This is a complaint filed U/S 12 read with Section 13 of the Consumer Protection Act, 1986 praying for an award of Rs 3,00,000/-, compensation of Rs 2,00,000/- and litigation cost of Rs 5,000/-.

The fact of this case in brief is that Shima Malakar since deceased, who happened to be the wife of the complainant, was admitted as indoor patient under Dr. Kanchan Saha, the opposite party No.2, in the Sub-Divisional Hospital, Islampur. The said doctor diagnosed the patient to be anemic and prescribed four units of blood to be transfused. The opposite party No.1 was in the charge of Blood Bank Unit of the said hospital. He tested the blood and on analysis the group of the blood of the patient was detected to be ‘A’ +ve. The blood was supplied on payment and same was transfused to the patient between 02.01.2009 to 05.01.2009, under the direction of the opposite party No.2. The next case of the complainant is that the said transfusion turned to be fatal, the condition of the patient was deteriorated rapidly and the doctor (opposite party No.2) finally detected that the blood was not of the group of the patient, which is supposed to be ‘B’ +ve and not ‘A’ +ve. Then the matter was reported to Dr. Binay Bhushan Das, the then Super of the hospital and he was of the opinion that Officer-in-charge, Blood-bank was not wrong. The same Officer-in-charge again tested the blood of the patient and now found on test that the patient’s blood is of the group of ‘B’ +ve. The condition of the patient turned so serious that she was referred to North Bengal Medical College and Hospital (NBMCH for short). There the patient stayed between 06.01.2009 and 23.01.2009, but her condition never improved. So, she was referred to SSKM Hospital, Kolkata. But, the patient died on 24.01.2009 at Tinmail near Siliguri on way to SSKM College and Hospital.   Finally, the complainant submitted that all the opposite parties are severally liable for the ill-treatment mated to the patient, so, they are negligent therefore guilty of deficiency of service.

          This case is contested by the opposite parties by filing one consolidated written version. But, actually the written version has been signed by the opposite party Nos. 1, 3 and 4. But we do not find signature of opposite party No.2, Dr. Kanchan Saha. What ever may be opposite parties have challenged the present complaint on the ground of certain legal infirmities. The first is that the present complaint is not maintainable as the dispute between the complainant and the opposite parties is not a consumer dispute. In fact there case is that anemia is not a disease but a symptom of a disease and so Dr. Saha, the opposite party No. 2 has prescribed 4 units of blood to be transfused to the patient, Shima Malakar. It is claimed that the blood was transfused under the close supervision of a nurse deputed by the opposite party No.2. It is also denied that blood of the patient was again tested in the same hospital’s laboratory and found the result ‘B’ +ve. The patient was referred to NBMCH, Siliguri and it is admitted further that as the condition of the patient was deteriorating rapidly, so she was referred to SSKM Hospital. It is positively asserted by the opposite parties that there is no any deficiency in service by the authorities of the Sub-Divisional Hospital, Islampur. So, agitating all these points the opposite parties finally want the dismissal of the present complaint.

          It is to be mentioned at first that in support of his case complainant has filed certain documents. He has also put his statement in the form of affidavit and faced the cross-examination by the opposite parties. Be it mentioned here further that the opposite parties did not filed any document nor they have filed there statement on affidavit.

Decisions with reasons

          The case is challenged from the side of the opposite parties on the ground that there is no relationship of a consumer and service provider between the complainant and the opposite parties. The complainant is not a consumer and no consumer dispute exists between the complainant and the opposite parties. - Considered the submission.

          The point agitated by the Ld. Lawyer for the opposite parties has already been set at rest by the decision. Now, the medical service is also come within the service as defined in section 2(1) (d) of the Consumer Protection Act, 1986. It is already observed that where medical service is rendered as part of terms and conditions of service, it is not the case of free service. It would constitute service for the purpose of the Act. So, a doctor whose service condition is to provide medical advice to treatment of patient, such service will be taken into a service to the consumer and in that circumstances the present Act shall apply. So, in view of this Forum the dispute between the complainant and the opposite parties is a consumer dispute and the status of the complainant is of a consumer where as of the opposite parties is of service provider.

          Ld. Lawyer for the opposite parties in course of his argument has referred a well known decision of Hon’ble Supreme Court reported in AIR 2009, Supreme Court 2049. The relevant part of the Judgment referred casts a duty on the Fora to seek opinion of expert doctor/ committee of doctors before notice is issued. Ld. Lawyer for the opposite parties banking on this decision has made an attempt to convince this Forum that the procedure adopted in this case is not at all according to the guideline given by the above noted decision. To put it more clearly, the opposite parties of this case were summoned/ noticed by this Forum without having an opinion from expert doctor/ committee of doctors in possession.

