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Dr. Arindam Butt v/s Manoj Kumar Saha & Others


Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    First Appeal No. FA/520/2014

    Decided On, 18 June 2018

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT & THE HONOURABLE MR. TARAPADA GANGOPADHYAY
    By, MEMBER

    For the Appellant: Suman Sehanabis, Souvik Chatterjee, Advocates. For the Respondents: Aloke Mukhopadhyay, Tanusree Dhar, K. Bhattacharya, Barun Prasad, S. Roy Chowdhury, Barun Prasad, Sovanlal Bera, Advocates.



Judgment Text

Tarapada Gangopadhyay, Member

These Appeals bearing No. FA/520/2014 and FA/545/2014 are directed by the OP No. 6 and OP No. 5 respectively assailing the identical judgment and order dated 27.3.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Cooch Behar in identical D.F. Case No. 32/2012, directing the OP Nos. 5 & 6 to pay, within 60 days from the date of the order, to the Complainant Rs. 2,25,000/- as compensation, Rs. 30,000/- for mental agony, Rs. 12,000/- for medical expenditure and Rs. 6,000/- as litigation cost, failing which the aforesaid OPs shall deposit jointly and/or severally to the ‘State Consumer Welfare Fund, West Bengal’ Rs. 150/- for each day of delay.

The brief facts of the case, as emanating from the materials on records, are that the Respondent No. 1/Complainant took his ten-year-old daughter to the Respondent No. 2/OP No. 1-Hospital, hereinafter referred to as ‘the Respondent No. 2’, on 2.1.2012 at 6.30 p.m. with complaint of ‘high fever, throbbing headache, rigors and vomiting’ when the Respondent No. 5/OP No. 5-Doctor, hereinafter referred to as ‘the Respondent No. 5’, examined the daughter, being the patient concerned, in Emergency Ward and advised the Respondent No. 1/Complainant, hereinafter referred to as ‘the Respondent No. 1’ for immediate admission of his daughter, and accordingly, the daughter of the Respondent No. 1 was admitted to the Respondent No. 2 on 2.1.2012 and after admission allegedly neither any doctor nor any nurse attended to the patient till 10.30 p.m. despite several requests by the family member of the patient to the Superintendent of the Respondent No. 2, except the patient being administered with ‘saline’. After 10.30 p.m. the patient was administered ‘tablets’ after taking of which the condition of the patient allegedly deteriorated. On 3.1.2012, i.e. on the next day of admission, at about 8.30 A.M. the Appellant in FA/520/2014, i.e. the OP No. 6/Doctor referred the patient concerned to North Bengal Medical College & Hospital, Siliguri, allegedly without any ‘clinical investigation’. After such reference the family member of the patient concerned rushed to Siliguri on 3.1.2012 and got the patient admitted at about 2.30 P.M. to Mitra’s Clinic & Nursing Home, Siliguri where the doctor concerned diagnosed that the patient was suffering from ‘Encephalitis’. After such diagnosis, at about 4.30 P.M. on 3.1.2012 the patient died in Mitra’s Clinic & Nursing Home allegedly for lack of ‘ordinary care and skill of OP No. 1, OP No. 5 and OP No. 6’. With the aforesaid factual background the Complainant moved the Complaint Case concerned before the Ld. District Forum which passed the order in the aforesaid manner. Aggrieved by such order the OP Nos. 6 & 5 have moved respectively the Appeals bearing No. FA/520/2014 and FA/545/2014 before this State Commission.

Both the Appeals having been arisen from the identical judgment and order and the identical facts as well, those are being disposed of by this common order.

The Ld. Advocate for the Appellant/OP No. 6 in FA/520/2014 submits that the Appellant/OP No. 6 has been wrongly implicated on the basis of assumption and surmise but not on the basis of evidence, indicating thereby the illegality and impropriety of the order impugned.

The Ld. Advocate continues that the Appellant/OP No. 6 took due care and administered appropriate medicines to the patient as revealed from the documents of treatment and hence, there are no lapses on behalf of the Appellant/OP No. 6.

