Circuit Bench Siliguri

StateCommission

A/64/2023

DR. A.K.PRADHAN - Complainant(s)

Versus

AMIT SAHA - Opp.Party(s)

ABHIK KUMAR DAS

29 Aug 2024

ORDER

SILIGURI CIRCUIT BENCH
of
WEST BENGAL STATE CONSUMER DISPUTES REDRESSAL COMMISSION
2nd MILE, SEVOKE ROAD, SILIGURI
JALPAIGURI - 734001
 
First Appeal No. A/64/2023
( Date of Filing : 29 Jun 2023 )
(Arisen out of Order Dated in Case No. CC/30/2016 of District Maldah)
 
1. DR. A.K.PRADHAN
PRADHAN FERTILITY HEALTH CARE PVT. LTD., PO.-MOKDUMPUR, MALDA WEST BENGA
MALDAH-732103
WEST BENGAL
2. DIRECTOR OF SONOSCAN HOSPITAL PVT. LTD.
MALDA NURSING HOME, MOKDUMPUR, PO-MOKDUMPUR, PS.-ENGLISH BAZAR, MALDA WEST BENGAL
MALDAH
WEST BENGAL
3. DIRECTOR OF MALDA NURSHING HOME PVT.LTD
PO.-MOKDUMPUR, PS.-ENGLISH BAZAR, PIN.-732101, MALDA WEST BENGAL
MALDAH
WEST BENGAL
4. DIRECTOR OF FERTILITY CLINIC & TEST TUBE BABY IVF CENTRE
B.G.ROAD, PO.-MOKDUMPUR, MALDA WEST BENGAL
MALDAH
WEST BENGAL
...........Appellant(s)
Versus
1. AMIT SAHA
BETAPUKUR LANE, SRBAMANGALA PALLY, PS.-ENGLISH BAZAR, PO.-MALDA,732101 MALDA WEST BENGAL
MALDAH-732101
WEST BENGAL
...........Respondent(s)
 
BEFORE: 
 HON'BLE MR. KUNDAN KUMAR KUMAI PRESIDING MEMBER
 
PRESENT:
 
Dated : 29 Aug 2024
Final Order / Judgement

KUNDAN KUMAR KUMAI

This is an appeal u/s 15 of the Consumer Protection Act, 1986, preferred against the order and judgement dated 24/05/2023, passed by the Ld. DCDRF, Malda, in CC/30/2016.

The Appellants’ case in brief is that, the deceased/Madhumita Saha (Roychowdhury) had been married in the year 2011 with the Respondent/Complainant. But, after marriage, as the deceased/ Madhumita Saha (Roychowdhury) could not conceive, she had been to the clinic of Appellant no.1. On 07/05/2015, the Appellant no.1, had advised the deceased/Madhumita Saha (Roychowdhury), to take admission on 14/05/2015, in the Malda Nursing Home. He had then performed hystero laparoscopy on 15/05/2015. Thereafter, the deceased/Madhumita Saha (Roychowdhury), had conceived and on achieving the full maturity of her pregnancy, had consulted on 10/02/2016 with the Appellant no.1, who had opined that the delivery would be 23/02/2016. But, as the deceased/Madhumita Saha (Roychowdhury) felt uneasiness in her body, she had again attended the chamber of the Appellant no.1, on 17/02/2016 at around 5:30 PM. Thereafter, the Appellant no.1 had advised the deceased/Madhumita Saha (Roychowdhury) to take admission in the Malda Nursing Home, on the same date, after which she had got herself admitted at around 6:10 PM and had been allotted bed no.111, being Registration no.40132/16. After admission on 17/02/2016, the deceased/Madhumita Saha (Roychowdhury), had been fully checked up by the consulting doctor A. Acharjee, from 17/02/2016, regularly till 21/02/2016. On 21/02/2016, the surgery upon the deceased/Madhumita Saha (Roychowdhury), took place from 8:15 AM till 9:15 AM and at the time of operation apart from the Appellant no.1, Dr. T. Chakraborty, Dr. S. K. Barman, Dr. Z. Hoque and Rajib Giri had been present, inside the operation theater. After the birth of her baby, the management of nursing home examined the deceased/Madhumita Saha (Roychowdhury) at 9:30 AM and checked her pulse B.P. and again at 10 AM and at 11:30 AM, but after 11:30 AM till 6 PM, no check-up had been done. After the deceased/Madhumita Saha (Roychowdhury) suffered belly pain and started shouting loudly, then the nursing home management, hurriedly set up a Medical Board including the Appellant no.1, Dr. A. Acharjee, Dr. S K Barman, Dr. T P Roy, etc. and held a Board meeting and took a decision to find out the cause of the pain by re-operating. On that very date, at around 9:15 pm till 10:20 pm, the deceased was subjected to another surgery and during that time the Appellant no.1, Dr. A. Acharjee, Dr. T. Chakraborty, Dr. S K Barman and A Gupta and Mr. Situ Saha had been present, in the operating theater. Thereafter, the patient party had been directed to collect one unit of O+ blood and transfusion of the same had been started at 9:30 pm. At 9:50 PM, another unit of O+ blood had been transfused and at 10:10 PM also, another unit of O+ blood had been transfused. After the second operation, the deceased/Madhumita Saha (Roychowdhury) had become very serious, for which she had been shifted to ICCU of the Sono Scan Hospital Pvt. Ltd.  But as her condition gradually deteriorated, she expired.

