As per Hon’ble President Mr. Shekhar P. Muley

        This is a complaint of medical negligence and deficiency in service against the Opposite Party, Orange City Hospital & Research Institute, Nagpur.

        Complainant No.1 is husband of the complainant No.2 and is working with National Thermal Power Corporation (NTCP) at Mouda, District Nagpur. On 18/2/2013 at about 8 p. m. when the complainant No.1 was supervising unloading of tanker, he accidentally slipped and fell down. Due to that he sustained spinal injury. He consulted a doctor at NTCP Mouda. He was given some medicines and was advised to consult an Orthopedic surgeon at NTPC Hospital next day. Accordingly he consulted DR. Singh, who prescribed medicines like pain killer. But he did not get relief. So he was referred to the OP Hospital on 22/2/2013. The OP Hospital in empaneled with NTCP. On his inquiry he was informed by the OP that it has qualified and specialised doctors and staff and has specialised diagnostic  and research center. After taking X ray of him and examination of him, the attending doctor told him that he did not sustain any serious injury and fracture. He was simply advised 7 to 10 days bed rest. But later considering  that he was staying alone, doctor advised him to walk with LS belt. Since he was staying on second floor without a lift, he was constrained to go home at Bhagalpur for rest and to continue the treatment advised by the OP. As there was no relief, he consulted Dr. Dilip Singh at Bhagalpur Govt Medical College on 26/3/2013. After examining him and X ray taken by the OP , he was told that he sustained fracture. Despite following advise of the doctor he didnot get relief and so he decided to take second opinion from prestigious Manipal hospital at Banglore, which was also empaneled with NTCP. There he got significant relief and continued treatment and physiotherapy course. When he was found 90% fit, he was given fitness certification 20/5/2013. He resumed his duties on 24/5/2013, though he still not recovered fully from spinal injury which was not taken seriously by the OP. Due to erroneous diagnosis by the OP he has still not recovered completely. Even after resuming duties he had to consult spine surgeon. He was suffering with severe pain which was taken very casually by the OP. The negligence of the OP in diagnosis of his injury and giving erroneous report of no fracture led to cancellation of his Special Disability Leave. This caused humiliation to him and was seen as a blot on his career. He was deprived of three month´s salary amounting to Rs. 7 lakh.

        Further allegation is that his wife (complainant No.2) is a patient of various deceases. On 18/12/2015 Sonography of her abdomen and pelvis was done at the OP Hospital. As per the Sonography report dated 18/12/2015  uterus, ovary and gall bladder were reported to be normal. However, fact is that uterus and ovary of the complainant No.2 were removed on 22/5/2010 at AMRI Hospital, Kolkata and gall bladder was removed on 8/3/2014 at Wockhardt Hospital, Nagpur. So the Sonography report given by the OP was utterly wrong and it reflects total lack of reasonable care and casual and negligent approach of the OP. Due to such revelation by the OP, the complainant No.2 suffered shock and trauma. It was a cruel joke on her anatomy. Thus there was professional negligence of the OP in both the cases. The complainant therefore,sought compensation from the OP but to no avail. Hence, this complaint to direct the OP to pay him Rs. 7 lakh for loss of three months salary due to cancellation of his leave, Rs. 1 lakh compensation for medical negligence and deficiency in service, Rs. 1 lakh compensation towards mental and physical agony, Rs. 5 lakh compensation towards treatment the complainant No.1 took at Bhagalpur and Banglore and at Wockhardt  and CIIMS Hospitals, Nagpur, Rs. l lakh compensation towards deficiency in service to the complainant No.2.

        The OP filed written reply to the complaint at Ex.10. A preliminary objection is taken that two complainants have filed one complaint for two different cause of action, hence, it is not tenable. Admitting the service of the complainant No.1 with NTPC and his accident, it is stated he had been to casualty department of the OP on 23/2/2013 i.e. almost after 6 days. It is also admitted that the OP Hospital is empaneled with NTPC. The doctor on duty after examining him and on the basis of X ray report noted that there was no fracture. Hence, he was advised to take rest for 7 to 10 days, avoid traveling and use LS belt while walking. Certain medicines were also suggested. It is stated the complainant No.1 never followed the advise of the doctor. He traveled to his native place in Bhagalpur, Bihar which is almost 1250 Kms from Nagpur. He, thereby, risked his injury which might have aggravated. It is thus stated the pain and discomfort he suffered may be due not following the advise of the doctor of OP Hospital. Admitting that the complainant No.1 approached the Hospital at Bhagalpur, it is denied that after examining the X ray report issued by the OP, Dr. Singh pointed out that he had a farcture. It is also denied that the report of Dr. Singh was based on the same X ray which was taken at OP Hospital. It is denied the OP wrongly diagnosed his injury and did not give him proper treatment.

