West Bengal

Paschim Midnapore

CC/159/2017

Sri Kamal Dutta - Complainant(s)

Versus

Dr. Apurba Samanta - Opp.Party(s)

Swapan Bhattacharya

11 Jul 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

   Bibekananda Pramanik, President,

                                                                                       Pulak Kumar Singha,Member,

                                                                                                           and

                                                                                             Sagarika Sarkar,Member.

 

Complaint Case No.159/2017.

 

Sri Kamal Dutta, S/o-Late Gobinda Dutta, Vill.Chandipur,

                               P.O. & P.S.Jhargram, Dist.-Jhargram.                                                                                                          …………..Complainant.

                                                                                            -Vs-                                                                                                                       

                                  Dr. Apurba Samanta,Samanta Eye Care, At Rabindranagar (Back side of Primary
                                  School Board Office), P.O. Midnapore, P.S.Kotwali, Dist. Paschim Medinipur.                                                                                                                                                             

                                                                                                              ...……….….Opp. Party.

                                                   

              For the Complainant: Mr.Swapan Bhattacharya, Advocate.

                For the O.P.            : Mr.Kshitish Palmal, Advocate.

                                                         

                                                                              Date of filling : 03/11/2017                                                                                                                                                                                                                                                                                                                   

                                                                               Decided on   : 11/07/2018

                               

ORDER

                          Bibekananda Pramanik,President:–This consumer complaint u/s 12 of the C.P. Act has been filed by the complainant Sri Kamal Dutta against the above named O.Ps. alleging deficiency in service on their part.

               Complainant’s case, in brief, is as follows:-

                 Complainant was suffering from his problem in left eye from the month of October 2013 and he was at first treated by a local doctor of Jhargram but he could not solve his problem. He was thereafter treated at Vivekananda Mission Ashram, Chaitanyapur, Haldia, Purba Medinipur  but the said doctor of that Ashram was unable to solve the problem.

                                                                                                                                                              Contd…..….P/2.

 

                                                                                                (2)

                                       Thereafter on 8.1.2014, the complainant visited the chamber of the O.P.-Doctor Apurba Samanta and as per his advice, the complainant gave his consent for surgery of his left eye and accordingly the O.P.made surgery in the left eye of the complainant  on 26.1.2014 but even thereafter his condition was not improved for which another operation in the left eye of the complainant was done by O.P. on 27.4.2014. After that operation, the condition of left eye of the complainant became worst and he lost vision but inspite of that he had good faith upon the O.P. and he continued treatment. As per advice of the O.P., third operation was done by O.P. on 22.5.2014 with the assurance that his vision will be normalized. Complainant waited for a long time after operation but the condition of his left eye gradually deteriorated. Thereafter the complainant went to L.V.Prasad Eye Institute, Bhubaneswar for treatment of his left eye on 20.7.2016 and continued his treatment till 10.1.2017. Finally the doctor of said institute expressed that due to wrong operation of retinal detachment, the left eye of the complainant has been damaged. It is alleged that the O.P. cannot avoid his responsibility for such wrong treatment. Hence the complainant,  praying for directing the O.P. to pay compensation of Rs.5,00,000/- for medical negligency and for other reliefs.

               O.P.-Dr.Apurba Samanta has contested this case by filing a written version.  

               Denying and disputing the case of the complainant, it is the specific case of the O.P. that he never did any surgery of the complainant. He is not a vitreoretiral surgeon for which after attending the complainant on 8.1.2014, he diagnosed that it was a case of old retinal detachment which was operated elsewhere. So the O.P.-Doctor referred the complainant to the concerned vitreoretinal surgeon Dr.Soumya Sanyal and as per his decision, O.T. was done by Dr.Soumya Sanyal on 26.1.2014 with consent of the complainant. Subsequently the complainant developed cataract which is also common in posterior segment surgery and the patient underwent surgery of cataract on 27.4.2014 by Dr.Soumya Sanyal. Again on 25.5.2014 the patient was advised for another surgery by Dr.Soumya Samnyal but the complainant was unwilling to do so and as such no further operation was done by Dr.Soumya Sanyal at Samanta Eye Care. Since then the complainant did not visit the chamber of the O.P. and after lapse of two years he has filed this complaint against the O.P. who did not operate the complainant at all. It is stated that Dr. Soumya Sanyal and other doctors who treated the complainant are necessary party in this case and in their absence, the present case is bad for non-joinder of necessary party. O.P. therefore claims dismissal of the case with cost.              

