Department of Radio-diagnosis Vs. Brij Mohan Phondi Resident - Court Judgment

Dev Raj, Member:

1. This appeal is directed against the order dated 17.1.2014 rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it allowed the complaint filed by the complainant against the Opposite Party (now appellant) in the following manner:-

œ13. In the light of above observations, we are of the concerted view that the Opposite Party is found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Party, and the same is allowed, qua it. The Opposite Party is directed to:-

[a] To refund Rs.581.13/- to the Complainant;

[b] To pay a consolidated amount of Rs.2,000/- as compensation on account of deficiency in service;

14. The above said order shall be complied within 45 days of its receipt by the Opposite Party; thereafter, it shall be liable for an interest @18% per annum on the amount mentioned in per sub-para [a] and [b] of para 13 above, from the date of institution of this complaint, till it is paid.?

2. The facts, in brief, are that on having some dental problem, the complainant visited the Oral Health Sciences Department of PGIMER on 17.9.2012 and was advised a CT Scan by the doctor vide outpatient card, Annexure C-1. It was stated that when he went for CT Scan, on 26.9.2012 in the Radiology Department, he was asked to bring certain medicines. It was further stated that the complainant purchased the medicines, from Universal Chemists vide Invoice No.36243 dated 26.9.2012, Annexure C-2, and handed over the same to the concerned person, whereafter his plain CT Scan was done, on payment of Rs.300/- for the same vide receipt, Annexure C-3. It was further stated that the complainant raised a protest with the lady doctor present there, that the medicine Contrapaque was not injected to him. It was further stated that the doctor informed the complainant that in plain CT Scan, it was not required. It was further stated that the complainant asked the doctor to return the medicine, but she refused. It was further stated that after a few minutes, the said lady doctor asked the complainant, in case, he wanted, the said injection, it could be injected to him. It was further stated that the complainant asked the doctor, either to return medicine so that he could take refund after returning the same to, the Chemist or pay the cost of the same. It was further stated that the complainant gave three representations dated 26.9.2012, 29.10.2012 and 15.11.2012, Annexures C-4 to C-6, to the Director and Dean of the Opposite Party, but nothing was done.

3. It was further stated that the complainant also sought information under the Right to Information Act, 2005, vide Annexure C-7, but no plausible explanation was given by the Opposite Party, vide Annexures CC-8 to C-10. It was further stated that the complainant was forced to move to and fro, between one Department and the other and on seeing no end to his vows, he served a legal notice dated 5.2.2013, Annexure C-11 upon the Opposite Party, which was duly replied to vide letter dated 21.2.2013, Annexure C-12, whereby he was offered a sealed bottle of medicine by the Opposite Party. It was further stated that the aforesaid act of the Opposite Party amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed seeking directions to the Opposite Party to pay Rs.581.13Ps, the cost of the medicine; Rs.50,000/- as compensation for mental agony and physical harassment and Rs.5,500/- as litigation expenses.

4. Opposite Party, in its reply, while admitting the factual matrix of the case, stated that the complainant was scheduled for a CT scan on the PNS region. It was stated that the referring clinician had given a CT form for plain CT. It was further stated that the resident doctor reviewed the form and felt that the contrast might be required for the complainant after seeing the history on his form and asked him to procure the contrast. It was further stated that the complainant was prepared for contrast CT and taken on CT table. It was further stated that the contrast, which he brought was opened and loaded into injector. It was further stated that plan of plain-CT followed by contrast CT was made and plain CT was done first, which was a routine practice. It was further stated that the doctor, after reviewing the plain CT found that the information, which was required by the referring doctor was there, in plain CT itself and contrast CT was not needed so the complainant was taken off the table. It was further stated that the resident asked the technician on duty to take the next patient and use the already loaded contrast for the same so that a vial of contrast could be returned to him. It was further stated that the complainant was informed to take back the contrast vial repeatedly on the day of the incident in the CT room, in the HOD office. He was also offered the return of contrast, in reply to his legal notice, as also in reply to his RTI application, but he showed no interest in taking back the vial. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.

5. The Parties led evidence, in support of their case.

6. After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated above, in the opening para of the instant order.

7. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.

