IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the   29^th   Day of  October  2022

    Present: -   Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

           Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                       Sri.Stanly Harold, B.A.LLB, Member

                                                    CC.220/2016

Prasannakumary                                                    :         Complainant

D/o Meenakshy

Roadvila Veedu

Makeup Junction

Poothakulam, Paravur

Kollam.

[By Adv.Kizhakkanela Sudhakaran&Adv.Pillai Rekha]

V/s

1. Shri.Arun                                                    :         Opposite parties 

          Proprietor

          M/s Span Laboratory&Diagnostics Centre

          City Tower, Parippally, Kollam.

          [By Adv.P.R.Raveendran Pillai]

            Additional Opposite parties

2. Shri.Ansari

          Owner of M/s Span Laboratory & Diagnostic Centre

         City Tower, Paripally, Kollam.

           [By Adv.P.R.Raveendran Pillai]

3. Sri.Asif@Azeeb

        Owner/Proprietor of M/s Span Laboratory &Diagnostic Centre

        City Tower, Paripally, Kollam.

FINAL    ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

          This is a case based on a complaint filed u/s 12 of the Consumer Protection Act 1986.

          The averments in the complaint in short are as follows:-

          The  1^st opposite party is the technician, the 2^nd and 3^rd  opposite parties are owner/proprietor of the 1^st opposite party Diagnostic Centre which is functioning at Parippally.  On 07.08.2014 the complainant consulted Dr.Kannan who is the Assistant Surgeon attached to Ramarao Memorial Taluk Hospital, Nedungolam at his private practice  clinic near the said hospital.  After examination the doctor asked the complainant to take X-ray image for right femur for expert management and deciding mode of treatment.  Accordingly the complainant approached the 1^st opposite party diagnostic centre for taking X-ray and paid Rs.600/-.  The complainant was provided with 2 films with the receipt evidencing the payment.  There after the complainant again approached Dr.Kannan with X-ray film who after verifying the same opined that right femur bone of the complainant is seen broken and also prescribed some pain killers and also advised her to consult expert doctor for expert opinion.  Accordingly the complainant on 08.08.2014 went to Medical College Hospital, Thiruvananthapuram with the prescription of the doctor and X-ray film.  After verifying the X-ray film issued by the opposite parties the doctors at MCH proceeded with the treatment by applying bandage over right leg and also admitted her in patient.  Even after administration of prescribed medicine at the MCH the pain to the leg had no change and therefore the complainant insisted for discharge.  On 12.08.2014 she was discharged from MCH at her request.  Thereafter when the pain became unbearable the complainant approached Azeezia Medical College Hospital, Kollam at the same date and consulted Dr.Vinod V.S who after studying the case of the complainant felt suspicious in the treatment that was availed by her and directed the complainant to take MRI scan and also admitted her as in patient.  On 19.08.2014 the complainant went to Metro Scan and Laboratory, Chamakkada and took MRI scan at right thigh and hip by paying Rs.6500/-.  On going through the scan report it was found that the complainant’s femur  has no fracture as shown in the X-ray film provided by the opposite parties. Thereafter the doctor identified that X-ray film provided to the complainant by the opposite parties is not that of the complainant, one Sarasamma Amma and that the film embedded with the said name.  The complainant being illiterate failed to identified the said mistake.  The opposite parties willfully and negligently provided X-ray film of some other person and based on it the treatment was carried out by the doctor at the MCH, Thiruvananthapuram.  The complainant continued treatment at Azeezia Medical College till 21.08.2014.  Thereafter  the complainant was treated at Government Ayurveda Hospital at Paravoor from 15.09.2014 and she was directed to avoid strenuous work and take adequate rest.  There was negligence and deficiency in service on the part of the opposite parties and as a result of which the complainant suffered a lot and has to spend huge amount for her treatment.  If care and caution had been taken by the opposite parties the mistake could have been avoided.  The complainant suffered immense pain and mental agony because of the negligent act of the 1^st opposite party.  The complainant is entitled to get an amount of Rs.1,00,000/- as compensation for the negligence and deficiency in service by the 1^st opposite party.  She is also entitled to get an amount of Rs.50,000/- as compensation for mental agony, harassment and pain suffered by her and Rs.50,000/- as medical expenses borne by her.  As the 2^nd and 3^rd opposite parties are owner/proprietor of the 1^st opposite party firm they are vicariously liable to compensate the complainant.  Hence the complaint.

