R.S. Sharma, J. (President) - (1.) This appeal is directed against the order dated 9.7.2014, passed by the District Consumer Disputes Redressal Forum, Raipur (C.G). (henceforth "District Forum" for short), in Complaint Case No. 94/2011. By the impugned order, learned District Forum, has dismissed the complaint of the appellant (complainant). Briefly stated the facts of the complaint of the appellant (complainant) are that appellant (complainant) is doing agriculture work as well as labour work and earning livelihood of his family. The respondent No. 1 (O.P. No. 1) is Director and a doctor of Ekta Institute of Child Health, Near Ram Mandir, Shanti Nagar, Raipur (C.G.). The respondent No. 2 (O.P. No. 2) is a surgeon and respondent No. 3 (O.P. No. 3) is Eye Specialist in Ekta Institute of Child Health, situated near Ram Mandir, Shanti Nagar, Raipur. On 19.2.2009, Ku. Jaya, daughter of the appellant (complainant) was suffering from vomiting and the appellant (complainant) shown her at the clinic of Dr. Pukhraj Bafna and after examination, Dr. Pukhraj Bama and Dr. Gandhi advised the appellant (complainant) to take Ku. Jaya to Ekta Institute of Child Health, for her treatment. On 19.2.2009, Ku. Jaya was admitted in Ekta Institute of Child Health, where respondent No. 1 (O.P. No. 1) got conducted various tests and MRI was also conducted in MRI Diagnostic Institute, Raipur, which gave it is report. After perusing the above report, the respondent No. 1 (O.P. No. 1) informed the appellant (complainant) that there is water in the head of Ku. Jaya and her operation is required to be conducted. The appellant (complainant) requested the respondent No. 1 (O.P. No. 1) that earlier Ku. Jaya was admitted in Ekta Institute of Child Health, where first operation was conducted by Dr. Anil Dubey, therefore, this operation be also conducted by Dr. Anil Dubey, but the respondent No. 1 (O.P. No. 1) refused his request by saying that we cannot call Dr. Anil Dubey and the operation would be conducted by Dr. Rajesh Jain. The daughter of the appellant (complainant) was admitted with respondent No. 1 (O.P. No. 1) on 19.2.2009 and the appellant (complainant) has completed all the formalities, which was told by the respondent No. 1 (O.P. No. 1) and respondent No. 2 (O.P. No. 2). The daughter of the appellant (complainant) was admitted in Ekta Institute of Child Health, Raipur from 19.2.2009 to 3.3.2009. During this period, as per the instructions of the respondent No. 1 to 3 (O.P. Nos. 1 to 3), the appellant (complainant) purchased the medicines and provided the same to the respondent No. 1 to 3 (O.P. Nos. 1 to 3) and the appellant (complainant) also deposited the amount with them as per their instructions. As per instructions of the respondent No. 1 (O.P. No. 1), on 23.2.2009, at about 5.00 p.m. the operation of Ku. Jaya, was conducted by the respondent No. 2 (O.P. No. 2) and the appellant (complainant) was assured that the operation was successful and in future she will not suffer any problem. After sometime of conducting operation, Ku. Jaya came in consciousness and she told that she was not able to see anything. Then the appellant (complainant) immediately drew attention of the respondent No. 1 (O.P. No. 1) and respondent No. 2 (O.P. No. 2) towards above fact. The respondent No. 1 (O.P. No. 1) and respondent No. 2 (O.P. No. 2) did not give their response and told that at present Ku. Jaya has not come in state of consciousness and we will see later on . In the meantime, Ku. Jaya was making again and again complaint that she is not able to look anything and there is darkness but the respondent Nos. 1 to 3 (O.P. No. 1 to O.P. No. 3) did not give their attention on the problem of Ku. Jaya. Thereafter the respondent No. 3 (O.P. No. 3) examined the eye of Ku. Jaya but she could not see anything. The respondent No. 3 (O.P. No. 3) did not give attention towards blindness of Ku. Jaya, then the appellant (complainant) requested them that eye of Ku. Jaya be examined from any other doctor