Wednesday 8 November 2017

Dr. Rajiv Jain, Consultant Otolaryngologist (ENT Specialist), Sarvodaya Hospital and Research Centre, 864, Napier Town, Russel Chowk to Shastri Bridge Road, Jabalpur (Madhya Pradesh), Phone : 0761-403 5700/245 0249

BEFORE THE DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, DISTRICT – JABALPUR (MADHYA PRADESH)
Block No.15-K, Scheme No. 18
Civic Centre, Jabalpur-482 001.    
Phone : 0761-231 0636/232 4891

COMPLAINT CASE NO.    769  OF 2016

COMPLAINANT                :       Bhagwandeen Badhel

VERSUS
OPPOSITE PARTIES                :       Sarvodaya Hospital & Research
Centre & Ors


APPLICATION FOR TAKING ON RECORD PRELIMINARY OBJECTION WITH RESPECT TO THE MAINTAINABILITY OF THE COMPLAINT CASE

Hon’ble Lordships,

The opposite party named above most respectfully begs to state as under:-
That for the facts and circumstances stated in the accompanying preliminary objection it is most respectfully prayed that this Hon’ble forum may graciously be pleased to dismiss the complaint case being based on false, frivolous and vexatious facts under Section 26 of the Consumer Protection Act, 1986.

PRAYER

WHEREFORE, for the facts and circumstances stated in the accompanying preliminary objection it is most respectfully prayed that this Hon’ble Forum may graciously be pleased to dismiss the complaint case being based on false, frivolous and vexatious facts under Section 26 of the Consumer Protection Act, 1986. Otherwise the opposite party shall suffer an irreparable loss and injury.

Any other order or direction which this Hon’ble Commission may deem it fit, proper and judicious under the circumstances of the case may also be passed.

                                             MEDICOLEGAL ADVISOR
Dated: April 28th, 2017          
                 ADVOCATE

 FOR OPPOSITE PARTY NO 1,2








BEFORE THE DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, DISTRICT – JABALPUR (MADHYA PRADESH)
Block No.15-K, Scheme No. 18
Civic Centre, Jabalpur-482 001.    
Phone : 0761-231 0636/232 4891

COMPLAINT CASE NO.    769  OF 2016

COMPLAINANT                :       Bhagwan Deen Badhel, Aged
about 51 years, S/o Mr. Sukhdev Badhel, R/o House No. 68, Nai Basti Kajarwara, Near Durga Temple, Post Office – Temarbheeta, Bhongadwar, District – Jabalpur (Madhya Pradesh)

VERSUS
OPPOSITE PARTIES                :       1. Sarvodaya Hospital & Research
Centre, 864, Napier Town, Russel Chowk, Shastri Bridge Road, Jabalpur (Madhya Pradesh),  Phone: 0761- 403 5700, 245 0249
                                  2.    Dr. Rajiv Jain, Sarvodaya
Hospital & Research Centre, 864, Napier Town, Russel Chowk, Shastri Bridge Road, Jabalpur (Madhya Pradesh), Phone ), Phone : 0761- 403 5700, 245 0249
3.    Dr. Surja Shekhar Ray, 259, Bhanwartal Road, Near Shastri Chowk, Napier Town, Jabalpur (Madhya Pradesh). Phone : 0761- 245 1188.



PRELIMINARY OBJECTION WITH RESPECT TO THE MAINTAINABILITY OF THE COMPLAINT CASE

Hon’ble Lordships,
The opposite parties No. 1 & 2  named above most respectfully beg to state as under:

1.  That at the very outset the opposite party by virtue of this preliminary objection denies each and every allegation of Professional Negligence alleged by the complainant in this complaint case, the instant complaint case filed before this Hon’ble Commission is founded on false, frivolous, vexatious and concocted facts, no prima facia case of professional negligence is established by the complainant before this Hon’ble forum, the primarily obligation of burden of proof till this date has not been discharged by the complainant. The entire averments of the alleged negligence committed by the opposite party is based on wholly incorrect, wrong and misconceived facts which are not corroborated from the documents placed by the complainant along with his complaint case, the alleged allegation of negligence stated to be committed by the opposite party is based on assumption and presumption which are wholly devoid of merit, the complaint case being vague is liable to be dismissed in limine with heavy cost and special costs throughout.

