In the Court of the Consumer Disputes Redressal Forum, Unit -I, Kolkata, 8B, Nelie Sengupta Sarani, 4th Floor, Kolkata-700087. CDF/Unit-I/Case No. 331 / 2008. 1) Smt. Sabita Chowdhury, 105, Neogipara Road, P.S. Baranagar, Kolkata-36. ---------- Complainant ---Versus--- 1) Assembly of God Hospital & Research Centre now renamed as Mission of Mercy Hospital and Research Centre, 125/1, Park Street, Kolkata-17, P.S. Park Street. 2) M/s. Canon Devices, 243/3A, AJC Bose Road, 4th Floor, Kolkata-700020. ---------- Opposite Parties Present : Sri Sankar Nath Das, President. Dr. Subir Kumar Chaudhuri, Member. Order No. 43 Dated 18-04-2013. The case of the complainant in short is that in the year 2002 at the age of 54 years approx, the complainant was suffering from various health problems and upon medical check up and investigation she was diagnosed of having serious heart ailment and was advised to have a regular and proper investigation by a competent cardiologist. Under the advice of friends and well wishers some doctors she selected the Assembly of God Hospital and Research Centre which has been renamed and known presently as Mission of Mercy Hospital and Research Centre situated at 125/1, Park Street, Kolkata-17 and for availability of best of the treatment under the guidance and treatment of best of cardiologist. On 29.5.02 she visited the said hospital and got herself registered having registration no.212936 in its outdoor cardiology department. She was put under the treatment of a renowned cardiologist attached with the said Hospital and Research Centre namely Dr. Alfred Woodward. After thorough investigation and necessary medical check up by exhaustive medical examination she was diagnosed with severe heart ailment and was advised to have a suitable and proper pacemaker immediately to keep her heard functioning properly and for the sake of survival and as per the advise of the said hospital and cardiologist attached with it, the complainant agreed to abide by the said advice on assurance and commitment of the hospital and doctor treating her that after implantation of proper reliable and suitable pacemaker with a life time guarantee she will be able to lead her normal active life till her last breadth as ordained by the almightily. O.p. no.1 hospital arranged everything from selection of a suitable pacemaker to its final implantation upon the person of the petitioner and in fact the hospital authority and the doctor concerned selected a pacemaker manufactured by o.p. no.2 and the said selected and earmarked pacemaker was finally implanted upon the complainant on 30.5.02 and o.p. no.1 authority declared it to be reliable proper suitable and successful implant after necessary surgery. Complainant purchased and consumed medicine worth Rs.20,000/- approx totaling to a cost incurred of Rs.1,06,322/- for such implant. Complainant was finally discharged by o.p. no.1 on 6.6.02 with affirm assurance and commitment of a hassle and trouble free lifetime as far as the heart ailment was concerned and upon asking the o.p. no.1 authority provided and assured a minimum guarantee period of at least 25 years to the complainant’s life time and she was asked to lead a daily normal routine life as usual a normal person. Complainant was leading a happy and trouble free life involving herself in the said business by forgetting her past heart ailment but suddently on 7.7.07 at the place of her business i.e. a VIP Market she became senseless all on a sudden in spite of taking all precautions and medications prescribed by the said hospital/ o.p. and in such life threatening situation the complainant was taken to and got admitted to one of the another renowned cardiology hospital M/s. B.M. Birla Heart Research Centre and upon an acute and emergency basis she was investigated thoroughly and was detected of having problem with her pacemaker working which was not functioning properly and due to such mal-functioning it was not giving th e support to her ailing heart for which it was implanted. Upon further prognosis and diagnosis it was detected and declared that the ‘generator’ being the most essential part of any pacemaker is not functioning and have failed and is such the complainant collapsed and became senseless for as long as 3/4 minutes initially for a consecutive period of 3/4 times in a day under such life threatening condition due to failure of the pacemaker she was put under some necessary life saving devices to keep her heart functioning temporarily. Under such life threatening situation the hospital and the manufacturer of the pacemaker was contacted and informed and finally accepting the defect, serious fault and resultant in operation and malfunctioning of the pacemaker generator it was finally changed by Mr. Prosenjit Adhikary a Canon’s representative but surely at the cost of the risk of death of the complainant. In spite of incurring the huge expenses of her implantation of the pacemaker by o.p. she had to incur a substantial amount of Rs.66,727/- approx at B.M. Birla Heart Research Centre besides running the risk of losing her precious life. Hence the case was filed by the complainant with the prayer contained in the petition of complaint. Both o.ps. had entered their appearance in this case by filing w/v and denied all the material allegations labeled against them and prayed for dismissal of the case. Ld. lawyer of o.ps. in the course of argument submitted that the case has got no merit and the