B SHEKHAR HEGDE Vs. SUDHANSHU BHATTACHARYA

JUDGEMENT

(1.) In this complaint, the complainant alleged deficiency and negligence in the service of his medical treatment by the opposite party. The facts in short are that the complainant issue an employee of the Government of India as Joint Secretary, Ministry of Law and Justice. The Opponent No.1 is a medical practitioner and has been attached to O. P. No.2, the Bombay Hospital as consulting Cardiologist and Hon. Surgeon. The complainant was admitted as an indoor patient in Bombay Hospital on 25.10.90 as he had developed chest pain. According to complainant, his condition was serious and therefore, he was given emergency treatment by Dr. Eric Borges, the Cardiologist and House Physician attached to Bombay Hospital. The complainant was then admitted to the Intensive Care Unit on 3.11.90. It is further alleged that after usual tests and examinations, the complainant was advised to go in for operation for "coronary Artery By-pass Graft Surgery. " The condition of the complainant needed immediate operation. On behalf of the complainant, his relative Shri Daya Shankar Shetty and Shri K. R. Hegde contacted O. P.1, for fixing the date for operation. He told the complainant's relative that he was totally busy till November, 24th. Opposite Party No.1, however, agreed to perform the operation but insisted that he should be paid 50% fees in black money and 50% in white money. The O. P. No.1 also told the complainant's relative that the case be referred to him through Dr. Borges of the Bombay Hospital. Accordingly, Dr. Borges referred the complainant's case for operation to O. P.1. It is further alleged by the complainant that on 7.11.90, the aforesaid relatives of the complainant were to contact the O. P. No.1 through one Dr. M. Balkrishana Alva who would arrange for the operation. The complainant's relatives, therefore, approached Dr. Alva who told the complainant's relatives on behalf of the O. P. No.1 that the fees of Rs.25,000/- for operation be paid to O. P. No.1. As soon as the complainant's relatives agreed for payment of Rs.25,000/- as fees to O. P.1/96 advanced the date of the operation from 24.11.90 to 8.11.90. Accordingly, the complainant was operated on 8.11.90. After, the operation on 10.11.90, Dr. Alva telephoned to complainant's relative Shri Daya Shankar and told him that now the O. P. No.1 is demanding Rs.40,000/- instead of Rs.25,000/-. The complainant's relatives were surprised with the increased demand of fees by O. P. No.1; However, they agreed to make arrangements for the higher payment since it was a question of life and death of complainant. It is further alleged that on 14.11.90, the aforesaid relatives of the complainant told the complainant that Rs.40,000/- was required to be paid to O. P.1 as told by Dr. Alva and confirmed by O. P.1. Ultimately, the amount of Rs.40,000/- was paid to O. P.1 by Cheque dated 16.11.90, drawn on Dena Bank, Bombay in favour of O. P. No.1. The cheque was personally handed over by the aforesaid relatives of the complainant to O. P.1 for which receipt is passed for "post-operative care stretched for three months. " The complainant was discharged from Bombay Hospital on 19.11.90 after 11 days. The complainant further alleged that the O. P. No.2 admitted him as an indoor patient to the Bombay Hospital for 21 days under package admission which includes all medical charges, operational charges, service charges, etc. Which are reimbursed under the Central Government Health Scheme. However, according to complainant, he was required to pay Rs.38,665/- as operation and other charges to the Bombay Hospital and Rs.13,081/- as service charges in addition to Rs.40,000/- to O. P. No.1. Thus, the complainant alleged that he was required to pay Rs.91,746/- for his by-pass surgery. The complainant alleged that since due to serious nature of his ailment, he was under mental tension and in a disturbed state of mind was unable to take any decision about the financial implications in his by-pass surgery and, therefore, he could not question the Opposite Party No.1 for the huge payments of Rs.40,000/- about its propriety, reasonableness or correctness. The complainant, therefore, alleged that he has been required to pay double payment for his pass surgery.

