West Bengal

Siliguri

CC/112/2018

SMT. KAJAL SAHA - Complainant(s)

Versus

AYURVEDIC CARE & CURE - Opp.Party(s)

JANMEJAY GANGULI

18 Mar 2021

ORDER

IN THE COURT OF THE  DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AT SILIGURI.

CONSUMER CASE NO. 112/S/2018.                    DATE OF FILING: 31-10-2018.

BEFORE  PRESIDENT           : SRI KANHAIYA PRASAD SHAH,

                                              President, D.C.D.R.C., Siliguri.

 

 

                   MEMBERS           : SRI TAPAN KUMAR BARMAN &

                                                  MALLIKA SAMADDER.

                                                           

 

COMPLAINANT             : SMT. KAJAL SAHA,

  Wife of Sri Parikashit Saha,

  R/O- Vidyachakra Colony,

  P.O. & P.S.- Bhaktinagar,

  Dist.- Jalpaiguri, West Bengal, Pin.- 734007.

                                                                          

O.Ps.                  1.                : AYURVEDIC – CARE & CURE,

  Near Pakurtala More, P.O. & P.S.- Siliguri,

  Dist.- Darjeeling, West Bengal, Pin.- 734001.

 

                                         2.                : DR. SUBAL CHANDRA DE,

  Chamber at Ayurvedic – Care & Cure,

  Near Pakurtala More, P.O. & P.S.- Siliguri,

  Dist.- Darjeeling, West Bengal, Pin.- 734001.

 

            Proforma O.Ps. 1.                 : SRI SOUMITRA GHOSH,

  Bimala Medical, P.O.- Champasari,

  P.S.- Pradhannagar, Dist.- Darjeeling,

  West Bengal, Pin.- 734003.

 

                                        2.                 : DR. TAPAS BHATTACHARYYA,

  Chamber at Mukunda Medical Hall, Nivedita Market,

  Opposite Siliguri District Hospital, P.O. & P.S.- Siliguri,

  Dist.- Darjeeling, West Bengal, Pin.- 734001.

                                                                                                                                                                                                                                                      

FOR THE COMPLAINANT         : Janmejay Ganguly, Advocate.

FINAL ORDER/JUDGEMENT

                                                                                            Date: 18-03-2021.

 

                   Facts of the complaint in short:-

Complainant’s case in short is that she is an aged lady of 53 years. The OP no. 1 is an Ayurvedic Care and Cure Centre and OP No. 2 is the owner and Doctor of the centre. The proforma OP No. 1 is the person who discovered the expired injections and proforma OP No. 2 is the Doctor who treated the complainant thereafter. The complainant was suffering from piles problem for long and came to reside at the house of her daughter Smt. Rinki Saha Halder W/O- Swapan Halder in Ward No. 46, P.O.– Champasari under P.S.- Pradhan Nagar.  District - Darjeeling.

It is further case of the complainant on 11.05.2018 with her

Contd….P/2.

-:2:-

 

daughter she went to OP No. 1 and visited OP No. 2 for treatment. The OP N. 2 prescribed few medicines and five vials of injections which were started on that day. The complainant purchased medicines and injections from pharmacy of OP No. 1 and thereafter went to OP No. 2 who pushed first injection to the complainant.

Thereafter on 12.05.2013 the complainant with her daughter went to proforma OP No. 1 for pushing the 2^nd injection whose residence is near the house of complainant’s daughter. The proforma OP No. 1 Shri Soumitra Ghosh pushed the 2^nd injection and after few hours the complaint is stated to feel uncomfortable and suffered illness on that night. Then on next day complainant and her daughter again went to proforma OP No. 1 for pushing 3^rd injection and narrated her illness then proforma OP No. 1 checked injection thoroughly and found that it was already expired in September 2017. Thereafter proforma OP No. 1 told the complainant to bring remaining injections and found those two injections were also expired and proforma OP No. 1 told that all the injections were expired.

It is further case of the complainant that complainant was feeling worse then on 14.05.2018 she went to proforma OP No. 2 Dr. Tapas Bhattacharyya who started her treatment. Thereafter on 14.05.2018 daughter of the complainant lodged an FIR with Panitanki TOP and same was forwarded to Siliguri police station where case no. 302 of 2018 under sections 420/337 IPC was started. It has been alleged that OP No. 1 & 2 knowingly and intentionally had given 5 expired injections to put the life of complainant on stake for their financial gain and committed medical negligence. Due the acts of OP no. 1 & 2 complainant has suffered physically and mentally and has incurred financial losses for her treatment, so this complaint has been filed for relief as mentioned in the complaint.

