West Bengal

Siliguri

134/S/2012

SRI GOURANGA BARMAN - Complainant(s)

Versus

DR. ATANU ROY, - Opp.Party(s)

29 Jun 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

 

CONSUMER CASE NO. : 134/S/2012.                DATED : 29.06.2015.   

             

BEFORE  PRESIDENT              : SRI BISWANATH DE,

                                                              President, D.C.D.R.F., Siliguri.

 

 

                      MEMBERS              : SMT. PRATITI  BHATTACHARJEE &

                                                              SRI PABITRA MAJUMDAR.

 

COMPLAINANT                 : SRI GOURANGA BARMAN,  

                                                  14, Jagadish Chandra Bose Road,

                                                              Subhash Pally, Siliguri – 734 401,

  M. No.- 98325 23659.

                                                              

O.P.                                       : DR. ATANU ROY,   

  9, Sarat Bose Road,

  Hakimpara, Siliguri,

  M No.- 94347 52845,  2537728 (R).

  Chamber – Dhruba Medical,

  Haren Mukherjee Road, Siliguri.

 

                                                           

                                                                                                                                                                  

FOR THE COMPLAINANT         : Self.

 

 

J U D G E M E N T

 

The complainant’s case in a précised manner can be reproduced hereinafter.

The complainant was attacked with fever on 09.11.2011, and he was treated by Dr. Atanu Roy hereinafter will be referred as OP.  The OP prescribed medicine and instructed for blood test.  On 11.11.2011 complainant went to Dr. Atanu Roy with blood report, but the OP did not examine the blood report rather OP refuted the complainant for not examining the blood report by a lab instructed by OP.  On 12.11.2011 blood test was done by B.S. Diagnostic Centre as per doctor’s choice.  On

 

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13.11.2011 was Sunday, doctor was not reported.  On 14.11.2011 examining the weak body condition, doctor prescribed medicine, and the same was taken by the complainant.  On 16.11.2011 OP instructed for “Ketone body test”.  In spite of very very weak condition, the patient was taken to laboratory for the said test.  Doctor prescribed medicine on 16.11.2011, and prescribed for 15 days after which fasting blood test and PP blood test was to be done.  The complainant was under complete control under OP regarding treatment from 09.11.2011 to 16.11.2011.  On 12.11.2011 the physical condition of the patient became worse.  He excreted black stool and was about to lose his sense and was unable to speak and was in dying condition.  He was taken to Government Hospital and admitted emergency.  Dr. told that the patient was attacked by ARDS Septicemia infection which was dangerous in nature.  The patient was treated in the North Bengal Medical College & Hospital on 17.11.2011 to 18.11.2011.  On 19.11.2011 the patient was suffering respiratory trouble and was in need of immediate ICU, but there was no ICU in the North Bengal Medical College & Hospital.  He was brought to ICU in a very unconsciousness and anxious condition and was treated in ICU.   Thereafter, he was kept in CCU and was treated.  After eight days of treatment, complainant was discharged, but he was instructed by his discharge summary to be treated in Nursing Home for another 10 – 12 days.  But under compelling financial crisis, the complainant was taken to his house.  Thereafter, he was checked up by the doctors of Ananda Loke Nursing Home.  He was instructed to check up by senior doctor.  Dr. Dipali Bhowmik also instructed him for better treatment.  He went to Bangalore Dr. Devy Shetty’s Hospital and his body was checked up.  It is also alleged that Dr. Atanu Roy was responsible for this harassment.  Later on i.e., his treatment was done by different doctors, nursing home and hospitals.  It is the Dr. Atanu Roy who compelled him to go to ICU

 

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for treatment.  The complainant also stated that huge amount of money was needed for his treatment.  But he had no such amount of money in his possession.  His wife managed to get money by selling ornaments.  His wife also suffered much for look after the complainant.  The complainant has a daughter of seven years.  That time his wife was also unable to look after her two years child and thus they became ill.  The complainant’s case further is that due to the act of doctor, this complainant suffered much physically, mentally, economically, not only the complainant has suffered but also wife of the complainant and his seven years daughter and two years child have suffered very much.  The complainant and others after a struggle and succeed to survive and Dr. Atanu Roy was of root of troubles.  Accordingly, complainant’s complaint has been lodged for getting total cost and compensation for mental and harassment, cost of litigation and other cost. 