As the deceased/Madhumita Saha (Roychowdhury) had been in sound health, at the time of her delivery, but suddenly developed complications and was left unattended for a long gap and after the second surgery had expired, mainly due to the negligence of the doctors and staff of the Malda Nursing Home. A complaint claiming Rs.20,00,000/- (Rupees twenty lakhs) only, had been made for mental and physical pain before the Ld. DCDRF, Malda.

The Appellants had then appeared to contest the claim, by filing written version, wherein they had maintained, that they had applied the best skill with sincerity and there was no negligence on their part. In fact, the Appellant no.1 had assisted her to become a mother, when she had been unable to conceive by herself. It was therefore prayed that the case be dismissed.

After going through the evidence and materials on record, Ld. DCDRF, Malda, passed the impugned order, directing the Appellants jointly and severally to compensate, by paying an amount of Rs.30,00,000/- (Rupees thirty lakhs) only, within 3 (three) months, from the date of the order.

Being aggrieved by the impugned order, the Appellants preferred this instant appeal, on the ground that the Ld. DCDRF, Malda, had erred in law and facts, while passing the impugned order.

Decisions with Reasons

Ld. Advocate for the Appellants, at the time of final hearing, had submitted that the impugned order suffered from lack of pecuniary jurisdiction as u/s 11 of the Consumer Protection Act, 1986, the pecuniary jurisdiction of the Ld. Forum below, was limited to Rs.20,00,000/- (Rupees twenty lakhs) only, whereas the impugned order showed that a direction, for payment of Rs.30,00,000/- (Rupees thirty lakhs) only, had been passed. Secondly, the operation had been done jointly by the Appellant no.1 along with Dr. T Chakraborty, Dr. S K Barman, Dr. Z Hoque, but only the Appellant no. 1, had been made party to the suit and therefore the case suffered from non-joinder of parties. Thereafter, he had assailed the impugned judgement on the ground that the impugned judgement had remarked as to why caesarian surgery had been opted and why the deceased had not been shifted to the ICU and why the victim had been subjected to second operation and no CD, had been produced before the Commission. In this regard, he had submitted as the patient had conceived, after a long period of infertility the caesarian delivery had been opted, as the child mortality rate, in case of normal delivery was very high, in comparison with the caesarian delivery. As regards not shifting of the deceased to the ICU, he had submitted that the condition of the deceased had been satisfactory up to 3:30 PM, when the urine output became scanty. As regards the second operation the deceased had not responded to active supportive management, re-opening of the abdomen was decided and no CD could be produced, as there was no arrangement for provision of the video recording of the operation. He had further argued that the deceased had been afflicted by Disseminated Intravascular Coagulation (DIC), resulting in her death. He had relied in the judgements passed in A Rajangam Vs. Dr. Fedrick John passed by the Hon’ble NCDRC, Achuta Rao Vs. State of Maharashtra passed by the Hon’ble Supreme Court, Shakil Ahmed Vs. Dr. C K Dabe passed by the Hon’ble NCDRC, Ajit Kumar Roy Vs. Dr. Amitav Mishra passed by the Hon’ble NCDRC, Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research Center passed by the Hon’ble Supreme Court, Jacob Mathew Vs. State of Punjab & Anr. passed by the Hon’ble Supreme Court, Achutrao Vs. Haribhau Khodwa Vs. State of Maharashtra & Ors. by the Hon’ble Supreme Court and C P Sreekumar, MS (Ortho.) Vs. S Ramanujam passed by the Hon’ble Supreme Court.