In this Case main OP Nos. 1 & 2 have not appeared to contest the case. The proforma OP Nos. 1 & 2 have filed their written versions as well as have contested the case by adducing evidences. In written version proforma OP no. 1 has denied that he has pushed injection to the complainant as alleged rather he has stated that on one occasion complainant came to his shop with a request to push an injection to her but prior to pushing of the said injection the proforma OP No.1 found that said injection which was offered to push was expired one, so he denied and refused to push the expired injection to complainant. He has denied allegations made against him.

           The proforma OP No. 2 in his written version has stated that he is a Gynecologist Physician. On 14.05.2018 complainant came before him for initial treatment and after visit he advised the complainant to go to any surgeon for his treatment and disclosed

Contd….P/3.

-:3:-

 

that he is unable to continue her treatment because he is physician of Gyneo problem.
 

Points for considerations

 

Upon considerations of complaint and written versions, evidences and documents filed, following points are required to be considered.

1. Is the complainant a consumer under C.P. Act?
2. Is the complaint maintainable?
3. Is there any deficiency of service or negligence on the part of OPs as alleged?
4. Is the complainant entitled for the relief or reliefs as prayed for?

 

Decision with reasons

                             All the points are taken up for discussions together as each are inter related.

As per evidence of complainant she is an aged lady of 54 years The OP No. 1 is an Ayurvedic Care and Cure Centre and OP No. 2, Dr. Subal Chandra De, is owner of the Centre. The petitioner/complainant was suffering for piles and came to her daughter and resided there for her care.

 The complainant 11.05.2018 with her daughter went to OP No. 1 and OP No. 2 visited the complainant for treatment purpose. The OP No. 2 prescribed some medicine and five injections which were to be started on that day. The petitioner has annexed a copy of prescription dt. 11.05.2018 i.e. Exhibit – 1 issued by OP No. 2 sitting at OP No. 1.

The prescription shows OP No. 2  is specialist in any type of rectal, anal diseases and Kshar Sutra Operation. The OP No. 2 has prescribed his degree as BAMS(Cal), Y.T&Y.F.H(Cal). The prescription shows 5 doses of injection Powercef-S 1.5 gm deep IMOD into 5 days and other medicines which is Exhibit-1. Further the OP No. 1 has issued Exhibit -2 medical bill no. 1517 dt. 11.05.2018 where five vials of injections Powercef-S for Rs. 630/- and also other medicines have been sold. The Exhibit – 2 shows further that in this bill quantity, description and amount has been mentioned but nowhere name of medicines company, batch number, manufacturing date and expiry date has been mentioned for  any medicine. This conduct of O.P. no. 1 violates the laws

Contd….P/4.

-:4:-

 

relating to sale of medicines. The bill contains the Fees amount of Rs.400/= also which will be for OP no. 2.

Now allegation has been made by complainant that on first day i.e. 11.05.2018, OP No. 2 pushed the injection to complainant and complainant returned to her home.

Thereafter on next day i.e. 12.05.2018 the complainant with her daughter went to proforma OP No. 1, Sri Soumitra Ghosh, as house of proforma OP No. 1 was near to residence of complainant’s daughter where she was residing. Thereafter proforma OP No. 1 pushed 2^nd injection to complainant on 12.05.2018 and after three hours of injection, complainant started to feel little bit uncomfortable and suffered illness at night.  Thereafter complaint again went to proforma OP No. 1 for 3^rd injection then told him for her condition after 2^nd injection, then proforma OP No. 1 checked the injection and found it has already expired in September 2017. Thereafter proforma OP No.1 asked the complainant to bring the  remaining injections and on checking found that those two injections were also expired and informed that all the injections were expired. The complainant has annexed a photo copy of one injection as Exhibit-3.

The complainant has further alleged that as her condition was worse, so she went before proforma OP No. 2, Dr. Tapas Bhattacharyya, on 14.05.2018 who treated her. Complainant has annexed a prescription dt. 14.05.2018 as Exhibit-4. The Proforma OP No. 2 has prescribed some medicines. It also appears over this incident complainant has lodged a complaint at Panitanki TOP and later said complaint has been forwarded to the Siliguri PS where Siliguri PS Case no. 302/18 dt. 15.05.2018 under sections 420/337 of IPC has been started.

In this case OP No. 1 and 2 has not appeared and the postal service return was received as addressee left without address and this was treated as service.

