms and conditions of the policies in question. However, OPs No.1 & 2 have treated the complainant according to best of their ability and according to the proper procedure as per medical norms and denied all the allegations leveled by the complainant and prayed for dismissal of complaint qua OP No.3.

6.      After hearing both the parties, the learned District Commission, Yamuna Nagar has partly allowed the complaint vide order dated 28.11.2016, which is as under:

“Resultantly, in the circumstances noted above, we partly allow the complaint of complainant and direct the OPs No. 2 & 3 to pay a lump sum of Rs.1,00,000/-( one lac only) jointly and severally to the LRs of complainant in equal shares and further to pay Rs.10,000/- as litigation expenses. It is made clear that as the OP No.2 was insured with the Op No.3, so, the OP No.3 Oriental Insurance Company will pay the awarded amount being insurer of the OP No.2 within a period of 30 days failing which complainant shall be entitled to recover interest at the rate of 6% per annum for the defaulting period. Complaint qua OP No.1 is hereby dismissed as no deficiency in service proves against the OP No.1. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law.”

7.      Feeling aggrieved therefrom, complainant-appellant has preferred this appeal through his legal heirs.

8.      The arguments have been advanced by Sh.Sandeep Sharma proxy counsel for Mr. Namit Khurana, the learned counsel for the appellant, Ms. Chavi Sharma, counsel for respondent No. 1 & 2 as well as Mr. S.S. Sidhu,counsel for respondent No.3. With their kind assistance the entire records as well as the original record of the District Commission including whatever the evidence has been led on behalf of  both the parties had also been properly perused and examined.

9.      Learned counsel for the appellant argued thatthe chronology of various events itself suggests it to be a case of medical negligence on the part of the doctors therefore when it is abundently proved from statement and documents so appellant was well entitled to reasonable compensation.Appellant has placed medical bills of Rs.70,000/- only though most of the bills have not been taken by the appellant form the medical store and hospital. District Commission has allowed the compensation on lower side and appellant is also entitled for enhanced compensation under various heads like hospital expenses, loss on account of earning capacity, expenses incurred on conveyance, boarding and lodging, loss in income, claim on account of negligence of doctors, compensation on account of mental strain and agony to the deceased and mental strain and agony of the complainants. The complainant areentitled for the claim amount as prayed for.

10.    Learned counsel for the respondent No. 1 & 2 argued thatpatient was properly examined, investigated, diagnosed and treated by well qualified doctors as per prescribed norms of medical practice. The procedure of open surgery was explained to the patient and he gave his consent and signed on the same. The patient was referred to PGI for opinion on the report of biopsy in which it was mentioned that there was a cancer of gall bladder and no stone was found in the gall bladder.Learned District Commission has rightly allowed the complaint of the complainant partly and prayed for dismissal of the appeal. 

11.    Learned counsel for the respondent No. 3 argued that respondent Nos. 1 & 2 was insured with respondent No. 3 subject to terms and conditions of the insurance policy. Since respondent Nos. 1 & 2 are well qualified doctors who treated the patient to best of their ability following well established medical norms. Counsel for respondent No. 3 has placed reliance in case of “H.R. Megh versus Dr. JasjitChhachhi Nursing Homes and others” decided on 21.07.2011 by Hon’ble National Consumer Disputes Redressal Commission, New Delhi and prayed for dismissal of the appeal.

12.              It is admitted that on 21.07.2009 patient was got admitted in the hospital for removal of stones from the gall bladder. Dr. Rajiv Airon is having FMAS in Laparoscopic surgery and patient gave his consent only for conducting laparoscopic surgery but doctors conducted open cholecystectomy procedure without consent of the patient or his relatives. Since there was no report indicating the complainant to be suffering from cancer that is why OP doctor decided to go ahead with the surgery. He was later on diagnosed to be a case of cancer for which he was treated at PGI Chandigarh. Since, the complainant has produced medical bills including hospital charges approx. Rs.60,000/- to Rs.70,000/- (Annexure C-1 to C-53), so the learned District Commission rightly partly allowed and compensated to the complainant. The learned District Commission had committed no illegality while passing the order dated 28.11.2016.  No ground for enhancement of compensation is made out thus, the appeal stands dismissed.

13.       Applications pending, if any stand disposed of in terms of the aforesaid judgment.

14.       A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.

15.      File be consigned to record room.

Date of pronouncement: 20^thMarch, 2023

 

 

 

                        (Suresh Chander Kaushik)                      (S. P. Sood)                                                  Member                                                            Judicial Member                

S.K

(Pvt. Secy.)