FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

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1 FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.16 of Date of Institution: Date of Decision: Gian Singh S/o Sahib Singh, R/o Village Lehal, P.O. Dhariwal, Tehsil and District Gurdaspur...Appellant. Versus 1. Dr. H.S. Bajwa, Bajwa Hospital, Kalanaur, Dera Baba Nanak Road, Gurdaspur. 2. Dr. Mukesh Joshi, Joshi Hospital, Kapurthala Chowk, Amritsar. 3. Dr. Hardas Singh Sandhu, Circular Road, Amritsar. 4. Dr. Avtar Singh, Amandeep Hospital, Model Town, Amritsar. 5. Dr. Ashok Oberoi Hospital, Kahnuwan Road, Gurdaspur, Tehsil Gurdaspur. 6. Dr. Ajay Abrol, Amambara Chowk, Gurdaspur. 7. United India Insurance Co. Ltd., Branch Office, Gurdaspur. Respondents. Before:- First Appeal against the order dated of the District Consumer Disputes Redressal Forum, Gurdaspur. Shri Inderjit Kaushik, Presiding Judicial Member. Shri Vinod Kumar Gupta, Member Present:- Sh. R.K. Arya, Advocate, counsel for the appellant. Sh. Randeep Singh, Advocate, for Sh. Vipin Mahajan, Advocate, counsel for the respondent no.1. Respondent no.2 Exparte. Sh. Arun Abrol, Advocate, counsel for respondents no.3 to 5. Sh. Parminder Singh, Advocate, counsel for respondent no.6. None for respondent no

2 First Appeal No.16 of INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:- Sh. Gian Singh, appellant/complainant (In short the appellant ) has filed this appeal against the order dated passed by the learned District Consumer Disputes Redressal Forum, Gurdaspur (in short the District Forum ). 2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, the Act ) against the respondents/opposite parties (hereinafter called as the respondents ), on the grounds that hospital of respondent no.1 Dr. H.S. Bajwa and respondent hospital of Dr. Ashok Oberoi was insured with respondent no.7. The appellant received injuries on his left leg due to the rash and negligent driving of Hari Om, who drove the scooter in rash and negligent manner on The left leg of the appellant was fractured and the appellant was admitted in the hospital of respondent no.1, who started the treatment and told the appellant that iron rod is necessary for the treatment of the appellant and the appellant agreed to get installed the iron rod in the left leg. 3. The respondent Dr. H.S. Bajwa inserted the iron rod in the left leg of the appellant, but the same was not upto the mark and was defective as the length of the rod was excessive and did not fit properly in the bone of the appellant and after some time, it was broken. The appellant again approached Dr. Bajwa and he inspected the iron rod and advised the appellant for complete rest and the broken iron rod was removed. Due to breaking of the iron rod, the appellant kept on suffering continuous pain in the left leg and approached Dr. Mukesh Joshi, respondent no.2 on who told the appellant that the iron rod installed by respondent no.1 was defective and as a result, it was broken and advised him to take the treatment from him and to come after two weeks. 4. The appellant approached Dr. Hardas Singh Sandhu, respondent no.3, who inspected the left leg of the appellant as well as the iron rod inserted by respondent no.1 and told the appellant that the iron rod was

3 First Appeal No.16 of defective due to which, it was broken and he will remove the iron rod and insert a new iron rod. 5. On , the appellant approached Dr. Avtar Singh, respondent no.4 in Amandeep Hospital, Amritsar and deposited Rs.100/- vide receipt dated and he examined the appellant as well as the x-ray report and laid the appellant on a stretcher and forcibly broke the joint of left leg without giving any injection. The appellant cried with pain and at that time, his wife Smt. Jagir Kaur was also present. She also requested respondent no.4 not to do such illegal acts and thereafter, respondent no.4 asked the appellant to deposit Rs.20,000/- at the counter of the hospital for treatment and admission in the hospital. The appellant told respondent no.4 that he is a poor person and is not in a position to pay huge amount and then, the appellant was thrown out of the hospital of respondent no.4 and he became serious due to forcibly breaking of the joint of left leg by respondent no.4, with malafide intention just to grab the amount. 6. Thereafter, the appellant approached Dr. Ashok Oberoi, respondent no.5, who advised for x-ray of the left leg and on seeing the x-ray, told the appellant that the joint of the left leg was broken by the doctor forcibly and respondents no.5 & 6 advised the appellant to get affixed the plates in the left leg and thereafter, respondent no.6 affixed the plates in the left leg bone of the appellant, but did not remove the broken iron rod. The appellant remained admitted in the hospital of respondent no.5 and took the treatment from respondents no.5 & 6, whereas respondent no.5 was not a specialist in Orthopaedic. The appellant was having good health and was a young man when he received the injuries, but now he has become handicapped permanently. The appellant spent about Rs lacs on the treatment for special diet and transportation charges and suffered loss to the tune of Rs lacs due to negligence of the respondents. The appellant was the only bread winner of his family and the respondents were deficient in service