same is liable to be dismissed. Decision with reasons: We have gone through the pleadings of the parties, evidence and documents in particular and we find in the year 2002 at the age of 54 years approx, the complainant was suffering from various health problems and upon medical check up and investigation she was diagnosed of having serious heart ailment and was advised to have a regular and proper investigation by a competent cardiologist. Further we find from the record that On 29.5.02 she visited the said hospital and got herself registered having registration no.212936 in its outdoor cardiology department. She was put under the treatment of a renowned cardiologist attached with the said Hospital and Research Centre namely Dr. Alfred Woodward. It is seen from the record that after thorough investigation and necessary medical check up by exhaustive medical examination she was diagnosed with severe heart ailment and was advised to have a suitable and proper pacemaker immediately to keep her heard functioning properly and for the sake of survival and as per the advise of the said hospital and cardiologist attached with it, the complainant agreed to abide by the said advice on assurance and commitment of the hospital and doctor treating her that after implantation of proper reliable and suitable pacemaker with a life time guarantee she will be able to lead her normal active life till her last breadth as ordained by the almightily. It transpires from the record that the said selected and earmarked pacemaker was finally implanted upon the complainant on 30.5.02 and o.p. no.1 authority declared it to be reliable proper suitable and successful implant after necessary surgery. Complainant purchased and consumed medicine worth Rs.20,000/- approx totaling to a cost incurred of Rs.1,06,322/- for such implant and complainant was finally discharged by o.p. no.1 on 6.6.02. Further we find from the record that all on a sudden in spite of taking all precautions and medications prescribed by the said hospital/ o.p. and in such life threatening situation the complainant was taken to and got admitted to one of the another renowned cardiology hospital M/s. B.M. Birla Heart Research Centre and upon an acute and emergency basis she was investigated thoroughly and was detected of having problem with her pacemaker working which was not functioning properly and due to such mal-functioning it was not giving the support to her ailing heart for which it was implanted. And we find that upon further prognosis and diagnosis it was detected and declared that the ‘generator’ being the most essential part of any pacemaker is not functioning and have failed and is such the complainant collapsed and became senseless for as long as 3/4 minutes initially for a consecutive period of 3/4 times in a day under such life threatening condition due to failure of the pacemaker she was put under some necessary life saving devices to keep her heart functioning temporarily. It transpires from the record that in spite of incurring the huge expenses of her implantation of the pacemaker by o.p. she had to incur a substantial amount of Rs.66,727/- approx at B.M. Birla Heart Research Centre besides running the risk of losing her precious life. In view of the findings above and on perusal of the entire materials on record we find that the manufacturer of the pace maker in question has not been impleaded as a party in this case. Besides it is accepted position that battery off a pace maker is subject to exhaustion depending upon the pace making system of health condition of the individual patient. Here it is an admitted position that the battery was exhausted during the warranty period and the complainant fell sick and she was taken to B.M. Birla Hospital and doctor of the said hospital declared that the generator being the most essential part of pace maker was not functioning at the relevant point of time and as a result of which patient fell sick and o.p. no.2 was informed and supplied a new battery without any charge during the warranty period enabling proper functioning of the pace making system of the complainant by the pace maker which was implanted earlier by o.p. no.1 hospital. Therefore, on perusal of the entire materials on record we do not find any lapse or negligency or deficiency on the part of o.ps. Hence, ordered, That the case stands dismissed on contest without cost against the o.ps. We find that the complainant runs her family by selling garments and she is a poor lady and she has h er family burden and had to be hospitalized twice and underwent huge stress and strain and also had to incur profuse amount while contesting this case. And we are of the views that having regards to the aforesaid situation and distressed state of condition an order needs be passed directing both o.ps. to pay a sum of Rs.30,000/- (Rupees thirty thousand) only each purely on exgratia basis within 45 days from the date of communication of this order, i.d. an interest @ 9% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization. This order is passed having reliance upon the decision of the Hon’ble National Consumer Disputes Redressal Commission published in 2012(4) CPR 12 (NC). Complainant is at liberty to file execution case before this Forum in case of non-execution of the aforesaid order in its entirety within the stipulated period under the provision of COPRA, 1986. Supply certified copy of this order to the parties free of cost. | 
