BEFORE THE HON’BLE DISTRICT CONSUMER

DISPUTE REDRESSAL FORUM, EAST DELHI

Complaint Case No. 234 of 2021

IN THE MATTER OF:

Preeti Sharma & Ors …

Complainant

Versus

Yashoda Super Speciality Hospital & Ors

…Opposite
Parties

Ndoh: 14.01.2025
INDEX

S. No Particulars Pg No.
1. Affidavit of Evidence on behalf of RW-1 1-14
(Dr. Sunil Dagar)
2. Affidavit of Evidence on behalf of RW-2 15-18
(Dr. Namita Nigam Datta)
3. EXHIBIT RW-1/4 19-20
Master Data of Yashoda Super Speciality
Hospitals Pvt. Ltd.
4. EXHIBIT RW-1/5 21-23
Master Data of Yashoda Hospital and
Research Centre Ltd.
5. Proof of Service 24

Through Counsel(s)

RISHI RAJ SHARMA, SONAKSHI SINGH

& KUMAR BHASKAR
Advocates for Petitioner
 E-25, LGF, Jangpura extension,
New Delhi 110014
Mob:9582115697
Email: rarylegal@gmail.com
bhaskar6362@gmail.com

Place: New Delhi

Date:13.01.2025
 BEFORE THE HON’BLE DISTRICT CONSUMER
DISPUTE REDRESSAL FORUM, EAST DELHI

Complaint Case No. 234 of 2021

IN THE MATTER OF:

Preeti Sharma & Ors …
Complainant

Versus

Yashoda Super Speciality Hospital & Ors

…Opposite
Parties

Ndoh: 28.04.2025
INDEX

S. No Particulars Pg No.
1. Written Arguments on behalf of OP No. 1-
2
2. Order dt 21.06.2019 in CC/2657/2018 in
Preeti Sharma & Ors v. Yashoda Super
Speciality Hospital & 4 Ors
3. C.P. Sreekumar v. S. Ramanujam (2009)
7 SCC 130
4. Shilpa Khanna v. Shree Jeewan Hospital
& Ors, Or dt 12.09.2023 passed by
Hon’ble State Commission
Through Counsel(s)

RISHI RAJ SHARMA, SONAKSHI SINGH

& KUMAR BHASKAR
Advocates for OP No. 1-2
E-25, LGF, Jangpura extension,
New Delhi 110014
 Mob:9582115697
Email: rarylegal@gmail.com
Place: New Delhi
Date:28.04.2025
BEFORE THE HON’BLE DISTRICT CONSUMER
DISPUTE REDRESSAL FORUM, EAST DELHI

Complaint Case No. 234 of 2021

IN THE MATTER OF:

Preeti Sharma & Ors …

Complainant

Versus

Yashoda Super Speciality Hospital & Ors

…Opposite
Parties

WRITTEN ARGUMENTS ON BEHALF OF OP NO. 1-2

MOST RESPECTFULLY SHOWETH:

1. That the present complaint has been filed against OP No.

1-5 alleging medical negligence and deficiencies in
services rendered by them to Complainant No. 1 and
seeking compensation of Rs. 30 lacs for Complainant No.
1, Rs. 20 Lacs for Complainant No. 2, and Rs. 15 Lacs
each for Complainant No. 3-4.

A. COMPLAINANT NO. 2-4 ARE NEITHER

‘CONSUMER’ NOR ‘COMPLAINANT’ AS PER THE
CONSUMER PROCTECTION ACT, 2019.

2. Throughout, the Complaint, Complainants have nowhere

averred that any services were rendered by any OPs to
 Complainant No. 2-4. It is alleged that Complainant No. 1
has undertaken medical treatment from OP No. 1
Hospital and OP No. 2 Doctor, however, no medical
treatment or any other services were availed by OP No. 2-
4 ever. Further, no consideration was ever paid by
Complainant No. 2-4 to OPs for the services availed by
Complainant No. 1 as is evident from the cash bills raised
by OP No. 1 Hospital. [See Annexure R-1/ 5 @ pg no,
302-324] & Annexure R-1/3 @pg no. 113-122]. These
cash bills clearly show that these were raised only on
Complainant No. 1 and duly paid by Complainant No. 1
only.