Ld. Advocate for the Respondent/Complainant, on the other had countered, by submitting that from 11:30 AM to 6 PM on 21/02/2016, the deceased had been suffering from serious belly pain, but no one had attended and immediately thereafter a Medical Board had been arranged and decided to re-operate the deceased. After the second operation, the deceased had become very serious, due to negligence of the Appellants. Under the circumstance, it was prayed that the impugned order be upheld.

To start with, the facts of the case, with regard to the admission of the deceased and subsequent operation of the deceased on 21/02/2015 and the second operation and her death is not disputed. The only point of dispute is with regard to the Appellants’ negligence, contributing to the death of the deceased.

As far as the legal objections to the case filed below, with regard to the impugned judgement, suffering from lack of pecuniary jurisdiction is concerned, when the impugned judgement had directed for payment of Rs.30,00,000/- (Rupees thirty lakhs) only, exceeding the limitation imposed, amounting to Rs.20,00,000/- (Rupees twenty lakhs) only, by the provisions of section 11 of the Consumer Protection Act is concerned, it can be stated that the limitation of Rs.20,00,000/- (Rupees twenty lakhs) only, imposed u/s 11 of the Consumer Protection Act, is meant to be the limitation with regard to the pecuniary jurisdiction of the cases, before the concerned DCDRF only. Therefore, the Ld. DCDRF, Malda had committed no illegality, while accepting and disposing the case. As far as the passing of the impugned order is concerned, the DCDRF is under no binding to pass the impugned order, within the ascertained limitation under Section 11 of the Act, like the criminal courts are, while passing sentences under the provisions of Cr.PC. In fact, the DCDRF, had full liberty to impose any compensation, it deems fit even if no prayer had been made. Under the circumstance, this argument, cannot be sustained.

With regard to the point of the case being defective, on the point of non-joinder of parties is concerned, there is no such point raised in the written version that the case was defective and non-maintainable, due to non-joinder of parties. In fact, it is not even denied, that the Appellant no.1 had been instrumental in the caesarian operation, done upon the deceased. Moreover, it would be naïve to think and accept, that the deceased, who was all along under the treatment of the Appellant no.1, would be operated upon, by any other person, other than the Appellant no.1. Therefore, this contention also does not merit any opinion, in its favour.

As to the factual aspect the USG dated 18/02/2016 does not reflect of any abnormality in the organs whereas the treatment sheet (pages 136 – 139) clearly reveal of “acute kidney injury” on page 138 and opinion of Nephrologist had been sought for on 22/02/2015, but obviously no such opinion could be obtained as the deceased being referred to another tertiary critical care center, had expired during transit. Under the circumstance, the Appellants’ lack of explanation for the “acute kidney injury” had been tried to pass off as Disseminated Intravascular Coagulation (DIC). Perhaps, the blood from the injury of the kidney may have developed into DIC, but the injury upon the kidney had not been explained, which leads to the only conclusion, that the Appellant no.1 had been negligent while performing the caesarian section, resulting in the acute injury to the kidney and the subsequent development of DIC. In view of the above observations and findings, it can be safely concluded that the instant appeal is bound to fail. However, there appears no involvement of the Appellant no.2 and the Appellant no.4 in such negligence.

It is therefore,

                                                                 ORDERED

That the instant appeal be and the same is dismissed on contest, but without cost.

The impugned order is hereby upheld, subject to modifications, mentioned in the body of the judgement. Appellants 1 & 3, are directed to comply with the directions, passed in the impugned order, within 45days, from the date of this order, failing which, interest @9% PA, would be attracted, till the date of payment.

Copy of the order be sent to the parties, free of cost.

Copy of the order be sent to the Ld. DCDRF, Malda, for necessary information and action.

Statutory deposits, if any, be returned from whom received.

Jt. Registrar, Siliguri Circuit Bench of WBSCDRC, to do the needful.

 
 
[HON'BLE MR. KUNDAN KUMAR KUMAI]
PRESIDING MEMBER
 

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