w w w . L a w y e r S e r v i c e s . i n

Dharam Bir Bhatia v/s Dr. Anjali Dave Tiwari

Company & Directors' Information:- S N BHATIA AND CO PRIVATE LIMITED [Active] CIN = U99999DL1976PTC008293

Company & Directors' Information:- DHARAM (INDIA) PRIVATE LIMITED [Active] CIN = U74899DL1989PTC036745

Company & Directors' Information:- BHATIA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U70109DL1986PTC024822

Company & Directors' Information:- ANJALI PVT LTD [Strike Off] CIN = U18101WB1977PTC031005

Company & Directors' Information:- ANJALI AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1978PTC008838

Company & Directors' Information:- DHARAM CORPORATION PRIVATE LIMITED [Active] CIN = U52390GJ2013PTC076554

Company & Directors' Information:- K. BHATIA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U51420MH1960PTC011708

    Revision Petition Nos. 4294 of 2007, 1146 of 2008

    Decided On, 19 October 2015

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Appearing Parties: Nemo, Ganesh Gupta, Sailesh Prakash Sharma, Rajmangal Kumar, S.K. Dubey, Advocates.

Judgment Text

These two revision petitions, RP No. 4294/2007 and RP No. 1146/2008, have been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 27.11.2007, passed by the Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench at Jodhpur (for short ‘the State Commission’) in two appeals, Appeal No. 570/2007, 'Dharam Bir Bhatia versus Dr. Anjali Dave Tiwari,' and Appeal No.604/2007 'Dr. Anirudha Aggarwal vs. Dharam Bir Bhatia', vide which appeal No. 570/2007 was dismissed, but appeal No. 604/2007 was partly accepted and the order passed by the District Forum, Jaipur on 07.03.2007, allowing a sum of Rs.28,000/- to the complainant was modified and the said sum was revised to Rs.17,000/- including Rs.3,000/- as cost of litigation.

2. Briefly stated, the facts of the case are that one Dharam Bir Bhatia filed the consumer complaint in question, saying that for the dental treatment of his dependant daughter Nitu, he took advice from OP-1/respondent Dr. Anjali Dave Tiwari and then took her to respondent-2/OP-2 Dr. Anirudh Agarwal, who started the treatment in May 2003 and continued till August 2005. He paid different sums of money to OP-2 from time to time and in total, he paid a sum of Rs.14,000/- to him. However, the treatment given by the OP-2 to his daughter was incomplete, insufficient and deficient, due to which his daughter had to undergo a lot of pain and harassment. Her health deteriorated day by day and physical growth was also affected. It has been alleged that Ms. Nitu became like a skeleton due to the gross negligence of OP-2. There was, therefore, deficiency in service and negligence on the part of the Doctor. It has also been alleged that the conduct of OP-2 was at the instigation of OP-1 and there was a conspiracy between the two. The complainant was, therefore, entitled for compensation from both the doctors. The complainant also stated that if the said Doctors were not capable of treating his daughter, they should have stated so in the very beginning, rather than playing with her life.

3. The complaint was resisted by OP-1 Dr. Anjali Dave Tiwari by filing reply before the District Forum, saying that she had not charged any amount as fees for consultation and advice given by her to the complainant. The OP-2, Dr. Anirudh Agarwal stated that when the patient was brought before him, he found her teeth to be in disorder and carrying some bulge, and after seeing them, he expressed a view that the chances of fixing up the teeth at that age were very few. However, he started the treatment with the consent of the patient.

4. The District Forum, after considering the averments of the parties, dismissed the complaint against OP-1/respondent no. 1 doctor, saying that Ms. Nitu was not the client of OP-1 Doctor and she had not charged any fee from her. However, the District Forum allowed the complaint against the OP-2 Doctor and ordered him to pay a compensation of Rs.25,000/- on account of mental agony and Rs.3,000/- as cost of litigation, the total being Rs.28,000/-. Being aggrieved against this order, two appeals were filed before the State Commission, one by the complainant and the other by OP-2, Dr. Anirudh Agarwal. Both the appeals were decided vide impugned order dated 27.11.2007. The appeal of the complainant was dismissed, but the appeal filed by OP-2 Doctor was partly allowed and the amount of compensation for mental agony was reduced from Rs.25,000/- to Rs.14,000/-. Being aggrieved against this order, both the complainant and the OP-2 Doctor are before us by way of the present revision petitions.

5. During hearing before us, written submissions were filed by the complainant as well as both the OP Doctors. The complainant submitted a written request, seeking permission to file synopsis of his arguments, copies of documents, other related material, copies of judgments and requested that he should be exempted from personal appearance. His request was granted vide order dated 12.12.2011 of this Commission. Further, in RP No. 1146/2008, final orders were passed by this Commission on 01.04.2008, vide which the said petition of OP-2/respondent-2 was ordered to be dismissed and the impugned order dated 27.11.2007 was upheld. However, the OP-2 Doctor challenged the same before the Hon’ble Supreme Court of India in Civil Appeal No. 2778/2009 which was disposed of on 15.04.2009 by directing that the revision petition filed by the OP-2 should be heard alongwith revision petition filed by the complainant RP No. 4294/2007. The Hon’ble Apex Court also made it clear in their order that they had not expressed any opinion on the merits of the case. Both the revision petitions are being decided together by this order.