3. As such, Complainant No. 2-4 do not fall within the

definition of ‘consumer’ as per section 2(7)(ii) of the
Consumer Protection Act, 2019 (CPA, 2019). The
relevant extract of the statute is reproduced below:

2(7)(ii) hires or avails of any service for a consideration

which has been paid or promised or partly paid and partly
promised, or under any system of deferred payment and includes
any beneficiary of such service other than the person who hires
or avails of the services for consideration paid or promised, or
partly paid and partly promised, or under any system of deferred
payment, when such services are availed of with the approval of
the first mentioned person, but does not include a person who
avails of such service for any commercial purpose.

4. Further, Complainant No. 2-4 also do not fall within the

definition of ‘Complainant’ as per section 2(5) of the
Consumer Protection Act, 2019 (CPA, 2019). The
relevant extract of the statute is reproduced below:
“(5) complainant means—
 (i) a consumer; or
(ii) any voluntary consumer association registered under
any law for the time being in force; or
(iii) the Central Government or any State Government; or
(iv) the Central Authority; or
(v) one or more consumers, where there are numerous
consumers having the same interest; or
(vi) in case of death of a consumer, his legal heir or
legal representative; or
(vii) in case of a consumer being a minor, his parent or
legal guardian;”

Therefore, Complainant No. 2-4 could only have locus to

institute the present Complaint as legal heirs of
Complainant No. 1, if case of death of Complainant No.
1, however, this is not the case in the present Complaint.

B. COMPLAINT IS BARRED BY LIMITATION

5. That the gravamen of the allegations made by

Complainants is that there was a delay in diagnosis of
CKD-5 (chronic kidney disease) of Complainant No. 1.
The Kidney Function Test of Complainant no. 1 was done
on 20.06.2018, the provisional diagnosis of CKD-5 was
made on 23.06.2018 and the final diagnosis of CKD-5, as
is evident from discharge summary, was on 27.06.2018.
However, the present consumer complaint was filed only
in May 2021. Therefore, the same is time barred as per
section 69 of the CPA, 2019.

C. YASHODA SUPER SPECIALITY HOSPITAL,

KAUSHAMBI IS DISTINCT FROM YASHODA
HOSPITAL AND RESEARCH CENTRE, NEHRU
NAGAR
6. That the Yashoda Super Speciality Hospital, Kaushambi
located at H-1, Kaushambi, near Dabur Chowk,
Ghaziabad U.P is different and distinct from Yashoda
Hospital and Research Center, Nehru Nagar located at
IIIrd-M, Nehru Nagar, Ghaziabad, U.P 201001. Both
these hospitals have independent, distinct and separate
administration & management as well as
functioning/accounting as well as the hospital
registrations with CMO-Ghaziabad.

7. That management of Yashoda Super Speciality Hospital,

Kaushambi is under private limited company called
Yashoda Super Speciality Hospital Pvt. Ltd. (CIN
U85110UP2019PTC160386) [See Exhibit RW-1/4] and
management of Yashoda Hospital and Research Center,
Nehru Nagar is under public limited company called
Yashoda Hospital and Research Center Ltd. (CIN
UP73100UP1988PLC163252) [See Exhibit RW-1/5].
That both these companies have a distinct set of directors,
shareholders, employees, doctors etc. Further, both the
Hospitals have different registration with CMO,
Ghaziabad. That any medical negligence committed by
one of the Hospitals or doctors cannot be vicariously
attributed to another. The scheme of demerger of both the
above-mentioned companies had been duly approved by
Regional Director, Northern Region (NR), MCA. [See
Exhibit RW-1/3]
 8. That all the allegations of medical negligence levelled by
the complainants are against Yashoda Hospital and
Research Center, Nehru Nagar or its doctors, namely, OP
No. 3-5. That the Complainant No. 1 did not avail the
services/advice/consultation of Opposite Party No. 1 & 2
post 20.07.2017 and approached OP No. 1 Hospital again
after June 2018 and hence, no medical negligence could
be attributed to OP No. 1-2.

D. NO MEDICAL NEGLIGENCE BY OP NO. 1-2

9. That the gravamen of the allegations made by

Complainants is that there was a delay by doctors/hospitals
in the diagnosis of CKD-5 (chronic kidney disease) of
Complainant No. 1. This is so, it is alleged because of the
fact that doctors treating of Complainant No. 1 failed to
take note of the change in protein levels in the urine. That
urine examination (Urine Routine) report dated 10.07.2017
shows the Protein level at ‘NIL’, the report dated
20.07.2017 shows the Protein Level at ‘TRACE’ and
report dated 13.12.2017 showed the protein level at “++”
and finally, report dated 14.07.2018 showed the protein
level at “+++”.