        Regarding the case of the complainant No.2, it is admitted that she had been to the OP Hospital as outdoor patient. As per her medical history she had undergone surgery previously. The OP has admitted that in her Sonography report issued by it, some typographical error occurred due to automation and template usage. When the error came to notice, the OP communicated the fact to her and also to the CMO of NTPC by way of clarification. Denying all other allegations of medical negligence, deficiency in service, casual approach in giving treatment and giving wrong diagnosis, it is submitted the complaint is not tenable and liable to be dismissed.

        We have heard the submissions of the learned counsels for both the parties, perused documents, and rejoinder. Following points arise for our determination and we have given our findings thereon for the reasons given below.

       POINTS                                                    FINDINGS

1. Whether a joint complaint by two complainants

        on different cause of action is maintainable ?               No

2. Whether it is proved that the OP issued wrong

        X ray report of the complainant No.1 ?                      No

3. Whether there was negligence in diagnosis and treatment

        of the complainant No.1?                                                No

4. Whether there was negligence of the OP in giving

        wrong Sonography report of the complainant No. 2 ?    Yes       

5. Whether the OP is liable to pay compensation

And Other Charges to the complainants ?                       No

6. What order ?                                              As per final order

• // REASONS // -

POINT No.1 :- The OP has raised preliminary objection as to maintainability of the complaint. It is submitted that the complaint is filed by two complainants whose alleged grievances are distinct and separate. In other words cause of action to file the complaint vis-a-vis the complainants is totally different. We find that there is no co-relation between the two causes of the two complainants. Both the causes are separate. It is settled legal principle that no two or more distinct causes can be joined in one complaint. The complainant No.1 suffered accidental fall on 18/2/2013 and it is his accusation that the OP issued him report that he had no fracture and so no proper treatment was given. Whereas the case of the complainant No.2 is that she had gone to the OP Hospital on 18/12/2015 for Sonography and as per the report her reproductive organs like ovary and uterus, were normal, when in fact, her reproductive organs were already removed on 22/5/2010. Thus, the cause of action alleged to have been accrued to the complainants No.1 & 2 are not same or occurred in single series of incidents.

        Counsel for the OP relied on one judgment in the case of Abhishek Roy v/s United Ltd III (2017) CPJ 316 (NC). In that case complaint was filed by three complainants alleging that they booked separate flats with the OP, who committed deficiency in service by not delivering possession of the flats. So they prayed for completion of construction and delivery of flats to them. Besides they also prayed for monetary reliefs. Along with the complaint, an application u/s 12 (1) (c) of the Consumer Protection Act was also filed for permission to pursue the joint complaint. Earlier the permission was granted and complaint was admitted. However, later when the matter came up for hearing it was noticed that it was a non- speaking order without reference to Sec 12 (1) (c) of the Act. Relying on a Full bench judgment in Ambrish Kumar Shukla v/s Ferrous Infrastructure Pvt. Ltd. I (2017) CPJ 1 (SC), it was held thus,

        ¨ Where there are numerous consumers having common interest, one or more consumers can be permitted to maintain a joint complaint provided there is a communality of interest amongst complainants and numerous other consumers and complaint has been filed for benefit of all such consumers including consumers who are not party to complaint but having same interest. As complainants have sought reliefs for themselves and not on behalf of other consumer who have booked flats in the project, this matter cannot be termed as ¨class action¨ as envisaged u/s 12 (1) (c) of the Act.¨

        Holding that three complainants filed joint complaint in respect of their respective agreements, it was clear case of mis joinder of parties and causes of action.