for which he is ready to pay extra fee. The appellant (complainant) also requested the respondent Nos. 1 to 3 (O.P. Nos. 1 to 3) to conduct operation of eye of Ku. Jaya but they did not give response towards request of the appellant (complainant) and they also did not permit the appellant (complainant) to call any other doctor, resultantly Ku. Jaya became completely blind and on 3.3.2009 they discharged her. The appellant (complainant) shown her daughter Ku. Jaya to Dr. Vijay Uikey of Rajnandaon where he informed that during operation, the nerve of Ku. Jaya was pressed due to which she is not able to see anything and she lost her vision. Dr. Vijay Uikey advised the appellant (complainant) to go Vinayak Netralaya, Devendra Nagar, Raipur and on 23.3.2009, the appellant (complainant) shown Ku. Jaya to Vinayak Netralaya, Raipur where on examination it was informed that the nerve was pressed, then Ku. Jaya was shown to Dr. Anand Saxena, Raipur, who instructed and advised the respondent No. 3 (O.P. No. 3) through telephone and directed the appellant (complainant) to take her to respondent No. 3 (O.P. No. 3). The appellant (complainant) again shown Ku. Jaya to respondent No. 3 (O.P. No. 3) and respondent No. 3 (O.P. No. 3) started her treatment and told that to take the medicines, which was being given and Ku. Jaya will become all right, but till date the daughter of the appellant (complainant) is not able to see anything. Due to negligence committed by the respondent Nos. 1 to 3 (O.P. Nos. 1 to 3), the daughter of the appellant (complainant) become blind. The appellant (complainant) spent a sum of Rs. 1,00,000 till date in treatment of his daughter. The respondent Nos. 1 to 3 (O.P. Nos. 1 to 3) committed deficiency in service. The appellant (complainant) sent registered notice on 18.5.2009, which was received by the respondent Nos. 1 to 3 (O.P. Nos. 1 to 3), but in spite of lapse of a long time, they have not paid the amount of compensation. Therefore, the appellant (complainant) filed consumer complaint before the District Forum, and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
(2.) The respondent Nos. 1 to 3 (O.P. Nos. 1 to 3) have file their written statement and averred that the complaint is not maintainable because Hon'ble Supreme Court in their judgment in case of Martin D'souza v/s. Mohd. Ishaq Khan, it is mentioned that until it is proved by the Medical Board that the doctors have not conducted treatment as per their capacity, till then the complaint is not maintainable before District Forum. The present complaint requires elaborate evidence which is not possible in the summary procedure. The appellant (complainant) has filed complaint in his own name and in the title of the complaint it has not been mentioned that the above complaint has been filed by the appellant (complainant) on behalf of his daughter as his guardian. The respondent Nos. 1 to 3 (O.P. Nos. 1 to 3) did not commit any deficiency in service and unfair trade practice, therefore, the complaint is not maintainable before the District Forum. The respondent No. 1 (O.P. No. 1) obtained Doctors Professional Indemnity Policy from the United India Insurance Company Limited. The appellant (complainant) did not implead the Insurance Company as party in the complaint therefore, due to mis -joinder of the party, the complaint is not maintainable. The respondent No. 1 (O.P. No. 1) obtained Insurance Policy No. 1905006/46/08/38/000000012, which is valid for the period from 28.5.2008 to 27.5.2009. For the first time, the operation of the daughter of the appellant (complainant) was conducted when she was only of 8 months and since birth she was suffering from Hydrocephalus disease, for which operation was conducted. In this disease due to obstruction in flowing of water of brain (C.S.F.), there is swelling in the lateral ventricle for which Shunt operation is conducted and water of brain is shifted to stomach. Prior to 10 days of coming to respondent Nos. 1 to 3 (O.P. Nos. 1 to 3), the patient