Dr. Yuvraj, Consultant Orthopaedic Surgeon Taneya Hospital Private Limited, Sector-21D, Near Community Centre, Opposite Huda Market, N I T, Faridabad – 121 001, (Haryana), Phone : 0129 - 246 3333.

BEFORE THE HARYANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

Bays No. 3 - 6, Sector – 4, Panchkula – 134 112 (Haryana)

Phone : 0172 – 2567601, Fax : 0172 –2567502

E-mail : har-sforum@nic.in, hr.scdrc@gmail.com

FIRST APPEAL NO.          OF 2016

APPELLANT/                    :      Dr. Yuvraj, Consultant Orthopaedic  Opposite Party No. 1                 Surgeon Taneya Hospital Private

Limited, Sector-21D, Near Community Centre, Opposite Huda Market, N I T, Faridabad – 121 001, (Haryana), Phone : 0129 - 246 3333.

VERSUS

RESPONDENTS/               :       1.     Surender Singh, Aged about

 Complainant                              47 years, S/o Mr. Parmal Singh,

R/o House No. 512, Village – Said-ul-Ajaib, New Delhi – 110 030.

Opposite Party No. 2                   2. The Medical suprintendent,

                                                Taneya Hospital  Private Limited,

Sector-21D, Near Community Centre, Opposite Huda Market, N I T, Faridabad – 121 001, (Haryana), Phone : 0129 - 246 3333.

FIRST APPEAL UNDER SECTION 15 OF THE CONSUMER PROTECTION ACT, 1986 (NO. 68 OF 1986).

Being aggrieved by the Judgment and Order dated 14.07.2017 passed by the District Consumer Dispute redressal Forum, Faridabad (Haryana) in the matter Surender Singh V/s Dr. Yuvraj in the Consumer Complaint No. 340 of 2011, the appellant / opposite party No. 1 named above most humbly and respectfully begs to prefer this first appeal on following facts and grounds amongst the others :

Material facts of the case :

1.   Human life is very valuable; it must be preserved at all costs. So every member of the medical profession and the public in general have an obligation to provide aid to victims of any accidents and help them to survive from possible death. There is no law that forbids this.

2.   The point involved in this appeal is whether emergency medical care provided by the appellant can be subject of judicial scrutiny by Consumer Fora inspite of the fact that the complainant himself moved 4 more hospitals according to his own choice, without following any of the medical advice ?

3.   Whether in absence of appellant and/ or his counsel on 18.10.2011, the Fora below was justified in proceeding Ex-partee against the present appellant ?

4.  Complainant Shri Surender Singh, aged 39 years approached the hospital of the Respondent No.2 with c/o trauma, both hands palmar side while working in a glass shop in Vill. Anchor, Faridabad, at about 11:30 AM on 02.7.2010 having deep wound on both hands, bleeding profusely. He was immediately attended to by Dr. Yuvraj (appellant). The patient was clinically examined to find that there was little damage to tendon, median Nerve and Cephalic vein in his right wrist, but the cut was so deep on left wrist that even Ulnar and Median nerve seemed to have damaged very badly. Accordingly, primary closure was done on right hand after debridement but, as the damage was heavy on left wrist, the patient was, very frankly told that he would try his level best to repair Ulnar, Median nerve and Cephalic vein, but the chances are very remote which may eventually cause numbness, hand grip may become poor and even cause deformity in the left hand of the complainant. Under the circumstances, the complainant is free to take a second option also form some another specialist at the higher centre, but the complainant immediately gave his written consent requesting the appellant to give the treatment as deemed fit. Accordingly, the patient was operated upon, necessary medication was prescribed and he was allowed to go home with and advice to be regular in follow-up checkup and dressings. During follow-up, his stitches were removed on 12.07.2010 when his wound was yet not healed up completely though the same was getting healed up appreciably. The appellant prescribed certain medications to be consumed at home and advised the complainant to report back to the Respondent No. 2 after two days for the follow up check up with a further mention that once the wound is healed up completely, the complainant will have to undergo physiotherapy for about four weeks to get his left hand healthy and functionable in all respects, but unfortunately, the patient never reported back to the Respondent No. 2 for further management. Hence, no medical negligence can be attributed on the part of the Respondents for the sufferings, if any, the complainant was suffering from. The treatment record submitted by the complainant indicates that he approached Dr. Mehta urology and surgery centre on 31.07.2010. Who removed treads, a thread which was left by the Respondent No.1 because the area was not totally healed, and it was to be removed on the next visit. The patient did not come. Hence this appeal on following grounds amongst the others :

GROUNDS :

