DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 3rd day of October, 2018
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
C.D Case No. 29 of 2016
Chandra Sekhar Dhupal
S/o Late Nityananda Dhupal
At: Sanandapur
Po: Padmapur
Ps: Basudevpur
Dist: Bhadrak
……………………. Complainant
(Versus)
Bibhuti Bhusan Nayak
M.S (Gen. Surgery), S/o Not Known,
At: Sai Hospital (Samaraipur)
Po: Gelpur
Ps: Bhadrak (R)
Dist: Bhadrak
…………………………..Opp. Parties
Advocate For the Complainant: Sri J. Agasti & Others
Advocate For the OP: Sri J. K. Nayak
Date of hearing: 17.10.2017
Date of order: 03.10.2018
SRI RAGHUNATH KAR, PRESIDENT
That, the complainant has alleged against the OP having aggrieved with his deficiency of service caused towards him. The complainant has alleged that the OP is a doctor by profession, used to treat the patients in his clinic regularly which is situated at Samaraipur, Po- Gelpur, Ps- Bhadrak (R), Dist- Bhadrak named and styled as Sai Hospital. The OP received Rs 20/- as his fees, diagnostic the patient and prescribed some medicines to the wife of the complainant who was suffering from headache. The complainant has also alleged that on the same day of treatment on 02.10.2015, the patient took the medicine and died due to acute pain the patient died due to medicine reaction. The complainant has further alleged that the patient Linarani Dhupal, the wife of the complainant died at the outcome of in medicine reaction. The doctor has not properly examined the patient and prescribed the medicine whimsically. Hence the doctor is only responsible and liable for the death of the complainant’s wife.
The complainant has also alleged that as per the postmortem report the concerned doctor has opined that the death has been caused due to “Drug Intoxication”. The complainant’s allegation is completely based upon the negligence of the treatment of the doctor. As a result of which the deficiency of service caused by the OP towards the complainants wife. The complainant has served a legal notice to the OP on 06.01.2016 claiming of Rs 5,00,000/- only for loss of pecuniary and loss of non-pecuniary . The deceased Linarani Dhupal used to earn Rs 10,000/- in a month out of her tailoring business and she was feeding and fostering the members of her family. The family of the complainant is suffering from in abject poverty. The OP neither responded the legal notice nor he sent any reply to the complainant. The cause of action of this case arose on 02.10.2015 when the patient took the medicine and on 11.10.2015 when the patient died, further the cause of action arose on 15.01.2016 when the OP refused to pay the compensation.
The complainant has sought for the following reliefs as follows:-
1. The OP is to be directed to pay Rs 5,00,000/- to the complainant for loss of pecuniary and the loss of non-pecuniary along with 9% interest till realization of the compensation.
2. The OP is to be directed to pay Rs 50,000/- towards mental agony.
3. The cost of the litigation is to be awarded and other reliefs what the learned Forum shall deem fit.
Documents filed by the complainant (Xerox copy):-
1. Copy of the prescription by OP doctor on 02.10.2015.
2. Copy of P.M Report on dt. 11.10.2015.
3. Copy of legal notice on dt. 06.01.2016.
4. Copy of refused to pay the compensation amount by the learned Advocate Sri Raj Kishore Das on dt. 15.01.2016 on behalf of OP.
The OP has filed his written version as follows:-
That the OP has challenged the maintainability of this case of the complainant in the present Forum. He has also alleged that the complainant has not come to this Forum clean handed and he has suppressed the truth. The OP has denied the averments of the complaint. The OP averments are as such that on dt. 02.10.2015 like other patients the complainant and his wife came to the OP with a complain of serious headache. The symptoms stated by the patient was the case of anxiety and peripheral neuritis, so the OP prescribed him the medicine “Aculip- H” to consume one tablet twice daily and besides this also prescribed to take “MEPXL” and “Soyamin- 22” and were directed to report him after 7 days. The composition of “Aculip- H” is Amitryptlin- F and Chlordiazepoxide. It is the common medicine prescribed by the doctor for anti-dipression. The said medicine is the just and proper safest medicine for the said disease. The said medicine is in no way fatal to the life of the patient. The medicines have no side effect. There is no complaint of trouble from any patient of any corner. The other medicine “MEPXL” and “Soyamin- 22” are the vitamin and protin medicine. So by consuming this three medicine it cannot be alleged that the wife of the patient/petitioner died by consuming the said medicine. The complainant has not placed any material before the Forum that his wife has consumed the medicine as prescribed by the OP and has not consumed any other medicine. The patient was advised to take the medicine on dt. 02.10.2015 but how for the case of the complainant is concerned his wife died on 10.10.2015 so for the death of wife of the complainant the OP cannot be made liable. To became sure whether by consuming the medicine as prescribed by the OP, the opinion of other senior medicine specialist can be obtained.