The Ld. Advocate also submits that the report of the expert-opinion dated 10.10.2013 of the Expert Committee of Burdwan Medical College & Hospital to the effect 'The management by the doctors and application of medicines are consistant with her symptoms and signs', indicates no deficiency in service on behalf of the Appellant/OP No. 6.

The Ld. Advocate continues that the Complaint Case concerned suffers from non-joinder of necessary party being Mitra’s Clinic & Nursing Home where the patient concerned died.

In support of the aforesaid submission, the Ld. Advocate refers to the decision of the Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr., reported in (2005) 6 SCC 1.

The Ld. Advocate also submits that as the treatment was in a Government Hospital, which is free of cost, so the Complaint Case concerned does not come within the purview of the Consumer Protection Act, 1986.

The Ld. Advocate concludes that in view of the aforesaid submission indicating no deficiency in service or medical negligence on the part of the Appellant in FA/520/2014 the said Appeal should be dismissed, the impugned order in respect of the said Appellant/OP No. 6 be set aside and the Complaint Case in respect of OP No. 6 be dismissed.

The Ld. Advocate for the Appellant in FA/545/2014, i.e. the OP No. 5, submits that the Ld. District Forum passed the order impugned ignoring the expert-opinion, which is not countered by other expert-opinion, to the effect ‘The management by the doctor and application of medicines are consistent with the symptom and sign’ and thus assuming the role of expert being non-expert in medical science, which is not proper and fair.

The Ld. Advocate continues that the Ld. District Forum should have considered the act probanda and act probantia lying upon the Complainant but not upon the OP.

The Ld. Advocate adds that the Ld. District Forum erred in opining about the requirement of blood test since the symptoms and condition of the patient did not require any blood test in respect of absence of which expert-opinion has not passed any comment.

The Ld. Advocate also submits that the Complaint Case concerned suffers from non-joinder of necessary party being Mitra’s Clinic & Nursing Home where the patient died.

The Ld. Advocate adds that the Ld. District Forum awarded compensation which was claimed without any support of necessary documents such as, Hospital Bills, etc. In this respect the Ld. Advocate refers to the decision of the Hon’ble National Commission in Dr. Harkanwaljit Singh Saini Vs. Gurbax Singh & Anr., reported in I (2003) CPJ 153 (NC).

The Ld. Advocate concludes that in view of the aforesaid submission the Appeal bearing No. FA/545/2014 should be dismissed and impugned order be set aside in respect of the Appellant/OP No. 5 and the Complaint Case in respect of the OP No. 5 be dismissed.

On the other hand, the Ld. Advocate for the Respondent No. 1/Complainant submits in the beginning that free treatment in the Government Hospital which is run by public exchequer falls within the definition of ‘Service’ under the Consumer Protection Act as is well-settled by the Hon’ble National Commission in Arvind Pandey & Anr. Vs. Dr.(Mrs.) Sulekha Saran & Ors., reported in 2012 (3) CPR 142 wherein it was held that services rendered by the government hospitals falls within the purview of the Consumer Protection Act, 1986.

The Ld. Advocate also submits that the OP No. 5-Doctor left the patient after admission of the patient concerned and hence, the OP No. 5-Doctor did not attend to the patient concerned during emergency which indicates lack of proper and reasonable care on behalf of the OP No. 5.

The Ld. Advocate continues that after admission neither the OP No. 5 nor the OP No. 6 advised for pathological or radiological tests to ascertain the cause of suffering of the patient concerned despite the patient concerned was suffering from convulsion, which also indicates lack of proper and reasonable care on behalf of the OP Nos. 5 and 6.

The Ld. Advocate submits that the doctors of the Expert Committee being reluctant to testify against their colleagues, the expert report does not appear to be unbiased and hence, the same should not be relied upon. In this context, the Ld. Advocate refers to the decision of the Hon’ble National Commission in Anil Dutt and Anr. Vs. Vishesh Hospital & Ors., reported in 2016 (3) CPR 106 (NC).