4 First Appeal No.16 of while treating the appellant and he remained bedridden and became handicapped. Notices were served which were duly replied. 7. It was prayed that the respondents may be directed to pay Rs lacs as compensation due to their negligence and also the amount spent on special diet and transportation. 8. In the written version filed on behalf of respondent no.1, preliminary objections were taken that the complaint is not maintainable and there is no deficiency of service or any medical negligence on the part of respondent no.1. The complaint has been filed with malafide intention and to malign the reputation of respondent no.1. Respondent no.1 is not liable to pay any compensation and in case, any compensation is awarded then United India Insurance Co. is liable to pay the same, as the answering respondent is comprehensively insured by respondent no.7. The complaint is false and deserves to be dismissed with special costs. 9. On merits, it was admitted that the appellant received injuries on his left femur, but not the leg. He was admitted in the hospital of respondent no.1 and was treated by affixation of the bones by using intra-medullary nail (interlocking nail) which is one of the recognized modes of treatment for fracture of long bones. The interlocking nail was installed in the left femur and not in the left leg by the answering respondent. The answering respondent treated the appellant carefully on scientific lines and gave him the best treatment. The appellant was admitted on and was discharged on after he was quite well and was improving. Interlocking nailing was properly done. The appellant approached respondent no.1 in the month of January, 2006 with broken nail. Respondent no.1 advised the appellant for rest and further surgery for removal of broken nail and installation of new interlocking nail in place of broken nail. The appellant was advised complete rest at the time of discharge from the hospital and not to bear any weight without support on the operated leg, but the appellant did not follow the instructions. The breakage of interlocking nail was due to pre-

5 First Appeal No.16 of mature weight bearing by the appellant on his left leg without any support or due to injury jerk or fall and the answering respondent is not responsible for the same and there is no deficiency in service, as alleged. All other allegations were denied and it was prayed that the complaint may be dismissed with costs. 10. In the written version filed on behalf of respondent no.2, similar preliminary objections were taken. On merits, it was admitted that an interlocking nail was installed in the fractured left femur (thigh) bone of the appellant. It is not in the knowledge of the answering respondent that the said nail was installed by Dr. H.S. Bajwa, respondent no.1. The appellant consulted the answering respondent on as OPD patient with the complaint of pain in his left leg. X-ray brought by the appellant showed the broken interlocking nail in his left femur and it was an old case of non-union of the femur bone. The answering respondent revived the appellant for further surgery and removal of broken nail and prescribed pain killer for his pain, but no treatment was given and the complaint against the answering respondent is not maintainable. There was no negligence on the part of the answering respondent as no surgery was conducted and no treatment was given. Denying other allegations of the complaint, dismissal of the complaint was prayed. 11. In the written version filed on behalf of respondent no.3, similar preliminary objections were taken and on merits, it was submitted that the appellant consulted the answering respondent on and he was diagnosed as a case of non-union fracture of left femur with implant failure and he was advised for operation on the left femur for removal of failed implant and reinsertion of another intramedullary nail to replace the broken one already in his femur. Other allegations were denied and dismissal of the complaint was sought. 12. In the written version filed on behalf of respondent no.4, similar preliminary objections were taken and on merits, it was submitted that the