10.However, the same does not show any medical negligence

on part of OP No. 1-2. Because, Complainant voluntarily,
11.07.2017 from OP No. 1 Hospital when the (Urine
Routine) report dated 10.07.2017 showed the Protein level
at ‘NIL’ and came back only in June 2018 when doctors at
OP No. 1 Hospital correctly and within few days
 diagnosed her as CKD-5. Therefore, alleged non-diagnosis
of the subsequent change in protein levels in the urine is
not attributable to OP No. 1 & 2 as Complainant has
voluntarily changed her hospital and doctors. Without
prejudice to above, it is submitted that change of protein
level in urine test from ‘NIL’ to ‘TRACE’ cannot by itself
lead to conclusion of either necessity of Kidney Function
Test or diagnosis of CKD-5.

11.Complainant No. 1 as a 29-year-old female with 7 weeks

pregnancy Obs. History-G2P1L1 consulted Opposite Party
No. 2 at Opposite Party No. 1 Hospital on 01.07.2017 in
OPD for check-up. Thereafter, again Complainant No. 1
consulted Opposite Party No. 2 at Opposite Party No. 1
Hospital in OPD on 10.07.2017 and was admitted on the
same day with complaints of fever associated with
shivering since day one, back ache on and off mild in
intensity non-radiating under the care of Dr Anshuman
Tyagi (Sr. Consultant-Internal Medicine) & Dr Namita
Nigam (Sr. Consultant-Obstetrics & Gynaecology/
Opposite Party 2) with the informed consent from
Complainant no. 2 (husband
of Complainant No. 1).

12.All relevant investigation was done and the patient

(Complainant No.1) was managed conservatively. The
patient responded well to given treatment and showed
gradual improvement. I say that on 11.07.2017
Complainant No. 1 was discharged on request of
 Complainant No. 2 with duly signed undertaking of
Complainant No. 1 [See Annexure R-1/2 @36] as:

“Hum apne mariz ko paarivarik karan se

discharge karana chahte hain. Hum hospital
services se santusht hain.”

13.Complainant No.1 consulted Opposite Party No. 2 at

Opposite Party No.1 Hospital in OPD for antenatal care on
18.07.2017 & 20.07.2017. On 20.07.2017, as a matter of
routine protocol of ante-natal care, Opposite Party No. 2
advised Complainant No. 1 to get the ANC profile tests
done. Thereafter, the Complainant No. 1 never
visited/consulted with Opposite Party No. 1 Hospital or its
doctors including Opposite Party no. 2.

14.After a span of 11 months the Complainant No. 1 again

visited Opposite Party No. 1 hospital and was admitted on
23.06.2018 under the supervision of Dr. Amit Gupta, after
having complained for nausea, vomiting and weakness and
found to have advanced uraemia and anemia. The patient
was thoroughly investigated and managed conservatively,
and other supportive measures and hemodialysis were
done. The patient was discharged on request on
27.06.2018, with final diagnosis of chronic kidney disease-
5 with CTID and Anemia of Renal Origin. At the hospital
Right IJV Dialysis Catheter was inserted on 23.06.2018
and 1 Unit PRBC (Packed Red Blood Cell) transfused.

15.It is wrong to suggest that the doctors (particularly

Opposite Party No. 2) at Opposite Party No. 1 hospital
 never paid any heed to the complaints of the patient or that
the patient was treated in utmost casual manner as alleged
or at all. That the complete medical record of the treatment
undergone by the patient (Complainant No. 1) at Opposite
Party No. 1 hospital has already been placed on record and
the same is self-explanatory. That thereafter the patient
was discharged on 11.07.2017, she consulted Opposite
Party No. 2 at Opposite Party No.1 Hospital in OPD for
ante-natal care on 18.07.2017 & 20.07.2017. Then, on
20.07.2017, as a matter of routine protocol of ante-natal
care, Opposite Party No. 2 advised Complainant No. 1 to
get the ANC profile tests done. Thereafter, the
Complainant No. 1 never visited/consulted with Opposite
Party No. 1 Hospital or its doctors including Opposite
Party no. 2.

