BABANDEEP KAUR vs S C ANAND

THIS is complainant''s appeal filed against judgment and order dated 13.1.2004 passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter referred to as the District Forum) in her Complaint Case No. 331 of 2000 against Dr. (Brig.) S.C. Anand (Retd.), Orthodontist, BRS Hospital (City Centre), SCO No. 913, Housing Board Chowk, Manimajra (UT), Chandigarh and New India Assurance Company Limited (for short hereinafter referred to as the Assurance Company), SCO No. 36-37, Sector 17-A, Chandigarh, which has been dismissed by the District Forum holding that there was no medical negligence on the part of respondent No. 1-Dr. S.C. Anand.

THE complainant at the time of filing of the complaint was minor aged about 16 years and it was filed through her maternal grand father S. Gurbax Singh. Ms. Babandeep Kaur, the appellant, when she was aged around 7 years in 1990 had the problem of her teeth protrusion and required alignment by dental surgeon. Se remained under observation of Dental Wing of Post Graduate Institute of Medical Education and Research, Chandigarh (for short hereinafter referred to as PGI) for the period from 25.8.1990 to 20.6.1997 allowing the nature to play its part before any appropriate decision could be taken for providing dental care by the dental surgeon. It was on 20.6.1997 that the doctors of PGI, Chandigarh advised orthodontic treatment. THE complainant was taken to BRS Hospital, a branch of BRS Institute of Medical Sciences, Kot Billa, Distt. Panchkula, Haryana on 5.9.1997. THE complainant was shown for treatment by the dental surgeon to respondent No. 1 Dr. S.C. Anand, Principal of the Dental College of BRS Institute. Two impressions of the complainant''s teeth of both the jaws, upper and lower, were taken and respondent No. 1-Dr. S.C. Anand advised extraction of four teeth i.e., tooth No. 4 each from the four regions of the mouth. A sum of Rs. 3,500/- was deposited as part payment of the treatment. On 12.9.1997, the respondent No. 1-Dr. S.C. Anand extracted two teeth from the upper jaw. The contention of the complainant was that Dr. S.C. Anand acted irresponsibly and carelessly and during the process, he put drops of sprit in her eyes and exposed her eye-sight to grave risk. It was also alleged that the tooth No. 14 should not have been extracted at all because tooth No. 12 was cogentally missing and there was congestion in region No. 1.

Regarding the eye, which was affected by the drop of the spirit, the appellant/complainant was taken to eye clinic of BRS Institute. On 13.9.1997, the doctor of the Eye Department declared that there was no damage to the eyes but a few months later, the appellant/complainant had to wear spectacles. The appellant/complainant was then taken for treatment on 17.9.1997 onwards to Dr. Sohinderjeet Singh at Chandigarh and she planned to undergo implant most probably to Apollo Hospital, Delhi. The complaint was filed alleging negligence and deficiency in service on the part of O.P. No. 1 in affecting the two extractions and sought payment of Rs. 60,000/- as costs of implant and Rs. 1 lac as damages for physical harassment and mental agony.

AFTER receiving notice of the complaint. the O.P. No. 1, filed reply wherein he disclosed that he was working with the BRS Hospital as an employee and on percentage basis, which had not been impleaded as a party. Apart from it, he disclosed that he had been insured by the respondent No. 2-Assurance Company, which should have been impleaded in the complaint. However, on the application of the complainant, the Assurance Company was impleaded as respondent No. 2 and Assurance Company filed reply contending, inter alia that it was neither necessary nor proper party in the complaint case. Dr. S.C. Anand was issued a doctor indemnity policy and he shall have to move a claim under the policy in the event of any liability against him and since, such an eventuality has not happened, hence it was not a necessary and proper party. Dr. S.C. Anand denied allegations of being medically negligent or careless in my manner during the period of consultation and treatment of the appellant/complainant who of her own refused to take further treatment without intimating him. The mother of the complainant applied for refund of balance amount of Rs. 2,700/-, which was otherwise not refundable but the amount was refunded as goodwill gesture. While defending the extraction of Tooth No. 14, Dr. S.C. Anand contended that it was on the basis of vast experience in the field of orthodontics that he was justified in extracting the said tooth, which was offending. The opinion formed by the appellant/complainant regarding the respondent No. 1 being careless and negligent is ill-founded as the complainant herself was not a qualified person to give any expert opinion. Moreover, it was alleged that the complaint was barred by limitation as the cause of action accrued to the complainant on 12.9.1997 and the complaint was filed on 19.5.2000 beyond the prescribed period of limitation of two years under Section 24-A of the Consumer Protection Act, 1986 (for short hereinafter referred to as the C.P. Act).