6 First Appeal No.16 of appellant came to the answering respondent for check-up. He came with the problem of non-union of the fracture of femur of left leg. The nail in the canal was broken which resulted in the non-union and the appellant was advised surgery, but he left without any treatment, saying that he will decide and then come to the hospital. The appellant might have asked for the expenses on treatment and the information must have been given to him. Denying other allegations of the complaint, dismissal of the complaint was prayed. 13. In the written version filed on behalf of respondent no.5, similar preliminary objections were taken. On merits, it was submitted that the appellant approached the answering respondent Oberoi Hospital, Kahnuwan Road, Gurdaspur, as OPD patient due to orthopaedic problem in his left leg and the answering respondent is a general surgeon. On that day itself, he was advised to seek opinion from Orthopaedic Surgeon i.e. respondent no.6. The appellant consulted respondent no.6 and he was operated upon by respondent no.6 at Oberoi Hospital, Gurdaspur on as respondent no.6 does not have any operation theatre facility at his clinic at Gurdaspur. The appellant never remained under treatment with the answering respondent before or after the surgery and the allegations have no concern with the answering respondent. The appellant was only charged by the answering respondent for bedding charges, nursing care and operation theatre charges. No fee for surgery was charged by the answering respondent or Oberoi Hospital, Gurdaspur. There is no negligence on the part of the answering respondent and the allegations are false. 14. In the written version filed on behalf of respondent no.6, similar preliminary objections were raised. On merits, it was submitted that the answering respondent was requested by Dr. Ashok Oberoi, respondent no.5 to examine the appellant and perform the requisite surgery. The appellant requested to treat him as he was a poor man and the answering respondent treated him free of cost without any consideration and the appellant is not a consumer qua the answering respondent.

7 First Appeal No.16 of On examination, the answering respondent found that the case of the appellant was a case of non-union femur left leg. His left femur was broken from the middle, resulting into two fragments. The nail earlier inserted in the canal was also broken from near lower end and had adequate length to sustain plate augmentation. The answering respondent on operated the appellant in the hospital of respondent no.5 for non-union femur. Non-union site was exposed and examined and it was found that there was un-natural movement of the two fragments of bone. The nail size was adequate and fragments were well aligned and it was decided to do plate augmentation along with Cortico-Cancellous bone grafting in the best interest of the appellant. Pre-operative movements between the fragments were checked and fixation was proper and adequate. Post-operative period was uneventful. The appellant was advised to be discharged with the advice not to bear weight on the limb (left leg) till radiographic signs of union are seen. The appellant was discharged in satisfactory condition by respondent no.5 and after discharge, the appellant never came to respondent no.6. The assertion of the appellant that the broken nail should have been removed was not advisable in case of the appellant as per the circumstances, because the removal of nail (alleged iron rod) would have fairly extensive surgical approach to the femur and had a high complication rate including infection, high intra-operative blood loss, excessive de-vascularising of the bone and soft tissue envelope. This would in turn have reduced blood supply to the non-union site of the bone. Moreover, the nail removed had to be replaced and in that eventuality, it was not sure that un-natural movement of fragments of bone would stop. Almost all the authentic literature on the subject favour bone augmentation in such circumstances. The non-removal of nail and adopting bone augmentation with Cortico-cancellous bone grafting is not negligence, whereas it was the approach in the best interest of the appellant. The appellant suffered problem because of non-observance of the postoperative instructions regarding weight bearing on the operated leg or due to

8 First Appeal No.16 of any other reason and not because of surgery performed by the answering respondent. It was denied that the appellant spent Rs lacs on his treatment. The answering respondent has not changed even a single penny from the appellant for the surgery performed by him. Denying other allegations of the complaint, it was prayed that the complaint may be dismissed with costs. 16. In the written version filed on behalf of respondent no.7, it was submitted that the answering respondent has issued a Professional Indemnity Policy to Dr. Ashok Kumar Oberoi covering his professional business premises for the period to and he is not involved in giving wrong treatment to the appellant. There is no negligence on the part of respondent no.5 and the answering respondent is not liable and prayed that the complaint may be dismissed. 17. The appellant and respondents no.1, 4 & 6 led evidence in support of their respective contentions by way of affidavits and documents. 18. Respondents no.2, 3, 5 & 7 failed to lead any evidence despite availing sufficient opportunities before the District Forum and later on failed to appear on and were proceeded against exparte. 19. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that there is nothing on record to hold that there is any negligence on the part of the respondents in treating/operating the appellant or installing the intra-medullary nail or fixing the plates in his left femur. If any complication/problem developed, it was because the appellant had not acted as per doctor s advice, and dismissed the complaint. 20. Aggrieved by the impugned order dated , the appellant has come up in appeal. 21. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have perused the written arguments filed on behalf of the appellant and respondents no.1, 3, 4, 5 & 6.