        In the present case causes of action for both the complainants are different. Moreover, the complaint is not signed nor verified by the complainant No.2 and no authority is given to the complainant No.1 to file the complaint on behalf of the complainant No.2. Even the evidence is also given by the complainant No.1 only for self and for complainant No.2 without being authorised. Thus, looking to these facts we are in accord with the contention of the counsel for the OP that a joint complaint by two persons for two different causes is not maintainable. The point is held in the affirmative.

POINT No. 2:- As said earlier, the complainant No.1 had accidental fall on 18/2/2013. At first he was examined by a doctor at Mouda and was advised to see an Orthopedic surgeon at NTPC Hospital at Mouda. There, no fracture was suspected. So some pain killer was given. When his pain did not subside even after two days he was referred to the OP Hospital on 23/2/2013. There, he was examined and X ray report was taken. No fracture was noticed and accordingly he was informed and some treatment and  precautions were advised to him. It would be noticed that he did not go immediately to the OP Hospital after the accident. He went after 5 days. No X ray is filed on record, but the report shows there was no sign of fracture. But considering his pain he was advised to use LS belt while walking, avoid traveling and to take rest for 7 to 10 days.

        Admittedly the complainant No.1, thereafter went to Bhagalpur in Bihar. There on 26/2/2013 he consulted Dr. Singh, who in his report stated that X ray of the complainant No.1 revealed evidence of fracture. It is not made clear whether he had undergone surgery at Bhagalpur. But one month thereafter there was some relief in pain but he was still finding difficulty in walking. He then took second opinion from Manipal Hospital at Banglore, also empaneled with NTPC. After taking treatment there he finally joined duties on 24/5/2013. Thus, it is alleged that the OP failed to read X ray report correctly in the very first place, otherwise he would not have required to undergo all this ordeal.

        The counsel for the OP submitted that though the medical report of Bhagalpur Hospital suggested that there was evidence of fracture, yet it cannot be said that the opinion was given on the basis of same X ray report taken by the OP Hospital. We have already taken note of absence of X ray report. There is absolutely no evidence to say with certainty that Dr. Singh of Bhagalpur Hospital gave his report on the same X ray report given by the OP Hospital. It is also pertinent to note that when the complainant No.1 did not get relief he went to Bhagalpur on 26/3/2013. The distance between Nagpur and Bhagalpur is more than 1200 Kms. It is surprising that a person having fracture could undertake such a long journey, when he was advised against undertaking travel. Possibility cannot be ruled out that the complainant No.1 by traveling to such a long destination might have aggravated his injury. Whether or not the OP failed to read his X ray report correctly could have been ascertained, had the X ray report been placed before us. We cannot say for sure that Dr. Singh of Bhagalpur Hospital gave his report by examining the same X ray which was taken by the OP Hospital. For this reason, the point No.2 is held in the negative.

POINT No. 3 :-        In view of failure of the complainant No.1 in establishing that the X ray report given by the OP Hospital was patently wrong, it cannot be said that the OP was negligent in diagnosis and treatment of him. Since no fracture was detected by the OP, some advise and medicines were given to the complainant No.1. He was expected to follow those instructions scrupulously. Instead of following the advise, he traveled a long distance and must have aggravated his injury. For his own negligence, the OP cannot be held liable. Hence, this point is held in the negative.

POINT No. 4:- The allegation regarding wrong Sonography report pertains to the complainant No.2. This is totally different incident and occurred after two years of the first incident occurred with the complainant No.1. So two different causes are clubbed together in one complaint. We have already discussed on this aspect.

        The OP has admitted that there was error on its part in giving wrong Sonography report of the complainant No.1. It was negligence of the OP. According to the complainants reproductive organs of the complainant No. 2 were already removed. Therefore, when her Sonography report revealed that her reproductive organs were normal it must have been a shocking surprise to the complainant No.2. In view of admission of the OP regarding Sonography report, we hold this point in the affirmative.

POINTS No. 5 & 6 :-        In view of our discussion on above points and particularly on the first point pertaining to maintainability of the complaint, it is needless to say that the OP cannot be held liable to pay compensation or other charges to the complainants. Hence, the complaint is liable to be dismissed. The points are answered accordingly.

- // ORDER // -

1. The complaint is dismissed.
2. No order as to cost.
3. Copy of the order be given to both the parties, free of cost.