After getting the complaint, the OP doctor appeared and filed written version denying inter-alia all the material allegations as raised by the complainant. 

The doctor has stated that on preliminary examination he has of opinion that the complainant was suffering from viral fever and as per such opinion he prescribed the standard treatment as laid down in Harrison’s Principles of internal medicine.  He prescribed Paracetamol, Meftal, Aciloc and anti-histaminic and cough syrup.  Some blood tests were also suggested:- i) Haemoglobin, ii) Total count, iii) Differential count, iv) ESR, v) Malaria antigen, vi) Blood sugar. 

On 11^th November, 2011 complainant brought report from Tara Diagnostic Centre when fever was low.  The report detected high blood sugar.  Accordingly, the complainant was again requested to cross check the blood sugar and other tests by B.S. Diagnostic Centre.  It is also specific case of the OP doctor is that between 14^th November, 2011 to

 

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16^th November, 2011, 2½ days elapsed and 2½ days is not sufficient to understand the effect of an antibiotic.  It is also case of the OP doctor is that after 17.11.2011 the OP had no contract with the complainant.  The OP also stated that on 19^th November, 2011, the patient was treated at Anandaloke Hospital and was treated outside with history of diabetics.  The OP contended that the complainant has undiagnosed and untreated diabetics of which the patient was not aware.  For this reason the patient had to suffer many complications.  It is also case of the OP that he examined the patient three times, and he took consultancy fees only once.  Accordingly, the case is liable to be dismissed.

So, the complainant’s case stands that during the treatment from 10^th to 16^th November, 2011 the OP doctor treated the patient negligently and did not care to find out the reason of fever and weakness i.e., the doctor has done routine duty without application of mind and duty care and attention.

The OP denies and states that the patient did not bring test of blood report from reputed diagnostic centre for which OP again told the complainant to reexamine the blood.  The patient had sleeping diabetics for which he has suffered much.

 

Points for consideration

 

1.       Whether the complainant has succeeded to prove the negligence of OP/doctor ?

2.       Whether the complainant is entitled to get relief as per Section 14 of The Consumer Protection Act, 1986, regarding deficiency of service or negligence on the part of the OP doctor ?

 

The complainant has OP has filed following documents :-

1.       Prescription of Dr. Atanu Roy dated 10.11.2011.

 

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2.       Reports on Haematological examination and Bio-chemical examination of Tara Diagnostic Laboratory dated 11.11.2011.

3.       Haematology report of B.s. Diagnostic Centre dated 13.11.2011.

4.       Chemical Pathology report dated 13.11.2011 of B.S. Diagnostic Centre. 

5.       Blood Glucose report and Urine for Ketone Bodies report dated 16.11.2011 of Clini-Path-Lab.

6.       Two treatment sheets of North Bengal Medical College & Hospital, Electro Therapeutic Department dated 17.11.2011. 

7.       Report of Haematology, Biochemistry dated 18.11.2011 of Plasma Diagnostic Centre. 

8.       Pathology report dated 19.11.2011 of Anandaloke Hospital & Neurosciences Centre. 

9.       Complete Haemogram report dated 19.11.2011 of Anandaloke Hospital & Neurosciences Centre. 

10.     USG of Whole Abdomen report dated 19.11.2011. 

11.     X-ray and C.T. Scan report dated 19.11.2011. 

12.     Discharge Summary of Anandaloke Hospital dated 05.12.2011. 

13.     Invoice dated 27.11.2011 of Narayana Hrudayala Hospital.

14.     Some bill cum receipts of Narayana Hrudayala Hospital.  

 

OP has filed the following documents :-

1. Xeroxed copy of pages 46 to 47 of Harrison’s Principles of Internal Medicine, 18^th Edition (2012).
2. Xeroxed copy of pages 38 to 40 and 269 to 270 of current Medical diagnosis & Treatment (Edited by Stephen J McPhee, Maxine A Papadakis; LANGE Publication) (2011, Edition).   