          The opposite parties filed a joint version  raising the following contentions.  The complaint is not maintainable either in law or on facts.  However the allegation that the 1^st opposite party is the technician and 2^nd opposite party is the proprietor of the opposite party firm Laboratory and Diagnostic Centre.  But the 3^rd opposite party is a stranger to this complaint and he had no connection with the said institution and hence he has not  necessary party to the complaint and therefore the complaint is bad for mis joinder of parties.

          The opposite parties would further admit that on 07.08.2014 the complainant approached the 2^nd opposite parties diagnostic centre along with another lady companion with the prescription of  Dr.Kannan and take X-ray film to pelvis, both hip and right femur AP and lateral of the said patient.  The 1^st opposite party was the X-ray technician at that time and he asked the name of the patient.  Since the patient was suffering from severe pain at that time the companion lady said the name as Sarasamma Amma after recording the details of the patient in the register the 1^st opposite party took X-ray film as per prescription and Rs.600/- was received as charge.  The 1^st opposite party have asked the name of the patient since the name of the patient recorded in the prescription letter was not clear.  They never stated the name of the patient as Prasanna Kumari.  The 1^st opposite party had taken X-ray images as per the prescription letter and  handed over the same to the patient.  The 1^st opposite party never opined that there is a fracture and the opposite parties are unaware of the opinion or advise given by the doctor.  The treatment records produced by the complainant shows that the treatment given by the complainant was not on the basis of X-ray images taken by the 1^st opposite party but on the basis of ultra sound scan and MRI scan took at MCH, Thiruvananthapuram.  But the complainant has suppressed  the above materials facts and some other material facts from the notice of this Forum.  The X-ray film provided to the complainant by the 1^st opposite party are that of the patient herself but the name seen recorded in the X-ray images as Sarasamma Amma was happened to be so stated by the companion of the complainant as on that particular date.  The advocate notice send by the counsel for the complainant  does not raise such a case and it is a new case  which is not stated in the advocate notice.

          The name as stated by the companion of the patient, serial number, sex, part of body, number of films, doctor’s name, charge received etc. were recorded in the register kept in the said diagnostic centre.  The 1^st opposite party had only taken X-ray images as prescribed by the doctor and hand over to the patient.  The 1^st opposite party had only taken the X-ray images and never opined that there was fracture.  It is sure that there was no fracture revealed in the X-ray images.  If any doctor had given treatment to the complainant under the impression that fracture was revealed in the X-ray images such doctors are only responsible  and the opposite parties are not liable for that.  If any doctors were done wrong diagnosis and given wrong treatment they have been impleaded as opposite parties.   But the complainant did not implead them in the party array.  Though notice were sent to Dr.Anil Kumar he has not been impleaded in the party array and hence the complainant is bad for non joinder of necessary parties.  The treatment if any undergone by the complainant was not on the basis of the said X-ray images.  There was no deficiency in service, unfair trade practice or negligence on the part of the opposite parties.  They further pray to dismiss the complaint with compensatory costs.

          In view of the above pleadings the points that arise for consideration are:-

1. Whether the complaint is bad for mis joinder of parties and non joinder of necessary parties?
2. Whether there is any deficiency in service or  any unfair trade practice on the part of the opposite parties?
3. Whether the complainant is entitled to get compensation as prayed for?
4. Reliefs and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1&2 and Ext.A1, A2,A3 X-ray film containing 2 images, A4 to A11 series documents.Evidence on the side of the opposite party consists ofthe oral evidence of DW1&2 and Ext.D1 to D2 documents.

Both sides have filed notes of argument.Heard both sides.

