44...03.01.2022....
Today is fixed for delivery of Final order.
Final order containing 6 pages is ready. It is sealed, signed and delivered in open Commission.
It is ,
ORDERED
That the complaint case be and the same is hereby dismissed on contest against the O.Ps. without cost.
Let copies of final order be supplied/handed over to both the parties free of cost as per rules.
The Final order also be made available in www.confonet.nic.in .
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
SOUTH 24-PARGANAS
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C.NO. 140A OF 2016
DATE OF FILING DATE OF ADMISSION DATE OF FINAL ORDER
07.12.2016 15.12.2016 03.01.2022
Present : President : Asish Kumar Senapati
Member : Jagadish Chandra Barman
Member : Sangital Paul
COMPLAINANT : Ganesh Chandra Mondal, Village - Dogachha, P.S. - Usthi, P.O. - Rasadogachha, Dist. - South 24- Parganas, Pincode- 743375.
Versus
O.P/O.Ps :1. Anwar Hossain, Superintendent, Diamond Harbour District Hospital, P.O. + P.S. - Diamond Harbour, Dist. – South 24 Pgs, Pin - 743331.
2. Dr. Kalyanasish Ghosh, Diamond Harbour District Hospital, P.O. + P.S. - Diamond Harbour, Dist. – South 24 Pgs, Pin - 743331.
Advocate for the complainant : Sri Sayak Majumder & Sri Apurba Kumar Sautya
Advocate for the O.P. No. 1 : Arabinda Goswami
Advocate for the O.P. No. 2 : Rajesh Biswas
Sri Asish Kumar Senapati, President
One Ganesh Chandra Mondal (hereinafter referred to as the complainant) filed the case against Anwar Hossain, Superintendent, Diamond Harbour District Hospital and another (hereinafter referred to as the O.Ps.) praying for compensation alleging deficiency in service due to medical negligence resulting death of his wife Papiya Mondal on 22.10.2016.
The sum and substance of the complaint is as follows:
The wife of the complainant namely Papiya Mondal got admitted at Baneswarpur Hospital on 17.10.2016 due to this fever. That Doctor of Baneswarpur Hospital examined the blood report at 11 pm and found platelet count 2,56,000. That the complainant shifted his wife at about 12 at night to Diamond Harbour Hospital and got her wife admitted there but the Diamond Harbour Hospital examined blood of Papiya Mondal once only during the period from 18.10.2016 to 21.10.2016 and found her platelet count 1,56,000.The doctors of Diamond Harbour Hospital did not advise any other examination of the patient. That the patient was suffering from vomiting, loose motion and breathing problem but doctor never referred the patient to Kolkata nor they gave oxygen support to the patient. That on 20.10.2016 the patient was restless at night, urine was stopped and the condition of the patient was deteriorating. The patient party called the nurse again and again but of no result and ultimately Papiya Mondal fell from the bed. That doctor attended the patient in the next morning and Dr. S. Pal informed the patient party the condition of the patient is serious and the patient was shifted to C.C.U. on 21.10.2016. That on 21.10.2016 the Hospital took blood for UR, CR, LFT, P-Time, INR and APPTT test and the reports were received in the evening and the patient expired on 22.10.2016 at 10 am due to medical negligence. The complainant lodged complaint with the Superintendent, Diamond Harbour Hospital who assured to resolve the issue but of no result. That Papiya Mondal died at her age of 22 years leaving behind her child aged about 3 years. The complainant filed the case praying for compensation and punishment of doctors and nurses for their negligence for causing death of his wife. That the complainant prayed for compensation of Rs. 19,94,390/- and litigation cost of Rs. 5,000/-.
The O.P. No. 1 contested the case by filing W.V. on 27.03.2017 contending that the case is not maintainable. He denied the material allegation made out of the complaint contending that the O.P. No. 1 treated the patient with care and as per medical protocol. He also narrated the details of the treatment given to the patient Papiya Mondal. It is the case of the O.P. No. 1 that the patient Papiya Mondal expired on 22.10.2016 at 10:25 am due to multi organ dysfunction syndrome with septic shock and the O.P. No. 1 and other doctors were not negligent in that treatment of Papiya Mondal. That the complaint of the complainant was also referred to the Grievance Redressal Officer who could not find any negligence form the side of the Hospital end. Hence, the complaint merits dismissal with cost.
The O.P. No. 2 also contested the case by filing W.V. on 27.03.2017 inter-alia denied the material allegation made out of the complaint contending that the O.P. No. 2 treated the patient with care and as per medical protocol. The case is not maintainable against the O.P. He also narrated the treatment given to the patient. He prays for dismissal of the complaint with cost.
On the basis of the above versions, the following points are framed for proper adjudication of the case :-
- Is the complainant a consumer under the provisions of the C.P Act?