16.Complainant No. 1 has never consulted Opposite Party No.

2 or any doctor at Opposite Party No. 1 hospital for the
said Urine R/M test dated 20.07.2021.

17.Complainant No. 1 had approached OP No. 1 hospital after

11 months in June 2018. Looking at the condition of the
Complainant No. 1, the consulting doctor at OP No. 1
hospital advised for the Kidney Function Test which was
conducted on 17.06.2018 and thereafter the patient
(Complainant No. 1) was hospitalised on 23.06.2018 and
then discharged on 27.06.2018 after proper
investigation/treatment including haemodialysis. The
patient was diagnosed with CKD-5 with CTID. That in
these circumstances, any allegation of deficiency in service
 or medical negligence or unfair trade practice on part of
Opposite Party No. 1 & 2 does not have any merit.

18.The answering OPs ignored the symptoms of kidney

disease by failing to diagnose the same timely. In first
urine examination carried out at OP No. 1 hospital carried
out on 10.07.2017 as per the test report NIL protein was
reported. In the second urine examination conducted on
20.07.2017 the report clearly mentioned TRACE against
protein levels. It is therefore, incorrect to say that OP No. 1
could not diagnose/detect early signs of Kidney
malfunction. However, Complainant No.1 herself sought
discharge from the hospital on 11.07.2017 and did not
further consult with the answering OPs for follow up
treatment. Complainant No. 1 consulted the answering Ops
after 11 months in June 2018, when which time she was
diagnosed with CKD-5 with CTID. Once again, the
Complainant No. 1 discontinued the consultation and
treatment by the answering OPs post her discharge on
27.06.2018. Therefore deny that the answering OPs failed
to diagnose kidney malfunction or were negligent in any
manner whatsoever.

19.That OP No. 1 Hospital detected kidney malfunction in the

first consultation itself, however it was Complainant No. 1
who did not consult the answering OP No. 1 Hospital or its
doctors for follow up treatment. The complete medical
record of treatment/consultation of Opposite Party No. 1
hospital is placed on record and the contents of the same
are self-explanatory and there is no deficiency in service or
 medical negligence or unfair trade practice on part of
Opposite Party No. 1 & 2

20.There is any negligence on part of OP No. 1 & 2, or that

the same are jointly and severally liable for medical
negligence which caused monetary loss, mental or physical
harassment, injury or suffering to the Complainant on
account of deficient medical services as alleged or at all.
That the services rendered by OP Nos. 1 & 2 and their
conduct fell far below that of the standards of competent
practitioners in the medical field. That there is no basis or
expert evidence to suggest that KFT test during pregnancy
itself is usual or normal practice. That Complainant No. 1
did not consult/seek medical advice post 20.07.2017 from
the doctors at Opposite Party No. 1 hospital and had only
again approached the hospital after 11 months in June
2018.

E. COMPLIANANT NO. 1 VOLUNATRILY GOT

HERSELF DISCHARGED FROM OP NO. 1
HOSPITAL

21. That the Opposite Party No. 1 & 2 have already placed on
record the complete hospital record qua the patient
(Complainant No. 1) and the same is self-explanatory.
However, it is pertinent to mention that on 11.07.2017 the
patient (Complainant No. 1) was discharged on request of
Complainant No. 2 [See Annexure R-1/2 @36] with duly
signed undertaking of Complainant No. 1 as:
 “Hum apne mariz ko paarivarik karan se discharge
karana chahte hain. Hum hospital services se santusht
hain.”

F. ACCREDITATION & QUALIFICATIONS OF OP NO.

1&2

22.That both OP No. 1 Hospital is high accredited and OP No.

2 is equally qualified, therefore, it cannot be willy-nilly
believed that their standard of care and expertise offered
by OP No. 1 Hospital and OP No. 2 were below the
average standard of competent practitioners in the medical
field. The qualifications and accreditation of OP No.1 & 2
are described in the paragraphs below.

