In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/93/2020.

Date of filing: 18/12/2020.                     Date of Final Order: 15/04/2024.

Smt. Indira Dey,

w/o Late Mohit Mohan Dey,

r/o Sarisapara, P.O. & P.S. Chandannagar,

Dist. Hooghly, PIN. 712136.                                                    …..complainant

  -vs  -

1. The Proprietor,

Deepa Diagonstics,

Office situated at- New Hospital Road,

(Beside Medicare Nursing Home),
P.O. & P.S. Chinsurah, Dist. Hooghly, PIN. 712101.

2. Anandamoyee Helpline,

Authorised collection center,

Of Subir Dutta Lab, Chinsurah Bus Stand,

P.O. & P.S. Chinsurah, Dist. Hooghly, PIN. 712101.

……..….opposite parties

3. The Proprietor,

Amala Nursing Home,

553, Vivekananda Road, Karbala More,

P.S. Chinsurah, P.O. & Dist. Hooghly, PIN. 712103.

4. Dr. Prakash Samanta,

Chamber at- Archana Pharmacy,

Hospital Road, Chinsurah,

P.O. & P.S. Chinsurah, Dist. Hooghly, PIN. 712101.

…..proforma opposite parties

Before:            President, Shri Debasish Bandyopadhyay.

                       Member,  Debasis Bhattacharya.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35(1) (b) of the Consumer Protection Act, 2019 by the complainant stating that complainant had undergone a Gallbladder surgery on 30^th June, 2020 conducted by Dr. Prakash Samanta, i.e. proforma OP-4 and according to his advice the complainant was admitted before the Amala Nursing Home i.e. Proforma OP-3 on the same date.  Post operation, Dr. Prakash Samanta advised for Biopsy of the complainant, to the other family members of the complainant for prognosis of any further malignancy, if any and accordingly the son and son-in-law of the petitioner agreeing on it and was ready for biopsy and one agent of the op-1 who was present of that time, collected the sample from the said Nursing Home i.e. proforma OP-3 and for which the son of the complainant instantly paid Rs.1050/- to OP-1 for said test and accordingly the agent of the OP-1 issued cash memo vide no.1002 dt.1.7.2020 thereafter the OP-1 asked the family members of the complainant to collect the report from them, i.e. OP-1 after three weeks.

On 22^nd July 2020 the daughter of the complainant got a call from an anonymous person and asked her to collect the biopsy report of the complainant from their center near Chinsurah Bus stand i.e. OP-2.  The daughter of the complainant after hearing the same being perplexed requested him to deliver the report at home otherwise to tell her over telephone as because on that time the daughter of the complainant was completely alone taking care of her ailing mother, i.e. the complainant as well as her daughter but it was in vain when the anonymous person refused to do that.  Finding no other alternative  the daughter of the complainant informed her husband i.e. son-in-law of the complainant over telephone and in such a helpless condition she requested her ailing father-in-law to collect the report from the OP-2.  The father-in-law of the complainant’s daughter after hearing the entire facts and situation  without delay don’t caring about such covid-19 situation, reached to OP-2 and he had to return home without report but to heard that “No report had been generated due to misplacement of the sample taken by the OP-1 for the test of biopsy”.  The entire situation put the complainant in shock and her family members and relatives was completely astonished.

As per the opinion formed by the surgeon Dr.Prakash Samanta that after operation the biopsy test of the sample is highly required to ensure whether any malignancy is found from the sample collected from the body of the complainant at the time of operation of the patient, i.e., the petitioner.  It is the direction of the OP-1 to attend the center of the OP-2 as they properly arrange the biopsy test and to supply the report properly within the time specified and after perusal of the report the surgeon Dr. Samanta will take appropriate application for further cause of action of the patient and her treatment.  Until and unless the report is rechecked after examination of the sample, the further treatment could have not to be done by any doctor or any specialist by any way by exercising ordinary course of medical treatment.  It is not possible to collect the sample furthermore from the operative place or the person of the patient.  The act of the OP-1&2 are totally violating any civic sense and at the same time they are playing ridiculously with the life of the patient.  The act of the OP-1&2 causes severe sufferings of mental pain, agony restlessness of the complainant and her family members and rather they are in afraid regarding the life of the complainant, whether any malignancy are there or not.  This sort of sufferings only happen due to the malicious act causes almost deficiency of service, negligence and lack of duty towards the customers in accordance to the provisions of the C.P.Act.  Due to such negligent act from the part of the OPs -1&2 the complainant was compelled to bear huge expenses, and till now she is under the treatment for her surviving, and for that negligent act and deficiency in service from the part of the OPs-1&2 the petitioner has expensed a huge amount, the documents of which are in the hands of the petitioner and she is always suffering from mentally until and unless she received the report of Biopsy from the OPs-1&2.  From the above facts it will be revealed that when the duties of a registered authority like the OPs 1&2  owed to the patient, breach on any of the duties will be considered for negligence.  In that regards the OP-1&2 committed such negligence in the eye of law.