2.  That the complaint case is not maintainable in view of the fact that present complaint case is neither verified nor identified in accordance with Law, this complaint petition is in complete violation of the provision of Order VI Rule 15 of the Code of Civil Procedure, 1908, which obligate that every pleading shall be verified at the foot by the party or by one of the parties to the pleading. For ready reference of this Hon’ble forum the relevant provision of Order VI Rule 15 of the Code of Civil Procedure, 1908 is being reproduced herein under:

15. Verification of pleadings.—
(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.


3.  That by virtue of this complaint case a total claim of about Rs.Five    lacs (Rs.5,00,000/=) is claimed, it is respectfully submitted that the claim is speculative, in order to circumvent and bye pass the civil court and misuse the jurisdiction of the District Consumer Forum, in order to save the court fee to the tune of 12.5% amounting to Rs. 62500/= applicable in the Civil court.

4.   That the Hon’ble National Commission in Charu Chhabra and another versus Jai Maa Infrastructure Private Limited, reported in III (2015) CPJ 292 (NC) was pleased to consider the aspect of the pecuniary jurisdiction,
5.   6.             the purpose behind filing this complaint before this forum is to bye pass the civil court and circumvent the procedure prescribed in the Consumer Protection Act for hearing a complaint having jurisdictional value despite knowing fully well that ultimately the complainants cannot get an amount of Rs. 5,00,000/=or more from the opposite party. We have before us, a case, where the complainants having invested only Rs.13,475/=, less than four months ago, want the Commission to award them a sum of more than there by giving them a return of 2695% on the investment made by them. The claim, to say the least is grossly inflated and highly unjustified and unreasonable. The opposite party, therefore, pray so to decline to entertain this complaint and reject the same.
6.   That the complainant by virtue of the instant complaint case has made huge, exaggerated and speculative demand bifurcated under various heads of the relief, it is submitted that the claim is not supported by an iota of documentary evidence, it is necessary to submit here that the Hon’ble National Commission in Rajni Gupta versus DLF Universal Limited III (2015) CPJ 149 (NC) was pleased to consider this aspect. The relevant extract of the judgment is being reproduced herein under for the convenience of this Hon’ble Commission:   
9.  There lies no rub in demanding as much as money as one feels correct. However, there should be some ‘basis’ for the same. The question of market value cannot be adjudicated by a Consumer Court which is to dispose of the case in a summary fashion. It is settled law that where huge demand/claim has been made, the complainant should be advised to knock at the doors of the Civil Court. See recent authorities reported in Pesi Dady Shroff v. Boehringer Ingetheim Denmark & Anr., Civil Appeal No. 9453 of 2013, decided on 10.7.2013 and Synco Industries v. State Bank of Bikaner & Jaipur & Ors., I (2002) CPJ 16 (SC)=I (2002) SLT 214=(2002) 2 SCC 1.     

7.   That the complainant has failed to establish the factum of loss and injury suffered by him, the relief worth more than Rs.Five Lacs is wholly illegal, arbitrary and un just which lacks corroboration the entire relief claimed by virtue of the complaint case are speculative and are not corroborated by any evidence, it is worth to mention here that no cause of action has accrued to the complainant to claim a relief valuing Rs. five   Lacks, the entire relief is speculative, exaggerated and inflated intended to by-pass the civil court so to save the court fee to the tune of 12.5% amounting to Rs. 62500/=(Rs. sixty two thousand five hundred only)and to attract the original jurisdiction of this Hon’ble forum. It is submitted here that relief of Rs.Five Lacks towards expenses incurred towards the treatment is not accepted in view of the lack of the evidence, further towards compensation are not corroborated by an iota of evidence, it is pertinent to mention here that the complainant in relief to himself valued the claim of compensation to Rs.five Lacks only, this relief of Rs.  five   Lacks is speculative on the face of record, the case is blatant misuse of the benevolent institution of the Consumer Commission established under Section 9 of the Consumer Protection Act, 1986 and is liable to be dismissed with heavy cost.    

8.   That the complaint case is bad in view of the non jointer of necessary parties, it is submitted here that the patient remained for the treatment under various doctors and hospitals, however with mala fide intention and with ulterior motive,the facts have been hidden away and has not been arrayed as parties in this complaint case. It is further submitted that the patient was attended with due care and caution by the opposite parties and no negligence or deficiency in service has been committed by the opposite parties in this case. It is worth to mention here that the complainant alleges that the cause of action arise to him only when,the complainant took treatment and operation under the vigil of opposite party. However the complainant deliberately on false and concocted documents is filing this complaint case before this Hon’ble forum.

9.   That it is submitted here that the case of Medical Negligence stand on a different footing contrast to other cases which are filed before the Consumer Forum, in the cases pertaining to Professional Negligence the onus lies heavily on the part of the complainant to prove and establish the factum of negligence and only thereafter the burden that negligence has not been committed is shifted at the shoulder of the treating doctor, with reference to this the opposite parties rely on the judgment of the Hon’ble Supreme Court in C.P. Sreekumar (Dr.) versus S. Ramanujam, (2009) 7 SCC 130 at page 140, wherein the scope of the burden of proof was discussed by the Hon’ble Apex Court:

37.     We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case (2005) 6 SCC 1 : 2005 SCC (Cri) 1369 the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.


