1. The facts, discerning this case as put forth in the claim, in nutshell, are as under:
2. Mst. Nazia Bibi, the claimant alongwith her husband Babar Ali visited the clinic of Dr Ijaz Hussain Choudhary, the defendant for checking her pregnancy by him. The case of Mst. Nazia Bibi the claimant was normal but the defendant doctor suggested C section operation for delivery of the child. The defendant doctor got admitted Mst. Nazia Bibi in his private hospital and she was operated there on 22.05.2008, when she gave birth to a baby boy. Any how, due to nonavailability of adequate equipment, improper sterilization, in the private clinic of the defendant doctor, the fetus went in to distress due to maconiun staning. Hence, due to negligent and defective service of the defendant doctor, the claimant lost her baby. After the operation, Mst. Nazia Bibi was stitched in unskilled manner due to which the wound got infection causing mixing of blood and pus discharged from the wound for ten days, when the defendant doctor fitted a drainage pipe in the inner site of the operative part and due to this carelessness and improper treatment, the whole wound had to be reopened. Thereafter, the defendant doctor forcibly discharged Mst. Nazia Bibi from his clinic and recommended her visit to Allied Hospital for further treatment but she was refused to be received in the said hospital due to her serious condition, therefore, Mst Nazia Bibi again contacted with the defendant doctor who admitted her in his private clinic and operated her to rectify the previous mistake. During operation blood was infused to the patient and the donor was declared a chronic patient of Hepatitis C, hence, the claimant has caught the same diseases.
As the wound of the patient could not be healed up despite second operation therefore, the defendant doctor operated her third time without her consent. The claimant Mst. Nazia Bibi remained under treatment of the defendant doctor in his private clinic for more than one month during which the claimant incurred heavy expenses on her treatment but not only that her baby boy died but also that the Mst. Nazia Bibi became a patient of Hepatitis C, due to dishonest, defective services, unfare practice, mismanagement of the defendant doctor hence she has claimed an amount of RS. 428953/- as damages u/s 25 PCPC 2005.
3. Doctor Ijaz Hussain the defendant has vehemently apposed the above said claim by filing his statement of defence, interalia, on the ground that the relationship of "consumer" and "service provider" does not exist in between him and the patient as he does not even know Mst. Nazia Bibi by face.
4. As the matter involved intricate questions of law and facts, to be resolved after record of evidence of the parties, therefore, they were required to produce their evidence in support of their respective versions.
5. In her evidence, Mst. Nazia Bibi, the claimant got recorded her statement as PW-1, through her affidavit EX-PW1/1, who has also submitted a copy of legal notice dated 06.11.2008, as Mark "A", TCS receipt EX-P1, postal receipt EX-P2. Mst Nazia Bibi the claimant also produced Muhammad Tufail as PW-2, through his affidavit EX-PW2/1. On 24.01.2009, the claimant's counsel Mr. Aslam Sultani tendered receipts of Qadri Medical Store dated 22.05.2008, EX-P3 to5, receipts dated 24.05.2008.
EX-P6 to P7, receipts dated 02.06.2008, EX-P8 to P9, receipt dated 23.05.2008, EX-P10, cash memos dated 12.06.2008, Mark "A" and "B", two photo snaps as Mark "C" and "D", newspaper Lamha Edition as Mark "E", newspaper Express as Mark "F", newspaper Khabrain as Mark "G" and closed her evidence. In rebuttal, Dr Ijaz Hussain defendant himself appeared DW-1, whereas, he produced Zameer Hussain as DW-2. In his documentary evidence, the defendant doctor has adduced the copy of application for registration of case EX-D1, copy of petition u/s 22AB CrPC EX-D2. During his cross examination Dr Ijaz Hussain DW1 was also made to produce the copy of the complaint EX-D3, copy of affidavit dated 09.09.2008, EX-D4, discharge slip EX-D5, prescription slip EX-D6, receipts EX- D7 to D8, refer slip EX-D9, stamp and sign as Mark A/1, visiting card Mark "A/2", newspaper HerLamha as Mark "A/3", two photo snaps of family hospital as Mark "A/4" Mark "A/5", photo copy of FIR as Mark "A/6", photo copy order sheet Illaqa Magistrate as Mark "A/7", photo copy of legal notice as Mark "A/8",
6. The only controversial and pivotal point to be resolved in this case is whether or not the relation ship of "Consumer" and "Service Provider" exists in between Mst. Nazia Bibi and Dr Ijaz Hussain Ch?.
7. In this regard, I have care fully and inestimably, critically appreciated the evidence as produced by the parties as under;
8. From the contents of the affidavit of Mst. Nazia Bibi, it transpires that she went to the private clinic/hospital of Dr Ijaz Hussain for a medical checkup when she was pregnant and her case was normal but that Dr Ijaz Hussain defendant did her caesarian operation, that due to non availability of Oxygen and Mismanagement, her newly born baby boy died, that her C- operation was conducted without the presence of Doctor of anesthesia, that she was operated for the third time due to defective service of the doctor, that wrong blood group was 4 infused in her body without checking it due to which she caught Hepatitis C, that her first operation was conducted on 22.05.2008, she remained admitted in the defendant's clinic for 30/35 days whereafter she remained under his treatment for 5/7 months. In cross examination Mst Nazia Bibi, the claimant has stated that she is the resident of Jameel Park Faisalabad, that the distance of the house from clinic of Dr Ijaz Hussain is 1-2 Miles that there are several small hospitals in between her place of residence and doctor's clinic but that she has not preferred her treatment from those hospitals. She does not know the name of clinic of Dr Ijaz Hussain the defendant. She further disclosed that she went to the clinic of Dr Ijaz Hussain for her operation first time on clinic on 22.05.2008. She further admitted that she was handed over the admission slip on the day when she went there but again said that it was not given to her. She further elaborated that she went to the Allied Hospital after Dr Ijaz Hussain defendant expelled her from his clinic. It also appears from her further cross examination that when her first operation was mismanaged and mishandled she never went to any hospital. It is very strange to note that when she went to the Allied Hospital she was not handed over the out patient slip. She has admitted that Muhammad Tufail PW-2, is her uncle. She has does not have any receipt of admission and discharge from the clinic of the defendant doctor. She has denied to have any link with the Family Hospital on whose instigated the claim is alleged to have been filed. Muhammad Tufail PW2, has also stated that Mst Nazi Bibi was operated in the private hospital of Dr Ijaz Hussain at Shadab Colony on 22.05.2008, that Mst Nazia Bibi remained admitted in the said hospital/clinic for 3/35 days during which she was operated thrice. In cross examination.