It is complete failure on the part of the OP-1&2 to take due care to return the correct findings of the report, by which further prognosis was vital whether any malignancy exist or not which relates with the complainant’s health issue and diagnosis. 

According to the section 2(d) of the West Bengal Clinical Establishments (Registration Regulation and Transparency ) Act 2017 clearly define the meaning of “clinical Laboratory”  which is described in complaint’s petition.

There is no doubt that the OP-1 &2 are clinical laboratory and being a service provider could not attained with due diligence care and precautionary measures for preparing Biopsy report of the complaint.  Due to the negligent act of the OP-1&2 the complainant is facing mental agony and pressure.  The complainant sent a legal notice, through her appointed Ld. Advocate of Judges” Court, Hooghly to the Op-1 on 30.7.2020 in where she elaborately mentioned their negligent activities and also seeking for deliver the report against the sample, collected during the operation for Biopsy but all the efforts were in vain.  No report has been delivered to the complainant till date.  The OP-1 sent a reply notice, through his appointed ld. advocate without date, against the said letter sent by her, through her appointed ld. advocate, dated.30.7.2020 by denying all the facts and negligence committed by him and trying to shift his burden of upon the OP-2.  In the said letter the OP-1 also admitted that he had no sufficient and proper equipments for generating and preparing the actual Biopsy report.  If it is so, then why the OP-1 could not state it to the complainant as well as her family members before declaring the same?

In the section 7(3) of the West Bengal Clinical Establishments (Registration Regulation and Transparanency) Act 2017 clearly elaborates that every clinical license granted under sub-section(1) shall be subject to the following terms and conditions:-

1. The clinical establishment shall not resort to any unethical or unfair trade practices including unfair practicing for different services.
2. Such reports in such form containing such particulars and such necessary documents shall be submitted to such authorities at such intervals or on demand as may be prescribed.

From the above facts it is crystal clear that neither the Op-1 nor the OP-2 keep such medical reports or any document, which is absolutely unethical unfair and absolute negligence.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 10,00,000/- for loss and life threatening activities and to pay a sum of Rs.100000/- for mental agony and harassment and to pay a sum of Rs.20000/- for cost of legal proceeding.

Defense Case:-  The opposite party No. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complainant has implicated the answering OP-1 in this case unnecessarily though there was never any sort of negligence or deficiency in services on the part of this Op which is clearly evident in view of the facts involved in this case.  Though admittedly it is very much unfortunate on the part of the complainant regarding the happenings she had to be faced in this case but the same cannot be equated with any sort of deficiency or intentional act or even an unfair trade practice by any one and strictly speaking by the answering OP-1 at any rate as has been complained of by the complainant which would be clearly evident from the phases of the incidents took place in this case.  To make enlighten the Hon’ble Commission about the actual incidents involved in this case, the answering OP begs to submit chronologically in the following paragraphs, for due consideration in the way of proper adjudication of this case.  The answering OP-1 establishment carries with the works of holding different kinds of tests viz Blood cough stool, swabs etc. in and around the locality and has earned a good deal of reputation in these fields.  The fact remains that answering OP never deals with examination of any “Biopsy” because it needs a different kinds of laboratory set up which never exists in this centre.  This fact is very much known in the locality.  But till then the answering OP have to collect “Biopsy” materials, on requests from the Medical Institutions of the locality to cause it examined or test by the renowned Laboratory of Kolkata under the name and style of “Scientific Clinical Research Laboratory Pvt. Ltd. (SCRL)” commonly known as ‘M/s Subir Kumar Dutta Lab”  through its local franchisee under the name and style of “Anandamoyee Helpline” the OP-2 of this case.  In course of such business, the answering OP has acquired a very good business relationship with Ämala Nursing Home”, the Op-3 of this case, amongst such other renowned Medical Institutions in and around the locality.

