Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No. 01/2019

The complainant has filed this case against the OPs for getting an order directing the OP Nos. 1 & 2 to pay compensation of Rs. 10,00,000/- for causing physical and mental harassment  to the complainant and litigation cost of Rs. 50,000/- on account of medical negligence , deficiency of service caused by the OP Nos. 1 & 2.

Fact of this case

Case of the complainant

This case of the complainant which is deciphered from the petition of complaint in bird’s eye view is that since May, 2018 the complainant  had been suffering  from urine problem and the complainant initially visited to the local Doctor namely  Dr. G. Sau  (OP No.3) on 02.07.2018, prescribed  medicine to the complainant and also suggested  for Ultrasonography Test  and accordingly on 11.07.2018 after making ultrasonography from the Proforma OP No. 6 wherein the size of the tumour  (SOL) is 3.94 Cm X 3.25 Cm  and accordingly  for taking a said report  of Ultrasonography on 11.07.2018 the complainant again visited the  chamber  of OP No. 3 and after examining  the said Ultrasonography Report the OP No. 3 advised  and opined  that size  of tumour  (SOL) is very large  and accordingly  the OP No. 3 referred the complainant  before OP No. 1 Dr. A.K. Saraf.  It is the case of the complainant  that on 12.07.2018 the complainant  alongwith  her husband  visited Dr. A.K. Saraf (OP NO. 1) at the hospital  of OP No. 2 and on payment of fees  of Rs. 400/- had shown the documents such as Ultrasonography  Report  and after examining the said report OP No. 1 advised the complainant  for immediate operation and also advised for undergoing various tests including  C.T. Scan  and thereafter the tests were done  at the OP No. 2 Hospital  on payment of Rs. 7,460/- and then the complainant alongwith  all reports  visited the OP No. 1 on 17.07.2018 and on that day upon examining the reports  the OP No.1 informed  the hospital of the complainant that operation is urgently  required for  which the complainant shall have to stay for 4 days at the hospital  and also informed that there would be an expenses of Rs. 40,000/- for the said operation which includes  Doctor’s operation fees, medicine charges and hospital  charges etc.  It is submitted that on 18.07.2018 the complainant was admitted in the OP No. 2 Hospital  and on 19.07.2018 the operation was done  by OP No. 1 at the OP No. 2 Hospital and after operation a small container  made of glass  was handed over to the hospital of complainant  and after handing over the said container  one of the sister of the OP No. 2  Hospital  informed the husband of the complainant  to make  deposit of the said container  in the Pathology Department  of the said hospital  and also to make demand of Rs. 900/- for Biopsy Report  and when the said small container  was handed over to the hospital  of the complainant  then  he noticed that there was a small size flesh  like a small piece of crop and upon watching  the same the husband of the complainant though only the flesh  like a small piece of crop  was the reason of creating  problem  in the matter of discharging urine  and he was in a doubt  that it could not be the reason for occurring  the problem for discharging the urine and accordingly  when the Dr. A.K. Saraf ( OP No.1) came out from O.T. then the husband of the complainant asked the OP No. 1  and thereafter  the OP No. 1 informed  the husband  of the complainant  that tumour  which was  existing  was totally  removed and person was feeling  well and she would be discharged  on the next date  but when the patient was admitted then  it was told  that the patient shall have to  stay for 4 days.  It is further submitted by the complainant that at the time of discharge the OP No. 1  prescribed  of medicine  and accordingly  after released the complainant   came to the home and after returning  home  the complainant  was feeling same problem  such as urine  was not  clearing   and there was subsisting  pain .  It is further  submitted by the complainant that on 21.07.2018 the husband  of the complainant contacted  over telephone  with the OP No. 1  and upon hearing  the problem  of the complainant  the OP No. 1 informed that as the cathedral  has been opened and as such  the said problem  was  subsisting  and if the cathedral be tagged / fixed  then there would be no problem  or accordingly the complainant was advised  to come to the hospital  of OP No. 2 but upon hearing the same the hospital of the complainant informed that the complainant  resides about 40 kilometers  away  and it would be difficult  for them to come to the hospital  particularly  when there was a damage for 4 days  but the patient  was discharged  earlier  and upon hearing  the same  the OP No. 1 informed that it would be better  to fix cathedral  at the nearby hospital or if the complainant  failed to fix the cathedral  then there would be  no problem and it would be clear within next 2 days.  