A.  For that, the Fora below failed to appreciate that patient/Complainant approached the appellant in the hospital of the Respondent No.2 on 02.07.2010 at around 11 : 30 AM, the first aid treatment in question was given to the patient by the appellant, in good faith after explaining the diagnosis, course of treatment, possible limitations of treatment, prognosis, benefits, losses with a further mention that though the damage is little to Ulnar & median nerve as well to Cephalic vein on the right hand but the damage seems to be heavy on left wrist, however, appellant tried his level best to repair the same to see that the same starts functioning at the earliest, but the chances are remote in case of left wrist, which may eventually cause numbness, poor grip and weakness in the left hand of the complainant but the complainant immediately gave his written consent requesting appellant to give the treatment as deemed fit. Accordingly the patient was operated upon, necessary medications were prescribed and he was allowed to go home with an advice to be regular in follow-up checkup and dressings. During follow-up, his stitches were removed on 12.07.2010 when his wound was getting healed up appreciably. As the wound was yet not healed up completely, the appellant prescribed certain medication to be consumed at home with a further mention that once the wound is healed up completely, the complainant will have to undergo physiotherapy for about four weeks to get his left hand healthy and functionable, but unfortunately, the patient never reported back to the Respondent No. 2 for the further management.

B.  For that, the Fora below ought to have appreciated that the patient should have come to the surgeon for the follow-up and to remove the stitch which was left because in that area the wound had not healed completely, but the patient visited the Dr. Mehta Urology Centre without the consultation of the operating doctor. This is sole negligence of the patient.  Moreover, only the thread was removed, and no surgery was done. The patent did not follow the expert opinion of Asian Hospital and also did not consult Dr. Yuvraj, who was the consultant orthopedic surgeon at Asian Hospital. This is sole negligence of the patient.

C.  For that, the For a below committed grave error and irregularity in not considering that the diagnosis of disease and further its treatment and the complications subsequent to always a matter of fact and not of speculation; and if the benefits of treatment have to go to the patient, it’s untoward effects and unwarranted results will also go to the complainant/patient, and these untoward results cannot be garbed as negligence, where it is a fact that the Respondents being treating doctors, have tried their level best and used their highest degree of skill, care, knowledge, infrastructures, efforts and precautions. It is further stated that the treating doctors cannot avoid any inherent complication (in almost 100% cases) which are basic ingredients either of disease pathology itself or treatment procedure, about which the Complainant was well informed as was well in knowledge also. Only precautionary steps can be taken by the respondents as any other prudent qualified doctor/consultant who is engaged in the treatment of the patient would do. Until unless the Complainant is able to prove that “the treating doctor has deviated from the normal/ prescribed line of treatments applicable to the particular case/disease conditions to label that as negligence”, no such complaint should be tried by this Hon’ble Forum.

D.  For that, the For a below committed material irregularity and illegality in not considering that in this case the complainant was properly examined, investigated, diagnosed and treated by the appellant in the hospital of Respondent no.2 as per prescribed norms of Medical Ethics, which are mentioned in the text books and journals of the subject concerned without deviating from the standard prescribed line of treatment, hence the complaint was liable to be dismissed out rightly.

E.  For that, the For a below ought to have considered that the Complainant approached the appellant in the hospital of the Respondent No.2 in Emergency on 02.07.2010, the treatment in question was given to the Complainant by the appellant in good faith after explaining the diagnosis, limitations of treatment, benefits, losses and well known complications, etc. The dispute raised by the Complainant in the present complainant was manifestly outside the purview of the said act since the same was intentionally prejudiced, malafide and false against the Respondents, hence the complainant was liable to be dismissed.

F.   For that, the Fora below failed to have appreciated that no surgery was performed by Dr. Mehta. However, the complainant should have approached the Respondents thereafter at least, but the complainant surprisingly preferred to approach ASIAN Hospital on 18.08.2010 which is just nearer to Taneya Hospital. It is noted that the Doctor of ASIAN Hospital also advised him to undergo physiotherapy but the complainant ignored the humble advice of those Doctors also despite hand grip weakness moderately at that point of time. As per treatment record, the complainant then approached AIIMS on 30.05.2011 i.e., after eleven months of the treatment given by the Respondents where nerve exploration with neuroma excision was done but did not heal up and resulted neuroma formation.

G.  For that, the above facts make it crystal clear as to how negligent remained the patient/ complainant towards his own treatment despite having been explained in length that cut was so deep on left wrist that it may eventually cause numbness and deformity in left hand, if the nerves do not get repaired timely. The complainant neither took physiotherapy nor approached the Respondents again, despite having been explained the prognosis by Doctors of ASIAN Hospital also as advised by the Respondent earlier on 12.07.2010 during his last visit to the hospital of the Respondent no.2. The complainant remained so careless towards his treatment of left wrist for about 10 months that he did not consult any Doctor for his sufferings, if any, on left wrist though in between he did approach FORTIS HOSPITAL and METRO HEART INSTITUTE for some other problems. The complainant then, after eleven months of the treatment even could not be much benefited. The patient was doctor shopping.