               To prove his case, the complainant has examined himself as PW-1 by tendering a written examination-in-chief supported by affidavit and the documents, relied

                                                                                                                                                                  Contd……P/3.

                                                 

                                                                                            (3)

upon by him, were marked as exhibit 1 to 7 respectively. On the other hand, O.P.-Dr.Apurba Samanta has examined himself as OPW-1 by tendering  a written examination-in-chief supported by affidavit.

                                                             

                                    Points for decision

1.     Is the case maintainable in it’s present form and prayer ?
2.     Is the case bad for  non-joinder of necessary parties ?
3.     Is there any  deficiency in service or medical negligency on the part of the                     

    O.P.?

4.     Is the complainant entitled to get the reliefs, as prayed for ?

                                              

  Decision with reasons

           

Point no.1 & 2 :-

                                     For the sake of convenience and brevity, these two points are taken up together for consideration.

                                     Maintainability of this case has been questioned on behalf of the O.P. on the ground that for non-joinder of necessary parties the present complaint is not maintainable. According to the O.P.no such operation of the left eye of the complainant was done by him but as per his advice and as referred by him, operation on the left eye of the complainant was done by Dr.Soumya Sanyal who is attached to his Samanta Eye Care as visiting doctor. From the medical papers(exhibit-1/1,3,5 & 7) so filed by the complainant we find the signature and seal of Dr.Soumya Sanyal. In his cross-examination it is none but the complainant has stated that he does not know if Dr.Soumya Sanyal did operation of his eye or not. He has further admitted that he does not know who did his operation of his left eye. In view of that and since it is specifically stated by the O.P. in his written version that he did not perform such operation but it was done by Dr.Soumya Sanyal,  then it was the duty  of the complainant to make Dr.Soumya Sanyal as a party in this case by way of amendment of petition of complaint but that has not been done. It is therefore held that the present case is bad for non-joinder of necessary party and as such it is not maintainable.

                                These two points are accordingly decided against the complainant.

               Point No.3 :-                                                                                                                                                                                               

                                 Regarding deficiency in service much has been said in the petition of complaint as well as in the written examination-in-chief of the complainant alleging that the  O.P.-Doctor did wrong operation in the left eye of the complainant on three occasions i.e.

                                                                                                                                                                                Contd……..P/4.

                                                                                                            (4)

               on 26.1.2014, 27.4.2014 & 22.5.2014 in his Eye Care centre named “Samanta Eye Care” but all such operations were not  successful for which the complainant went to L.V.Prasad Eye Institute, Bhubaneswar and the concerned doctor of that institute expressed that due to wrong operation,  his left eye has been damaged and that cannot be recovered. As against this,  it is the specific case of the O.P. that such operation of eye of the complainant was not done by him but it was done by Dr.Soumya Sanyal who is a visiting doctor of his clinic. Complainant produced no documents to show that the O.P.-Dr.Apurba Samanta did such operation. The documents (exhibit-3) go to show that such operation was conducted by Dr. Soumya Sanyal. That apart we find from the cross-examination of the complainant that he himself has stated that he does not know who did such operation of his eye. He has further stated in his cross-examination that he does not know if Dr. Soumya Sanyal did operation of his left eye. When the complainant himself does not know as to who did such operation of his left eye then the allegation of wrong surgery by the O.P.-Doctor has no leg to stand. Moreover, the complainant did not file any expert opinion nor did he produce any cogent document to show and to prove that all such operations were wrong.

                        In the above facts and circumstances of the case and the discussions made above we have no hesitation to hold that the complainant has hopelessly failed to establish his allegation of wrong treatment and medical negligency against the O.P.-Dr.Apurba Samanta.

                                      This point is therefore decided in the negative and against the complainant.

            Point No.4 :-

                                 In view of our above findings  the complainant is not entitled

            to get any  reliefs.                                                

           All the points are accordingly disposed of.            

           In the result, the complaint case fails.

                  Hence, it is,

                                              Ordered

                         that the complaint case no.159/2017  is dismissed on contest but in the circumstances without cost.                             

                                Let plain copy of this order be given to the parties free of cost.

             Dictated and Corrected by me

                          Sd/-B. Pramanik.             Sd/-P.K. Singha        Sd/- S. Sarkar         Sd/-B. Pramanik. 

                               President                      Member                  Member                  President

                                                                                                                               District Forum

                                                                                                                            Paschim Medinipur