It is asserted by the complainant that according to the instruction of the OP No. 1 the husband of the complainant on 04.08.2018 went to collect the Biopsy Report  and upon getting the report the husband of the complainant contacted with the  OP No. 1 and informed him that the patient was facing same problem  but the OP No. 1 informed  the husband of the complainant that it would be clear within a few days.  It is pointed out by the complainant side  that on 05.08.2018 the complainant  again contacted  over telephone with the OP Nos. 1 & 7 about the same problem  and upon hearing the OP No. 1 advised the complainant  to come at the hospital  and accordingly on 09.08.2018 the complainant  went to the OP No. 1 and upon hearing the same the complainant was advised to make  an urine test  and was also informed  that the OP No. 1 would again make a test through Binocular for which  the complainant shall have to pay the cost of Rs. 7,000/- and immediately an urine test was required to be done and as such urine test was also done at the OP No. 2 hospital  and on 13.08.2018 the hospital of the complainant again contacted with the OP No. 1 with the said urine test report and upon watching the said report the Op No. 1 prescribed some medicine and on 01.09.2018 the complainant  contacted with the Op No. 1 and upon watching the report the OP No. 1 informed that he would further examined urine / RE Test  and CS and also examined by getting the Paraffin Block and then OP No. 1 insisted the hospital of the complainant  to collect Paraffin Block and Histopathology slides and also advised one ointment  but the complainant was not interested to undergo 2^nd  Ultrasonography Report.  It is alleged that on 02.09.2018 the complainant   went to Baragachia Ultrasound Clinic  for getting a date of Ultrasonography Test  and accordingly  04.09.2018 the complainant  went for Ultrasonography  Test at the Baragachia Ultrasound Clinic  wherein after ultrasonography the complainant came to know that there is tumour  of 4.09cm X 3.05 cm wherein it was previously found.  It is further alleged that the complainant came to know that  the OP No. 1 did not remove  the tumour  and as such before making the operation  whatever  size was there, the same is existing  according to the 2^nd Ultrasongraphy Test and accordingly on 07.09.2018 by taking  the present test report the complainant contacted with the Op No. 1 wherein the Op No. 1 informed  that  a further tumour has taken place and as such it is required to be removed  and upon hearing the same the complainant became  annoyed asked the OP No.1 that if the tumour  has been removed at the time of operation then how it is possible  for occurring tumour  within 47 days .  It has also been pointed out  by the complainant that on 08.09.2018 in the morning  the complainant  went to the OP No. 3 wherein the said Dr. repented  with the acts of OP No. 1 rather  he suggested  to get the 2^nd operation with the OP No. 1 as because the previous operation  was done by the OP No. 1 and accordingly as per direction  of Op No. 3 on 08.09.2018 in the afternoon  the complainant contacted  with OP No. 1 wherein the OP No. 1 also demanded  to make payment of Rs. 24,000/-  and upon hearing the same the husband of the complainant asked the OP No. 1  whether the problem  will be solved  or not  and then the OP No. 1 informed that there is a further chance of occurring  tumour  and as such the husband  of the complainant  became confused and accordingly  complainant’s husband  started to search  for  2^nd opinion .  It is also asserted that on 10.09.2018 the complainant contacted with OP No. 4  Dr. Gopala Krishna  through his  Junior Dr. Santosh Kr. Majaraj wherein after the examining  the report said Dr. advised the complainant  to make immediate operation  and accordingly on 17.09.2018  the complainant  was admitted in the OP No. 5 Hospital  and on 18.09.2019 the operation was done by Op No. 4 Dr. and thereafter the complainant reported from his earlier problem she was getting well in all respects.   

