DATE OF FILING: 01.07.2013

            DATE OF DISPOSAL: 17.05.2018

Sri Karuna Kar Nayak, President.  

                        The complainant   Niranjnan Dash and Miss Sudipta Dash  have filed this consumer dispute  Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Parties    ( in short the O.Ps) and for redressal of their   grievance before this Forum. 

            2. Briefly stated the case of the complainant is that the complainants are the legal heirs and beneficiaries of the deceased “SWARNAPRAVA DASH” and filed this complaint against the O.Ps. The O.P.No.1 Sankar Kumar Sahu is the owner of the Ayush Hospital and O.P.No.2 Dr. Mamata Sahu, Asst. Professor, Department of ENT of MKCG Medical college Hospital, Berhampur who was treating doctor as well as operated the deceased “Swanraprava Dash” and O.P.No.3 is the Superintendent of MKCG Medical College Hospital, Berhampur whose casualty declared the patient Swarnaprava Dash dead and conducted postmortem over the dead body by the doctors of F.M. & T Department of MKCG Medical college hospital, Berhampur. On 22.05.2012 complainant No.1 alongwith his wife Swarnaprava Dash went to the residence of the Dr. Mamata Sahu for the treatment of the deceased nose and found that there is a mass developed inside her nose. As per pre-discussion with the Dr. Mamata Sahu as well as pre-treated under the Dr. M.Sahu patient direct went to the residence of the Dr. Mamata Sahu. Dr. Mamata Sahu advised her as well as to complainant No.1  to join at Ayush Hospital, Berhampur under the control of O.P.No.1. As per the advise of the treating doctor patient Swarnaprava Dash alongwith her husband proceeded to Ayush Hospital, Berhampur and joined there at 11 A.M. dated 22.05.2012.  After joining in the above hospital O.P.No.1 advised by the O.P.No.2 for making arrangement of the operation. O.P.No.2 on the same day at about 4.30P.M. made the operation to Swarnaprava Dash’s nose.  At about 9 P.M. Swarnaprava Dash feels some difficulty in the operation place as well as severe pain started. The complainant No.1 contact the O.P.No.2 for taking immediate action, instead of her coming to the Ayush Hospital, she was advised to O.P.No.1 to give three injections. However by this night patient become serious and again complainant No.1 contact to O.P.No.2 for the seriousness of Swarnaprava Dash, by that time simply O.P.No.2 advised to complainant No.1 to take the patient to MKCG Medical college hospital, Berhampur.  During the treatment the doctors of the MKCG MCH, Berhampur declared Swarnaprava Dash has dead i.e. on 23.05.2012 at about 5 A.M. morning.  Soon after the death complainant No.1 informed to the local police for this difficulties and the negligence in treatment by the O.P.No.2 and O.P.No.1 for which Swarnaprava Das was died. To this effect the B.N.Pur Police charge sheeted against R I and RII u/s 304(A) 420, 34 IPC on G.R.No. 937/12 before SDJM Berhampur.  The complainants were shocked at the altitudinal difference of the O.P.No.2 that she left the patient after operation at the hospital of O.P.No.1.  It is lack of knowledge of the O.P.No.2 who was fully responsible in treating the patient for which Swarnaprava Das was died on 23.05.2012 at about 5 A.M.  It is pertinent to mention here that the negligence on the part of the O.P.No.1 was exemplified by the fact. The owner of the hospital carelessly, non-observation about the way of sensitive situation of the patient, in that condition the O.P.No.1 was advised by the O.P.No.1 and given three injection to the patient.  This treatment is nothing is very much clear of “Negligent in treatment” to the patient at the serious moment. Hence, it is negligently treatment to the patient by both O.P.No.1 & 2.  The O.P.No.1’s and the staff of the O.P.No.1’s  Hospital did not take proper care of the patient as a result the condition of the patient became serious after operation was done by the O.P.No.2 and Swarnaprava Dash finally died at MKCG MCH, Berhampur which is clear negligence on the part of hospital and the O.P.No.2 doctor. The Hospital of O.P.No.1 without proper care and caution, kept the patient in the operation bed only on commercial purpose to get huge amount from the patient and that the O.P.No.1 demand a huge amounts towards hospitalization. By such type of malafide and deficiency in service done by the O.P.No.1 & 2 the complainants have put to harassment, mental agony and financially loss. Therefore the O.P.No.1 and 2 are liable to compensate the following loss and damages caused to the complainants.

Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.P. No.1 & 2 to pay Rs.18,80,000/- to the complainants towards claim as per above schedule.

                        3. Despite notice issued by this Forum, the O.P.No.3 failed to put his appearance and as a result he is proceeded exparte on dated 17.02.2016.