The answering OP has collected the Biopsy material of the complainant from the patient party at M/s Amala Nursing Home and as usually it was handed over to the aforesaid franchisee M/s Anandamoyee Helpline, the Op-2 of this case within the due knowledge and consent of the patient party of the complainant for examination of the same by aforesaid laboratory of Kolkata, viz “Scientific Clinical Research Laboratory Pvt. Ltd. (SCRL)” commonly known as ‘M/s Subir Kumar Dutta Lab” and to get the report there from.  Subsequently it is reported that most unfortunately, whole sample of the complainant alongwith other some other few (three) samples of other patients were lost in transit while it were carried to Kolkata by two wheeler in a compelling situation as there was total stoppage of all sorts of transports, including Trains and other vehicles in the midst of the pandemic COVID, 19.  Naturally, it was never by any intentional act on the part of any one which can be equated with any sort of deficiency in services or unfair trade practices, as has been claimed in this case.  Specially, the answering OP cannot have any role at all. 

At any rate, the aforesaid franchisee M/s Anandamoyee Helpline the OP-2 of this case has acknowledged the liability of this untoward incident on its part in writing by its authorized person on 10.07.2020. The more important fact is that the patient party of the complainant has attended the premises of the Op-2 and after disclosure of the untoward and most unfortunate incident by the proprietor himself, the patient party have duly acknowledged the situation with sympathy and agreed to receive back the fees which they paid for the examination/test and accordingly the said entire fees of Rs.1050/- was refunded to them by the OP-2.  Naturally, the matter ought to have been end there.  But it is very painful that inspite of all such incidents, the complainant has filed this case to create pressure upon the Ops.

From the facts and circumstances, honestly and vividly placed by the answering OP before the Honourable District Commission, the answering OP hope that the Hon’ble District Commission would be kind enough to hold that the answering OP-1 has no role in the matter and is thus never liable to be responsible for any sort of deficiency in services or any unfair trade practice.  The answering OP-1 may therefore be exonerated from any sort of liability in connection with this case and thus not be held to be liable to pay any compensation, as has been prayed for.  The instant petition of complaint may therefore kindly be dismissed as against the answering OP-1 M/s Deepa Diagnostics.

The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that op no. 2 is a reputed concern and it has no past bad record. It has main office in calculate namely Scientific Clinical Laboratory Pvt. Ltd. All sample of Anandamoyee Helpline were lost in transit when those sample were carried to Kolkata by two wheeler in pandemic situation and natural it was never by intentional act on the part of the op or there are no deficiency of service and unfair trade practices of any one. It is merely result of an act of God. So, there is no intentional activity which causes injury, agony to the petitioner. So, ld. Court may dismiss this case by considering said grounds.

The opposite party No. 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complainant has implicated the answering op no. 3 in this case unnecessarily though as a proforma op inspite of the fact that admittedly no allegation has been made against this op nor even has claimed any relief against this establishment within the four corners of the petition of complaint so naturally in absence of any sort of allegation no complaint case under the Consumer Protection Act ought to have been entertained at all since it is not any Civil proceedings. At any rate in view of service of summons upon this op this establishment has duly entered its appearance in this case in obedience with the direction of this Hon’ble District Commission to place submissions on behalf of this establishment as regards facts within the knowledge of this op and the complainant Mrs. Indira Dey was admitted at this nursing home on 30.6.2020 for her gall bladder surgery under Dr. Prakash Samanta and on the very day on 30.6.2020 her gall bladder was duly operated by Dr. Prakash Samanta and as per advice of the said Doctor, the specimen of said gall bladder was duly handed over to the then attending personnel of this nursing home, after its proper labeling, to give the said sample of gall bladder to the patient party, as per usual procedure in all other surgeries. It is also correct to say that the said sample was duly handed over to the op no. 2, Anandamoyee Helpline, a local authorized franchise of the renowned Laboratory of Kolkata under the name and style of “Scientific Clinical Research Laboratory Pvt. Ltd. (SCRL)” commonly known as “M/S Subir Kumar Dutta Lab” at the initiation and/ arrangement of the op no. 1 within the knowledge and consent of the patient party, present there at that time.  There is however no involvement and/ or arrangement in the matter on behalf of this op which is well within the knowledge of the complainant and the patient party and this op establishment has no other knowledge in connection with this case and the instant petition of complaint may, therefore, kindly be dismissed as against the op no. 3.

The opposite party No. 4 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complainant has implicated the answering OP-4 in this case unnecessarily though as a proforma OP inspite of the fact admittedly no allegation has been made against this OP nor even has claimed any relief against him within the four corners of the petition of complaint.  Naturally, in absence of any sort of allegation no complaint case under the consumer protection act ought to have been entertained at all, since it is not any civil proceedings.  At any rate, in view of service of summons upon the answering OP he has duly entered his appearance in this case, in obedience with the direction of this Hon’ble District Commission to place his submissions as regards fact involved in this case, within the knowledge of this OP in the following manner.