1.  That it is respectfully submitted that even the principle of res ipsa loquitur (things speak for itself) is not applicable in each and every case pertaining to medical negligence, simply because the complainant suffered in view of any known complication/ailment shall not make liable the treating doctor for the treatment rendered by him. The Hon’ble Supreme Court in Jacob Mathew versus State of Punjab and another reported in (2005) 6 SCC at page 1, has occasion to deal with the extent of the Medical Practitioner liability in criminal and civil law:
 “Negligence by professionals

18.    In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.

25.    A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.   

26.    No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter-productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur

30.    The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.


2.        That there is no expert evidence on record to suggest any negligence committed by the opposite parties in the instant case, neither any medical literature is filed by the complainant to establish her case, bald, baseless and concocted facts are made by virtue of the instant case claiming illegal and arbitrary amount, it is vehemently and vociferously reiterated by the opposite party that no negligence is been committed by them in this case, no case of deficiency in service is established by the complainant rather vague and baseless allegations are made which are afterthought and implanted to extract illegal money from the opposite parties. The opposite parties rely on the judgment of the Hon’ble National Commission in Sethuraman Subramaniam Iyer versus Triveni Nursing Home and another reported in I (1998) CPJ 110 (NC), wherein it was held that complainant since failed to adduce expert evidence hence his cause of Medical Negligence did not stand establish and no case is made out against the doctor. The relevant extract of the judgment is being reproduced herein under for the convenience of this Hon’ble Commission 

….It appears from the record that the complainant did not requisition the services of any expert to support his allegations. In the absence of any expert evidence on behalf of the complainant, the State Commission was right in relying upon the affidavits filed by the four doctors on behalf of the respondents. In our view, the State Commission was right in holding that there was no negligence on the part of the respondents. The State Commission rightly analysed and appreciated the materials placed on the record. The State Commission arrived at the finding after taking into consideration the totality of the circumstances. No case is made out by the appellant for interference with the order passed by the State Commission.


In another judgment by the Hon’ble National Commission in Madan Surgical and Maternity Hospital and another versus Smt. Santosh and another Revision Petition No. 3527 of 2012 decided on 1.4.2014, it has been held that that 4 D’s has to be fulfilled to make out the case of Medical Negligence, namely:

Duty- A professional owed duty to patient
Deficiency- Breach of such duty
Direct Causation- injury caused by the breach (Causa Causans)
Resulting Damages
          
3.      That the instant case involves the issues of complicated and complex nature which requires leading of exhaustive evidence as well as examination and cross examination of witness, since the certificate issued by Dr. S/W/ Thatte is not corroborated and proved by the complainant, such a intricate and complex nature of dispute cannot be adjudicated within the summary jurisdiction of this Hon’ble Commission, the opposite party rely on the judgment of the Hon’ble Apex Court in Trai Foods Ltd. v. National Insurance Co., (2004) 13 SCC 656, wherein the principle of Law was summarized as under
4. Learned counsel appearing for the respondent Insurance Company has stated that the decision in J.J. Merchant1 did not deviate from the principles enunciated by this Court in Synco Industries v. State Bank of Bikaner and Jaipur where this Court has said that where detailed evidence would have to be led to prove the claim and thereafter to prove the damages, it was not appropriate for such cases to be heard and disposed of in the summary jurisdiction of the National Commission and that the more appropriate forum was the civil court.
5. Having heard the submissions, we are of the view that the learned counsel for the respondents is correct. In J.J. Merchant this Court has not denied the discretion of the Commission to refer the complainant to the civil court for appropriate relief, in case the complaint involves complicated issues requiring recording of evidence of experts which may delay the proceedings.
6. The only question to be decided is, when should this jurisdiction be exercised by the Commission. In our view the Commission should address itself to the quantity of the claim, the nature of the claim, the nature of the evidence which would be required to be submitted both in respect of the claim and the damages suffered and the nature of the legal issues before deciding that the matter ought to be decided by the civil courts in the regular course. It is not disputed that the Consumer Forum has been set up to grant speedy remedy. The Consumer Forums have been given the responsibility of achieving this object. They were not meant to duplicate the civil courts, and subject the litigants to delays which have become endemic in the civil courts.


10.  That it is axiomatic to submit that the degree of skill and care required by a medical practitioner is provided in Halsbury’s Laws of England (Fourth Edition, Vol. 30, Para 35). The relevant extract is being quoted for the perusal of this Hon’ble Commission :
The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown, (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.