 Point No.1    

          The following are the admitted facts in this case.   The opposite parties are conducting  diagnostic centre by name M/s Span Laboratory and Diagnostic Centre at Parippally and the 1^st opposite party is the technician and additional 2^nd  opposite party is the proprietor of the said diagnostic centre.  The specific case of the complainant is that 3^rd opposite party  is also owner cum proprietor of the said diagnostic centre.  But the opposite parties have totally denied the same and there is absolutely no evidence to prove that the additional 3^rd opposite party is one of the proprietors of the above concern.  Therefore it is clear that there is mis joinder of parties in the complaint. 

It is the further case of the complainant that Dr.Kannan who is conducting private practice at his clinic near the Taluk Hospital, Nedungolam has issued Ext.A1 letter suggesting to take X-ray film of pelvis both hip and right femur AP and the lateral of the complainant.  Accordingly she went to M/s  Span Laboratory and Diagnostic Centre at Parippally which has been run by 1^st  opposite party Arun as technician and 2^nd and 3^rd opposite parties are owners/proprietor of the said diagnostic centre.  It is further averred that the 1^st opposite party being the X-ray technician taken  X-ray film as per Ext.A1 prescription letter of Dr.Kannan and handed over the same to the complainant and her companion after receiving Rs.600/- as charge and also issued Ext.A2 receipt.  The said doctor after verifying the X-ray film opined that the right femur bone of the complainant is seen broken and prescribed some pain killers and also advised her to consult an expert doctor for management.  It is evident from the above averments that Dr.Kannan who prescribed for taking X-ray film and accordingly the complainant has taken the X-ray film and after verifying the X-ray film the said doctor opined that there is fracture of her left femur.  But subsequently it is proved that there was no fracture as claimed by Dr.Kannan.  It is also brought out in evidence that as referred by Dr.Kannan the complainant  went to MCH and undergone treatment and subsequently got admitted at the Azeezia Medical College Hospital, Kollam  and  consulted Dr.Vinod V.S who on studying her case felt suspicious in the treatment that was availed to her and  directed the complainant to take MRI scan and  revealed that there is no such fracture as diagnosed by Dr.Kannan.  In Ext.A10/D1 lawyer notice also the complainant would raise the very same allegations.  In the circumstances the said Dr.Kannan is a necessary party to this case.  Though Ext.P10/D1 notice was sent accusing Dr.Kannan and alleging negligence and deficiency in service against the said doctor he has not been arrayed as an opposite party.  The learned counsel for the present opposite parties has vehemently argued that the non impleading the said Dr.Kannan whose mis diagnosis is the starting point of all miseries and financial loss to the complainant is much fatal and the non impleading the said Dr.Kannan has caused much prejudice due to present opposite parties.  We find much force in the above argument  of the learned counsel for the opposite parties No.1 to 3.  It is evident from the above discussion that Dr.Kannan is a necessary party and due to the non impleading of necessary parties the complaint is bad and on that score the complaint is liable to be dismissed.  The point answered accordingly.

Point No.2&3

          For avoiding repetition of discussion of materials these 2 points are considered together.  The specific case of the complainant in paragraph No.2 of the complaint is that after taking X-ray film (two images on one X-ray sheet) as per Ext.A1 letter and after perusing the said X-ray film Dr.Kannan had opined that there is fracture on the right femur and referred the case to MCH with the prescription of Dr.Kannan and X-ray film.  The doctor at MCH by relying on X-ray film images issued by the opposite parties proceeded with the treatment by applying bandage of her right leg and admitted as inpatient.  Even after administration of prescribed medicine at the MCH the pain to the leg had no change and therefore the complainant insisted for discharge on 12.08.2014  on her request and thereafter when the pain became unbearable she approached Azeezia Medical College Hospital, Kollam on 12.08.2014 and consulted Dr.Vinod V.S  who after studying the case of the complainant felt suspicious in the  treatment that was availed to her and directed the complainant to take MRI Scan and admitted her as inpatient.  The complainant on 19.08.2014 went to Metro Scan and Laboratory, Chamakkada and took MRI scan at right thigh and hip by paying Rs.6500/-.  On going through the scan report it was found that the complainant’s femur  has no fracture as shown in the X-ray film images provided by the opposite parties. Thereafter the doctor identified that X-ray film provided to the complainant by the opposite parties is not that of the complainant but it belongs to one Sarasamma Amma and that in the film the name is embedded with.  According to the complainant the opposite parties willfully and negligently provided the X-ray film of some other persons and based on it the treatment was carried out at the Medical College Hospital and also continued her treatment at Azeezia Medical College Hospital till 21.08.2014 and hence there is deficiency in service on the part of the opposite parties.  However the complainant has no such case in Ext.A10/D1 lawyer notice which would contain the earliest version regarding the incident.