 

The complainant has affidavit-in-chief.

The OP has filed affidavit-in-chief.

 

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Decision with reason

 

The OP W is wife of the complainant.  She has deposed on oath before this Ld Forum.  She stated her husband suffered from fever and went for treatment to Dr. Atanu Roy.  Dr. Roy started treatment from 10.11.2011.  On 17.11.2011 the patient was about to die and got admitted in the Siliguri Sadar Hospital for treatment.  The doctors declared that death of her husband was imminent.  Then patient was referred to North Bengal Medical College & Hospital, wherein the doctors told regarding deplorable condition of the patient.  Dr. Atanu Roy was responsible for causing deplorable condition because Gouranga Barman was under treatment of OP Dr. Atanu Roy.  It has also been stated by her (Saraswati Barman) that after testing blood the doctor was informed on 13.11.2011, and doctor told to purchase some medicines i.e., Clavum 625, Amaryl MP 2 and Maftal 500.  Those medicines were given to patient.  On 14.11.2011 those medicines again prescribed in the prescription, along with other medicine i.e, the patient was under complete control of OP from 10.11.2011 to 14.11.2011 when doctor prescribed to use those medicines for fifteen days.  It has also been stated that patient has carried out the instruction of OP i.e., patient has done pathology test of blood, patient has taken medicine prescribed by doctor.  From 17.11.2011 to 19.11.2011 the patient suffered critical moment in Anandaloke Hospital. 

The OP doctor has adduced oral evidence. 

Different questions were put before the wife of the patient. 

The wife of the patient answered all the questions. 

In the answer of question no.1, the witness has narrated the deficiency in treating the husband of the witness.  She has stated that Gouranga Barman was treated by Dr. Atanu Roy for seven days.  Blood test has been done on two days.  On 11.11.2011 in the laboratory of Tara Diagnostic Laboratory, wherein Hemoglobin was 10.1 and

 

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fasting sugar was 181 mg/dl.  On 13.11.2011 the same test was done in B.S. Diagnostic Centre, wherein Hemoglobin was 9.70 and sugar fasting was 228 mg/dl.  As such during the continuation of treatment the patient deteriorated.  She has further stated that by taking the medicine of the doctor, there was injury inside the abdomen wall, from which blood was oozing out and gathered in the abdomen cavity and the internally body was infected.  The witness stated that on 13.11.2011 the ESR was 80 mm, after one which, in spite of that the doctor did not refer the patient for better treatment or to have second opinion.  In this way as per statement of witness, the doctor abetted and invited the death of her husband.  If the doctor would have warned, this witness regarding the above imminent danger to live of her husband then necessary step might have been taken by this witness for her husband.  She has also stated that above erosion in the abdomen (kshata) was detected at Bangalore by UGI Endoscopy report.  The duodenal erosion was caused and detected by a report which has been deposited in this Forum.  Such duodenal erosion lowered the amount of Hemoglobin in the blood from 10.1 to 9.70. 

This witness also stated in Answer no.4 that they carried out instruction in the prescription.  This witness answered all the questions put to her in writing by OP and this witness answered the questions very diligently analyzing the defect or deficiency of doctor in imparting treatment of the patient.  The summations’ of answers/reply pointed to shows that the patient and his wife totally dependent upon the doctor and acted as per instruction of the doctor.  But last of all patient’s condition’s was deteriorated and patient was treated in the Govt. hospital and in the nursing home incurring huge expenditure. 

Now let us see evidence of OP Dr. Atanu Roy and cross-examination, if any. 