was unconscious. The unconsciousness was due to increase in pressure of water of brain. Due to said pressure, there is possibility to dry up of nerve of eye. In the Shunt operation, a tube of 1.5 -2 mm is used and one end of the tube is casted in lateral ventricle of brain and the second end of the tube is casted in stomach. Technically through Shunt, there is no possibility of damage to nerve of eye or pressing of the nerve. The respondent Nos. 1 to 3 (O.P. Nos. 1 to 3) have clearly told the appellant (complainant) that Dr. Anil Dubey is not empanelled for their hospital, therefore, it is not possible for them to call Dr. Anil Dubey for conducting operation of Ku. Jaya and Dr. Rajesh Jain, respondent No. 2 (O.P. No. 2), is an expert and trained Neurosurgeon, therefore, operation of Ku. Jaya, will be conducted by the Dr. Rajesh Jain, respondent No. 2 (O.P. No. 2). The above facts were accepted by the appellant (complainant) and he gave his consent for conducting operation. The respondent Nos. 1 to 3 (O.P. Nos. 1 to 3) have also told the appellant (complainant) that in their hospital, the operation for this type of disease is conducted by Neurosurgeon and Dr. Rajesh Jain, respondent No. 2 (O.P. No. 2) is an expert and trained Neurosurgeon, therefore, the operation was conducted by him for which father of the appellant (complainant) gave consent. The respondent Nos. 1 to 3 (O.P. Nos. 1 to 3) made aware the appellant (complainant) regarding the entire condition and also explained him regarding the condition. After conducting operation, the respondent Nos. 1 to 3 (O.P. Nos. 1 to 3) have advised the appellant (complainant) to show the patient to Dr. Anand Saxena, but the appellant (complainant) did not followed their direction. The appellant (complainant) has unnecessarily made allegations on them. The daughter of the appellant (complainant) was having above disease since birth and the respondent No. 1 to 3 (O.P. Nos. 1 to 3) did not commit any medical negligence in respect of her treatment. In the prescription of Dr. Vijay Uikey, it is not mentioned that during operation the nerve was pressed, due to negligence committed by the respondent Nos. 1 to 3 (O.P. Nos. 1 to 3). The respondent Nos. 1 to 3 (O.P. Nos. 1 to 3) did not commit any medical negligence, therefore, the appellant (complainant) is not entitled to get any compensation from them and the complaint is liable to be dismissed.
(3.) The respondent No. 4 (O.P. No. 4) filed its written statement and denied the allegations made against it in the complaint. Without proving that respondent No. 1 (O.P. No. 1) committed any negligence, the complaint has been submitted, therefore, the complaint is pre -matured against the respondent No. 4 (O.P. No. 4). The respondent No. 4 (O.P. No. 4) did not issue any insurance Policy in the name of Ekta Institute of Child Health, but Professional Indemnity Doctors Policy No. 190500/46/08/33/0000012 for the period from 28.5.2008 to 27.5.2009 has been obtained in the name of Dr. Sanwar Agrawal and if any deficiency in service is proved against Ekta Institute of Child Health, then under the above insurance policy, the respondent No. 4 (O.P. No. 4) is not liable to compensate the appellant (complainant). The patient Ku. Jaya Verma did not pay any premium to the respondent No. 4 (O.P. No. 4) and did not obtain any insurance coverage, therefore, there is no privity of contract between Ku. Jaya Verma and Insurance Company, therefore, Ku. Jaya Verma is not a "consumer" of the respondent No. 4 (O.P. No. 4), therefore, as per provisions of Sec. 2(1)(d) of the Consumer Protection Act, 1986, the complaint filed by the appellant (complainant) is not maintainable and is liable to be dismissed. The appellant (complainant) did not implead Ku. Jaya Verma as party in the complaint, there the complaint is liable to be dismissed due to misjoinder of the party. The respondent No. 4 (O.P. No. 4) did not commit any deficiency in service, therefore, the complaint is liable to be dismissed.;