BIMLA DEVI vs DOCTOR DAVINDER KAUR

THIS appeal under Section 15 of Consumer Protection Act, 1986 is directed against the order of District Forum, Kapurthala dated 8.4.1997 by which the complaint of Smt. Bimla Devi against Dr. Davinder Kaur was dismissed. Consequently the complainant was directed to pay Rs. 2,000/- to the respondents for filing the false and frivolous complaint, besides Rs. 1,000/-as cost.

THE brief relevant facts necessary to be mentioned for determining the issue in controversy in the present appeal as alleged are as under : THE complainant, Bimla Devi, was suffering from vaginal discharge and occasional bleeding from the vagina since 1992 and she consulted the opposite party No. 1 Dr. Davinder Kaur. On the first day of examination, the opposite party No. 1 consulted her husband, opposite party No. 2 - Dr. G.B. Singh in the same complex and thereafter the complainant was informed that she was suffering from serious disease like cancer which required immediate major operation for the removal of the uterus to save her life. Both the respondents told the appellant to visit them again after taking some medicine for a few days and also asked her to get some blood tests done from the laboratory. THE complainant/appellant decided to get operated soon after the blood test and upon the advice of the respondents agreed to be operated at Swaran Hospital for a fee of Rs. 3,000/- for which no receipt was given. She was then directed to go to the residence of Dr. Bansal of Bansal Hospital where she was admitted on 16.7.1992. THE appellant was also given the choice of being operated at two other Hospitals namely Ravi Heart Hospital and Maternity Home, and Doaba Hospital, Phagwara where respondent No. 2 was a visiting surgeon. THE appellant opted for being operated at the Bansal''s Hospital situated at the residence of Dr. Anita Bansal and Dr. M.L. Bansal in the residential area of Phagwara. THE complainant, as narrated, was operated upon on 17.7.1992 by respondent Nos. 1 and 2 for the removal of uterus. THE respondents did not call any anesthesia for administering anesthesia, but administered the same themselves. It further was alleged that the test o Biopsy of deceased part was not done as per routine medical practice before taking the final decision of surgery. THE operation was done by the respondent No. 2 who was a general surgeon and was not an expert surgeon of gynacology. She stayed in the Bansal''s Hospital for a few days but after two days of her stay, she was shocked to know about a very serious complication of surgery as she had lost control of passing of urine and as a result all the clothes including bed sheets started getting wet with the continuous automatic passage of urine. Both the respondents in formed the appellant that such type of problem after surgery was common, which would be cured after a few weeks. THEreafter, the appellant kept on visiting the opposite parties at their residence for follow-up treatment. She was again operated upon on the advice of respondent Nos. 1 and 2 in November 1992, July 1993 and September 1994. During this period till 1996, the respondents assured the appellant of being cured and also referred her case to different Doctors for consultation and advice. Thus, the complainant contended that operation was a failure and was also not safe and satisfactory. THE complainant has alleged that for all counts, the opposite parties/respondents were negligent and prayed for compensation as sought in the complaint. The opposite parties Doctors denied all charges levelled against them in the complaint. They asserted that they were not negligent and there was no deficiency in service as alleged. Complainant was not entitled to claim of Rs. 5 lacs or any other award. They gave the best medical treatment to the complainant with deligence and competence. The respondents raised the preliminary objection that the complaint was not maintainable as it was time barred. Both the parties led their evidence on affidavits and documents, which resulted in passing the impugned order.

In appeal, the learned Counsel for the appellant reiterated that the respondents were negligent in discharging their duties and for deficiency in service, the appellant is entitled to the compensation as sought in the complaint.

THE Counsel for the opposite parties/ respondents raised the preliminary objection that the complaint was not maintainable. THE present complaint is an abuse of process of law. THE complaint is time barred and the right to file complaint is extinguished as the same has not been filed within two years reckoned. According to the respondents they never performed any operation in July, 1993 and September, 1994. Rather only two operations were performed by them and that too in July, 1992. THE Counsel for the respondents pleaded that there is no evidence to establish the facts that if any other two operations were performed in July, 1993 and September, 1994 as alleged by the complainants. THE story of four operations in the rejoinder of the complaint have been introduced to cover up the time gap and to bring it within the limitation period. THE Counsel for the opposite parties/ respondents contended that they performed two operations when they were serving at Swaran Hospital and not at Bansal Hospital. When they left the service to start their own clinic. THE complainant and her husband who were the employees of the Swaran Hospital, have filed this complaint at the instance of the management of Swaran Hospital. THE request for summoning the records from the Swaran Hospital was not made by the complainant deliberately, as it was a motivated complaint. The present is not a case of apparent negligence as visualised by the Hon''ble Supreme Court of India in Indian Medical Association v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC)=1995 (2) CPC 602. In para 37 of the judgment, such cases were enunciated as under : "It is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all the complaints about deficiency in rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out-patient and containing the warning [(as in Chin Keow v. Government of Malaysia, 1967 ACJ 379 (PC, England)] or use of wrong gas during the course of an anesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One after reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by consumer disputes redressal agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the Civil Court for appropriate relief."

THE other category of case of negligence on the part of the doctor could be established by producing expert evidence. In the present case, the complainant has not produced any expert evidence. Simple affidavits of the complainant in the instant case cannot be treated a expert opinion and sufficient to record a finding of negligence on the part of the opposite parties in the matter of performing operation for removal of uterus. The complaint is otherwise barred by time. The first operation was performed by the respondents on 17.7.1992 upon the complainant whereas the complaint was filed on 26.8.1996 i.e. after more than about four years. The complaint under Consumer Protection Act ought to have been filed within two years from the date of accrual of cause of action. As second operation was done in November, 1992, taking this into consideration that the cause of action occurred in November, 1992 and the complaint was filed on 26.8.1996, obviously it is time barred. The Counsel for the complainant/appellant, however, argued that the third and fourth operations were performed in July, 1993 and September, 1994 respectively. The appellant has not been able to produce adequate evidence to prove his contention. In the original complaint, the complainant alleged that three operations were performed but in rejoinder and the evidence led before the District Forum, the complainant alleged four operations having been performed. The record of Swaran Hospital was not got produced to prove the assertions by the complainant. The record that have been produced by the complainant in support in her case are the prescription slips (Ex. A-6) or the test reports with respect to the disease and the surgery of the complainant and in these documents, the respondents have been shown to the surgeons or specialists working in the Swaran Hospital. Ex. A-8 is a letter dated 27.8.1994 from Dr. G.B. Singh to Dr. Chahal of Jalandhar seeking his advice and referring the complainant to him also shows that Dr. G.B. Singh and Dr. Davinder Kaur were with Swaran Hospital as surgeons and specialists at that time. There is nothing on records that the appellant was operated upon by respondents there. The complaint is held to be barred by time. In view of the above, it is not necessary to decide other points on merits in this case. For the reasons recorded above, the present appeal is dismissed. The appellant will also bear costs of litigation which are asserted at Rs. 5,000/-, to be paid to the opposite parties. Appeal dismissed.