BEFORE THE DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, DISTRICT –
JABALPUR (MADHYA PRADESH)
Block
No.15-K, Scheme No. 18
Civic Centre, Jabalpur-482 001.
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.
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
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 _______
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