9 First Appeal No.16 of The respondent no.2 has not contested the appeal and was proceeded against exparte. 23. Neither the counsel for the respondent no.7 nor anybody else on its behalf appeared at the time of arguments. 24. In the written arguments filed on behalf of the appellant, it was submitted that the appellant, in an accident, sustained multiple injuries, including fracture in the left leg and he was admitted in the hospital of respondent no.1 and respondent no.1 operated his leg and installed an iron rod in it. The rod was of sub-standard and inferior quality and it was not proper in size and was not properly installed by respondent no.1-doctor and after some time, it was broken. He consulted respondent no.1-doctor and he gave him some medicines and advised complete rest. Later on, the rod was removed, but the pain persisted. The appellant was not satisfied and he consulted respondent no.2, who told him that the doctor, who conducted the operation, installed the defective rod in his leg. Thereafter, the appellant consulted respondent no.3 at Amritsar on and after examining, he also disclosed that the rod was of sub-standard quality and he will remove the broken rod and will install a new rod in its place. Not satisfied with the advice of respondent no.3, the appellant further approached respondent no.4 in Amandeep Hospital at Amritsar. It is stated that the said doctor made him to lie on the bed and broke the joint of his leg without giving any anesthesia/sedative. The appellant cried with pain, but respondent no.4 asked him to deposit Rs.20,000/- in advance and when the appellant pleaded that he is a poor man, then he threw the papers and turned him out of the hospital. Then the appellant consulted respondent no.6 and after examining the leg and going through the x-ray report as well as other documents, disclosed that the broken nail has to be removed and plates are to be fitted. The appellant was admitted and was treated for 10 days. Respondent no.6- doctor was not an Orthopaedician and because of negligence and

10 First Appeal No.16 of carelessness of the above doctors, his leg became totally incapacitated and he cannot walk. 25. The appellant spent huge amount on his treatment and approached the specialists, but none treated him properly. There was negligence on the part of the respondents and it was prayed that the appeal may be accepted. 26. In the written arguments filed on behalf of respondent no.1, pleadings were repeated and it was further submitted that respondent no.1 installed iron rod in the leg of the appellant and he was discharged from the hospital on , with advice of complete rest and not to put weight on the leg. The appellant consulted other doctors in February, 2006 and all the respondents advised him surgery for removing the rod from the leg and reiterated the advice of respondent no The appellant was admitted in the hospital of respondent no.1 with fractured left femur and not the leg and respondent no.1 operated and fitted intra-medullary nail (interlocking nail) to treat the fractured bone. The appellant showed improvement and he was discharged on with the above advice. The averments that the rod was defective are baseless as respondent no.1 produced the certificate Ex.RW-1/A to certify the quality which was not rebutted in any manner. 28. After the discharge from the hospital of respondent no.1 on , the appellant came to respondent no.1 first time in January, 2006 i.e. after about seven months of the operation, with a broken nail and he was advised surgery for removing the nail. During the period of seven months, the appellant did not have any problem and the present story was cooked up just to claim the compensation and harass the respondents. Fixation of bones by using interlocking nail is one of the recognized modes of treatment in cases of fracture of long bones. The medical literature reveals so. The rod, which was installed in the bone of the appellant, was supplied by B.D. Surgical Industries, New Delhi after getting it tested from the laboratory and the

11 First Appeal No.16 of certificates are Ex.R-1 and Ex.R-2 and there is no rebuttal to it. The District Forum has passed a detailed and speaking order and there was no negligence on the part of respondent no.1 and the appeal may be dismissed. 29. In the written arguments filed on behalf of respondents no.3 to 5, it was submitted that the appellant did not press his claim against respondents no.3 and 5 before the District Forum and withdrew his complaint qua them and the appeal is liable to be dismissed with heavy costs. No opinion of the doctor or any expert was placed on file to prove the case by the appellant and the District Forum has rightly came to the conclusion that there is nothing on record to hold that there is any negligence on the part of the respondents. It was prayed that the appeal may be dismissed. 30. On behalf of respondent no.4, his written version was filed as part of the arguments, which has already been discussed above. 31. In the written arguments filed on behalf of respondent no.6, it was submitted that the doctors, arrayed as party, have taken a categorical stand that interlocking nail was broken due to pre-mature and excessive weight bearing by the appellant. No negligence or carelessness can be attributed to respondent no.6, who successfully operated the appellant and affixed the plates in the left femur of the appellant. The appellant has levelled the allegations that respondent no.3 is not an Orthopaedician. The documents filed by the appellant show that the hospital is of Dr. Ashok Oberoi and not of respondent no.6-doctor. The name of Dr. Ajay Abrol stands mentioned in the OPD card of Amandeep Hospital, as a specialist doctor. Respondent no.6 affixed the plates and the appellant remained admitted in the hospital of Dr. Ashok Oberoi for 10 days. The complaint of the appellant was dismissed against respondent no.2, 3 & 5, as not pressed and the complaint against the other respondents was also rightly dismissed. Respondent no.6 is MBBS, MS, Ph.D. and is a very experienced doctor. It was prayed that the appeal may be dismissed.