8. On the date of final arguments i.e.24.04.2014, none came present on behalf of the appellant/Opposite Party.

9. We have heard the Counsel for the respondent, and have gone through the evidence, and record of the case, carefully.

10. It was stated in the memorandum of appeal that plan of plain-CT followed by contrast CT was made. The plain CT was done first, which was a routine practice. It was further stated that the doctor, after reviewing the plain CT, found that the information, which was required by the referring doctor, was there in the plain CT itself and contrast CT was not needed. It was further stated that the resident doctor asked the technician on duty to take the next patient and use the already loaded contrast for the same, so that a vial of contrast could be returned to the patient Mr. Brij Mohan. It was further stated that Mr. Brij Mohan, in the meanwhile, got agitated and started accusing the doctor of wrongful conduct and disrupted the services. It was further stated that the lady doctor politely informed the complainant that the contrast was not needed for his scan and the vial of next patient would be given to him, which he could return to the shop but he was shouting and accusing everybody present, that the same was being done deliberately to harass him and that this was being done with every patient. It was further stated that he abused the PGIMER and its doctors as cheats and criminals and this stopped the functioning of CT room for nearly half an hour and put the long line of patients waiting for CT scan at inconvenience. It was further stated that since the complainant was not willing to see the reason, he was told to meet the Head of Department. It was further stated that the entire reasoning given by the District Forum in Paras 10 and 11 of its order was based upon flimsy reasoning. It was further stated that, if as a matter of practice, the injection vial was loaded before the process of CT scan, then it has to be appreciated that the same was done for maintaining smooth workflow in the Department and to avoid unnecessary harassment of the patient. It was further stated that it was normally impossible to record day to day activities, as happened between the patient and the doctors, at the time of incident. It was further stated that the District Forum should have appreciated the fact that in view of selfless service provided by the appellant/Opposite Party to the patients at large, it would be legally and morally unjustified to levy compensation on a complaint like this, when even at the time of final hearing, the complainant was offered the return of price of the medicine. It was further stated that the complainant is an emplolyee of this Commission. It was further stated that the appeal be allowed and the complaint be dismissed.

11. The Counsel for the respondent/complainant submitted that the medicine Contrapaque, was not administered to the respondent/complainant, at the time of CT scan, and despite his request to return the medicine/vial, so that he could take refund after returning the same to the Chemist, the same was not returned to him. It was further submitted that the order passed by the District Forum, directing the appellant/Opposite Party, to refund the price of the medicine and compensation of Rs.2,000/- is just, fair and legal and, as such, the appeal is liable to be dismissed.

12. It is in evidence that the respondent/complainant was advised plain CT scan by the referring doctor. The Radiology Department of PGIMER, Chandigarh, advised him to bring medicine Contrapaque for contrast CT also, so that, after reviewing the plain CT, if needed, the patient (respondent/complainant) could be subjected to contrast CT. It is also evident that the medicine Contrapaque, brought by the respondent/complainant, was put in the injector but the same was not used, as the information, required by the referring doctor, was available in the plain CT.

13. The respondent/complainant submitted a copy of the complaint dated 26.09.2012 (Annexure C-4), wherein, as per English version, he stated that œ¦¦..when I asked that the said medicine was not given to me and the same be returned to me, the doctor said that the medicine has been opened. When I asked why you opened the medicine, the doctor said that we can bring another one for you. When I asked that when it is done, then why to bring another one, then asked me to wait for five minutes, I will give you medicine of some other patient to you¦¦? In another letter dated 15.11.2012 (Annexure C-6), addressed to Sub Dean, PGI Hospital, C.H.D, the respondent/complainant, as per the English version, interalia, stated œMadam Jee¦¦the Doctor advised me plain CT scan but the CT scan people asked to bring a medicine to be used in dark and the medicine was not given to me and when I asked them to return the medicine then they said that by mistake it was opened. I dont know where my medicine had gone. When I talked to doctor, he said this happens here everyday do whatever you want¦¦¦and this has not happened with me only it is happening with everyone but no one was asking his medicine back, I was also told that why should we tell you¦¦¦?

14. It is also very clear from the above extracted contents of the letters of the respondent/complainant, addressed to the PGI Authorities that the contents of the subsequent letter dated 15.11.2012 are not in line with the contents of letter dated 26.9.2012. Therefore, the finding of the District Forum, terming assertion of the Opposite Party that it offered contrast vial to the complainant without substance, in our opinion, is not correct. The fact that the appellant/Opposite Party offered medicine to the respondent/complainant, is proved from contents of letter dated 26.9.2012 (Annexure C-4). The PGIMER, Chandigarh, in its letter dated 13.10.2012 (Annexure C-9), addressed to the complainant, while giving information under the RTI Act, has clarified the position regarding practice followed for CT scan of a patient, which is extracted hereunder:-

œThe decision regarding planning of the CT scan of any patient referred to the department of Radiodiagnosis, PGIMER, Chandigarh is taken after perusal of clinical records and history taking by the residents on duty. Many a time, plain scans are taken and decision to inject contrast is taken after review of the plain scan. For maintaining smooth workflow in the department and to avoid unnecessary harassment of the patient, the patient is asked to procure the contrast material in advance before he is taken on the CT machine. In such cases it is customary to fix the intravenous access also before the patient is taken on the CT machine so that if required the contrast sections can be obtained immediately following the plain sections. The CT scans of all patients are acquired only after an informed consent is signed by the patient/attendant.?