The Ld. Advocate also submits that it is well-settled by the Hon’ble Apex Court that non-joinder of parties does not lead to dismissal of the Complaint Case.

The Ld. Advocate continues that the patient after diagnosing ‘convulsion’ was referred to other hospital without advising required pathological and radiological tests and also without taking preventive measures, which also indicates deficiency in proper and reasonable care on behalf of the OP Nos. 5 & 6-Doctors.

The Ld. Advocate further submits that the Respondent No. 2-Hospital is also vicariously liable for its failure to ensure proper care and service on behalf of the OP Nos. 5 & 6 who were engaged with the said hospital for rendering proper and reasonable medical service to the patients. In this respect, the Ld. Advocate refers to the following decisions:

1. Bijoy Sinha Roy (D) by Kr. Vs. Biswanath Das & Ors., reported in 2017 (4) CPR 15 (NC), and

2. Arvind Pandey & Anr. Vs. DR. (Mrs.) Sulekha Saran & Ors., reported in 2012 (3) CPR 142 (NC).

The Ld. Advocate concludes that in view of the aforesaid submission both the Appeals bearing No. FA/520/2014 and FA/545/2014 should be dismissed and the impugned order be upheld.

Heard both the sides, considered their respective submission and perused the materials on records.

‘TICKET FOR EMERGENCY PATIENT’ dated 2.1.2017 of M.J.N. (D) HOSPITAL reveals that the patient concerned was admitted to the Children Ward of the said Hospital on 2.1.2012 under the attending doctor, being the OP No. 5, with complaint of ‘acute GE ĉ fever ĉ headache’ when the attending doctor prescribed some medicines and saline without prescribing any pathological or radiological tests to ascertain the nature of the disease the patient was suffering from as is required for proper diagnosis of the disease concerned. DAILY CLINICAL NOTES dated 3.1.2012 at 4.20 A.M. reveals that the OP No. 6-Doctor taking the charge of the patient concerned after relieving the OP No. 5 prescribed injection without proper diagnosing the disease of the patient concerned by prescribing any pathological or radiological tests. The said Notes further reveal that after prescribing injection the OP No. 6 diagnosed without any tests, such as blood test, CT Scan of brain or MRI, Spinal Lap, EEG, etc., ‘convulsion’ and prescribed some injections and the patient was discharged on 3.1.2012 at 8.10 P.M. without any advice for subsequent management of the convulsion as revealed from the ‘Discharge’ Certificate of M.J.N. (D) HOSPITAL available on records.

The foregoing evidences on records clearly indicate that the patient having suffering from convulsion, otherwise known as seizure, the attending doctors, being the OP Nos. 5 & 6, did not advise for any pathological or radiological tests to ascertain the cause of convulsion which might be for brain tumour, infection in the brain, fever a

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nd trauma as revealed from the Publication in the website www.emedicinehealthcare/seizure/emergency. Such evidences indicate application of res ipsa loquitur in the case on hand. The aforesaid evidence on records and discussion indicate that in the instant case the Appellants/OP Nos. 5 & 6 acted carelessly and in a manner which is not expected of a medical practitioner and in such a case, the action in tort would be maintained as was held by the Hon’ble Supreme Court in Achutrao Haribhau Khodwa Vs. State of Maharashtra & Ors., reported in (1996) 2 SCC 634. It is well-settled that acceptance of expert-opinion which has the possibility of biasness, is not mandatory in all cases. The decisions referred to by the Ld. Advocates for the Appellants are of no assistance to the Appellants. The reliefs granted being for loss of life of the patient concerned being 10 years of age and cost of treatment and litigation cost, do not appear to be unjustified. Consequently, both the Appeals bearing No. FA/520/2014 and FA/545/2014 being without merits are dismissed and the impugned order is affirmed. This common order shall govern both the Appeals bearing No. FA/520/2014 and FA/545/2014.
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