appellant ) against the order dated of the District Consumer Disputes Redressal Forum, Patiala (in short, the District Forum ), by

Transcription

1 2 nd Bench STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SCO NO , SECTOR 22-D, CHANDIGARH. First Appeal No.1206 of 2003 Date of Institution: Date of Decision: Sucheta wife of Naresh Kumar aged 35 years, resident of New Abadi, Khanna, District Ludhiana...Appellant. Versus 1. Dr. Gulzar, Sant Colony, near College Playground, Amloh Road, Khanna. 2. Dr. Surjit Singh Rathore C/o Sandeep Nursing Home, Near Rakhra Palace, Patiala. 3. Dr. Jagir Kaur w/o Dr. Surjit Singh Rathore, C/o Sandeep Nursing Home, Near Rakhra Palace, Patiala. 4. New India Insurance Company, Chotti Baradari, Near Narain Hotel, Patiala...Respondents. Before:- Present:- First Appeal against the order dated of the District Consumer Disputes Redressal Forum, Patiala. Sh. Piare Lal Garg, Member, Presiding Member. Mrs. Amarpreet Sharma, Member. For the appellant : Sh. Munish Goel, Advocate. For respondent No.1 : Ex.-parte For respondents No.2-3 : Sh. Arun Dogra, Advocate. For respondent no.4 : Sh. Parminder Singh, Advocate. PIARE LAL GARG, MEMBER:- This is an appeal filed by Smt. Sucheta (in short, the appellant ) against the order dated of the District Consumer Disputes Redressal Forum, Patiala (in short, the District Forum ), by which the complaint of the appellant was dismissed by the District Forum. 2. Brief facts of the case are that on , while washing the clothes in the washing machine, upper part of index finger of the appellant was cut down and it hanged over with the lower part. The appellant was taken to Civil Hospital, Khanna by her husband at about

2 First Appeal No.1206 of a.m. Respondent no.1 showed his inability to handle the case, being serious in nature and referred the appellant to Dr. Surjit Singh Rathore C/o Sandeep Nursing Home, Patiala, respondent no.2, giving his address on a slip. Respondent no.1 also made telephonic call to Dr. Surjit Singh in this regard. The appellant and her husband had hired a taxi and had reached at the clinic of Dr. Surjit Singh, respondent no.2 at 9.00 a.m. Respondent no.2 asked the appellant to sit on the bench as he will start the treatment of the appellant after some time. The appellant remained sitting their for about 1-1/2 hours but no treatment was given by respondent no.2. The husband of the appellant requested respondent no.2 to start the treatment but respondent no.2 told that he would start the operation at 4.30 p.m. The appellant was sent for x-ray. Thereafter, respondent no.2 told the appellant that injured part of the finger had to be removed as there was no alternative to fix the cutting part with the remaining part of the finger. Immediately, the appellant and her husband left the clinic of respondent no.2 and went to C.M.C. Hospital, Ludhiana. Dr. A.B. Thomas told that the finger had to be amputated and it could have been saved if they had reached the hospital within 6/7 hours of the injury. The appellant was operated by the doctors of C.M.C. Hospital and her injured finger was amputated. She spent Rs.10,000/- on her treatment at C.M.C. Hospital. It was pleaded that there was negligence and deficiency in service on the part of respondents no.1 and 2 because they neither gave the first aid nor treated the injured finger of the appellant in time and prayed that an amount of Rs.6000/- paid to respondent no.2 along with Rs.10,000/- spent by her at C.M.C. Hospital be refunded and respondent no.2 be directed to pay Rs.4 lacs as compensation to the appellant on account of mental torture and harassment.