11.  That the Hon’ble Supreme Court in a case of Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others, reported in (1996) 2 SCC 634, made the following observations on the issue of Medical Negligence, which is being reproduced for the perusal of this Hon’ble Commission:

This Court noticed that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession

12.  That the Hon’ble Supreme Court in the judgment of State of Punjab v. Shiv Ram & Ors., VI (2005) SLT 498, which was a case of a failed tubectomy leading to a plea of medical negligence. This is what the Hon’ble Court had to say in paragraph 33:

A Doctor, in essence, needs to be inventive and has to take snap decisions especially in the course of performing surgery when some unexpected problems crop up or complication sets in. If the medical profession, as a whole, is hemmed in by threat of action, criminal and civil, the consequence will be loss to the patients. No doctor would take a risk, a justifiable risk in the circumstances of a given case, and try to save his patient from a complicated disease or in the face of an unexpected problem that confronts him during the treatment or the surgery. It is in this background that this Court has cautioned that the setting in motion of the criminal law against the medical profession should be done cautiously and on the basis of reasonably sure grounds. In criminal prosecutions or claims in tort, the burden always rests with the prosecution or the claimant. No doubt, in a given case, a doctor may be obliged to explain his conduct depending on the evidence adduced by the prosecution or by the claimant. That position does not change merely because of the caution advocated in Jacob Mathew in fixing liability for negligence, on doctors


13.  That another judgment of the Hon’ble Supreme Court which deserves special mention before this Hon’ble forum is Martin F. D’Souza versus Mohd. Ishfaq wherein the Hon’ble Court cautioned the courts as well as the tribunals in India dealing with the cases of the Medical Negligence, a note of caution was issued by the Hon’ble Apex Court not to straight away issue notice on the treating doctors without ascertaining the substance of the issue involved and the evidences and proof tendered by the complainant. For the necessary perusal the paragraph of the judgment is being reproduced for the convenience of this Hon’ble Commission :

47. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.


14.  That from the aforementioned propositions of the settled principles of Law it is explicit that the onus of proving the negligence of Medical Practitioner rests on the complainant who is endowed to prove the negligence and only then the burden shifts on the Medical Men, in the instant case not an iota of evidence has been placed before this Hon’ble Commission except bald, baseless and vague allegations which are not corroborated by any expert evidence or medical literature on record to substantiate the case. Thus the basic and onerous principle with respect to the burden of proof has not been discharged till this date by the complainant, thus the complaint case is liable to be dismissed at the very threshold with exemplary cost.

15.  That the opposite parties respectfully craves leave from this Hon’ble Commission to file additional written synopsis with details of the treatment given to the patient along with the renowned Medical Literature during the course of oral arguments.

16.  That in view of the above the complaint case of the complainant is devoid of merit and is liable to be dismissed under Section 26 of the Consumer Protection Act, 1986 with cost and punitive cost.
                    

WRITTEN STATEMENT ON BEHALF OF OPPOSITE PARTY NO. 2 DR. RAJIV JAIN
Parawise reply

17.        Contents of Para 1 & 2 are matter of record and needs no reply.

18.        Contents and allegations of Para 3 & 4 are specifically denied. True material fact are like this - One patient Mr. Bhagwandin Badhel, was examined by opposite party No. 3 on 21.08.2016. The findings described by opposite party No. 3 were CSOM BE-meaning Chronic Suppurative Otitis Media Both Ear and that his hearing had very much gone down -right ear profound deafness, left ear very severe to profound deafness. This patient was examined separately consequently by opposite party no. 2- Dr. Rajiv Jain on 12.10.2016, when he was found to have CSOM BE with deteriorated hearing on audiogram : right ear profound mixed deafness and also on left side profound mixed deafness. 

19.        Contents and allegations of para 5 are specifically denied. The complainant has revealed his sole motto to file this false frivolous vexatious inflated claim in form of concoted story hiding away the fact, before this Hon. District Forum , bye passing the civil court and the court fee , to EXTORT ILLEGAL SUM OF MONEY. It is specifically denied that complainant is entitled for sum of Rs.2,00,000/- to wards physical and mental agony together with Rs. 1,00,000/- for financial loss, Rs.2,00,000/- towards social loss, total Rs. 5,00,000/- as the sum of compensation from opposite parties. It was professional fee ,TOTAL EXPENSES INCURRED WERE  only Rs.13475/= which have been charged by opposite parties for their expertise skill. There was no question of lack of qualification on the part of opposite parties no 1 & 2 they had the skill and knowledge of their specialized subject. They cannot be held negligent on this count at all. An analysis of the spirit of other judgments also does not help the complainant because there has been no error of judgment, dereliction of duty or non-application of reasonable degree of skill. Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or nor is not the test of the man on the top of a Clapham omnibus because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.