                        4. Upon notice the O.P.No.1 filed version through his advocate. It is stated that the allegations traversed in various paragraphs made against the O.P.No.1 by the complainants are not all true, correct and are hereby denied the allegations which are not specifically denied be deemed  to have been not admitted by the O.P.No.1. The allegations made by the complainants that they are the consumers within the meaning of provision of consumer protection Act is not true and correct in respect of O.P.No.1 as he has not received any money from the complainant No.1 at any time. It is the strict principle and procedure of the hospital to issue receipts soon after receipt of money. Hence the complaint of the complainant is neither maintainable nor tenable in terms of the provisions under the previews of the Consumer Protection Act 1986 as he could not able to produce any receipt in support of his payment. There is no relation of the complainant with O.P.No.1 as admitted by the complainant in Para No.4 that the doctor had advised him to join the Ayush Hospital as such there is no cause of action against O.P.No.1. The complainants have not furnished any documents to show them as the legal heirs of the deceased. As per the complaint of the complainant O.P.No.1 was advised by the O.P.No.2 for making necessary arrangement of the operation and doing so all possible sincere care and efforts were taken on behalf of the Hospital by the treating physician and well trained expert staff.  There is no iota of negligence towards the patient to maintain the prestige and dignity of the hospital. It is the obvious principle of every hospital to promise best services to every patient for its popularity name and fame. The aforesaid principle is beings followed by this hospital in the instant case. The injections as administered to the deceased were not by the O.P.No.1 but the medical experts available and appointed for the purpose.  The application of three injections to the deceased was felt proper by the treating physician hence given.  The complainant has not furnished any documentary evidence in respect of payment of money to O.P.No.1 towards admission and other charges of the hospital as she was admitted in hospital on the advice of O.P.No.2, he being requested and the patient being introduced by a PG student of the department working under O.P.No.2. In fact the complainant has not paid any fees to the O.P.No.1 and hence failed to produce any receipt before to the Hon’ble Forum. The complainant alongwith his wife went to the MKCG Medical colleges anticipating better treatment without informing the O.P.No.1 and without his knowledge. The allegation of carelessness and non-observation on the way of sensitive situation of the patient as against the O.P.No.1 is neither correct nor true. There is no negligence at all on the part of O.P.No.1 in way of giving required services. The O.P.No.1 is not a doctor and never treated the deceased. The complainant as well as the parent before the operation, signed in the risk bond being aware of its contents that the hospital as well as the treating physician will not be held responsible in case of any mis- happening as the sole aim of O.P.No.1 and 2 is to cure the patient. As such the O.P.No.1 is not entitled to pay any relief and compensation to the complainants since has no liability.  Since the GR case No. 737/2012 pending before the Hon’ble SDJM, Berhampur for trial and the proceeding of which has been stayed by the Hon’ble High Court of Odisha Cuttack, this complaint is premature and liable to be dismissed. The witnesses in their 161 statement in the GR case have stated that Rs.5,000/- was paid to the Hospital where as the complainant stated on the body of the complaint that he has paid Rs.20,000/- to the hospital is self contradictory. Hence the O.P.No.1 prayed to dismiss the case.