          According to the opposite parties the 1^st opposite party had only taken X-ray film as suggested in Ext.A1 letter and handed over the same to PW1 who is none other than the complainant.  However  PW1 has admitted that Ext.A3  X-ray film are of herself.  According to PW1 Rm³ AXn-th-Z-\-bp-am-bn-«mWv X-ray Øm]-\-¯n sN¶Xv.  tUmIvSÀ prescribe sNbvX AtX Ah-b-h-§-fpsS  X-ray  BWv A3 F¶p-]-d-bp-¶-Xv(Q) het¯ Imensâ AØn-bpsS c­v X-ray  BWv.  tUmIvSÀ ]dª {]Im-c-apÅXmWv.  A1 prescription  ]d-bp¶ c­v Ah-b-h-§-fpsS X-ray  Atà A3(Q) B X-ray  Xs¶-bm-Wv.  Imensâ XpS-bpsS X-ray  Xs¶-bmWv FSp-¯-Xv. AsX(Ans).

          DW1 also would admit that  H]n Sn¡-änse prescription {]Imcw  FSp¯ X-ray  images lÀPn-I-£n-bpsS  Atà Ct¸mÄ ImWn-¨-Xv (Q) Yes(Ans).   DW1 has also identified A3  two X-ray film.  He would further admit that A1  ImWp¶ findings   A3  X-ray sIm­v ImWmw.

        In the light of the above evidence of PW1&DW1 the allegation of the complainant that the opposite parties have handed over X-ray film of another lady by name Sarasamma Amma instead of the complainant is devoid of any merit.  It is brought out in evidence through DW1 during cross examination  for the complainant that the chance of X-ray is not that of the patient is very low and the chance of treating the patient at Azeezia Medical College, Kollam is not on the basis of X-ray but on the basis of clinical findings and investigation done by respective doctors.  In the light of the above admission of DW1 doctor who verified the X-ray the chance of handing over the X-ray of another lady to the complainant is very remote.

          It is true that the complainant is a lady by name Prasanna Kumari, 58 years.  But it is noted in the X-ray itself that the name of the patient is Sarasamma Amma.   Therefore according to the complainant Ext.A3  is not the X-ray of herself  and it was the X-ray  of another lady.  The oral evidence of DW2 would indicate that as he could not read the name of the patient in A1 prescription letter that he enquired about the name of the patient and at that time the complainant who was suffering from acute pain could not say her name and the companion of the complainant stated the name as Sarasamma Amma and 1^st opposite party was under the impression that the said name Sarasamma Amma is the name of the patient.  Therefore he entered that name in the X-ray register and also in Ext.A2 receipt  that he has also noted that details shown in Ext.A1 letter in the X-ray register and only thereafter he taken X-ray of pelvis both hip and right femur AP and lateral.  He has noted all the above aspects including the name of the patient told to him, serial number, sex, part of body, number of films, doctor’s name, the amount received etc. in Ext.A2 X-ray register.  According to DW2 the above register has been prepared in the ordinary course of business in the institution.  According to DW2 neither the complainant nor the companion stated the name as Prasanna Kumari as the name of the patient nor that the name can be inferred from Ext.A1 letter.  In the circumstances  according to the 1^st opposite party/DW2 the name of the patient happened to be written differently in the X-ray and A2 receipts as Sarasamma Amma.  But he had actually taken the X-ray on the part of the body of the complainant as suggested by DW1 in Ext.A1 letter.  The oral evidence of DW1 in this regard stands  corroborated  by the oral evidence  of DW2 discussed above.

