SURANA DIAGNOSTIC RESEARCH CENTRE Vs. SHASHI KAPOOR

JUDGEMENT

(1.) Both the aforesaid appeals are being decided by this common judgment as in both of them common questions of law and facts are involved and they arise out of the same order dated 31.5.1997 passed by the learned District Forum, Jaipur-I, Jaipur. Appeal No.1673/97 surana Diagnostic Research Centre V/s. Smt. Shashi Lapoor

(2.) This appeal under Sec.15 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act of 1986") has been filed by the appellant against the order dated 31.5.1997 passed by the learned District Forum, Jaipur-I, Jaipur by which the complaint filed by the complainant-respondent under Sec.12 of the Act of 1986 was allowed in the manner that the appellant was directed to pay to the complainant respondent a sum of Rs.12,000 (Rs.2,000 incurred for journey to Bombay, Rs.2,000 incurred for testing and Rs.8,000 incurred for stay at Bombay) and Rs.3,000 as amount of compensation and cost of litigation.

(3.) The necessary facts giving rise to this appeal are as follows: on 14.12.1993, the complainant-respondent had filed a complaint under Sec.12 of the Act of 1986 before the District Forum, Jaipur City, Jaipur stating inter alia that Dr. P. K. Wanchoo had performed the operation of breast cancer of the complainant respondent on 17.4.1982 and after treatment by radiotherapy and chemotherapy the complainant got rid of the disease and according to the directions of the doctor, she was getting her regular check up after every six months so that if there was any sign of recurrence of cancer, the same may be noticed. It was further stated in the complaint that on 12.5.1993, the complainant-respondent for her regular check up got the Sonography, Chest x-ray and T. L. C. and other blood tests done at the appellant's Diagnostic Research Centre. It was further stated in the complaint that the appellant gave the report (Ex.4) of ultra sound sonography on 12.5.1993 in which metastatic lesion of.5x2.80 cm in liver was shown. In the chest X-ray report Ex.5 given by the appellant, metastatic lesion was reported in lungs and bones and it was also reported that lateral part of third rib was eroded with osteolytic lesion. In this manner, in the reports (Ex.4 and Ex.5) of the appellant, development of cancer was shown in lungs, rib and liver and on account of these reports, the complainant-respondent and the husband and other family members of the complainant respondent got serious set back since they regarded it as serious stage of cancer. It was further stated in the complaint that thereafter, the complainant-respondent got herself examined by Dr. P. K. Wanchoo, who, looking to the clinical condition of the complainant-respondent, advised the husband of the complainant respondent to get the ultra sound test done in Anil Hospital and for this purpose, Dr. Wanchoo gave a letter Ex.6. It was further stated in the complaint that thereafter, the complainant got the ultra sound test of the liver conducted on 14.5.1993 at Anil Hospital, Jaipur and in the report Ex.7 of Anil Hospital, no metastatic lesion was shown. Thereafter, the husband of the complainant respondent met with Dr. Surana and told him that according to Dr. Wanchoo, the clinical condition of the complainant respondent was alright and it does not tally with the reports given by the appellant and upon this, Dr. Surana told that the appellant have for most modern machines and the reports given by the appellant were more correct. It was further stated in the complaint that thereafter, because of the psychological fear in the mind of the complainant respondent and her family members, Dr. P. K. Wanchoo referred the complainant to Dr. P. B. Desai, Director, Tata Memorial and Research Centre, Bombay through letter Ex.9 and along with the complainant respondent, her husband and daughter went to Bombay and the tickets are Ex.10 and Ex.11. According to the reports given by Tata Memorial Research Centre, Bombay, there was no case of cancer and the reports of liver, lungs and rib were normal and these reports are Exs.12 and 13. It was further stated in the complaint that Dr. Desai told that there was no metastatic of any kind and asked the complainant respondent to come after one year for check up. It was further stated in the complaint that after completion of entire check up, the husband of complainant respondent met with Dr. Hemendra Surana and shown him the reports of Tata Memorial Research Centre and Anil Hospital and asked him to take the opinion of his Radiologist on the reports given by the appellant. Dr. Surana instead of accepting his mistake, got annoyed. The husband of the complainant respondent was surprised to see that Dr. Surana was defending his Radiologist instead of accepting his mistake and he received great set back on account of the behaviour of Dr. Surana. It was further stated in the complaint that on account of the wrong reports given by the appellant, the complainant and her family members suffered serious set back and for that, the complainant respondent prayed for award of compensation to the tune of Rs. one lac apart from this, she has also claimed Rs.2,000 as amount spent for journey to Bombay, Rs.8,000 as amount spent for stay at Bombay and