O R D E R

Order  No: 8, Dated: 19.11.2018

Banani Mohanta (Ganguli), Member:-This order is arising out of an application filed by the O.P No: 1 namely, Dr. Abhijit Bandyopadhyay, challenging the maintainability of the Consumer Complaint No: 393 of 2017, herein after will be referred as ‘case’, and prays for quashing/setting aside/dropping/dismissing the proceeding of the case as per the grounds stated in the petition, which has been registered as MA-28/2018 and pass other order or orders as mentioned in the petition.

      Ld. Advocate on behalf of the petitioner/O.P No:1 has submitted that the petitioner is a practicing medical professional, a doctor by profession, and the complainant of the case has filed the above noted consumer complaint on false, frivolous, vexatious  grounds alleging medical negligence caused by the petitioner/doctor and thereby he was alleged to be deficient in providing service to the complainant and therefore the case is not maintainable in the eye of law and any continuation of the proceeding shall result in subjecting the petitioner/O.P No:1 and his fellow respondent to malicious prosecution and if allowed to continue, it would be noting but to abuse of the process of law.

 Ld. Advocate of the petitioner /O.P No: 1 further submitted that the complainant must come with clean hands and for genuine grievance which the Forum should ensure being a quasi Judicial body and in this case the complainant has filed the case with false and frivolous grounds and a mala-fide intention for unlawful gain as there was no medical negligence caused by the petitioner doctor O.P No: 1.

Ld. Advocate of the petitioner /O.P No: 1 further submitted that the complainant was treated by the petitioner/ O.P No: 1 and on 23.08.2017 the complainant along with her husband visited the O.P NO: 1 for treatment of the complainant  being referred by Dr. P.R.Gupta for heath complications and the husband of the complainant filled up the patient registration and consent form mentioning in detail the patient’s medical history and they consulted the petitioner/ O.P No:1 for the ailments that the complainant was suffering from which included body-ache, low blood pressure and hypothyroidism and the petitioner suggested certain diagnostic tests based on the symptoms  and the petitioner after getting the reports of the pathological tests/reports diagnosed that the patient was suffering from seronegative rheumatoid arthritis and prescribed some medicines basing on such reports and the petitioner treated the patient as per long established protocols of treatment of the disease of Rheumatoid Arthritis and general accepted methods and practice in such cases with due and reasonable care coupled with the best of judgment of skilled and experienced medical professional in the position of O.P No: 1 and as such the petitioner/O.P No:1 has not caused any medical negligence as alleged upon the complainant/patient and therefore the petitioner/O.P No:1 filed this instant application for dismissing the consumer complaint case by challenging the maintainability of the case. Ld Advocate for the petitioner also filed some Xerox copy of documents and case rulings in support of his contention.

On the other hand, the complainant (being the O.P of this petition) filed written objection against the said M.A application.

 Ld. Advocate for the complainant submitted that the M.A application filed by the petitioner is liable to be rejected as it has been filed with a view to harass the complainant and for consuming more time. The petition is baseless and ill motivated, misconceived etc. and therefore it should be rejected. The complainant filed this case against the O.P doctor and other for genuine grounds of medical negligence against them and therefore the petition challenging the maintainability of the case is liable to be rejected.

Heard both sides.

 Perused the petition, written objection and other materials on record.

It is seen from the petition that the petitioner/doctor challenged the maintainability of the case on the ground that he has not caused any medical negligence upon the complainant/patient and the petitioner /doctor treated the complainant/patient, being referred by Dr. P.R.Gupta,  for her heath complications such as body-ache, low blood pressure and hypothyroidism and the petitioner/doctor  suggested certain diagnostic tests based on the symptoms  and the petitioner/doctor after getting the reports of the pathological tests/reports diagnosed that the complainant/patient was suffering from seronegative rheumatoid arthritis and prescribed some medicines basing on such reports and the petitioner/doctor treated the patient as per long established protocols of treatment of the disease of Rheumatoid Arthritis and general accepted methods and practice in such cases with due and reasonable care coupled with the best of judgment of skilled and experienced medical professional in the position of petitioner/doctor. Such questions of facts cannot be ascertained at this preliminary stage of the case without going to the merit of the case and without considering the evidence of both sides. The petitioner/doctor has not challenged that the complainant is not a ‘consumer’ of the O.Ps. Admittedly, the complainant/patient was treated by the petitioner/doctor and his clinic was involved in the treatment of the complainant/patient. The petitioner has not challenged the pecuniary or territorial jurisdiction of the case. He directly challenged the maintainability of the case on the grounds which absolutely are the root of the case. Such basic points cannot be judged without preponderance of evidence of both sides and without going to the merit of the case.

Considering all above, we are of the view that the M.A-28 of 2018 is liable to be rejected.

Hence

 It is ordered that the M.A-28 of 2018 is rejected and disposed of.

Complainant is directed to adduce evidence by the next date.

To…………………………………. For evidence by the complainant.

Dictated and corrected by me.

      Member