M Tufail PW2, confuted Mst Nazia Bibi that he is her uncle. Malik Muhammad Nadeem PW3, was produced on 06.09.2009, who tendered his affidavit EX-PW3/1, but he has not been produced for his cross examination lest the truth should be disclosed. Mark "A", is the copy of the legal notice showing that such legal notice was delivered through TCS receipt EX-P1, on 06.11.2008. Death certificate of the newly born baby has not been produced in the claimant's evidence. There is no receipt in claimant's evidence which was signed by Dr Ijaz Hussain for the admission/discharge of the claimant in his hospital/clinic EX-P3, to EX-P10, are the medical receipts of medicines allegedly purchased by the claimant by her husband from Qadri Medical Store but such receipts do not indicate whether the medicines mentioned were utilized by Dr Ijaz Hussain or not.
9. From the statement of Dr Ijaz Hussain DW-1, vide affidavit EX-DW1/1, it appears that the claimant has lodged this false claim on against him being goaded by the management of the Family Hospital effectuate at Munir Abad St No. 1, Faisalabad as the claimant has no admission slip, discharge slip, medical prescription, receipt of money, reference slip under his sign and stamp.
Zameer Hussain DW2, is the patient of Dr Ijaz Hussain the defendant, deposed that he remain under treatment of Dr Ijaz Hussain the defendant in the months of May and June 2008, and that he used to visit Ijaz Clinic on different days during the said period but that he never saw Mst Nazia Bibi in the said clinic. The documents EX-D1 to D4, are sufficient to show that Dr Ijaz Hussain the defendant has serious nature of criminal litigation with Muhammad Taqi Shah and Miss Marrium Batool in various criminal courts at Faisalabad since May and June 2008, onward vide documents Mark "A" EX-D5to D9 are the specimens of discharge slip prescription slip receipts of Ijaz Clinic under the name of the doctors.
10. From the above said facts and circumstances as squeezed from the evidence led by the parties, following points are crystal clear to my entire satisfaction; a. The claimant has been unable to produce the death certificate for her newly born baby boy or admission and discharge slips from the Ijaz Clinic under the sign and stamp of the defendant doctor, hence the claim seems to have been lodged on mere conjectures and surmises; b. The claimant has stated that she was operated by the defendant doctor for the first time on 22.05.2008, but it is very strange to note that she never got her medical checkup from any other doctor of hospital despite that several complications arose in her wound which allegedly became sceptic and despite that she lost her baby boy in the Ijaz clinic preferred her further two operations from the defendant doctor in the same clinic which is unimaginable; c. The claimant has alleged that she went to Allied Hospital after she was referred by Dr Ijaz Hussain but Allied Hospital having its own rules of business issued no out door ticket of the patient as such document has also not been produced in the claimant's, evidence showing that she has deposed falsely in order to support her under hand design, to injure the repute of the doctor defendant; d. The claimant has been unable to produce any corroborative statement in support of her version as Muhammad Tufail PW2, is her close relative therefore, interested witness and Malik Muhammad Nadeem has not been produced for subjecting him to cross examination therefore, it is presumed that had he been produced for such purpose, he might not support the claimant's version/stand; e. From the evidence by the defendant doctor it transpires that he has serious nature of criminal litigation with the management of Family hospital almost from the same period when the claimant alleged her admission in the defendant's hospital raising apprehension that said management of the Family Hospital has instigated the claimant to bring this false claim against the defendant; f. From the document EX-D5 toD8, it appears that Dr Ijaz Hussain the defendant is in the habit of issuance of admission slip discharge slip prescription slip and receipts etc, hence, it would be probability on probability to assume that the defendant doctor would not have issued such slip/receipts to the claimant had she been admitted in his clinic; g. The claimant has produced the receipts of medicine/operation equipment from Qadri Medical Store dated 22.05.2008, 23.05.2008 and 02.06.2008, showing that the operation equipment was purchased on 22.05.2008 only and such equipment was never purchased again for further two operations as alleged by the claimant in her evidence, hence, the claimant's stand is not believable in this regard.
11. Apart from what has been discussed above, the cause of action accrued to the claimant from her first operation allegedly conducted by the defendant doctor on 22.05.2008, but the claim has been lodged on 19.11.2008, hence, the same is hopelessly barred by law of limitation u/s 28 (4) PCPA 2005,
12. The upshot of the above said whole discussion is that the claim is false as relationship of consumer/service provider does not exist in between the parties. Accordingly by the claim merits dismissal and is hereby dismissed. File be consigned to the record room after its due completions.