S L Chander Shekhar vs M P Gupta

MR. Justice Ashok Bhan, President-Petitioner, who was the complainant before the District Consumer Disputes Redressal Forum-11, Union Territory, Chandigarh (for short ''the District Forum) has filed the present Revision Petition against the order dated 16.11.2005 passed by the State Consumer Disputes Redressal Commission, Union Territory, Chandigarh (for short, ''the State Commission'') wherein and whereunder the appeal of the petitioners was dismissed.

SHORTLY stated, the facts leading to the filing of the present complaint are:

SMT. Brij Devi, wife of petitioner/ complainant was under the treatment of a Hospital of the Health Department, Union Territory, Chandigarh in the year 1999. That on 19.11.1999, Dr. B.D. Chugh of that Hospital advised C.T. Scan of her chest to diagnose actual disease. That on 11.4.2000, as per his friend''s advice, petitioner took his wife to the Clinic of Dr. M.P. Gupta-respondent herein, who advised that there was no necessity of C.T. Scan and diagnosed that the patient was suffering from Diabetes and not any other incurable disease. It is stated that on 11.4.2000, Dr. M. P. Gupta started her medical treatment by prescribing and giving her various types of pain-killers for Diabetes without disclosing anything to the petitioner. That by the month of October, 2003, the pain of the patient became critical and she was again taken to the Clinic of the respondent who gave her pain-killers and advised the petitioner to get his wife operated from Dr. (Mrs.) Ranjana Aggarwal. That as per the advice of the respondent, petitioner took his wife to Dr. (Mrs.) Ranjana Aggarwal, who after examination, referred her for ultrasound and other tests to New Diagnostic Centre, Sector-20, Chandigarh and, on studying the report of ultrasound, Dr. (Mrs.) Aggarwal further advised the petitioner to get CT Scan of abdomen (upper) of the patient done. That on the basis of the report of CT Scan of abdomen, Dr. (Mrs.) Aggarwal diagnosed that the patient was suffering from Liver Cancer for the last 3-4 years and this was her last stage and there were no chances of her survival. That Dr. (Mrs.) Aggarwal advised the petitioner to take his wife to PGI, Chandigarh for proper checkup. That on 11.10.2003, petitioner took his wife to PGI, Chandigarh where also the Doctors diagnosed that the patient was suffering from Liver Cancer and there were no chances of her survival. That on 23.12.2003, his wife died of Liver Cancer. Thus, being aggrieved by the same, petitioner filed the complaint before the District Forum alleging clinical negligence and deficiency in service on the part of the respondent.

ON being served, respondent-Doctor filed his written statement challenging the jurisdiction of the District Forum and maintainability of the consumer complaint. It was stated that the petitioner had got no cause of action against him. That on the request of the petitioner, he performed a number of tests like blood pressure, sugar level, haemogram and lipid profile, etc. of the wife of the petitioner. That the patient came to him for the first time on 11.4.2000 and he performed the aforesaid tests on her on 11.4.2000, 3.8.2000, 30.9.2000, 19.3.2002, 27.3.2002 and 2.10.2002, respectively. That on 27.3.2000, he prescribed medicines for blood pressure and sugar control which was to be followed up on 8.4.2002 but she did not turn up thereafter. That the patient never complained to him about any abdomen pain at any stage nor she demanded investigation or treatment of abdomen pain nor he diagnosed such an abdomen pain between the period from 11.4.2000 to 27.3.2002. That on 7.10.2003, petitioner and his wife visited him and complained of abdomen pain in her abdomen and he advised her to visit some Specialist in Liver or Abdomen ailments and did not give any treatment for the said ailment to her. That as per medical jurisprudence, a person having Liver Cancer cannot survive for more than 6 months and, since, the death of Brij Devi had occurred on 23.12.2003, she did not have Liver Cancer before the month of June, 2003 or there about. That the petitioner himself had been negligent about the treatment of his wife as he had been getting her medical tests conducted by the respondent but had never cared to consult some other Specialist for her treatment. Thus, in view of the above, respondent denied the allegations made in the complaint.