Defense Case

The OP Nos. 1, 2, 4 , 5 & 6 are contesting  this case by filing W/V and this specific case of the OP Nos. 1,2 & 6 is that the complaint case filed by the complaint against the OPs is not maintainable  either in law or in facts and the same is harassing  motivated, concocted and based on false and motivated story  and this Commission  has no jurisdiction to try  and entertain  the instant  complaint and the instant complaint case  is barred by law  of limitation as because the complainant has not come before the District Forum / Commission  within the period of limitation and the complainant  has unnecessarily  joined  and OP  No. 6 as Proforma OP and so the case of the complainant is bad for mis-joinder  of parties.  It is also  pointed out  that  the complainant in his complaint petition  has brought medical issues which is so complicated in nature and without evidence of the medical expert of specialized  field it would not be possible for Ld. Commission  to decide the matter.  It is further stated by the OPs  that the Hon’ble Apex Court  in the judgment laid down  that therefore  before admitting  a complaint  the complainant  ought to have  refer  an opinion  of medical expert of specialized field  before further proceeding the matter but the complainant in this case has not filed any expert opinion which makes the complainant bad in the eye of law.  It is asserted  by the Ops  that the case make out  by the complainant against the Ops in this instant complaint case has not been proved and complainant has failed to make any case  and for that reason the complaint case is liable to be dismissed .  It is alleged that all the allegations and / or accusations made in the complaint are against the OP Nos. 1 & 2  and there is no allegations  against OP Nos. 3 to 7  and so no cause of action arose against the OP Nos. 1 & 2 and therefore it would be just and proper  to dismiss  this complaint case.   It is also pointed out by the OPs that no allegations are leveled against the OP Nos. 1 & 2 and therefore the OP Nos. 1 & 2 should be excused  from their liability.  It is also pointed out that by the OPs that there is no deficiency of service  on the part of the OPs and therefore the complaint is required to be dismissed.  It has been pointed out by the OPs that they have done  everything and has taken  the step at proper time and so there is  no negligence  on the part of the OP Nos. 1 & 2.  For all these reasons the OP Nos. 1, 2 & 6 are praying before this District Commission for dismissing this case.

The OP Nos. 4 & 5 by filing separate W/V  has defined each and every allegations  of the complainant which have been leveled against them in the complaint petition.  This specific case of the OP Nos. 4 & 5  is that there is no allegations / claim of the complainant against the OP Nos. 4 & 5.  It is also the case of the OP Nos. 4 & 5  that there is no negligence  or deficiency of service on the part of the OP Nos. 4 & 5.  It is also asserted that the patient had undergone a lower  abdominal Ultrosonography and a large SOL (Space occupying lesions) was found in the right posterior lateral aspect of urethra protruding  inside  the bladder.  The patient had  undergone Trans Urethral  Enucleation of Urethral mass done using holmium laser.  After enucleation , morsellation of urethral mass was done  and satisfactory hemostasis was secured .  the patient recovered well  and thereafter the patient was discharged on 21^st September 2018.

It is submitted that the complainant  has failed to establish  any case of negligence  and / or deficiency of service against the OP Nos. 4 & 5.  For all these reasons  the OP Nos. 4 & 5  have also prayed before this District Commission for dismissing this complaint case with heavy cost.  The OP Nos. 3 & 7 in spite of receiving notice have not appeared  and for that reason this case is heard ex-parte  against Op No. 3 & 7.

Points of consideration

On the basis of the pleadings of the parties, this District Commission for the purpose of arriving at just and proper decision in this case of medical negligence  and also for the interest of proper and complete adjudication of this case , is going to adopt the following points of consideration:-

(i)        Is the complainant a consumer under the OPs?

(ii)       Has the complainant any cause of action for filing this case against the OPs?

(iii)      Whether this District Commission / Forum has jurisdiction to try this case?

(iv)      Is this case maintainable in its present form and in the eye of law?

(v)     Whether the complainant is entitled to get the compensation of Rs. 10,00,000/- from the OP Nos. 1 and 2 for causing mental  and physical harassment  and also entitled to get limitation cost of Rs. 50,000/- from OP Nos. 1 & 2  or not?

(vi)      To what other relief / reliefs is the complainant entitled to get in this case against the OP Nos. 1 & 2.