          But the same Supreme Court has reviewed its own observation in another subsequent case reported in 2010 Supreme Court (CP) Page-862. On a careful study of this decision we do find it clearly that direction laid down by Two Judges’ Bench of Supreme Court in Martin-F-D-Souja vs Md. Ishfaq (already referred by Ld. Lawyer) are contrary to the provisions of the governing statute and also inconsistent with the avowed purpose of the Act. What ultimately decided the Apex Court in the decision referred by us is that where a Medical Practitioner or Hospital is negligent or not is a mixed question of fact and law, Forums are not bound in every case to accept the opinion of expert witness. It has been further observed; where the medical negligence is self-evident it requires no expert evidence to prove it.  So, from above discussion it comes to us very clearly, that the decision cited by the Ld. Lawyer for the opposite parties has already been over ruled by the Hon’ble Supreme Court in its subsequent judgment. So, calling an expert is not a mandatory duty of Forums.

          Now, in this case we find that Shima Malakar, since deceased was admitted to ISDH on 05.01.2009 and she was under the treatment of Dr. Kanchan Saha, opposite party No.2 and on his advice the blood of the patient was tested Annexure – 1 is the blood report of the patient, Shima Malakar and the report of her blood was ‘A’ +ve. Now, a handwriting note on the top of the Annexure No. 1 is an admission to the blood report. In Bengali it has been written and its English translation means that there was certain error in detecting the blood group of the patient. We find here a reference of two different detection of the blood sample of the patient one is ‘A’ positive and another is ‘B’ positive. The note in Bengali further means of something error was done detection of the blood sample. Now Annexure – 3 is the blood report of the same patient done in NBMCH, Siliguri. Here we find that three units of ‘B’ positive blood were give here. The NBMCH diagnosed the case of the patient, Shima Malakar to be post transfusion complications and therefore she was referred to Hematology Department, SSKM/ NRS, Kolkata. There was a note on the reverse of Annexure – 3, it reads that patient was apparently well during pregnancy. After delivery of baby, one unit of blood transfused. For detection of blood grouping on second time blood transfusion it was detected ‘B’ positive. Since then she was in fever and weakness. Annexure – 4 is a letter addressed to the Super, Islampur SD Hospital, dated 04.01.2008 by the complainant. This letter relates to the treatment of her wife in the hospital. Annexure – 6 is a blood report of Shima Malakar, which shows the result ‘B’ positive. So, from the above we do find a series of carelessness on the part of the concerned doctor and the person in charge of the blood bank of the said hospital. It has been decided by our Apex Court reported in CP 2009, Page-701 2009 that wrong blood transfusion is an error, which no hospital/ doctor exercising ordinary care would have made. Such an error is not an error of professional judgment but in the very nature of things a sure instance of medical negligence. It is to be noted finally that patient’s condition started deteriorating after transfusion of blood in the SD Hospital, Islampur that is why the hospital referred the patient to North Bengal Medical College and Hospital for better treatment, who finally failed to provide any proper remedy to the patient and also referred her to SSKM/ NRS hospital.  So, it is very hard to swallow the argument advanced by the Ld. Lawyer for the opposite parties that after transfusion of blood the condition of the patient was gradually improving. Had it been so, the patient would not have been referred to two Medical Colleges and died within one month from transfusion of blood. So, the hospital i.e. Sub-Divisional Hospital, Islampur along with the doctor and staff engaged in the entire matter can not get escape. As such they are all liable for the negligence found in the entire treatment of the patient. So, the case of the complainant is a fit one to have a favourable order.

Hence, ordered,

That the consumer complaint No. 21/2010 is allowed on contest against all the opposite parties. The opposite party No. 3 and 4 are liable as the administrative authority of the Islampur Sub-Divisional Hospital. So, all the opposite parties are jointly and severally liable to give the compensation to the complainant. So, the opposite parties are directed to pay compensation of Rs 3,00,000/- to the complainant together with litigation cost of Rs 1,000/- and Rs 5,000/- for mental agony and harassment. All the payments be made within one from the date of this order. In case of default an execution case may be initiated for satisfaction of the decree.  

Fees paid are correct.

Furnish the true photocopies of this Final order to the parties free of cost.