(2.) The complainant further alleged that in December, 90, the complainant felt pain and increased uneasiness and, therefore, with prior appointment visited the chamber of O. P. No.1 on 8.12.90 at his Consulting room at Nepyan Sea Road. The complainant was accompanied by his wife and relatives. It is alleged by the complainant that he was required to wait for four hours by O. P.1 at his consulting room and then after such a long wait, and with no response from O. P. No.1, giving him appointment, ultimately, entered the Consulting Room of O. P. No.1 and requested for permission to see him. According to the complainant, the O. P. No.1 expressed his annoyance and resentment and told the complainant that he could not be forced to touch the patient and if the complainant has any trouble, he should approach Dr. Borges in Bombay Hospital. The complainant placed in a helpless situation pleaded with O. P.1 that he had paid huge fees for post operative care and, therefore, he need not be directed to see Dr. Borges or others and insisted that he should be treated by O. P.1. According to the complainant, with great reluctance, the O. P.1 gave a prescription for tablets to complainant and asked the complainant to go out. It is the case of the complainant that despite the huge payment of fees of Rs.40,000/-, paid to O. P.1 'for post operative care', no reasonable, proper and satisfactory service was rendered to the complainant by O. P.1. According to complainant, O. P.1 was negligent in his service which caused his great loss and physical injury and he was forced to receive 'post operative care' through other doctors. The complainant has alleged that the pus was oozing out from the chest from the operation site and considerable pus had formed inside the chest. A sample of pus was sent for analysis to Bombay Hospital. The complainant further stated that on 28.1.91, the complainant again sought the appointment with O. P. No.1 through Dr. Ravi, who was Assistant to O. P. No.1. during the operation. However, O. P. I was not available and complainant was examined by Dr. Ravi who promised to convey the seriousness of the condition to O. P.1. Hence appointment of O. P.1 was sought. The appointment was given on 6.2.91 at the instance of Dr. Ravi on 6.2.91 complainant visited O. P.1. But even after considerable wait, O. P. No.1 did not give complainant any service. On the contrary the complainant had to wait for 2 hours time with continued pain in his chest and uneasiness. Ultimately, the complainant left the place suffering from great stress due to the indifference shown by O. P.1. The complainant again tried to contact O. P.1 through Dr. Shetty yet he could not get any service from O. P.1. The complainant had to approach other Doctors for his post operative care. He was then treated by Dr. Shetty and Dr. G. N. Rachmale at J. J. Hospital. On 16.2.91, he was examined and on 19.2.91, the doctors performed operation and opened his stitches. The doctors at J. J. Hospital found that due to pus formation on the 6th rib on the left side of the chest was severely infected and but for the operation on 19.2.1991 the complainant might have lost his life. According to complainant refusal to render "post operative care' by O. P.1 resulted in endangering the life of complainant which cost him time and money and immense suffering. The complainant had to spend a considerable amount and time for his post operative treatment. But the O. P.1 did not render him the post operative care as agreed for a consideration of Rs.40,000/-. The complainant therefore, filed this complaint alleging the deficiency in the service and prayed for refund of Rs.40,000/- and compensation of Rs.2,00,000/- with interest. The complainant also claimed Rs.15,000/ towards the costs.

(3.) Both the opposite parties filed their respective written versions. Opposite Party 1 admitted the fact of performing by pass surgery on complainant and also admitted to have accepted the amount of Rs.40,000/- from the complainant towards "post operative care" on 16.11.90. He also admitted that complainant had been to him on 8.12.90 and 6.2.91. According to this opponent, he was ever wiling to render post operative care to the complainant but the complainant behaved with arrogance and on 2nd February, 1991 left his chamber at his own. Inter alia, the O. P.1 denied the claim of the complainant. According to O. P.1, since the claim of complainant for Rs.40,000/- was refused by the Government for purposes of reimbersement, this false complaint has been lodged. This opponent also raised some legal grounds about the maintainability of this complaint to the effect that complainant is not a consumer and consequently not competent to file the complaint.