DISTRICT Forum, after taking into consideration, the pleadings and the evidence led by both the parties, allowed the complaint directing the respondent to pay a compensation of Rs. 1,00,000 to the petitioner along with Rs. 2,000 as costs within two months from the date of receipt of certified copy failing which a further interest @ 6% p.a. would be payable on the amount of compensation. It was held that the petitioner was guilty of contributory negligence in the treatment of his wife leading to her death. The relevant portion of the order reads as under: "This brings us to the quantification of the compensation. The complainant has claimed compensation of twenty lac rupees. But it is not suggested that the patient was gainfully employed anywhere. At best she was a housewife, already suffering from liver cancer. The case of the complainant is not that the cancer was introduced into the liver of his wife by the treatment of the complainant. His grouse only is that the OP did not diagnose her correctly or if he had diagnosed her correctly he did not make the full disclosure of diagnosis to the patient and the complainant. There is another important aspect of this case as well. The complainant has admitted that Dr. Chugh had advised him as early as on 19.11.1999 that C.T. Scan (Chest) of his wife should be performed. It appears that this complainant was also negligent in the treatment of his wife. He took not fewer than four years to get the C.T. Scan of his wife, this time abdomen, performed. Once Dr. Chugh had advised C.T. Scan of his wife, the complainant ought to have been put on the alert that the condition of his wife was serious or that a deeper probe for her diagnosis was necessitated. Even then he did not go for her C. T. Scan nor did he take her to a specialist for treatment. Thus, no manner of doubt is left that the complainant was guilty of contributory negligence in the treatment of his wife leading to her ultimate death. Therefore, keeping in view the totality of the facts and circumstances of this case the ends of justice would be served by directing the OP to pay a compensation of one lac rupees to the complainant along with Rs. 2,000 as costs of litigation. This order be complied with by the OP within two months from the date of receipt of the certified copy by him failing which he shall also be liable to pay interest @ 6% per annum from today till payment on the amount of compensation."

(Emphasis supplied)

AGGRIEVED against the order passed by the District Forum, petitioner as well as the respondent filed their respective appeals. The State Commission dismissed both the appeals and endorsed the findings recorded by the District Forum in petitioner''s appeal thereby observing as under: "Adverting to the merit of cross appeal No. 461 of 2004 filed by the complainant, we are of the considered opinion that no case for enhancement of compensation can justifiably be made by the cross appellant/complainant. The Forum below rightly held the complainant guilty of contributory negligence as the complainant/cross appellant has not been able to explain why the C.T. Scan of chest and tests advised on 19.11.1999 and 23.6.2000 by Dr. B.D. Chugh of Government Health Department, Sector 22, Chandigarh were not undergone. We do not find any infirmity in the impugned order regarding the above finding recorded by the District Forum that the cross appellant/complainant is also guilty of contributory negligence as he was also found wanting on the point of getting the patient undergo tests and examinations by the doctor of Government Health Department as aforesaid. So, his prayer for enhancement of compensation is rejected and the cross-appeal is dismissed."

(Emphasis supplied)

AGGRIEVED by the order passed by the State Commission, petitioner as well as the respondents-Opposite Parties have filed their Revision Petitions. Respondents-Opposite Parties withdrew their Revision Petition thereby accepting the order passed by the Fora below.

PETITIONER, who is appearing in-person, prayed for enhancement of compensation. But in our opinion, no case of enhancement of compensation is made out. Fora below have correctly found that the petitioner was guilty of contributory negligence as he did not get the C.T. Scan of the chest and the other tests of his wife done as advised by Dr. B.D. Chugh on 19.11.1999 and 23.6.2000. Petitioner has not put on record any proof as to his own income and that of his wife. It is difficult to assess general damages without any evidence adduced and assertion about either his own income or that of his wife.

UNDER the circumstances, the findings recorded by the Fora below cannot be interfered with. Dismissed. No costs.