HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This appeal has been filed by the Appellant Dr. Dipak Kr. Misra against the order dated 28/09/2015 passed by the Learned District Consumer Disputes Redressal Forum, Abasbari, Tamluk, District Purba Medinipur ( in short the ‘District Forum’) in connection with consumer case No. CC/25/2015.

2. Brief facts of the case are that complainant Debdulal Shyamal is a permanent resident of Purba Medinipur district, Smt. Saraswati Shyamal, aged about 58 years was the mother of the complainant. The mother of the complainant Saraswati Shyamal was admitted at the Contai Sub-Divisional Hospital under the Appellant Dr. Dipak Kumar Misra on 05/11/2014. The appellant in course of treatment of said Saraswati Shyamal advised four units of blood for transfusion to the patient. As per requisition slip of the treating Doctor i.e. appellant, the blood bank of Contai Sub-Divisional Hospital supplied four units of blood for transfusion to the patient. It is alleged by the complainant, Debdulal Shyamal that the opposite party No. 3 Dr. Mantu Maiti, without cross matching the blood group of the patient supplied AB+ group blood.

3. It is further case of the complainant that AB+ was not the actual blood group of the patient Saraswati Shyamal but it was A+. Due to transfusion of the wrong blood, condition of the said patient allegedly deteriorated. The said patient was discharged from the Contai Sub-Divisional Hospital on 07/11/2014. Thereafter, Saraswati Shyamal was taken to N. R. S. Medical College & Hospital, Kolkata on 21/11/2014 and after a brief stay, she was discharged therefrom on 04/12/2014. The said Hospital determined the blood group of the patient as A+ and transfused one unit of blood of A+ group to the said patient. The said patient again got admitted at Contai Sub-Divisional Hospital on 01/03/2015 and was discharged on 04/03/2015. Terming such alleged wrong blood transfusion by the Appellant and other opposite party is an instance of gross medical negligence. Hence, the complainant prayed for an order directing the opposite parties i) to give a compensation of Rs.19,00,000/- to the complainant for deteriorated condition of his mother by medical negligence of opposite parties and ii) to pay a litigation cost of Rs.10,000/- to the complainant.

4. The appellant and respondent No. 2 and respondent No. 3 entered appearance in this case and contested the case by filing written version separately.

5. After contested hearing the consumer case being No. CC/25/2015 was allowed on contest against the appellant and respondent No. 3 and dismissed against the respondent No. 2 / opposite party No. 1.

6. Aggrieved by the order of the District Forum, the appellant has preferred this first appeal before this Commission.

7. Heard the Learned Advocates of the respective parties and perused the record including the impugned order dated 28/09/2015.

8.  The Learned Advocate appearing for the appellant has urged that the Learned District Forum ought to have dismissed the case of the complainant as in spite of asking the complainant to adduce evidence on 08/06/2015 and 23/04/2015 and on each time it was submitted on behalf of the complainant that complainant will not adduce any evidence and categorically stated that he will submit no witness on his side thereby neither his documents annexed with the complaint petition is marked as evidence nor the opposite parties got any chance to cross examine the complainant about his allegations as well as the validity and / or admissibility of the said documents. He has further submitted that Learned District Forum referred “ that the complainant has come up with some exhibits but did not make any whisper about it in his day to day orders or in the judgment / Final Order as how these documents are marked as exhibits”. Learned District Forum while passing the judgment / Final Order recorded that “the patient Saraswati Shyamal died on 06/04/2015 as it appears from the death certificate filed by the complainant on 13/05/2015, but it is evident from the order sheet dated 14/09/2015, Order No. 17, that the complainant filed one Xerox copy of death certificate by Firisti are also kept in record” which suggests that Learned Forum perused the documents in very casual manner and did not weigh the documents in its true prospective by applying its judicial mind while passing the judgment / Final Order in this score alone the judgment / Final Order which is liable to be set aside.

9. On the other hand, Learned Counsel for the respondent No. 1 / complainant has urged that judgment was rightly passed. So, the judgment/ order should not be set aside.

10. We have given a thoughtful consideration of the documents advanced by both the Learned Counsel as well as examined the record.

11. Upon hearing both sides and on perusal the materials on record, we find that the respondent No. 1 / complainant was given opportunity to adduce evidence to prove his case. Record also goes to show that to prove the case, the complainant did not adduce any evidence on affidavit on his behalf. It is submitted on behalf of the complainant that he will not adduce any evidence and categorically stated that he will not produce any witness on his side and no documents were also annexed with the complaint petition by the complainant. It also appears to us that since the complainant did not adduce any evidence on affidavit and he has not been examined in this case, the opposite parties failed to cross examine the complainant about the allegation levelled against the opposite parties.

12. Learned Lawyer appearing for the respondent No. 1 / complainant has frankly submitted that the complainant did not adduce any evidence on affidavit in support of his case. In spite of that consumer case was allowed by the Learned District Forum by the impugned judgment.

13. Therefore, the reasoning of the District Forum which has not exercised its jurisdiction, cannot be supported in the eyes of law. Both the parties by joint pursis also submitted that they be given an opportunity to lead their respective evidence as per the provision of Consumer Protection Act and matter be remanded back to the Forum for de novo trial from the stage of receiving the evidence. We find their such request, in the circumstances mentioned earlier, is proper and justified.

14. In view of the above, we are of the considered opinion that this is a fit case whether the matter should be remanded to the Learned District Forum to decide the case afresh. In the premises noted above the appeal is allowed.

15. The impugned order dated 28/09/2015 passed by the Learned District Consumer Disputes Redressal Forum, Abasbari, Tamluk, Dist. Purba Medinipur in connection with Consumer Case No. CC/25/2015 is hereby set aside.

16. The matter is remanded back to the Forum in view of the observations recorded in the body of the order.  Both the parties shall appear before Learned District Forum on 13/10/2022.

17. The Forum, thereafter, shall give opportunity to both the parties to lead their respective evidence as per provisions of the Consumer Protection Act and then settle the dispute according to law.

18. In the given circumstances, both the parties to bear their own costs.

19. The appeal is thus disposed of accordingly.

20. Let a copy of this order be sent down to the Learned District Forum at once for information.