This is a case under Section 12 of the Consumer Protection Act, 1986 on the ground of alleged medical negligence by OP No. 1, Dr. Anjan Sengupta & OP No. 3, Superintendent Dist. Hospital, Shaktinagar, Nadia & deficiency on the part of New Mahendra Materninity & Nursing Home, Krishnagar.  The facts of the case to put in a nutshell, are as below:-  

The complainant is a student of class IX & he was electrocuted 8 years ago resulting in disfigured for left middle figure.   On 23.06.2010 the complainant went to Dr. S.D. Roy at Kalyani but could not continue his treatment due to financial stringency.  The doctor advised the complainant, Utpal Kirtania to avail the RSBY Scheme.  Accordingly the complainant went to the Nursing Home of the OP No. 2 where he was admitted & treated by Dr. Anjan Sengupta.  Dr. Anjan Sengupta operated the complainant on 19.07.14 & released the complainant from the Nursing Home on 28.07.14.  It was a case of postburn contracture.  Unfortunately, the said operated finger was becoming blackish gradually.  Hence, the complainant went to the Nursing Home again wherefrom he was directed to visit OP No. 1, Dr. Anjan Sengupta & he directed the complainant to get admitted in Shaktinagar Dist. Hospital & on 07.08.14 & on 08.08.14 the complainant’s finger was amputed on the excuses of gangrene.  On 18.08.14 the complainant was again advised by Dr. OP No. 1 to get admitted in the Hospital.  There was removal of contractures with gross negligence.  There was gross deficiency in service on the part of the OPs which the complainant has been still suffering.  Hence, the complainant prays for compensation of Rs. 4,00,000/- for wrong treatment by the OPs & Rs. 50,000/- as compensation for mental pain & agony & loss of finger. 

Written version was filed by OP No. 1 & OP No. 2 & the case went expar te against OP No. 3.

OP No. 1 filed written version on 14^th January, 2015 & OP No. 2 filed written version on 02.02.1015.   The case of the OPs are as under:- 

The case is not maintainable.   The case is bad for defect of parties.  There is no negligence on the part of the doctor & no deficiency in service on the part of the Nursing Home.  The case is false frivolous & harassing one.  The finger was contracted due to electrical burn.  The tip was unhealthy & got gangrene due to severe contracture.  The amputation was done by OP No. 1, Dr. Anjan Sengupta who did not pay a single paisa for RSBY card.  Hence, the case is not maintainable.

OP No. 2 did not commit any negligence nor he was deficient in providing service due to electrocution the middle finger of the patient was got disfigured. 

POINTS FOR DECISION

1. Point No. 1:   Is the complainant a consumer?
2. Point No. 2:   Was there any deficiency in service on the part of OP No.2?
3. Point No. 3:   What relief the complainant is entitled to get?

REASOND DECISIONS

            For the purpose of brevity and convenience all the points are taken up together for discussion.

            We have perused & appreciated the evidence-in-chief & interrogatories along with replies with the deposition of OP No. 1, Subodh Kirtania the complainant. 

            We have also meticulously gone through 14 documents as mentioned in the list of documents.  The documents were filed by the complainant on 25.03.15.  The following are the documents considered by us.

1. Birth certificate of complainant dtd. 21.12.2000
2. Ration card of complainant
3. School leaving certificate dtd. 20.08.10
4. Prescription issued by Dr. Santanu Mitra dtd. 28.08.07
5. Prescription issued by Dr. Shyamal Ganguly
6. Blood report of complainant dtd.  28.09.07
7. Discharge certificate of complainant dtd.  19.09.07
8. Prescription issued by Dr. S.D. Roy on 23.06.14
9. X-ray report of SNR Carnival Hospital on  14.09.14
10. Discharge certificate issued by New Mahendra Maternity & Nursing Home dtd. 28.07.14
11. Discharge certificate of complainant dtd.  28.07.14
12. Discharge certificate of complainant issued by Department of Health & Family Welfare dtd. 07.08.12
13. Discharge certificate of complainant issued by Department of Health & Family Welfare dtd. 21.08.14 & 26.08.14
14.  Prescription issued by Dr.Sourav Banerjee dtd. 16.09.14

            No expert is forthcoming in the instant case to establish the case of the complainant.

            Exmination-in-chief & the interrogatories go to show that not a single farthing was paid by the complainant & nothing was deducted from the RSBY card. 

            The doctor who gave the exmination-in-chief also replied the interrogatories don’t implicate him for gross negligence.  There was no payment made by the complainant in the Nursing Home or in the district Hospital.     

            We have meticulously gone through the written arguments filed by both parties.  We have also seen the insurance documents of Dr. Anjan Sengupta but the Insurance Company has not been made party to the case as OP.

            It has been argued by the Ld. Advocate for the OP that Apex Insurance Consultant Pvt. Ltd. should have been made party in the instant case.   It has been further argued that unless any expert report it is difficult to prove the case of negligence.  It is a settled principle of law that the complainant has to prove the case of negligence of the doctor.  A mere allegation will not make the case of negligence unless it is proved from a reliable evidence.  Negligence has to be established & it would be presumed. 

            We have already pointed out that in view of the following decision reported in 2000 (III) CPJ 517.  No expert was examined by the complainant.

            Ld. Advocate for the complainant has argued that no actual payment should be proved by the complainant in view of RSBY Scheme.   That documents showing discharge No. 34891 with admission date 05.08.14 & discharge date 07.08.14 was not signed by the doctor then the question that means Dr. Anjan Sengupta. 

Be that as it may, the radio report dtd.  14.09.14 (photocopy) could not show the date of taking the x-ray.  It is admitted position that the complainant could not get electrocuted for 8 years.

            This is a contributory negligence on the part of the complainant.  There is no evidence on record to show that the Nursing Home was deficient in providing service or that the doctor was negligent in treating the complainant.  We have followed the principles reported in AIR 1996 SC 550 & AIR 2005 SC 3180 in determining this case along with 2004 CRLJ 3870, (2009) 9 SCC 221 along with (2015) 1 SCC 429.  The complainant could not establish his loss or injury caused by the any alleged act of medical negligence.  Hence, in view of above analysis we are constrained to hold that the complainant’s case fails. 

            Hence,

Ordered,

That, the case CC/2014/149 be and the same is dismissed on contest against OPs without cost.

Let a copy of this judgment be delivered to the parties free of cost.