IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/75/2012.
Date of Filing: Date of Admission: Date of Disposal:
13.07.12 02.08.12 21.09.22
Complainant: Sarful Sk. on behalf of his minor son Sakirul Sk.
VILL. BAIKUNTAPUR,
P.O. RAJANAGAR, RAGHUNATHGANJ, MSD
-Vs-
Opposite Party: 1.DR NIRUP BISWAS
JANGIPUR SUB-DIV. HOSPITAL,
P.O. RAGHUNATHGANJ, MSD
2. DR. ABHIJIT MONDAL
JANGIPUR BLOCK HOSPITAL,
PO- RAGHUNATHGANJ, PIN- 742225
Agent/Advocate for the Complainant : Bidishya Sarkar
Agent/Advocate for the Opposite Party : Siddhartha Sankar Dhar.
Present: Sri Ajay Kumar Das………………………….......President.
Sri. Subir Sinha Roy……………………………….Member.
Smt. Aloka Bandyopadhyay……………………..Member.
FINAL ORDER
Sri.Ajay Kumar Das, Presiding Member.
This is a complaint under section 12 of the CP Act, 1986.
One Sarful Sk on behalf of his minor son Sakirul Sk. (here in after referred to as the Complainant) filed the case against Dr. Nirup Biswas & Anr. (here in after referred to as the OPs) praying for compensation alleging deficiency in service.
The material facts giving rise to file the complaint are that:-
The Complainant Sakirul Sk, a boy of 8 years fell from a fig tree at about 12 noon on 08.03.2012 and his right arm was broken. The wrist bone of this Complainant was exposed due to fall and within half an hour he was brought to Jangipur S.D. Hospital where Dr. Nirup Biswas Op No.1 treated him for the first time of the said hospital. And he was brought to operation theatre where his injury is stitched and bandaged without doing any X-ray and he was admitted in the said hospital.
Dr. Nirup Biswas, OP No.1 called for Dr. Abhijit Mondal i.e. OP No.2. OP No.2 was the then orthopedic surgeon of the said hospital. OP No.1 handed over the Complainant to OP No.2 for further treatment. But due to negligence and carelessness the Complainant’s right hand was imputed.
The Complainant stated that blisters was formed for carelessness and negligence of Dr. Abhijit Mondal i.e. OP No.2 who did not render proper treatment to the Complainant and neglected.
From 08.03.12 to 10.03.12 the Complainant was not X-rayed to ascertain the nature of injury and where from bad smell was coming out. On 10.03.12 when the Complainant was X-rayed it was found blisters were formed on his right arm and rotten smell was coming out from his wounded hand. After observing the X-ray report, it was found that the wounded hand of the Complainant was started purification. And after seeing the report the OP No.2 advised me to be treated by any government Medical College immediately and which was prescribed in the prescription.
On 10.03.12 in the evening round the doctor discharged the patient for treatment in any Medical College Hospital. The patient was shifted from Jangipur S.D Hospital to Berhampore New General Hospital and the Berhampore New General Hospital refused to admit the patient looking at his condition and there from the patient was brought to NRS Hospital, Kolkata. Where they refused to admit the Complainant looking after his dangerous condition.
From the NRS Hospital, Kolkata the patient was brought to SSKM Hospital in Kolkata and patient got admitted there. The doctor of the SSKM Hospital found that gangrene was formed and where bad odour was coming out from the injury formed on his right arm and came to conclusion that his entire right arm was to be imputed.
On 11.03.12, surgery was done and his right hand was amputed (cut off) in the said SSKM Hospital. Within the period from 08.03.12 to 10.03.12 Dr. Abhijit Mondal neither vigilantly treated the patient nor carefully ascertained the injury. But when on 10.03.12 X-ray was done over the patient, they found a compound fracture on his right arm which caused the gangrene. And they left the patient at his fate. He could find the fracture earlier if the X-ray could be done earlier and the boy could find a treatment and he might have not loss his right arm. This is utterly negligence and carelessness of OP No.2, Dr. Abhijit Mondal. This harm was done by OP No.1 & 2 in the S.D. Hospital, Jangipur.
The question is without X-ray report how the wound was stitched and bandaged by both the OPs.
For negligence and dereliction of duties Complainant had to lose his right arm and he became handicapped.
Finding no other alternative the Complainant filed this instant case for appropriate relief. And he claimed 18 lakhs from both of the doctors for mental stress and strain, physical hazard and financial loss.
Defence Case
The OP No 1 & 2 is contesting the case by filing written version stating inter alia that the case is not maintainable.
OP No.1, Dr. Nirup Biswas has stated that he was always careful to perform his duties towards the Complainant. He put the bandage in such a way, so that the Complainant could get some relief before presentation before and orthopedic. This OP is an experienced Doctor. There was no deficiency in service on his part. The Bed-Head ticket would prove that there was no negligence on the part of this OP.