23.The Opposite Party No. 1, Yashoda Super Specialty

Hospital, offers top of the line medical and clinical
facilities, and also quality education and training. The
hospital has carved a niche in the healthcare industry by
excelling in super specialty treatment, complex surgeries,
international expertise and state of art infrastructure. I say
that the hospital is committed to serve the communities by
the highest quality patient care at affordable prices and is
amongst the best hospitals in Delhi NCR. The hospital has
many milestones, achievements to its credit including
NABH and NABL accreditations in the field of medical
excellence.
 24.That OP No. 2 hold a MBBS, MD (Obstetrics &
Gynaecology) degree and has been practicing medicine
since 2000, in various hospitals as a Lecturer/ Consultant
in Obstetrics & Gynaecology. That OP No. 2 has
professional affiliations to IMA and FOGSI. II and is
working as Consultant- Obstetrics & Gynaecology with
Opposite Party No.1 Hospital, namely Yashoda Super
Speciality Hospital since 2006.

G. OP NO. 1 & 2 ARE NOT PRIVY TO TREATMENT

TAKEN BY COMPLAINANT NO. 1 AT OTHER
HOSPITALS

25.That OP No. 1 & 2 have no knowledge of the alleged

treatment taken by Complainant No. 1 in hospitals like
AIIMS, MAX Vaishali and Apollo. I say that OP No. 1 is
not privy to any treatment taken from hospitals like
AIIMS, MAX Vaishali and Apollo nor was consulted by
Complainant No. 1 for an opinion for any treatment that
she may have had at the aforesaid hospitals.

26.OP No. 1 & 2 are not privy to any treatment / kidney

transplant conducted at Apollo Hospital. Likewise, OP No.
1 is not privy to any consequences suffered by
complainants on account of treatment/kidney transplant as
alleged in the complaint.

H. COMPLAINANTS HAVE ALREADY RECEIVED

REIMBURSEMENT FOR THE EXPENSES OF ALL
THE TREATMENT RECEIVED INCLUDING
 27.That the Complainants have already received
reimbursement for all the expenses incurred by them in
treatment in OP No.1 Hospital, Yashoda Hospital and
Research Centre, AIIMS, MAX Vaishali and Apollo. The
same has been admitted by the Complainants in their
averments and is also evident from a bare perusal of the
Hospital bills at Annexure R-1/ 5 from page no. 302-324 &
Annexure R-1/3 from page no. 113-122. All cash bills
have the mentioned after payer/sponsor DGEHS
Karkardhooma. Therefore, awarding of any further
compensation by this Hon’ble Commission would lead to
unjust enrichment of the Complainants.

I. No Quantification of Rs. 30 lacs as sought by

Complainant No. 1

28.That Complainants have not given any reason or

justification to quantify the alleged losses suffered by
Complainant No. 1 on account of mental and physical
harassment, injury and suffering to the tune of Rs. 30 lacs.
That same number is arrived at arbitrarily and is a
hyperbole.

29.That quantification of the alleged mental and physical

harassment and suffering to the tune of Rs. 30 lacs is
evidently arbitrary. That vide Order dt 21.06.2019 in
CC/2657/2018 in Preeti Sharma & Ors v. Yashoda Super
Speciality Hospital & 4 Ors filed by the Complainants in
the Hon’ble NCDRC, the Complainants have quantified
 the alleged mental and physical harassment and suffering
to the at Rs. 50 lacs. That while dismissing the Complaint
case vide Order dated 21.06.2019, the Hon’ble NCDRC
has remarked that “in Table A above, all the items are
listed under which the complainants have sought
compensation. It is seen from this table that highly
exaggerated amounts have been sought.”

J. LACK OF EVIDENCE SUBSTANTIATING THE

COMPLAINT/ NO EXPERT EVIDENCE

30.That the Hon’ble Supreme Court and the Hon’ble NCDRC

has repeatedly held in various cases that the burden of
proof in cases of medical negligence lies on the
Complainant. However, apart from mere averments, the
Complainants have not lead any expert evidence
whatsoever to discharge the burden of proof showing
medical negligence on part of the OP No. 1-2. Please refer
C.P. Sreekumar v. S. Ramanujam (2009) 7 SCC 130 and
Shilpa Khanna v. Shree Jeewan Hospital & Ors, Or dt
12.09.2023.

Through Counsel(s)

RISHI RAJ SHARMA, SONAKSHI SINGH

& KUMAR BHASKAR
Advocates for OP No. 1-2
E-25, LGF, Jangpura extension,
New Delhi 110014
Mob:9582115697
 Email: rarylegal@gmail.com

Place: New Delhi

Date:28.04.2025