Evidence lying of this case record

In order to prove the case the complainant has filed evidence on affidavit  and against the said evidence on affidavit the OP Nos. 1 & 2  have filed questionnaires and thereafter the complainant has given reply against the said questionnaire filed by the OPs.

In order to disprove the case of the complainant the OP No. 1 has filed evidence on affidavit  and against the said evidence on affidavit  the complainant has filed questionnaires  and against the said questionnaires  the OP No. 1 has given reply.

In this instant case the Op Nos. 4 & 5 have been contesting  this case by filing W/V but have been debarred / restrained from filing evidence on affidavit  by this District Commission and the OP Nos. 4 & 5 have not filed any evidence on affidavit  in spite of getting 9(nine) dates opportunity  of filing the same.

Argument  highlighted  by both sides

In this instant  case the complainant in support of his point of contention  has filed Brief Notes on Argument .  Similarly, the OP Nos. 1, 2 & 6 in support of their defence case  also have filed Brief Notes on Argument.

In addition to the filing of Brief Notes on Argument the complainant / OP Nos. 1,2 & 6 also have highlighted  their verbal submission where they have given emphasis on the oral and documentary evidence  and also relied on the case law.  The complainant has referred the case law :-

1. 2012 (III) CPJ 467 (NC)
2. 2011 (III) CPJ 372 (Gujrat)
3. 2012 (III) CPJ 69 (NC)

On the other hand the OP Nos. 1, 2 & 6 relied on the decision which is reported in I (2009) CPJ 32 (SC)

Decision with reason

The first four points of consideration which have been framed on the ground of maintainability , jurisdiction, cause of action issues and whether the complainant is a consumer under the OPs 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 four points of consideration it is very important to note that the OP Nos. 1,2,4,5 & 6 even after  appearance in this case and also after filing W/V have not filed any petition on the ground that this case is not maintainable  on account of the reason  best known  to them.   Under this position  this District Commission has  passed the order for further hearing of this case .

On the basis of the background, it is very important to note that the above noted OPs although have not filed any separate petition  on the ground of maintainability  of the above noted complaint case, but in their W/V have challenged the point of maintainability issue.  For the purpose of arriving at just and proper decision in respect of the above noted four points of consideration , there is urgent necessity  of making scrutiny of the material of this case record as well as there is also urgency of examining the evidence on record.

This District Commission after going through the material of this case record and also after scanning the evidence on record finds that the complainant is a resident of Village Balichak, P.S. Amta, Dist. Howrah and the OP No. 1 is a  practicing Doctor in the District of Howrah and OP No. 2 has been running  the Diagnostic Centre  and Nursing Home in the District of Howrah and the Proforma OP Nos. 3 & 6 are also  running their business  within the District of Howrah.  This factor is clearly reflecting  that this District Commission / Forum   has its territorial jurisdiction to try the above noted complaint case.  Moreover, the total claim of the complainant  in this instant case  is far below Rs. 20,00,000/- and for that reason  this District Commission has also the pecuniary jurisdiction to try this case.  In this instant case the OP Nos. 1, 2 & 6 by filing W/V  has pointed out that this District Commission  has no jurisdiction to try this case as because  it is the settled principle of law that before admitting a complaint  the complainant ought to have  referred  for opinion  of the medical expert  of specialist field  before further proceedings  in the matter of the complaint but in this case the complainant  has not filed any expert opinion.  Regarding this point of contention  the OP Nos. 1, 2 & 6 has referred the decision which is reported in 2009(I) CPJ 32 (SC).  In this regard it is also the settled principle of law that term “negligence” has no defined boundaries and if any medical negligence is there, whether it is pre or post operative medical cure or in follow up care, at any point of time by treating doctors or anyone else it is always open to be considered by the Commission.  This legal principle has been observed  by Hon’ble Apex Court  in the case of Chandra Rani Akhori and others Vs. M.A. Methusethupathi (Doctor and others) and it is reported in II (2022) CPJ 51(SC).  Thus, it is crystal clear that this District Commission / Forum has its jurisdiction to try this case .