The Proforma OP No. 1, Soumitra Ghosh, filed his written version where it appears that complainant has came only on one occasion to his medical shop with a request to put her one injection but said injection was expired, so this OP has flatly refused to push the injection to the complainant. This proforma OP No. 1 has also denied that on next date complainant and her daughter again came to him to push 3^rd injection and complainant narrated her condition to him. He has no knowledge regarding pushing of 2^nd injection to the complainant.

Similarly the proforma OP No. 2, Dr. Tapas Bhattacharyya, in his written statement has stated that he is a Gynecologist Physician. On 14.05.2018 complainant has came before him for

Contd….P/5.

-:5:-

 

initial treatment and he advised her to go to any surgeon for treatment. He has no knowledge about the complaint filed by complainant.

Here from Exhibit-4 it appears the proforma OP no. 2 has prescribed some medicine and has also noted to check up after one week and this is not corroborating to his written version filed in this case.

 In written argument the proforma OP No. 2 has stated that he is not liable to pay any compensation to the complainant and in written argument proforma Op No. 1 has also stated that no claim has been made by complainant against him and there is no latches, negligence or deficiency in service on his part. It has been further argued that complainant has unnecessarily harassed proforma OP No. 1 & 2.

So far as the injection as alleged pushed by proforma OP No. 1 is considered, it appears he runs a medical shop and when complainant has went to him he has seen the injection and when found that it has expired then he refused to push the injection. The Exbibit-3 is a photograph of vial but it did not reflect what is the name of injection, however on the back portion of vial batch number has been mentioned and manufacturing date as December, 2015 and expiry date as November, 2017and incident has occurred on 11.05.2018 to 13.05.2018 and there is no denial from the side of proforma OP no.1 that it is not said injection.

 Ordinarily a doctor even a compounder while push an injection then he verify the expiry date of the injection and thereafter push the injection. Though the proforma Op No. 1 has not pleaded that he is a compounder and authorized to push injection but has denied pushing of any injection to the complainant as alleged. His admission is that he found that the said injection which was offered to push the complainant was expired one, so he has categorically refused to push the said injection.

Thus it is clear that the injections which were sold to complainant by OP no. 1 was expired injection. As Op no. 1 & 2 have not appeared to rebut the allegation of the complainant that Op no. 1 gave the said injection and Op no. 2 push the said one injection stands established.

In this case the complainant has not sought any relief against proforma OP no. 1 & 2. Her main relief is against OP No. 1 & 2.

The complainant has thus been able to prove by evidence that there was deficiency in service as well as unfair trade practice on the part of OP No. 1 & 2.

Contd….P/6.

-:6:-

 

Now come to the relief claimed by complainant which are (i) A sum of Rs. 5,00,000/- for the treatment purpose of the complainant from the OP no. 1 & 2, (ii) A sum of Rs. 4,50,000/- towards physical and mental harassment of the complainant from OP No. 1 & 2 and also (iii) A sum of Rs. 30,000/- for litigation costs from the OP No. 1 & 2.

If allegations made in the complaint and her evidence are considered then complainant was last treated with the proforma Op no. 2 on 14.05.2018 and what has happened thereafter whether she was cured or not or has gone with further treatment are not appearing in the complaint as well as in evidence. So what expenses has been incurred by complainant after 14.05.2018 is not clear. However during those 5 days she has suffered mental pain agony and harassment from the side of OP no. 1 & 2.

 This case has been filed in the year 2018 and till the date of judgment it is not clear as to what treatment she is required till date. However complainant shall be entitled for some damages as well as litigation costs. In the result the complainant is entitled for part relief as the points after discussions goes in her favour.

Accordingly all the points are considered and decided accordingly in favour of the complainant.

Hence, it is ordered,

That Complaint Case No. 112 (S) of 2018 is allowed ex-parte against OP Nos. 1 & 2 with costs but is dismissed on contest against proforma OP Nos. 1 & 2 without costs.

The complainant shall be entitled for Rs. 1,00,000/- for treatment purpose and Rs. 1,00,000/- for physical and mental harassment and punitive damages and also Rs. 20,000/- as litigation costs from the OP Nos. 1 & 2.

The OP Nos. 1 & 2 are here by directed to pay the total amount of Rs. 2,20,000/- to the complainant within 45 days from the date of this order. In default the complainant shall be entitled for  interest @ 12 % per annum thereafter till the realization of the amount.

In default of payment the complainant shall be entitled to execute the order as per law.

Let a copy of this Judgment/final order be provided to the parties free of cost.