6. In his written arguments dated 13.07.2009, the complainant stated that the order passed by the State Commission was not based on proper evidence and hence, it should be set aside. It has also been stated that the complainant had suffered huge loss because of his frequent trips to Delhi in connection with the present case. In his further written arguments dated 17.03.2012, filed by the complainant in response to this Commission’s order dated 12.12.2011, it has been stated that OP-2 Doctor had extracted huge amount of Rs.15,000/- from the patient. He started the treatment without valid consent from her. It has been alleged that during treatment, the teeth of the complainant were bound tightly/strongly with iron braces and hence, she could not eat and drink properly which blocked her growth and hence, spoilt her life. The Doctor had left the treatment of Ms. Nitu incomplete, without removal of iron bracket from the teeth, causing lot of pain to her and hence, it was a case of medical negligence and deficiency in service. Another Doctor, Dr. Rajesh Agarwal removed iron braces from Ms. Nitu only on 16.03.2007 in compliance with the order dated 07.03.2007 passed by the District Forum. The complainant also stated that being the parent of the child, he could seek compensation on her behalf and hence, he was a consumer within the meaning of section 2(1)(d)(ii) of the Act. The patient possessed good health before her treatment, but her condition worsened after the said procedure. She had, therefore, suffered huge mental agony and harassment. The complainant prayed that the revision petition filed by the OP-2 Doctor, RP No. 1146/2008 should be dismissed with cost and order dated 01.04.2008 passed by this Commission should be sustained. The complainant also stated that further compensation should be awarded to him for acute mental agony to him and to his daughter, and order should be passed to reimburse them medical and other expenses for all kinds of tests and conveyance charges etc.

7. In her written submissions, the OP-1 Dr. Anjali Dave Tiwari stated that both the consumer fora below had decided in her favour and hence, the petition against her should be dismissed. The OP-1 also stated that the complainant himself had also not made any prayer against her and had confined his request for compensation against OP-2 only. She was, therefore, being dragged unnecessarily in the matter, leading to humility and harassment to her.

8. In the written synopsis filed on behalf of OP-2 Dr. Anirudh Agarwal, it has been stated that OP-2 was a reputed orthodontist, having received degree in dental surgery from reputed institutions and was also working as a Professor in Rajasthan Dental College at Jaipur. The OP-2 stated that the treatment of Ms. Nitu, daughter of the complainant, was started on 05.05.2003 and surgical exposure was done and brackets were bonded and loose ligature wire placed to main arch wire. On the date of next appointment, i.e., on 12.05.2003, her healing was found to be satisfactory. Thereafter on 10.06.2003, having regard to the condition of healing, 28 gm extrusive force was used for the first time. The patient continued her treatment and came to his clinic on a number of subsequent dates mentioned in the revision petition. The OP also stated that except on 05.05.2003, when surgical exposure was done, no pain-killer or any other medicine was given to Ms. Nitu. On 23.02.2004, she was given appointment for 20.03.2004, but she never turned up on that date. Thereafter on 18.10.2004, the complainant contacted the OP-2 and stated that the treatment of her daughter should be continued and he took responsibility that she would not misbehave in the clinic and would be regular in her appointments. The OP-2 Doctor examined Ms. Nitu on 23.10.2004 and found that the bracket put in her teeth and the elastic thread were missing. The OP Doctor placed bracket again and treatment was again started using 28 gm extrusive force. Ms. Nitu did not come, however, for treatment on the next date of appointment, i.e., 20.11.2004 and even on reminding over phone, she never came back to complete her treatment. Finally on 21.06.2005, she informed the OP-2 Doctor on phone that she was discontinuing her treatment from him. However, she again came to OP-2 after several months and asked him to continue the treatment. The OP-2 found on examination that she had been treated by some other doctor also in the meantime. The OP-2 doctor asked her to provide details of the treatment taken from the other doctor, but she refused to do so. On the other hand, the consumer complaint was filed on 13.06.2007 against the Doctors. The OP-2 stated that he had given treatment as per the guidelines provided by the orthodontic art and science and there had been no negligence on his part. He has also produced expert opinion from the Indian Dental Association says that there was no negligence on his part in treating the patient. Since he had treated the patient with reasonable degree of care, the revision petition filed by the complainant, RP No. 4294/2007, should be dismissed and the revision petition filed by him, RP No. 1146/2008, should be allowed and the complaint should be dismissed.

9. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. In so far as the complaint against OP-1 Dr. Anjali Dave Tiwari is concerned, the complainant himself has stated that he just took advice from her, after which he contacted the OP-2 for treatment. There is nothing on record to show that any fee was charged by OP-1 doctor for such consultation and advice, neither any treatment was given by OP-1. We, therefore, tend to agree with the findings of the consumer fora below that no cause of action is made out against OP-1 and hence, the complaint has been rightly dismissed against the said Doctor.