- Is there any deficiency in service on the part of the O.Ps.?
- Is the complainant entitled to get any relief against the O.Ps., as prayed for?
DECISION WITH REASONS
Point no. 1 :-
The Ld. Advocate for the complainant submits that the complainant is a consumer as he hired the services of the O.Ps. It is contended that the O.Ps. are salaried employees of the Government and the salary comes from the public exchequer.
In reply, Ld. Advocates for the O.Ps. submit that the complainant is not a consumer as the service of the O.Ps. was not hired in lieu of consideration. It is contended that the complainant is not a consumer in terms of definition of consumer.
It is argued that the matter is set at rest after the historic Judgment of Indian Medical Association VS V.P. Shantha in 1995 wherein specific guideline had been made.
We have gone through the materials on record. Admittedly, the wife of the complainant Papiya Mondal admitted on 18.10.2016 at Diamond Harbour Hospital and expired on 22.10.2016 at 10:25 am. As it appears form the death certificate issued by Doctor Pallav Kumar Mondal that the death was due to multi organ dysfunction syndrome and septic shock. It is clear from the submission form the both sides that the complainant hired the services of the O.Ps. for treatment of his wife Papiya Mondal.
The term consumer has been defined in Section 2(7) of the C.P. Act, 2019 as follows:
“Consumer means any person who………… ii) hires or avails of any service for a consideration which has been paid or promised or partly paid or partly promised, or under any system of deferred payment and includes any beneficiaries of such service ………………..”
In the Judgment of Indian Medical Association VS V.P. Shantha in 1995, the Hon’ble Supreme Court has been pleased to include the service of medical officer under the scanner of the Consumer Protection Act. The Hon’ble Supreme Court also explained the clause relates to services rendered free of charge. It is held that the medical practitioners, Govt. Hospitals/Nursing Home, Private Hospital/ Nursing Homes broadly fall in three category: 1) Where services are rendered free of charge to everybody availing the said services. 2) Where charges are required to be paid by persons availing the services and 3) Where charges are required to be paid by persons availing services but certain category of person who cannot afford to pay the rendered service free of charge. Doctors and Hospitals who render service without any charge whatsoever to every person availing the service could not fall within ambit of service under the C.P. Act.
We find that the complainant has not filed any document to ascertain that he hired services of the O.Ps. for consideration. It has not even asserted in the complaint that he paid any amount for hiring the services of the O.Ps. for treatment of his wife.
With due regard to the decision of the Hon’ble Supreme Court passed in Indian Medical Association VS V.P. Shantha in 1995, we hold that the complainant is not a consumer as he did not hire the services of the O.P. for consideration.
Point Nos. 2 & 3 :-
The Ld. Advocate for the complainant submits that the O.Ps. are negligent in their duties for treatment of this wife causing death of his wife on 22.10.2016. It is urged that the expert report is also baseless and the O.Ps. have medical negligence and deficiency in service. It is submitted that the complainant is entitled to get compensation and cost of the case against the O.Ps.
The Ld. Advocates for the O.Ps. submit that the complainant has suppressed the material fact and there is no medical negligence on the part of the O.Ps. They argued that doctor cannot be responsible merely for death of patient in spite of best efforts by the doctors to save the life of the patient. They draw our attention to a number of decisions reported in 1(2006) C.P.J. 47 (NC), 2018 (1) C.P.R. 1(All.), 2018 (1) C.P.R. 104 (NC), 2018 (1) C.P.R. 534 (NC), 2018 (1) C.P.R. 507 (NC), ll (2014) C.P.J. 601 (NC), 2017 (1) C.P.R. 38 (CHHATT), 1 (2009) C.P.J 32 (SC), ll (2014) C.P.J. 261 (NC). They also submit that this Commission referred the matter to the S.S.K.M. Hospital for expert report and experts submitted their report dated 24.01.2020 holding that there is no evidence of medical negligence. They submitted that the O.Ps. tried their best to save the life of Papiya Mondal but in vein and there is no negligence on the part of the O.Ps.
We have already hold that the complainant is not a consumer. With due regard to the decisions referred by the Ld. Advocates for the OPs, we hold that the decisions are settled principles of law. We find no reason to go into the merit of point nos. 2 and 3 as we have already held that the Complainant is not a Consumer. The complainant is at liberty to file cases against the O.Ps. before the proper Forum, if he so advises.
Both points are thus disposed of.
In the result, the complaint case fails.
Fees paid are correct.
Hence, it is
ORDERED
That the complaint case be and the same is hereby dismissed on contest against the O.Ps. without cost.
Let copies of final order be supplied/handed over to both the parties free of cost as per rules.
The Final order also be made available in www.confonet.nic.in .
Dictated and corrected by me
President