            5. Upon notice the O.P.No.2 filed version through his advocates. It is stated that the allegations mentioned in the complaint petition against this O.P. are not all true and correct and the complainants are hereby put to strict proof of the same. The allegations mentioned in Para- 4 of the complaint petition are not true and correct. It is specifically denied that the complainant No.1 alongwith his wife Swarnaprava Dash allegedly went to the residence of this O.P.No.2 (Dr. Mamata Sahu) for treatment of the deceased nose and found that there was  developed inside her nose and as per pre-discussion with Dr. Mamata Sahu, patient directly went to the residence of Dr. Mamata Sahu and Dr. Mamata Sahu advised her as well as to complainant No.1 to join at Ayush Hospital Berhampur under the control of O.P.No.1, and as per advice of the treating doctor patient Swarnaprava Dash alongwith her husband proceeded to Ayush Hospital, Berhampur and joined there at 11.00 A.M. on dated 22.05.2012 are all false and not admitted by this O.P.  The deceased Swarnaprava Dash was admitted in the Ayush Hospital on 22.052.2012 by her husband (complainant No.1) for nasal treatment. On examination it was detected “Deviated Nasal Septum “inside the nose of the deceased Swarnaprava Dash. A medical college student namely Manoj Kumar Dash, S/o Rama Krushna Dash, 6^th Semester of MKCG Medical College Hospital, Berhampur who happens to be the family friends of the complainant was also accompanied with the complainant and his wife on that date who introduced the patient with the O.P.No.2 at Ayush Hospital, Berhampur. He had also narrated the cause of disease of the patient and requested the O.P.No.2 to extend help. The details of pathological tests and other examinations report of the patient were also produced by the complainant No.1. As the aforesaid reports were in fact and operation of the patient was imminent, therefore the patient had to operation upon by the O.P.No.2 after further formal tests/examinations. Prior to operation the patient and her attendants had also given the consent and declaration as required under rule. Since the patient was very closed to a medical college student, therefore no money towards the doctor’s fees and other charges etc. was demanded by the Hospital Authority. The condition of the patient after operation was normal, she had also taken semi solid food. As the patient complained dysponea in the same night, she was immediately administered with injection namely DERIPHYLLINE and PRIMACORT. The patient all along under the strict observation of this O.P. at the hospital after the operation was over. Thus, the allegations that complainant No.1 contacted the O.P.No.2 for taking immediate action, instead of her coming to the Ayush Hospital, she allegedly advised the O.P.No.1 to give the injection are all false and baseless, and hereby totally denied by this O.P. The complainant No.1 is hereby put to strict proof of the same. The complainant No.1 and the attendants of the patients compelled the Hospital Authority to discharge the patient in the night of the same day of operation, which was denied and refused. However, the complainant No.1` with the assistance of his attendants took the patient from Ayush Hospital, against the advice of the Hospital authority.  There was no negligence on the part of this OP at the time of treatment or operation. The patient might have died due to the negligence caused at the MKCG Medical college Hospital, Berhampur. The death of the patient was not caused arising out of the treatment or operation at Ayush Hospital, Berhampur. Therefore, this O.P.No.2 is not liable or responsible for the sad demise of the patient. The complainant has foisted a false case against this O.P. through police. Further proceeding of the case in G.R.No. 937/12 has been stayed by the Hon’ble High Court of Odisha. This O.P. has challenged the action of the police by filing writ before the Hon’ble High Court, Cuttack which is subjudice till date. The postmortem report reveals there was no bleedings at the operated sites and the trachea in fact which means the wind pipe at the throat of the patient was in fact. The stomach of the patient was intact and contains about 50ml of partially digested food materials without any characteristic, order.  Further it reveals that there was no deficiency or negligence at the time of operation. Thus it is established that precautionary measures undertaken by the O.P.No.2 were in-tact and there was no negligence as alleged by the complainant. This O.P. had never neglected the patient as alleged, by the complainant and also rendered best treatment to the patient at the Ayush Hospital. The patient was under strict supervision of this O.P. at the Hospital. Thus O.P.No.2 not attended the patient in proper time at Ayush Hospital are all not true and is hereby specifically denied by this O.P. There was no cause of action arisen against O.P. to institute this complaint petition is not maintainable since the complainants are not the consumer in terms of the consumer Protection Act, 1986. This Forum has no jurisdiction to entertain this complaint petition. Hence the O.P.No.2 prayed to dismiss the complaint petition in the best interest of justice.

                        6. On the date of final hearing we heard arguments at length from the learned counsel for the complainant as well as for the O.P.No.2.  We perused the complaint petition, written version, written argument, citations and documents available in the case record. In the instant case, O.P.No.1 and O.P.No.2’s version that they have not received any money from the complainant for the said nasal operation of complainant’s wife cannot be accepted, because O.P.No.1 is running a private hospital with an intent for monetary gain. So, the plea of the O.P.No.1 and 2 that they have not received any money for the said operation of the complainant is not tenable in the eye of law. It also reveals from the record that the complainant’s wife Swarnaprava Dash was admitted in O.P.No.1’s Hospital on 22.05.2012 and undergone nasal operation at 4.30P.M. on the same day by O.P.No.2. Hence, we presumed that the O.Ps have taken money from the complainant for the said operation of his wife and in our considered view the complainant is a consumer under the C.P.Act. The complainant fails to file any documentary evidence that his wife was referred to MKCG Medical College and Hospital, Berhampur by O.P.No.1 & 2.  The complainant has not produced any expert evidence or medical literature to support his case. Further the complainant has failed to file any documentary evidence in support of his wife’s treatment and  pathological reports on which basis his wife Swarnaprava Das’s operation was conducted. It is also submitted by O.P.No.2 that the complainant with the assistance of his attendants took the patient from Ayush Hospital though Hospital authority has not discharged the patient. It is pertinent to mention here that the complainant has also not denied the version of the O.Ps.

                        7. The Hon’ble National CDR Commission, New Delhi has held in case of Radhasyam Pratapsingh versus women’s clinic and Nursing Home represented through its partner and another reported in 2011 (4) CPR 221 that “Question of medical negligence has to be ascertained by Expert Team”.

                        8. On foregoing discussion and after observation of the aforesaid citation  it is clear evident that the O.Ps are not negligent in rendering proper service to the complainant’s wife. Hence, in our considered view there is no deficiency in service on the part of the O.Ps.

                        9. In the result the complainant’s case is dismissed against O.P.No.1 & 2 on contest and on exparte against O.P.No.3 without cost.

               The order is pronounced on this day of 17^th May 2018 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of