One Mr.s Indira Dey, aged about 60 years resident of Sarisapara, Chandannagore, Hooghly was admitted at Amala Nursing Home on 30.6.2020 at 7.45 A.M. for gall bladder surgery as per advice of the answering OP.  She was taken up for Cholecystectomy on 30.6.2020 morning.  Open Cholecystectomy was done.  Her post operative period was uneventful and she was discharged on 2.7.2020 with advices.  As a routine procedure in all surgeries by all surgeons where excision/removal of any organ from the body are done, sent for Histopathological examination.  In this case of gall bladder surgery, it was advised for the same.  Accordingly, after surgical procedure the specimen of gall bladder after proper labeling and advice was handed over to the nursing home personnel to give the sample of gall bladder to the party which is the usual procedure continuously done in all other surgeries.  The answering OP has no other knowledge in connection with this case.  The instant petition of complaint may therefore kindly be dismissed with cost holding the same as baseless and unfounded one.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

         The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite parties filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

         Argument as advanced by the agents of the complainant and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

         Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Chandannagar, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.        All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

         The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

         For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

         On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that the complainant had suffering from the problem of gall bladder stone.
2. It is also admitted fact that the complainant was under the treatment of Dr. Prakash Samanta who conducted gall bladder surgery on 30^th June, 2020.
3. There is no controversy over the issue that the said gall bladder surgery was conducted by Dr. Prakash Samanta (OP-4) at the OP-3 Nursing Home.
4. There is no dispute over the issue that  after gall bladder stone operation the Op-4 had taken the sample of gall bladder for biopsy test at the OP-3 Nursing Home.         
5. It is admitted fact that  the said sample was handed over to the OP-1 for conducting the said biopsy test.
6. It is also admitted fact that  for the purpose of said biopsy examination the complainant instantly paid Rs.1050/- to OP-1 and accordingly the OP-1 issued cash memo vide no.1002 dt.1.7.2020.
7. There is no controversy over the issue that  the said sample of gall bladder of the complainant was handed over to OP-2 for biopsy examination at the laboratory of “M/S Subir Kumar Dutta Lab”.
8. There is no dispute over the issue that  the complainant was advised to collect the said report from the office of OP-1 within three weeks.   
9. It is admitted fact that the complainant side has neither received the said biopsy report from OP-1 nor from OP-2.
10. It is also admitted fact that the OP-2 adopted the plea that the said sample was lost on transit when the pandemic situation was going on and it is an act of God and so there is no deficiency on the part of the OP-1&2.

              Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

               On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant  adopted the plea that the OP-1&2 in spite of taking money and taking charge of the sample of gall bladder has not submitted the said biopsy report to the complainant which is clear instant of negligent activities, deficiency of service and unfair trade practice on the part of the Op-1&2 but on the other hand the OP-1 and OP-2 have taken the defence alibi that the said sample of gall bladder of the complainant was lost on transit when pandemic situation was going on and for that reason the OP-1&2 refunded the fees to the complainant and complainant has taken back the said fees and so there is no negligence, deficiency of service or unfair trade practice on the part of the OP-1&2.

         For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that the complainant has not highlighted any sort of allegation or complaint against OP-3 Nursing Home and OP-4 Doctor and complainant has no claim against the OP-3&4 and for that reason this District Commission is of the view that the OP-3&4 are not necessary parties of this case and so their liable to be discharged from this complaint case.  But fact remains that the defence alibi which is adopted by OP-1&2 is not supported by any evidence and in respect of proving fact of loss of sample of gall bladder of the complainant no G.D. entry before any police station has been produced or proved.  Regarding the plea of returning that the fees of Rs.1050/- to the complainant, this District Commission is of the view that the OP-1&2 cannot escape from their liability and responsibility which they have taken in the matter of conducting biopsy test of the sample of gall bladder of complainant.  Thus it is crystal clear and it is also evident from the case record that the OP-1&2 are negligent and responsible for not producing the biopsy test report of the complainant and it clearly indicates that there is deficiency of service on the part of the OP-1&2 and so the complainant is entitled to get compensation and litigation cost from the OP-1&2.  But fact remains that the complainant side has failed to substantiate their claim of Rs.11,00,000/- from the OP-1&2.  However, considering the facts and circumstances of the case and also evidence on record this District Commission is of the  view that the complainant is entitled to get compensation and litigation cost of Rs.300000/- from OP-1&2.

         .

In the result it is accordingly

ordered

that the complaint case being no. 93 of 2020 be and the same is allowed on contest but in part against OP-1&2 but it is dismissed against OP-3&4.

Opposite party nos. 1 and 2 are directed to pay compensation and litigation cost of Rs.300000/- within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

         In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 and 2 are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

         The Final Order will be available in the following website www.confonet.nic.in.