15. It is also in evidence that the appellant/Opposite Party duly replied to the legal notice dated 05.02.2013 of the respondent/complainant vide its letter dated 21.2.2013 (Annexure C-12) and vehemently denied all these allegations. It was stated that the respondent/complainant not only misbehaved with the staff on duty in CT Section of the Department of Radiology but also created a ruckus by shouting and abusing the concerned doctor. It was also stated that the concerned doctor offered the complainant sealed bottle of contrast of another patient as the opened contrast could be used to that patient. The appellant/Opposite Party, in its written statement, supported by duly sworn affidavit of Dr. N. Khandelwal, Professor and Head of Department of Radio-diagnosis, PGIMER, Chandigarh, has denied the allegations of the respondent/complainant. It was specifically testified that the respondent/complainant was repeatedly told to take the contrast of the next patient so that he does not suffer any loss but he insisted on abusing the PGIMER and its doctors as cheats and criminals and this stopped the functioning of the CT room for nearly half an hour.

16. From analyzing the evidence of the parties, it emerges that the medicine Contrapaque of the patient (respondent/complainant) was put in the injector but the same was not used for the reasons, indicated in the foregoing paras, but, as admitted by the respondent/complainant itself, he was offered medicine Contrapaque, belonging to the next patient, which he did not accept. There is hardly any doubt that there is great rush for such services in the PGIMER, Chandigarh, and the staff and doctors are tremendously under pressure to carry out their duties. When the sealed bottle of medicine Contrapaque was offered to the respondent/complainant, he ought to have received the same, but he created hindrance in the functioning of the Institute by saying that this was being done with every patient. Undoubtedly, the respondent/complainant could not level such allegations qua other patients without any evidence. The appellant/Opposite Party has specifically averred that it even offered him (respondent/complainant) the price of the medicine, in question, at the time of final hearing of the complaint before the District Forum, but he did not agree to the same. The respondent/complainant has not specifically controverted the pleas put forth by the appellant/Opposite Party in its written statement, by filing replication or during arguments before the District Forum.

17. From the position, explained above, it is evident that the medicine was put in the injector but the same was not used as contrast CT scan was not required. While the appellant/Opposite Party has submitted that this is done as a practice but nevertheless, it is a deficiency on the part of the appellant/Opposite Party vis-à-vis the respondent/ complainant. At the same time, in our opinion, when the appellant/Opposite Party offered the medicine to the respondent/complainant then and there, there was no reason for the respondent/complainant to precipitate the issue further. As submitted by the appellant/Opposite Party, the conduct of the respondent/complainant even led to disruption of functioning of Radiology Department for some time. The District Forum, thus, rightly ordered the refund of Rs.581.13Ps, being the price of the medicine, in question. It is in evidence that, before filing of the complaint, the appellant/Opposite Party had offered sealed bottle of medicine to the respondent/complainant. Since the respondent/complainant himself did not agree to accept the sealed bottle of medicine, when the same was offered, in our opinion, the District Forum did err in granting compensation to the respondent/complainant to the tune of Rs.2,000/-. The interest awarded by the District Forum, in failure to comply with the order passed by it (District Forum) within the stipulated period, at the rate of 18% per annum also seems to be on the higher side. The same also needs to be reduced to 12% per annum. Therefore, the order impugned, needs to be modified to the extent, indicated above.

18. No other point, was urged, by the Counsel for the respondent/complainant.

19. For the reasons recorded above, the appeal filed by the appellant/Opposite Party, is partly accepted, with no orders as to costs. The impugned order, passed by the District Forum, is modified, to the extent, indicated hereunder;

(i) The appellant/Opposite Party is directed to refund the amount of Rs.581.13Ps to the respondent/complainant, as directed by the District Forum, in Para 13[a] of the impugned order.

(ii) The amount mentioned in Clauses (i) shall be paid by the appellant/Opposite Party, to the respondent/complainant, within a period of 45 days, from the date of receipt of certified copy of this order, failing which, the same shall carry interest @12% per annum, from the date of filing the complaint i.e. 17.04.2013, till realization, instead of @18% per annum, as awarded by the District Forum, in Para 14 of the order impugned.

(iii) All other directions given, and reliefs granted by the District Forum, in the impugned order, subject to the modification, aforesaid, which are contrary to and, in variance of this order, shall stand set aside.

20. Certified Copies of this order be sent to the parties, free of charge.

21. The file be consigned to Record Room, after completion.