3 First Appeal No.1206 of The original complaint containing the above facts was filed on However, later on Dr. Jagir Kaur, Incharge, Sandeep Nursing Home was impleaded as respondent no.3. Unauthorized amendments were made in the complaint leveling allegation of negligence against Both Dr. Surjit Singh and his wife newly added respondent no.3 Dr. Jagir Kaur. Subsequently, by another amendment, respondent no.4 New India Insurance Company was also impleaded. 4. Respondent No.1 filed written reply by taking the preliminary objections. On merits, it was admitted that the appellant had visited the Govt. Hospital, Khanna on at about 7.45 a.m. for the treatment of her cut down finger. As both the digital arteries of the injured finger were cut down and whole of the finger was in crushed form with multiple bone fractures and as such, not in a position of anastomosis of injured blood vessels and it was impossible to re-fix the cut down part of the injured finger. After examining the appellant, respondent no.1 had advised for amputation of the finger. Her husband wanted to have re-fixed the same. As such, first aid treatment was given and the appellant was referred to Rajindra Hospital, Patiala. Respondent no.1 denied other allegations of the appellant and prayed that the complaint may please be dismissed with costs. 5. Respondent no.2 filed separate reply taking preliminary objections that the appellant did not come under the definition of consumer as per the Act, complaint was bad for mis-joinder and nonjoinder of necessary parties and respondent no.2 had been unnecessarily dragged into litigation. On merits, it was submitted that he had been serving as Professor in Department of Surgery in Rajindra Hospital, Patiala. He was not doing private practice or running any hospital at that

4 First Appeal No.1206 of time. Respondent no.2 denied that he had received any telephone from respondent no.1. Sandeep Nursing Home which was being run by his wife, who was a gynecologist after retirement as Assistant Civil Surgeon, Patiala. The appellant had come to consult the wife of respondent no.2 namely Dr. Jagir Kaur, respondent no.3. Respondent no.3 had told the appellant that the finger could not be re-fixed and it had to be amputated. The appellant and her husband were also told the urgency because the injury may go to gangrene and the life of the appellant was in danger due to gangrene. However, the appellant and her husband requested respondent no.3 to stitch the index finger as they wanted to go to Christian Medical College & Hospital, Ludhiana, for re-fixation of the finger. As such, respondent no.3 did the temporary stitching to avoid further bleeding enroute. It was denied that the appellant was made to sit for about 1-1/2 hours and was told abut the amputation at 4.30 p.m. As such, it was pleaded that respondent no.2 was not deficient in rendering services to the appellant and prayed that the complaint be dismissed with costs. 6. Respondent no.3 also filed separate written reply almost on the same lines as pleaded by her husband respondent no.2. It was denied if her husband had anything to do with the clinic. The appellant and her husband had come to her clinic. Respondent no.3 advised the appellant that re-fixation of the finger was not possible and it had to be amputated. On insistence of the husband of the appellant, respondent no.3 stitched the loose part of the finger so that bleeding enroute was avoided and the appellant could try her luck in the C.M.C., Ludhiana. The allegation of delay on the part of respondent no.3 was denied. Respondent no.3 also denied any knowledge about the subsequent treatment of the appellant obtained from the C.M.C. Ludhiana. It was further pleaded that Sandeep

5 First Appeal No.1206 of Nursing Home was insured with New India Insurance Company Limited. Respondent no.3 was not deficient in rendering services to the appellant and prayed that the complaint be dismissed with costs. 7. Respondent no.4 also filed written reply denying any negligence on the part of respondent no.3. They had taken almost similar pleas as taken by respondent no Learned District Forum after hearing the learned counsel for the parties and going through the record, dismissed the complaint of the appellant. 9. Hence, the appeal by the appellant. 10. We have gone through the pleadings of the parties, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties. 11. There is no dispute that Dr. Gulzar respondent No. 1 examined the appellant in Civil Hospital, Khanna for the injury of right index finger bones and referred the appellant to Rajindra Hospital, Patiala and entry to this effect was made by Dr. Gulzar in the register of the Civil Hospital, Khanna and the copy of the same is Ex. R There was no negligence on the part of Dr. Gulzar, who after examining the patient immediately referred her to Rajindra Hospital, Patiala but he was also harassed by the appellant when there was no deficiency on his part. 13. The appellant version is that Dr. Gulzar had referred her to Dr. Surjit Singh Rathore respondent No. 2 and they had gone to the clinic of Dr. Surjit Singh Rathore respondent No. 2 after hiring a Taxi from Khanna. Version of the appellant was that Dr. Jagir Singh respondent No. 3 had not attended the appellant for about 1½ hours and on the request of husband