10. The basic point for our consideration is whether during treatment given to the daughter of the complainant, the OP-2 doctor has committed any negligence or not. As per record, the treatment was started on 05.05.2003 when surgical exposure was done and orthodontic treatment with braces and wires were given. Thereafter, the patient attended the clinic of OP-2 Doctor on a number of occasions. The contention of OP-2 Doctor that no medicine or pain-killer was given to her except on 05.05.2003, has not been controverted by the other party anywhere. On the other hand, the expert opinion given by the IDA, Jaipur branch, signed by three different Doctors has been placed on record, saying that there was no negligence on the part of Dr. Anirudh Agarwal in the treatment of the patient in question. These three doctors are Dr. N.K. Patnaik, Principal, Mahatama Gandhi Dental College, Jaipur, Dr. A.K. Tandon, Principal, Rajasthan Dental College, Jaipur and Dr. D.K. Gupta, Professor and HOD, Government Dental College, Jaipur. In the expert opinion, jointly signed by these three doctors, it has been stated as follows:-

'1. The treatment given by Dr. Anirudh Agarwal is as per the guidelines given in Medical Science which involves surgical exposure of impacted canine and orthodontic treatment with braces and wires.

2. This treatment is a long term treatment with an average duration of 2 years, involving regular monthly visits. Additional factors like increased age, impacted canine and missing appointments can prolong treatment duration.

3. The treatment does not cause any major discomfort, change in lifestyle or eating habits of the patient. However mild to moderate discomfort may be seen for 24 – 48 hrs after the wire is tightened. It is not possible for any patient to be on deathbed or bedridden due to braces.

4. The forces applied are within the physiological limits. The wire has to be activated or tightened every month as the force level declines over a period of 3 – 4 weeks after which the wire has to be tightened again. It is not scientifically possible for the wire to have any force after a span of a month or two.

5. As per the doctors records the patient missed several appointments for long duration.

The allegations of the patient are not in accordance to Medical science. In our firm opinion there is no negligence on the part of Dr. Anirudh Agarwal.'

11. Further, the State Commission in the impugned order recorded the finding that no affidavit was filed in the present case by the complainant’s daughter to show that she suffered any pain or physical hardship during the treatment. The State Commission also observed that in a case of this kind, when bulged and crucked teeth are put in the right position, the age limitation could be an important factor. It takes less time for treating children under 10 years of age, instead of those of 17 or 18 years or more. During arguments before the State Commission, the complainant was asked whether his daughter could be sent to some specialist to find out whether OP-2 Doctor had committed some negligence, but the complainant refused to get her examined, saying that the braces had been removed by that time. Moreover, the complainant continued with the treatment for many months without any complaint. The findings of the State Commission have also been referred to, in the order dated 15.04.2009 passed by the Hon’ble Apex Court observing that the State Commission conclusively held that there was no medical negligence involved on the part of the OP-2 Doctor. The State Commission, however, ordered that the money paid by the complainant, i.e., Rs.14,000/- for treatment to OP-2 Doctor should be refunded to him along with cost of Rs.3,000/-.

12. The subject of medical negligence has been discussed in a catena of landmark judgments given by the Hon’ble Apex Court and this Commission from time to time. Relying on the famous Bolam case, 'Bolam vs. Frien Hospital Management Committee' [reported in (1957) 1 WLR 582], it has been held that a doctor is not guilty if he has acted with reasonable degree of skill and care and adopted practice, considered proper by a responsible body of medical men, skilled in that particular art. The same view has been held in many other judgments li

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ke 'Jacob Mathew vs. State of Punjab & Anr.' [reported in (2005)6SCC1], 'Poonam Verma vs Ashwin Patel [(1996) 4 SCC 332],' and Kusum Sharma & Ors. vs. Batra Hospital & Medical Research Centre & ors. [reported in (2010) 3 SCC 480], etc. 13. Based on the overall facts and circumstances of the case, it is crystal clear that the allegation of medical negligence against the OP-2 Doctor is not proved by any cogent evidence or material on record. He is a qualified doctor in his profession and the expert opinion given by three prominent doctors, makes it very clear that the treatment given to the patient was in accordance with the accepted principles of medical science. Moreover, the version of the complainant that his daughter suffered a lot during the treatment given by OP-2 and her health was spoilt in a big way cannot be accepted because if it was so, the complainant would have consulted a medical doctor for this purpose. There is absolutely no evidence or pleadings on record to show that the complainant had any consultation with a medical doctor regarding the health condition of her daughter. We, therefore, find no reason to interfere with the well-reasoned orders passed by the State Commission, in the exercise of our revisional jurisdiction, as there is no illegality, irregularity, infirmity or jurisdictional error in the said order. Both the revision petitions are, therefore, ordered to be dismissed. It is also made clear that the sum of Rs.14,000/- and Rs.3,000/- as cost of litigation awarded by the State Commission was not on account of compensation for medical negligence on the part of the said doctor. There shall be no order as to costs.