Now, this case is whether the complainant is a consumer under the OPs or not? In this connection  this District Commission after going through the material of this case record as well as after examination of the evidence on record finds that the complainant had undergone  medical treatment under OP No. 1 at the OP No. 2 Diagnostic Centre and Hospital  and also under OP Nos. 3 & 4  by making payment of fees and / or charges of operation.  Similarly it is also evident from the case record that the complainant had to undergo  operation  at OP No. 5 Hospital  and the said operation  was conducted by OP No. 4 DOctor after taking fees and / or medical charges.  Moreover, the complainant also had undergone  medical tests under OP Nos. 6 & 7 by making payment of fees.  Thus, it is crystal clear that the complainant is a consumer under the OPs.  According to the provisions of Section 2 (1) (d) of the Consumer Protection Act, 1986 it is revealed that the complainant is a consumer under the OPs in the eye of law.

Now the question is whether  the complainant has cause of action in the matter of institution of this complaint case against the OPs or not? In order to decide this issue this District Commission  on close examination of the evidence on record  finds that the OP No. 1 performed the operation of complainant and assured  that the OP No. 1 has removed the tumour  of the complainant.  But fact remains  that at the 2^nd Ultrasonography Test it is reflected that the complainant had the tumour  of almost same size  and at  same place  which was  operated by OP No. 4 at OP No. 5 Hospital.  It is also revealed from the evidence on record that the OP No. 1 failed to cure the patient ( complainant) after making operation of the tumour.  No satisfaction answer has been given by the OP No. 1 as to how further tumor can be developed / created  in the abdomen of complainant within the span of 47 days  from the date of operation. This factor is clearly reflecting that the activities of OP No. 1 has created mental pain, mental agony and physical  harassment to the complainant.  This matter is clearly indicating that there is cause of action for filing this case by the complainant against the OPs.

In the light of the observation made  above this District Commission finds that the complainant has provided her case in respect of first four points of consideration  and for that reason  this District Commission / Forum is deciding the first four points of consideration in favour of the complainant.  

The point of consideration No. 5  is related with the question whether there is negligence or deficiency of service on the part of the OP Nos. 1 & 2 and whether the OP Nos. 1 & 2  are liable to pay compensation  for such negligence  and deficiency of service to the tune of Rs. 10,00,000/- to the complainant or not  and whether the OP Nos. 1 & 2  are liable to pay litigation cost of Rs. 50,000/-  to the complainant or not ?

The point of consideration No. 6 is related with the question whether the complainant is entitled to get any other relief in this case from the OPs or not?

These two points 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 the above noted two points of consideration and also for the interest of getting  answers of the above noted questions , there is necessity of scanning  the evidence on record filed by the parties and there is also necessity of making scrutiny  of the interrogatories  filed by both sides and their reply.  Similarly,  there is also urgency of scanning  the documents  filed by both sides in this case.

On comparative studies of the evidence on affidavit alongwith their interrogatories  and replies given by the comnplainant and OPs and also after examining  the documents  of both sides it appears that  the complainant  has not highlighted  any claim against OP NOs. 3 to 7 of this case.  As there is no claim of the complainant against the Proforma OP Nos. 3 to 7, this District Commission is of the view that  Proforma OP Nos. 3 to 7 are not liable to pay any compensation or litigation cost to the complainant.  Similarly, the complainant has also failed to establish  any case of negligence  or deficiency of service against the Profroma OP Nos. 3 to 7 are  liable to be discharged and / or released  from this case.

On close examination of the evidence on record  this District Commission finds that the complainant  in her pleadings as well as in the evidence has failed to establish  any case of negligence  or deficiency of service against the OP No. 2 Diagnostic Centre and Hospital.  There is no expert opinion  over the issue  that the reports submitted by the OP No. 2 Diagnostic Centre  and Hospital are erroneous.  In view of such position  this District Commission is of the opinion  that the OP No. 2 is also not responsible  to pay any compensation or litigation cost to the complainant for causing any mental pain, mental agony and physical harassment.   So, this District Commission is of the view that the OP No. 2 is also liable to be discharged or released  from this case.