For the above mention causes the OP has prayed for the dismissal of this case.
OBSERVATION
We have already perused the complaint as well as the documents and the written version filed by the complainant as well as the OP. It is admitted fact that the OP is a doctor and the complainant deceased wife was treated by him on 02.10.2015. The OP had treated the patient in his own Nursing Home which is named and stylized as Sai Hospital situated at Samaraipur, Po- Gelpur and Dist- Bhadrak. The complainants wife prayed the OP Rs 20/- as his professional fees. The complainant has alleged that due to acute pain she was treated by the doctor and she swallowed the medicine immediately just after the prescription was made to get remission.
After lapse of 9 days on 11.10.2015 the complainant’s wife Linarani Dhupal who was the patient died due to the reaction of medicine. The complainant has again alleged that the postmortem report reveals that the patient dies due to “Drug Intoxication”. The complainants concerned advocate sent a legal notice to the OP claiming Rs 5,00,000/- as compensation but the OP did not respond the legal notice. In order to reach at consequence of this case the following issues have been framed.
1. Is the present complaint maintainable?
2. Has the case cause of action?
3. Is the complaint liable to be dismissed for multi cause of action?
4. The burden of proof lies upon the complainant.
5. Is the averments of the complainant indefinite, on specific and ambiguous?
6. Is the complainant entitled to what he has sought for?
We would like to discuss the issue No. 1 as the patient was suffering from anxiety and peripheral neuritis, so the OP prescribed him the medicine “Aculip- H” to consume one tablet twice daily and besides this also prescribed to take “MEPXL” and “Soyamin- 22” and were directed to report him after 7 days. The composition of “Aculip- H” is Amitryptlin- F and Chlordiazepoxide. It is the common medicine prescribed by the doctor for anti-dipression. The said medicine is the just and proper safest medicine for the said disease. The said medicine is in no way fatal to the life of the patient. The medicines have no side effect. There is no complaint of trouble from any patient of any corner. The other medicine “MEPXL” and “Soyamin- 22” are the vitamin and protin medicine. So by consuming this three medicine it cannot be alleged that the wife of the patient/petitioner died by consuming the said medicine. The complainant has failed to substantiate his case because he has failed to file a single page of cash memo of the medicine. He has also failed to prove that the doctor has not properly diagnose the patient. He has treated the patient whimsically as well as prescribed the medicine whimsically also. Hence the present case is not maintainable and liable to be dismissed.
The learned Forum has introspected that the present complaint has got some multifarious cause of actions. The complainant has mentioned 3 numbers of dates of cause of action, such as 02.10.2015, 11.10.2015 & 15.01.2016. The case is barred by multiplicity of cause of action for which the present case is liable to be dismissed.
According to the evidence Act Section- 102 provides that the burden of proof lies upon the complainant. In this case the complainant has filed only two documents those are the Xerox copy of prescription, and the Xerox copy of the postmortem report. Those two documents are so illegible which cannot be readable. It is not possible on behalf of the Forum to adjudicate the case without obtaining the proper documents. The postmortem report is so haphazard that it cannot be treated as a piece of evidence. The prescription, cash memo of the medicine and the postmortem report would have been exhibited by the complainant. But the complainant has not done so. It was the primary duty of the complainant to call for the expert report. The complainant has also failed to do so. According to the complainant in the Para- 4 it is stated that “The cause of the death in postmortem report has been written as Drug Intoxication”. In this context the complainant cannot assure that within this gap of 9 days the complainant’s wife had taken any other medicine from any other doctor. The complainant also cannot assure on submitting any evidence that the particular medicine prescribed by the OP caused the death of the patient. The complainant has also failed to write in the complaint the specific disease and the specific pain the patient was suffering from. So the complainant has failed to establish the case.
The averments made in the complainant in his complaint that “the doctor prescribed whimsically”, but he could not establish how the prescription was written whimsically. The complainant has also averred that the OP has not properly treated the complainant and properly investigated the dieses. The complainant has not come to this Forum clean handed because how could he be assured the doctor has committed all the wrongful activities. So the averments of the complainant is improper, indefinite and on specific. The complainant is not entitled to obtain any relief because he has failed to establish his case properly. Hence it is ordered;
ORDER
The complaint be and the same is dismissed against the OP as devoid of merit without cost.
This order is pronounced in the open Forum on this day of 3rd October, 2018 under my hand and seal of the Forum.
