DATE OF FILING                    :     17-04-2013.

DATE OF S/R                            :      10-05-2013.

DATE OF FINAL ORDER      :     11-09-2014.

Sanchita Sreemany,

wife of Ranajit  Sreemany,

residing at Kamardanga Sitalatala under P.O. Santrgachi,

P.S. Jagacha, District – Howrah,

PIN – 711104. ------------------------------------------------------------------- COMPLAINANT.

-          Versus   -

1.      Dr. Ashok Kumar Saraf,

Medicare Clinic (P) Limited, Shree Apartment,

138 G.T. Road (  South ), Howrah,

PIN -  711102.

2.      The Director of Medicare Clinic ( P ) Ltd.,

Shree Apartment, 138, G.T. Road ( S ), Shibpur,

District – Howrah.

3.      Dr. Sujoy  Kr. Mukherjee,

3/1, Puratan Lane,

Howrah – 711104.-------------------------------------------------OPPOSITE PARTIES.

                                                P    R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

Member       :     Smt. Jhumki Saha.

                                                 F  I   N   A    L       O   R   D    E     R

1.               The instant case was filed by complainant Sanchinta Sreemani.  U/S 12 of the C.P. Act, 1986 wherein the complainant has prayed for direction upon the o.ps. to  pay compensation to the tune  of Rs. 20 lacs together with heavy costs for committing medical negligence in conducting lap-chole operation for removing the gall bladder. The complainant feeling prior symptom of pain in the abdomen and backbone consulted Dr. Uttam Kumar Dutta on 30-10-2012. He applied some medicines for temporary relief and advised her to consult an expert. Accordingly, she consulted the o.p. no. 1 Dr. A.K. Saraf on 05-11-2012. After examination and obtaining reports of blood, x-ray, ECG she was admitted in the Medicare Clinic Pvt. Ltd. ( o.p. no. 2 ) with a package of  Rs. 20,000/- for operation. On 06-11-2012 she was operated and was asked to collect two bottles of blood for emergency on the next day i.e., on 07-11-2012 leakage ensued in the choli billary. Accordingly she was transferred to Calcutta  Hospital having well facility for repairment of the leakage where Dr. S. Pattanaik, an expert in this field repaired the leakage and the patient was sent to the same Medicare Clinic of the o.p. no. 1 on the same day i.e., 07-12-12.  The patient was released and discharged from the clinic on 11-12-2012. On returning home she suffered from Jaundice. The complainant was examined and treated by one Dr. Soumitra  Ghosh for jaundice and she recovered gradually. As the complainant apprehends life risk and her condition may turn bad to worse she has field this case for medical negligence.    

2.               The o.p. no. 1 in his  written version challenged the maintainability of the instant complaint and  contended interalia that the  complainant never suffered any permanent disability ; that the leakage of bile in lap chole operation is almost common. So a drain was set up ; that the complainant was admitted with history of unbearable pain in her abdomen due to gall bladder stone; that no guarantee of 100% care or 0% complication during operation was given ; that no doctor can give such guarantee in the world ; that the o.p. no. 1 is one of the senior most and skilled doctor having more than 20 years of experience in  this filed ; that the incidence  of common bile hepatic duct- puncture during lap chole operation is  0.3% to 0.5% in acute cases ; that such possibility is common in lap chole method than in  open surgery ; that the leak in the bile along with drain being detected on 07-11-2012 the patient was sent to Calcutta Hospital for ERCP by Dr. Pattanaik  and she was taken back to the o.p. no. 2 unit on the same day ; that she was released and discharged from the o.p. no. 2 unit on 11-11-2012 in suitable condition; that the suffering of minor Jaundice in her residence was not at all due to the negligence or wrong treatment by o.p. no. 1; that the harassing complaint requires to be dismissed.

3.                  No written version was filed on behalf of o.p. no. 3.

4.                  Upon pleadings of  parties three points arose for determination :

i)          whether the present complaint case is maintainable before this Forum ?

ii)         Is there any deficiency in service on the part of the O.Ps.  ?

iii)        Whether the complainant is  entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

5.                  Points number 1 : - The complainant in her complaint petition filed U/S 12 of C.P. Act. prays for relief in the nature of compensation to tune of Rs. 20,00,000/- (twenty lacks) along with imposition of heavy cost for negligence in providing services on the part of the O.Ps. including other relief i.e. litigation cost etc.

                   We do bear in mind that as per section 11 of C.P. Act. 1986 as (amended upto date), the Forum  has no pecuniary jurisdiction  to settle any claim beyond Rs. 20,00,000/- which is well within the power of Hon’ble Sate Commission. Because the term ‘to impose heavy cost’ can never be ‘Zero’. So even if 0.5 paise is added to 20,00,000/-, the claim of the complainant hits the pecuniary jurisdiction of this Forum.

                  Under the above circumstances, we have our candid opinion that we can not adjudicate the mater in issue on merit in terms of point no. II & III as stated above.

                  Accordingly the case is disposed of with the liberty to the complainant for approaching before the appropriate authority on the same cause of action within 30 days from the date of this order.

      Hence,

O     R     D      E      R      E        D

      That the C. C. Case No. 116 of 2013 ( HDF 116 of 2013 )  is returned to the complainant with direction to approach before the Hon’ble State Commission.

      Supply the copies of the order to the parties, as per rule.

DICTATED  &    CORRECTED

BY   ME.  

           (P. K. Chatterjee)                                                     ( P. K. Chatterjee )       

  Member,  C.D.R.F., Howrah.                                    Member, C.D.R.F.,Howrah