THE complainant filed affidavit of her maternal grand father S. Gurbax Singh. THE respondent No. 1 Dr. S.C. Anand filed his own affidavit whereas the Assurance Company-respondent No. 2 brought on record affidavit of Shri R.K. Jain, Deputy Manager of the Assurance Company. The District Forum held that the complainant failed to show that there was any medical negligence on the part of the respondent No. 1 as she failed to lead any expert medical evidence to prove her allegations and to show that the line of treatment adopted by the respondent No. 1-Dr. S.C. Anand was contrary to the settled medical procedure in this field. Resultantly, the complaint was dismissed. The complainant filed appeal. Notice of appeal was issued to the respondents. Respondent No. 1 put in appearance through Mr. Neeraj Sharma, Advocate for the respondent No. 1 and Mr. Pardeep Bedi, Advocate along Mr. Paras Money Goyal, Advocate appeared for respondent No. 1-Assurance Company. The record of the complaint case was summoned.

WE have heard the learned Counsel for the appellant and the learned Counsel for the respondents and have carefully perused the impugned order and the record of the case.

SO far as the plea of bar of limitation is concerned, the provisions of Section 24A of the C.P. Act enables the District Forum to entertain a complaint after the period of limitation of two years as specific in Sub-section (1), if the complaint satisfies the District Forum that the complainant had sufficient cause for not filing the complaint within such period. In the instant case, the grievance of the complainant is in respect of medical negligence and carelessness shown by Dr. S.C. Anand in the treatment and since the complainant show was minor at the time of treatment, she could file her complaint on attaining majority. The complaint was entered and adjudicated upon by the District Forum and at that time the preliminary objection was not pressed vigorously inasmuch as the respondent No. 1 did not ask the District Forum to decide the question of bar of limitation but allowed the complaint to be entertained and proceeded with in which he himself participated. The complaint was heard and decided by the District Forum. Now in appeal, the respondent No. 1 cannot be permitted to raise the plea of bar of limitation particularly keeping in view the fact that the appellant was under legal disability of being a minor and in case her guardian was not vigilant enough, she could not be made to suffer on that account. The preliminary objection is thus devoid of merit and is repelled. The complainant who is appellant before us was represented by her maternal grand father S. Gurbax Singh as her authorized agent and he led evidence in support of the averments made in the complaint, which comprises of the affidavit of S. Gurbax Singh and documents of B.R.S. Hospital. The main contention of the appellant is that the respondent Dr. (Brig.) S.C. Anand (Retd.) was medically negligent in treating Ms. Babandeep Kaur and he without taking into consideration the fact that Tooth No. 2 was congenitally absent and missing and still he extracted tooth No. 4 from the upper jaw as well as tooth No. 4 from the lower jaw. It has been contended that the respondent Dr. S.C. Anand negligently extracted to teeth No. 4 from the upper and lower jaw whereas there was no congestion in the upper jaw because tooth No. 2 was missing.

Apart from this, it has been contended that the respondent Dr. S.C. Anand carelessly dropped sprit in the eye of the complainant, which luckily did not cause much damage to the eye but still the complainant had to wear glasses. In support of these contentions, the appellants relied on the affidavit of her authorized agent and did not lead any medical evidence of any expert to controvert the statement of respondent Dr. S.C. Anand who has categorically mentioned that he is a decorated soldier and accomplished doctor who is presently working as Principal of the Govt. Dental College, Rohtak, Haryana and he has enclosed the photocopies of his professional testimonials along with affidavit, which includes the certificate issued by the President of India on 15.1.1997 and the same was granted while acknowledging special contribution in the profession. The appellant herself was taken by her guardian as she was minor at that time to visit Department of BRS Hospital for treatment of respondent Dr. S.C. Anand who cannot said to be a doctor having no medical qualification in the field of dentistry.