          Yet another allegation of the complainant is that after taking A3 series X-ray film from the opposite party Diagnostic Centre and paying the required fee of Rs.600/- as per Ext.A2 receipt the complainant rushed to Dr.Kannan(DW1).  The said doctor after verifying A3  X-ray film has opined that ImensS AØn s]m«n aÖ shfn-bn h¶n-«p-s­¶pw Bb-Xn\v IqSp-X hnZKv² NnInÕ Bh-i-y-ap-s­-¶pw………  But DW1 denied having stated the same to the complainant  we shall quote the evidence of DW1 in this regard in page no.2 of his deposition that ….A3 series X-ray ]cn-tim-[n¨ tijw he-Xp-Im-ense FÃv femur bone  s]m«n-b-Xm-bnt«m, aÖ ]pd-¯p-h-¶-Xm-bnt«m ImWp-Itbm note sN¿pItbm hmZn-tbmSv ]d-bp-Itbm sNbvXn-«n-Ã.(Q&A).

          According to DW1 he has noted only sclerotic lesion on the lower femur.  DW2 also denied having expressed any opinion regarding the X-ray of the patient and it is none of the business of the lab technician to express any opinion regarding the findings in the X-ray and the doctor who prescribed to take X-ray or any other doctors alone are competent person to express  opinion after verifying the X-ray film.  DW1 has also deposed that as per Ext.A5 discharge summary from Azeezia Medical College  it is stated the complainant has undergone psychiatric consultation as she has expressed symptoms of psychiatric illness during treatment.

          The oral evidence of DW1 would further show that A3 sIm­p-h¶ Ih-dn {]k-¶- Ip-amcn  F¶pw patient sâ hb-Êpw, sex Dw X-ray date Dw refer sNbvX tUmIvS-dpsS t]cpw GXv `mK§fpsS X-ray BsW¶pw tcJ-s¸-Sp-¯n-bn-«p-­v.  kckzXn A½ F¶ t]cv sh«n-am-än-bn«v {]k¶ Ipamcn F¶v Xncp¯n Fgp-Xn-bn-«p-­v.

        In the light of the evidence available on record we are unable to find any deficiency in service or any unfair trade practice on the part of any of the opposite parties.  Therefore the complainant is not entitled to get any of the reliefs sought for in the complaint.  The points answered accordingly.

Point No.4

          In the result complaint stands dismissed.

          No costs.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the  29^th  day of  October   2022.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent

Witnesses Examined for the Complainant:-

PW1  :         Prasannakumari

PW2  :         Anjana Shan

Documents marked for the  complainant

Ext A1:       Prescription dated 07.08.2014 by  Dr.Kannan.V

Ext A2:       Cash bill for Rs.600/- from Span Diagnostics dated 07.08.2014.

Ext.A3:       X-ray film.

Ext.A4 :      MR imaging of thigh with hip joint (plain) from Metro Scan dated

                   19.08.2014.

Ext.A5:       Discharge summary from Azeezia Medical College dated 21.08.2014.

Ext.A6:       Discharge card from Govt.Ayurveda Hospital, Paravur.

Ext.A7:       Cash bill for Rs.6500/- from Metro Scan and laboratory dated

                      19.08.2014.

Ext.A8:       USG(R) Hip report from Medical College, Thiruvananthapuram dated

                   12.08.2014.

Ext.A9:       Requisition for C.T Scan Head  dated 12.08.2014.

Ext.A10 (s/p & objections):     Copy of lawyer notice.

Ext.A11 series      :         Postal receipt and acknowledgement card.

Witnesses Examined for the opposite party:-

DW1           :         Dr.Kannan

DW2           :         Arun.S.S

Documents marked for the opposite party:-

Ext.D1        :         Lawyer notice dated 12.12.2014.

Ext.D2        :         X-ray Register Book.