20.        Contents and allegations of para 6 & 7 are specifically denied. It is humbly submitted that "CSOM BE" means 'Chronic Suppurative Otitis Media’ Both Ears and this disease process which is inflammatory in origin leads to destruction of ear anatomy had caused diminution of hearing power in both ears, in the right ear profound deafness, left ear very severe to profound deafness ,meaning that the hearing in right  ear had gone down to the highest degree and that in the left ear also it had gone down almost to the highest degree on 21.08.2016 itself. Needless to emphasize here that profound or very severe to profound hearing loss means that the person has lost hearing and that he fails to undertake speech discrimination / understand speech, is deaf for all practical purposes. Further it is submitted that the patient – complainant was given date of operation for 01.09.2016 by opposite party no 3, so to achieve only a dry ear, from records, there was never any possibility for improvement in level of hearing loss nor could there be any further deterioration from the level of hearing loss by the proposed surgery of tympanoplasty on left ear as investigated and reported on 21.08.2016 from records . The opposite party No. 2 has operated on the complainant on 12.10.2016 for left ear to achieve dry ear on this patient, the hearing in this left ear had already deteriorated to severe to profound deafness, there was no further deterioration in hearing level possible from surgery of Tympanoplasty. The complaint filed is on no basis .It needs to be set aside out rightly with heavy costs payable to opposite party no 2.

21.        Contents and allegations of para 8  & 9 (wrongly typed as “10”) are specifically denied. In view of the above discussion, it is crystal clear like light of the day that opposite parties did their duty with utmost care and caution therefore there is no question of medical negligence or deficiency in service, the same is specifically denied.    

22.        Contents of para 10 & 11 (Wrongly typed as “11” & “10”) are formal in nature and needs no reply.

23.        The answering opposite parties relies on and file documents as per list and will rely on and file more documents as and when necessary.

Affidavit is false and specifically denied.

An affidavit in support of this written statement is being filed herewith.

Accordingly the instant complaint, being devoid of any merit, is liable to be rejected, with heavy costs.


PLACE : JABALPUR                           OPPOSITE PARTY no 2




DATED :   18.07.2016                 Medicolegal advisor

                              ADVOCATE FOR OPPOSITE PARTY No.2



V E R I F I C A T I O N

I, Dr. Rajiv Jain, Consultant Otolaryngologist (ENT Specialist), Sarvodaya Hospital and Research Centre, 864, Napier Town, Russel Chowk to Shastri Bridge Road, Jabalpur (Madhya Pradesh), Phone : 0761-403 5700/245 0249, do hereby verify and sign on this day-------- of April, 2017 at Jabalpur and states that the contents of Para 1 to end of the written statement are true to my personal knowledge and belief.
                                                                                  OPPOSITE PARTY no 2
BEFORE THE DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, DISTRICT – JABALPUR (MADHYA PRADESH)
 Block No.15-K, Scheme No. 18 Civic Centre, Jabalpur-482 001 Phone : 0761-2310636
COMPLAINT CASE NO.    769  OF 2016
COMPLAINANT              :        Bhagwandeen Badhel
VERSUS
OPPOSITE PARTY                   :        Sarvodaya Hospital & Research
                                                          Centre & Ors.
AFFIDAVIT
I, Dr. Rajiv Jain, Consultant Otolaryngologist (ENT Specialist), Sarvodaya Hospital and Research Centre, 864, Napier Town, Russel Chowk to Shastri Bridge Road, Jabalpur (Madhya Pradesh), Phone : 0761-403 5700/245 0249, the above named deponent, solemnly affirm and state on oath as under:
1.    That I am opposite party No. 2 in the above mentioned case and am fully conversant with the facts deposed to in the written statement.
2.    That the contents of paragraphs 1 to end of the accompanying written statement are true to my personal knowledge and the contents of paragraphs are based on legal advice, which I believe to be true. No material has been concealed and no part is false.
3.    That the Annexure No(s). to the accompanying case are true copies of the originals and I have compared the said Annexures with their respective originals and certify them to be true copies thereof.

PLACE : JABALPUR                                   

DATED :                                                           DEPONENT

                                        VERIFICATION
I, DR. RAJIV JAIN, the above named deponent do hereby verify on oath that the contents of the affidavit above are true to my personal knowledge and nothing material has been concealed or falsely stated. Verified at ______this______day of _______

DEPONENT 

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