6 First Appeal No.1206 of of the appellant Dr. Surjit Singh Rathore told that he would start the operation at 4.30 p.m. and later he told that the finger had to be removed as there was no possibility to fix the cutting part with the remaining part of the finger. In reply, Dr. Surjit Singh Rathore pleaded that he was working as a Professor of Surgery in Rajindra Hospital, Patiala and the clinic known as Sandeep Nursing Home was being run by Dr. Jangir Kaur his wife. After that the appellant had amended his original complaint and respondent No. 3 Dr. Jagir Kaur was pleaded as opposite party No. 3 alleging both Dr. Surjit Singh Rathore and Dr. Jagir Kaur to be negligent in attending the appellant. But from the change of her version from the original complaint that Dr. Surjit Singh was negligent seems that version of the appellant regarding negligence on the part of respondents No. 2 & 3 i.e. Dr. Surjit Singh Rathore and Dr. Jagir Kaur not correct and no evidence was produced by the appellant to prove her allegations leveled against respondents No. 2 & Firstly the appellant made the allegations against respondent No. 2 and subsequently in the amended complaint alleged the deficiency in service on both respondents No. 2 & 3. The version of the appellant was self-contradictory and is not believable. 15. Counsel for respondents No. 1 to 3 cited the judgment of Hon ble Punjab & Haryana High Court reported as Som Parkash v. Karam Dass, 2008(3) R.C.R.(Civil) 798 in which it was held that:- Estoppel Party to the litigation cannot be allowed to blow hot and cold in the same breath One who takes a specific stand to non-suit his opposite party cannot shift his stand to again non-suit the same person claiming relief on the stand taken against him earlier on that ground The defendant will be bound by the stand taken by him in his

7 First Appeal No.1206 of written statement in the earlier suit for getting the suit dismissed as withdrawn on that ground. 16. The abovesaid citation is fully applicable to the facts of the present appeal. 17. The version of the appellant that the Doctor of the C.M.C. Hospital, Ludhiana told her that if the appellant had reached their hospital within 7-8 hours of the injury re-fixation was possible; also not tenable. No expert evidence was produced by the appellant to prove her allegations against respondents No. 2 & 3. Even the affidavit of the Doctor was not produced by the appellant to prove her version that due to lack of proper advice by respondents No. 1 to 3 her finger was amputated. The version of the appellant that she had gone to the hospital of respondents No. 1 & 2 on and on the same day in the evening when respondents No. 1 & 2 advised for the amputation of the finger they immediately move to the C.M.C. Hospital, Ludhiana. But as per the medical certificate Ex. C-6 produced by the appellant herself, her index finger was amputated on So from the medical certificate, it is proved that if there was any delay that was due to the relatives of the appellant, which is apparent from the medical certificate(ex. C-6) of C.M.C., Ludhiana. The same is reproduced as under: Patient Sucheta Singhi hospital Unit No. C , presented to us in Casualty on at 8:00 p.m. with history of Crush Injury Index Finger 12 ½ hrs old. Status K. wiring and suturing done elsewhere. Distal part had no vascularity or sensation. Prognosis explained to relatives and option of revision amputation suggested, but the relatives wanted to wait. Patient was seen again on , (R) Index Finger was gangrenous. Revision amputation (R) Index Finger done on So from the perusal of the above certificate, it is clear that doctors of C.M.C., Ludhiana also suggested the amputation of the finger

8 First Appeal No.1206 of and there is no word in the certificate that it was told by the Doctors of the C.M.C. to the appellant that if he had come early there was possibility of re-fixation of her right finger. So, the certificate Ex. C-6 issued by the C.M.C. also not corroborate the version of the appellant. 19. The appellant has badly failed to prove the allegations against respondents No. 2 & 3 and the complaint was filed only to harass the respondents. 20. In view of the above discussion, the appeal of the appellant is meritless and the same is dismissed without any order as to costs. We do not find any infirmity in the order of the District Forum and the same is affirmed. 21. The arguments in this appeal were heard on and the order was reserved. Now the order be communicated to the parties. 22. The appeal could not be decided within the statutory period due to heavy pendency of Court cases. (Piare Lal Garg) Presiding Member August 19, AS (Mrs. Amarpreet Sharma) Member

9 First Appeal No.1206 of