Now the question is how far the OP No. 1 Dr. A.K. Saraf responsible  for making payment  of compensation  and litigation cost to the complainant  for causing mental pain, mental agony and physical harassment?   In the matter of arriving at just and proper  decision  relating to the question  this District Commission after going through the evidence on record finds that the OP No. 1 (Dr.) removed the tumour  on 19.07.2018 after conducting tests such as  C.T. Scan and also after examining  the report of Ultrasonography but the problem  of the complainant in the matter of discharging urine and subsistence  of pain was continued  and the complainant and her husband time and again reported the matter to the OP NO.1 and ultimately  the OP No. 1 advised the complainant to undergo Ultrasonography Test  for the 2^nd time  and on 04.09.2018 the complainant went for ultrasonography Test at OP No. 6 Diagnostic Centre and from the report  of the Ultrasonography Test revealed there was a tumor of 4.09 Cm X 3.05 Cm wherein it was previously found and it is crystal clear that the OP No. 1 has failed to clarify  as to how within 47 days of the operation the  said tumor  was again cropped up.  In support of such point of contention  the OP No. 1 has given emphasis  on the case law  I (2009) CPJ  32(SC) and pointed out that Consumer Forums  are not the expert  in Medical Science  and must not substitute  their own view over that of specialist . But fact remains  that in support of such defence alibi  the OP No. 1 has neither prayed  before this District Commission for expert opinion  nor produced prove any expert report.  Similarly, no specialist Dr. in the said field of surgery  has adduced  evidence in support of the case of the OP No. 1.  In view of such position the above noted defence alibi of the OP No. 1 cannot be accepted.

The OP No. 1 failed to clarify  as to how such a big size tumor  can be cropped up within 47 days  of the operation in the same place.  In this regard it is important to note  that either the OP No. 1 has not removed the tumor  at the time of 1^st operation or the 1^st operation was not successful.  This matter is clearly  indicating  that there was / is negligence  and deficiency of service on the part of the OP No. 1 (Dr.) A.K. Saraf and for that reason the OP No. 1 is liable to pay compensation  and litigation cost to the complainant.  In this connection this District Commission shall  not be out of amount that the complainant side  has failed to justify as to why they claimed compensation of Rs. 10,00,000/- and also claimed litigation cost of Rs. 50,000/-

However, it is evident  from the evidence on record that the complainant’s husband has paid Rs.40,000/- to the OP No. 1 and OP No. 2 at the time of 1^st operation which was not successful and it is also evident that  the complainant  had also to pay medical  charges of Rs. 1,48,000/- to the OP Nos. 4 & 5 for 2^nd time operation  of the tumour.  More so, the complainant had to undergo medical tests and clinical investigation for several times prior to the said operation and for that reason the husband of the complainant had to pay charges. 

Considering all these factors this District Commission is of the view  that OP No. 1  is to be directed to pay Rs. 1,88,000/- (charges of the operation cost) and Rs. 2,00,000/- for compensation  in the matter of inflicting  mental pain, mental agony and physical harassment  of the complainant and also to pay Rs. 12,000/- as litigation cost.

Thus, the above noted two points of consideration are decided in favour of the complainant side.

A cumulative consideration of the above noted discussion goes to show  that the complainant  has proved  her case against OP No. 1.

In the result, it is accordingly,

ORDERED

That this Complaint Case being No. 01/2019 be and the same is allowed on contest against the OP No. 1 but in part and it is dismissed against OP Nos. 2 to 7.

  It is held that the complainant is entitled to get medical charges, compensation and litigation cost totaling Rs. 4,00,000/- alongwith interest @ 9% per annum from the date of filing of this case from the OP No. 1.

OP No. 1 is directed  to pay the said amount  and interest positively within 2 (two) months from the date of passing of this judgment / final order.  Otherwise  complainant is given liberty to execute this award against OP No. 1

The parties of this case are entitled to get a free copy of this judgment as early as possible.

Let this judgment / final order be uploaded in the official website of this District Commission immediately.

Dictated & corrected by me

  President