OP No.2 Dr. Abhijit Mondal, has specifically stated in his written version that after receiving the patient from Dr. N. Biswas at evening on 09.03.12, this OP had examined the patient and also examined locally. At that time there was no emergency and no need for active intervention. So, the OP advised for some primary investigation to do some examination under Anesthesia. But during morning round on 10th March, the OP saw that the fingers of the affected hand ( right hand) became bluish, cold and swelled and at that time there was no blisters. Then he immediately removed all the bandages and waiting for improvement. But during evening round he noticed that there was no improvement and he referred the patient to higher centre. During the whole duration of treatment there was no such injections which can produced blister.
On the basis of the complaint and the written versions the following points are framed for proper adjudication of the case :
Points for decision
1. Isthe Complainant a consumer under the provision of the CP Act, 1986?
2. Has this Forum jurisdiction to entertain the complaint?
3. Has the OP any deficiency in service, as alleged?
4. Is the Complainant entitled to get any relief, as prayed for?
Decision with Reasons:
All the points are taken up together for the sake of convenience and brevity of discussion.
Ld. Adv. for the Complainant submits that the blisters was formed for carelessness and negligence of Dr. Abhijit Mondal i.e. OP No.2 who did not render proper treatment to the Complainant and neglected.
From 08.03.12 to 10.03.12 the Complainant was not X-rayed to ascertain the nature of injury and wherefrom bad smell was coming out. On 10.03.12 when the Complainant was X-rayed it was found blisters were formed on his right arm and rotten smell was coming out from his wounded hand. After observing the X-ray report, it was found that the wounded hand of the Complainant was started purification. And after seeing the report the OP No.2 advised me to be treated by any government Medical College immediately and which was prescribed in the prescription.
Ld. Adv. for the OP submits that the allegation of carelessness and negligence is baseless. He submits that when the patient was shifted in orthopedic dept. X-ray report was obtained within one hour. In support of his contention he drew my attention to the cross examination of PW1 by OP No.2 Dr. Abhijit Mondal. The relevant portion of the cross examination may be quoted here ‘’ after admission in orthopedic dept., X-ray report was obtained within one hour. It is a fact that Abhijit Mondal examined my son and also examined X-ray plate and report. After such examination he did not advice for any operation.’’
After hearing both sides, we also peruse the materials on record. The Complainant has stated in his cross examination by the OP No.1 (Nirup Biswas) that after the incident at about 12.30-1.00 p.m. he took his injured son to hospital. Dr. Nirup Biswas advised for X-ray and after admission in orthopedic dept. X-ray was done. So, the allegation of the Complainant to the effect that from 08.03.12 to 10.03.12 the Complainant was not X-rayed to ascertain the nature of injury is not correct.
Ld. Adv. for the Complainant submits that on 10.03.12 at about 2.00 p.m. an injection was administered on the patient and thereafter within 5 minutes blisters were formed on his right hand and bad smell was coming out. He adds that for the administration of the said injection the right hand of the patient was required to be amputed. So, there is gross negligence on the part of the OP No.2 Dr. Abhijit Mondal.
Ld. Adv. for the OP submits that it is not established that the right hand of the patient was amputed due to gross negligence on the part of OP No.2. The fact stated by the Complainant is merely imaginary and the said allegation is purely baseless. Moreover, OP No.2 Dr. Abhijit Mondal has stated in his evidence that during the whole duration of treatment there was no such injection which could produce blister. He has further stated in his evidence that it is not true that an injection is responsible for amputation of the right hand of the patient.
After hearing both sides, we peruse the materials on record. Considering the facts and circumstances of the case, documents produced and the submissions made by the Ld. Adv. for both the sides we are of the view that the Complainant had failed to establish that right hand of the patient was amputed due to negligence on the part of the Doctor concerned.
Ld. Adv. for the OP submits that the Complainant is not consumer as per law. In support of his contention he cited a decision of the Hon’ble Supreme Court reported in 2022(1) Indian Civil Cases 458(SC) wherein it is held ‘’Consumer Protection Act, 1986 Sections 291) (d) ii) and 2(1)(o)- Consumer- Medical officer employed in a hospital renders service on behalf of hospital administration- same service cannot be treated as service u/S. 2(1)(o) for the reasons that it has been rendered by medical officer in hospital who receives salary for employment in hospital-Services rendered by employee-medical officer to such a person would be outside purview of S. 2(1)(o) of the Act- Complainant is not a consumer- Dismissal of complaint, proper.”
In view of the matter discussed above and considering the legal position, we are of the view that the instant case is liable to be dismissed.
Reasons for delay
The Case was filed on 13.07.12 and admitted on 02.08.12. This Commission tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.
In the result, the Consumer case is dismissed.
Fees paid are correct. Hence, it is
Ordered
that the instant Complaint Case No. CC/75/2012 be and the same is hereby dismissed on contest against the OPs but without costs.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
