45....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. 55 OF 2018
DATE OF FILING DATE OF ADMISSION DATE OF FINAL ORDER
08.05.2018 22.05.2018 03.01.2022
Present : President : Asish Kumar Senapati
Member : Jagadish Chandra Barman
Member : Sangital Paul
COMPLAINANT : Sri Uddhab Mondal, S/O – Samir Mondal, Village - Uttarbhag, P.S. - Baruipur, P.O. - Barindakhali, Dist. - South 24- Parganas, Pincode- 743387.
Versus
O.P/O.Ps :1. Dr. Papiya Biswas, Attached to Maternity Section of Baruipur Sub-Divisional Super Speciality Hospital, At Kulpi Road, P.O. + P.S. - Baruipur, Dist. – South 24 Pgs, Kolkata - 700144.
2. The Superintendent attached to Baruipur Sub-Divisional Super Speciality Hospital, At Kulpi Road, P.O. + P.S. - Baruipur, Dist. – South 24 Pgs, Kolkata - 700144.
3. Dr. Tridip Ranjan Khata, C/O – Chittaranjan National Medical Collage and Hospital, 32 Gorachand Road, Kolkata – 700014.
Advocate for the complainant : Sri Kalyan Halder & Sri Anjan Chakraborty
Advocate for the O.P. Nos. 1 & 3 : Sri A.K. Das
Advocate for the O.P. No. 2 : None
Sri Asish Kumar Senapati, President
One Sri Uddhab Mondal (hereinafter referred to as the complainant) filed the case against Dr. Papiya Biswas and 2 others (hereinafter referred to as the O.Ps.) praying for compensation alleging deficiency in service due to medical negligence resulting death of his wife Smt. Madhumita Mondal on 16.05.2017.
The sum and substance of the complaint is as follows:
That the wife of the complainant, namely Smt. Madhumita Mondal got admitted at Baruipur Sub-Divisional Super Speciality Hospital on 15.05.2017 for delivery of her baby and a male baby was born at 7:15 pm on 15.05.2017 under the care and treatment of the O.P. No. 1. That after Caesar, the O.P. No. 1 informed the patient party that both mother and baby were okay but suddenly at about 11pm the complainant received a phone call from hospital intimating the serious condition of the patient. That the complainant rushed to the hospital and came to know that the patient and her baby had been transferred to Chittaranjan National Medical College and Hospital without consent of the patient party. That the Chittaranjan National Medical College and Hospital admitted the patient and started treatment but bleeding could not be stopped and the condition was serious. Ultimately, the patient expired on 16.05.2017 at 6:45 am. That the death of the patient is due to medical negligence of Baruipur Sub-Divisional Super Speciality Hospital. The complainant issued lawyer’s letter to the West Bengal Medical Council and others but no response has yet been received. That the cause of action was arose on 15.05.2017 within the jurisdiction of this Commission. Hence, the complainant has prayed for compensation of Rs. 18,00,000/- against the O.Ps.
The O.P. No. 1 contested the case by filing W.V. on 11.07.2018 contending that the case is not maintainable as the complainant is not a consumer due to non-payment of any fee for treatment in Govt. Hospital. That the O.P. has no negligence and deficiency in service and the patient was referred to Chittaranjan Medical Collage and Hospital for better management. That the complainant filed a complaint with CMOH alleging deficiency in treatment and inquiry was held by the authority and found no negligence in the treatment provided by the O.P. No. 1. Hence, the complaint merits dismissal with cost.
The O.P. No. 3 also contested the case by filing W.V. on 25.03.2019 inter-alia denying the material allegations made out in the complaint contending that the O.P. No. 3 treated the patient with care and as per medical protocol. The case is not maintainable against the O.P. as the complainant is not a consumer. He also narrated the treatment given to the patient. He prays for dismissal of the complaint with cost.
The O.P. No. 2 did not contest the case in spite of service of notice.
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. Advocate for the O.P. Nos. 1 & 3 submits 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 have been made.
We have gone through the materials on record. Admittedly, the wife of the complainant Smt. Madhumita Mondal admitted on 15.05.2017 at Baruipur Sub-Divisional Super Speciality Hospital and expired on 16.05.2017 at 06:45 am at National Medical College and Hospital. As it appears form the death certificate issued by the O.P. No. 3 dated 16.05.2017 that the death was due to disseminated intravascular coaguldpamy and irreversible hypovolaemic shock due to post parium haemorrange in a case of caesarean section done outside. It is clear from the submission of both sides that the complainant hired the services of the O.Ps. for treatment of his wife Smt. Madhumita 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 Honble Supreme Court passed in Indian Medical Association VS V.P. Shantha ,we have no hesitation to hold that the complainant is not a consumer as no payment was made for hiring the services of the Ops..
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 16.05.2017. It is urged 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. Advocate for the O.P. Nos. 1& 3 submits 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 passed by the Hon’ble National Commission in F.A. No. 426 of 2006 dated 27.05.2011, R.P. No. 4734 of 2012 dated 05.11.2014, R.P. No. 2366 of 2008 dated 14.02.2013. He submitted that the O.Ps. tried their best to save the life of Papiya Mondal but in vain 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. It is very unfortunate that the patient Madhumita Mondal died due to loss of blood after Caesar. No medical paper regarding time to time treatment of Madhumita Mondal as in patient in Baruipur Sub-Divisional Super Speciality Hospital/National Medical College & Hospital has been produced by the O.Ps. It could be ascertained from the bed head tickets of Madhumita Mondal as to whether the O.Ps. treated properly to save the life of the patient as per medical protocol but unfortunately the O.Ps. could not produce the bed head tickets, the reasons best known today. As we have held that the complainant is not a consumer, it is of no use to go into the merit of point nos. 2 and 3. The complainant is at liberty to file cases against the O.Ps. for reliefs 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.P. Nos. 1 & 3 without cost and dismissed ex-parte against the O.P. No. 2 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