H.  For that, In Rafiq and Anr. v. Munshilal and Anr. AIR 1981 SC 140 and Smt. Lachi and Ors. v. Director of Land Records and Ors. AIR 1984 SC 41 while dealing with a similar issue held that a litigant cannot suffer for the fault of his counsel. The Hon'ble Supreme Court in the former case observed as under:

"What is the fault of the party who having done everything in his power expected of him, would suffer because of the default of his advocate.... The problem that agitates us is whether it is proper that a party should suffer for the inaction, deliberate omission, or misdemeanour of his agent.... We cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted."

I.    For that, Similar view has been reiterated in Goswami Krishna Murarilal Sharma v. Dhan Prakash and Ors. (1981) 4 SCC 474, where the counsel had withdrawn his Vakalatnama without notice to his client. The Hon'ble Supreme Court following its earlier judgment in Rafiq (supra), held that the Court should not have proceeded to dismiss the appeal straight away on the ground that the appellant was not present in person when his counsel had withdrawn the Vakalatnama. At least a notice ought to have been given to such a litigant to make an alternative arrangement or appear in person.

J.    For that, Similar view has been reiterated in Tahil Ram Issardas Sadarangani and Ors. v. Ramchandra Issardas Sadarangani and Anr., AIR 1993 SC 1182 ; and Malkiat Singh and Anr. v. Joginder Singh and Ors. AIR 1998 SC 258, observing that in case a litigant is neither negligent nor careless in prosecuting his case but his lawyer pleads no instruction, the Court should issue notice to him to make an alternative arrangement. Such a course is required in the interest of justice and the Court may proceed from the stage the earlier counsel pleaded no instruction. If the litigant is not at fault, he should not suffer for such a conduct of his counsel.

K.   For that, In Sushila Narahari and Ors. v. Nand Kumari, (1996) 5 SCC 529, the case was dismissed in default and an application for restoration was dismissed on the ground that there was a delay of 40 days in filing the application for restoration. The Hon'ble Apex Court held that the delay due to advocate's dereliction in duty withdrawing his Vakalatnama without notice to his client warranted condonation.

L.   For that, In Bani Singh and Ors. v. State of UP. and Ors., 1996 CriLJ s3491 a matter was referred to the larger Bench of the Hon'ble Supreme Court as there had been conflict of opinion between two Benches of the Hon'ble Supreme Court on the issue as what should be the course of action in case a lawyer does not appear in the High Court at the stage of hearing of a criminal appeal. The Court held that if the accused is in Jail and cannot, on his own, come to Court, it will be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent and the Court deems it appropriate to appoint a lawyer at State expenses to assist it, there is nothing in the law to preclude it from doing so. While interpreting the provisions of Sections 385 and 386 of the Code of Criminal Procedure, and considering its earlier judgments in Ram Naresh Yadav v. State of Bihar AIR 1987 SC 1500 and Shyam Deo Pandey v. State of Bihar AIR 1971 SC 1506, the Court held that the accused/appellant may be given a chance of appearance if his lawyer is not present and in certain circumstances, a lawyer may be appointed at State expenses to assist the Court. However, the case may also be decided on merit in absence of the appellant as the higher Court can remedy the situation if there has been a failure of justice. The Court observed as under:

"The appellant and his lawyer can remain absent with impunity, not once, again and again, the Court issues a warrant for the appellant's presence. A complaint to the Bar Council against the lawyer for nonappearance cannot result in the progress of the appeal. If another lawyer is appointed at State cost, he too, would need the presence of the appellant for instructions and that would place the Court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of appellant, the higher Court can remedy the situation if there has been a failure of justice."

M. For that, In Salil Dutta v. T.M. & Mc (P) Ltd., [1993] 1 SCR 794, the Apex Court, after considering its earlier judgment in Rafiq (supra) observed that the said case was decided on the facts involved therein and, thus, it did not lay down any absolute proposition. The Court observed as under:

"It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult."

PRAYER

It is, therefore most humbly and respectfully prayed that Judgment and Order dated 14.07.2017 passed by the District Consumer Dispute redressal Forum, Faridabad (Haryana) in the matter Surender Singh V/s Dr. Yuvraj in the Consumer Complaint No. 340 of 2011, may kindly be set aside and the matter may kindly be remanded back before the Fora below under the provisions of Order XLI, Rule 22 of the code of Civil Procedure, 1908 (No. 5 of 1908) for deciding the matter in accordance with Law after providing due opportunity of hearing to the appellant herein.

PLACE : FARIDABAD

DATED : 01.08.2017                            ADVOCATE FOR APPELLANT