Rs.2,000 as amount spent for testing, total Rs.1,12,000. A reply was filed by the appellant on 29.1.1994 stating inter alia that after her operation on 17.4.1982, the complainant respondent was getting her regular check up i. e. , sonography, x-ray chest, T. L. C. and other tests done with the appellant. It was further stated in the reply that the reports Ex.4 and Ex.5 were given by the appellant. The report Ex.5 shows that only possibility of metastatic lesion in lungs and bone was expressed and the sign of interrogation was put in the report to suggest the possibility. The report Ex.5 cannot be said to be wrong or without any basis, in view of the x-ray report Ex.13 given by Tata Memorial Hospital, Bombay. The report Ex.13 shows scoliosis in ribs and breast shows fibrocystic mastitic changes with few ductal classification and in face of the opinion expressed in Ex.13 x-ray report Ex.5 cannot be said to be without any basis. In fact the observations in the report Ex.5 and Ex.13 are not materially different and the difference is only of the language or manner of writing. It was further stated in the reply that the complainant can by producing Dr. Wanchoo or Dr. Desai or any other expert prove that the report Ex.5 and Ex.13 are materially different and in absence of the opinion expert, it cannot be said that the opinion expressed in the report Ex.5 was wrong. It was further stated in the reply that in Sonography or cintography the investigator observes what was seen by his eyes and then on the basis of what he has seen, he interprets it on the basis of his scientific knowledge and experience. The reports of radiology or sonography are meant for assisting the treating doctor in reaching a diagnosis looking to the other clinic symptoms and factors. These reports are not meant for the consumption of the patients nor the patient can or should reach to any conclusion or diagnosis on the basis of the report. In regard to Sonography report Ex.4, it was stated by the appellant that this report was in great details, while the report Ex.12 of Bhabha Atomic Centre, Bombay dated 4.6.1993 was quite brief and the opinion expressed therein was in relation to some parts of body. It was also stated in the report that the report Ex.12 was a report of Cintography and not ultra sound sonography. The processes adopted in ultra sonography and cintography are different and the equipments are also different. It was further stated in the reply that there was no basic difference between the ultra sonography report Ex.4 given by the appellant and Ex.7 given by Anil Hospital. There was no material difference as far as the contents of observations are concerned since in report Ex.7 in the diaphragm of liver two cysts were recorded. In the report Ex.4 of appellant, these cysts have been given as metastatic lesion which is a difference of interpretation. It was further stated in the reply that the appellant has been doing regular check up of the complainant for the last ten years and the complainant has already been operated for breast cancer. For about 10 years, the appellant, who was doing regular check up, gave normal reports but when some formations were observed (which have also been observed in report Ex.7), these formations were regarding as metastatic lesion in Ex.4, to put the treating doctor on caution for further confirmation since the ultra sonography report never regarded as conclusive and has to be further confirmed by biopsy. It was further stated in the reply that even after biopsy the diagnosis of cancer is not 100 per cent sure though after confirmation by biopsy the finding of malignancy is given. It was further stated in the reply that the finding given by Dr. P. B. Desai only says "no clear evidence of metastasis". This finding also does not prove that the reports Ex.4 and Ex.5 given by the appellant's Diagnostic Centre were incorrect or wrong one. Thus, it was prayed that the complaint filed by the complainant respondent be dismissed. After hearing both the parties, the learned District Forum, Jaipur-I, Jaipur through impugned order dated 31.5.1997 allowed the complaint of the complainant-respondent in the manner as indicated above holding inter alia that the reports of ultra sound sonography and chest x-ray of the complainant respondent given by the appellant were wrong. Aggrieved from the said order dated 31.5.1997 passed by the learned District Forum, Jaipur-I, Jaipur, the appellant has preferred this appeal.3. In this appeal, the main contention of the learned Counsel for the appellants is that the learned District Forum was wrong in arriving at the conclusion that the reports given by the appellant in respect of liver and chest of the complainant respondent were incorrect and wrong as for liver, there was positive report of cysts by Anil Hospital, Jaipur and furthermore, in respect of breast, there was also positive report by Tata Memorial Research Centre, Bombay and thus, findings of the learned District Forum to the effect that the reports given by the appellant in respect of liver and breast were wrong, suffer from basis infirmity, illegality and perversity and hence, the same cannot be sustained and liable to be quashed and set aside and this appeal deserves to be allowed.