12 First Appeal No.16 of We have considered the respective written submissions of the parties and have minutely scrutinized the entire record and other material placed on the file. 33. In Para-16 of the impugned order of the District Forum, it was conceded by the counsel for the appellant before the District Forum that the appellant only consulted Dr. Mukesh Joshi, Dr. Hardas Singh Sandhu and Dr. Ashok Oberoi, but took no treatment from them and, as such, no negligence or carelessness is attributed to them and the appellant does not press his claim against them and consequently, the complaint against respondents no.2, 3 & 5 was dismissed, as not pressed. 34. The appellant received injuries in an accident on and he was admitted in the hospital of respondent no.1, who conducted the operation and interlocking nail was installed in the left femur of the appellant and the appellant was discharged on from the hospital of respondent no.1. At the time of discharge, the appellant did not make any complaint or lodge any protest regarding any pain or any defect in the interlocking nail. Respondents no.1-doctor has produced on record certificate Ex.R-1 of B.D. Surgical Industries as per which the implants and instruments were supplied to Dr. H.S. Bajwa, which were tested. Ex.R-2 is the certificate of Registration of B.D. Surgical Industries and ISO was recommended for quality. 35. The appellant after discharge from the hospital did not come up for follow-up treatment. The appellant even has not placed on file the discharge summary. There is no evidence to support the contentions of the appellant that the interlocking nail was of inferior quality. The certificates Ex.R-1 and Ex.R-2 have not been rebutted by the appellant in any manner to prove his contentions. In the absence of any evidence to rebut the certificates regarding the quality of the implants and instruments, the bald statement of the appellant cannot be taken to be a gospel truth. The appellant, for more than seven months, did not come to respondent no.1-

13 First Appeal No.16 of doctor to make complaint of any pain etc. and all the respondent doctors were of the opinion that the appellant did not follow the proper advice and did not avoid the putting of weight on the leg and ultimately, he went to respondentno.6-doctor and he is an Orthopaedician Surgeon. As per the affidavit of respondent no.6, he did not charge any fee or remuneration and on examination, found that it was a case of non-union femur left leg. Left leg of the appellant was broken from the middle, resulting into two fragments. The nail earlier inserted in the canal was also broken from near the lower end, but had adequate length to sustain plate augmentation. He operated the appellant on and plate augmentation was done and the appellant was discharged with the advice, not to bear weight on the limb till radiographic signs of union are seen and after discharge, the appellant never came. 36. From the above discussion, it is clear that respondent no.1 adopted the correct method of using interlocking nail and respondent no.1 doctor deposed so that it was the best possible treatment, but the problem, if any, occurred due to the fault of the appellant as he did not abide by the advice of the doctor and did not bother to come for follow-up check-up from time to time, to know the exact position of the re-union of the femur bone. The appellant is so desperate that he impleaded all the renowned doctors in Orthopaedic Surgery, only on the ground that he consulted them and the complaint qua respondents no.2, 3 & 5 was dismissed at the instance of the counsel for the appellant before the District Forum, but again the appellant impleaded them as the respondents in the present appeal, which shows the act and conduct of the appellant that he has filed the present appeal, just to harass the respondents and there is no evidence on record to prove any negligence on the part of respondent no.1-doctor or respondent no.6-doctor, who operated him second time and he was discharged in satisfactory condition. The order passed by the District Forum is detailed and speaking

14 First Appeal No.16 of and there is no ground to interfere with the same. The appeal is false, frivolous and is liable to be dismissed with special costs. 37. Accordingly, the appeal filed by the appellant, being without any merit, is dismissed with special costs of Rs.10,000/- (Rupees Ten Thousand) and the impugned order under appeal dated passed by the District Forum is affirmed and upheld. 38. The appellant/complainant shall pay the amount of costs to the respondents in equal shares within 45 days of the receipt of copy of the order. 39. The arguments in this appeal were heard on and the order was reserved. Now the order be communicated to the parties. 40. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases. (Inderjit Kaushik) Presiding Judicial Member March 26, (Gurmeet S) (Vinod Kumar Gupta) Member