ON the other hand, the enclosures attached with the affidavit of Dr. S.C. Anand proves that he was quite competent and an accomplished doctor. In para 5 of his affidavit, he deposed, inter alia, as under: "...It has been settled by the Hon''ble Apex Court and followed by the Hon''ble National Commission, that in matters in which the credibility of a medical professional is questioned, the instances of alleged negligence have to be sustantiated by independent expert evidence. In the present complaint, in paras A(iv) and B(vii), the complainant had sated that since 17.9.1997 the complainant was under the treatment of Dr. Sohinderjeet Singh at Chandigarh. No expert evidence from the afore-stated doctor regarding the alleged negligence attributed to the deponent has been placed on record belying the claim of the complainant regarding the alleged incident of negligence attributed to the deponent..."

The authorised agent of the appellant S. Gurbax Singh brought with him on the date of hearing of the appeal some opinion in writing of Dr. Sohinderjeet Singh practising in Chandigarh in Orthodontics under whom the appellant had been under treatment since 17.9.1997 and wanted to place the same on record.

THE learned Counsel for the respondent took an objection to the effect that the evidence, which was sought to be made in appeal was very much in the knowledge and possession of the appellant at the time when the case was adjudicated by the District Forum. THE said document was taken back by the authorised agent of the appellant and was not filed. THE authorised agent had also brought with him the impressions of the dentures of the appellant for perusal by the Commission but on singular objection from the learned Counsel for the respondent, he did not place the same on record and took it back. THE result is that there is no expert evidence from a doctor in the field of Orthodontics to show that the procedures adopted by the respondent Dr. S.C. Anand was contrary to the establish procedure in the field of Orthodontics regarding the treatment of Dentures where the teeth were protruding from their respective alignments. In ground No. C(i) of the affidavit, respondent Dr. S.C. Anand deposed, inter alia, as under: "...The Deponent with regard to his vast experience in the field of Orthodontics was justified in removing the offending tooth, which was required to be removed. The opinion formed by the complainant (minor) in this sub-para regarding the alleged incident of carelessness/negligence is ill-founded. The complainant is not qualified to give any expert opinion regarding the course of treatment followed by the deponent qua the complainant..." Regarding the averments of dropping sprit in the eye of the complainant, in para C(iii), Dr. S.C. Anand denied specifically the said allegation and deposed further that the complainant was deliberately and intentionally distorting the facts.

THE District Forum after referring the material placed on record by both the parties held that in the instant case, admittedly no expert report either has been called for or has been brought on record by the complainant. It was further held that when there is no oral or documentary evidence on record to substantiate the allegation of medical negligence so in the absence of positive and expert evidence, it would not be possible to hold the O.P. No. 1 guilty of medical negligence. THE District Forum referred to the judgment of the Hon''ble National Consumer Disputes Redressal Commission, New Delhi in the case of K.S. Bhatia v. Jeevan Hospital, IV (2003) CPJ 9 (NC), which was regarding medical negligence and quoted the observation of the Hon''ble National Commission, wherein it was held as under: "As settled by Apex Court and Privy Council judgment in cases of medical negligence specific act of negligence has to be alleged and then proved as also as how that amounts to negligence. In the instant case only negligence stated is that he went for treatment to O.Ps. where Agron Laser was done after which he lost vision. As per settled law on the subject complaint has to allege which action of the O.Ps. was not as per accepted medical practices. What was done which should not have been done or what was not done which should have been done. This has to be supported by expert evidence of medical literature on the subject."

AFTER carefully going through the judgment and the order of the District Forum and material placed on record, we find no infirmity in the impugned judgment and order. The appeal lacks merit and is dismissed. The costs shall, however, be borne by the parties themselves. Copies of this judgment be sent to the parties free of charge. Appeal dismissed.