 

Contd……P/8

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OP has stated on oath that an antibiotic was not included in his prescription on 10.11.2011 as it was not included in the test book in case of viral fever and in this case doctor did not prescribe any antibiotic.  He again stated that on preliminary examination he was of opinion that the complainant was suffering from viral fever and as per his opinion he prescribed the standard treatment and he prescribed some medicines.  He also advised for blood test regarding Hemoglobin, total count, differential count, ESR, Malaria Antigen, Blood sugar.  He admitted that on the first occasion i.e., on 11.11.2011 the complainant submitted report from Tara Diagnostic Centre and the complainant had diabetics but the complainant replied in negative and for cross checking the blood sugar, he again advised the patient for re-examination of blood, TC, DC, ESR.  Clinically doctor was not satisfied with the first report.  On next date the complainant came on 14.11.2011, but doctor was of opinion that complainant was suffering from respiratory infection.  On that date doctor prescribed again medicines – Clavum 625 (Amoxicillin + Clavulinic Acid) three times daily and Amaryal MP2 (an anti-diabetic/oral hypoglycaemic agent), Aciloc 150.  He has again stated that on 16.11.2011 he was informed that condition of the complainant was not good.  The doctor told the patient to get his urine test for Ketone bodies.  On 16.11.2011 in the evening he found “nothing remarkably new” after clinical examination.  Hence, he had advised the patient to continue with previous medicines.  He stopped Ambrosol D and replaced it with Ambrodil S for infection in lunge broncho-dilator.  Doctor stated that only on 17.11.2011 black stool occurred and during that time no drug definitely known as stomach irritant was given by him.  Accordingly, doctor opined that Haemoglobin could have come down from 10.9 to 9.7.  On the other hand WBC counting (TC) came down from 13000 to 10000 which was an important sign of improvement.  If hemorrhage had

 

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actually taken place, the stool would have been black and haemoglobin much low.  But nothing much happened consequently the question of stool examination did not arise and ESR 80 does not mean that the patient was in a grave situation and has to be referred to higher centre.  Doctor again stated that 2½ days was not enough for complete action of an antibiotic.  An antibiotic was given on 14.11.2011.  Hence, as per doctor’s opinion negligence of deficiency in service is baseless. 

The doctor admitted that on 19.11.2011 the patient himself got admitted to Anandaloke Hospital.  The doctor opined that in para 12 the patient had undiagnosed and untreated diabetes of which the patient was not aware for which he had to face so many complications.  The doctor had examined him three times. 

The patient went to the doctor for treatment with his disease.  It is commonly impossible for a man to foresee regarding his future illness and patient shall come before the doctor when he is/ was in face of trouble.  So, when the complainant was inflicted with fever only then he went to the OP for treatment.  The patient went to doctor with some disease whatsoever and it is the duty of the doctor to keep him up and relieved of all the sufferings.  Merely a statement that patient had undiagnosed and untreated diabetes is not at all wanted. 

On 14^th and 16^th November, 2011 this doctor treated the patient.  On 16.11.2011 the doctor prescribed some medicines and told the patient to come after 15 days.  But on 17.11.2011 the patient became seriously attacked with different diseases and black stool was found on 17.11.2011.                                        

The patient took admission in North Bengal Medical College & Hospital on 17.11.2011.  The patient got admission in Anadaloke Hospital on 19.11.2011. 

The patient was admitted in North Bengal Medical College & Hospital on 17.11.2011 with deplorable condition.  Registration No. of the patient was 30994. 

Contd……P/10

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The complainant has filed three Xerox copies appears to be outdoor ticket of North Bengal Medical College & Hospital in West Bengal Form No.1815 which shows that the patient was diagnosed to have Sepsis and ARDS and DM. 

PW No.1 stated that patient was so serious that North Bengal Medical College & Hospital was unable to offer any treatment.  After which the patient was admitted at Anadaloke Hospital on 19.11.2011 under Dr. Dipali Bhaumik.   History of patient as appended in the discharge summary is that “A 48 yrs old male patient admitted with the complaints of fever & vomiting for last 10 days associated with respiratory distress and altered sensorium followed by unconsciousness since last night.  Initially treated outside.  H/o DM or HTN – no medication”.

Course & Management : During hospital stay patient was managed conservatively with I.V. Fluids, antibiotics, antiemetic.  PPI, bronchodialator, Insulin, 3% NaCl, Haemodialysis (Five episodes), blood transfusion (Fife units ‘O’ positive & 2 units FFP) & all other supportive measures.  Patient was referred to Dr. A.K. Singh MS (ENT) & Dr. M. Prasad MD DM & Dr. C. Dutta MD DM (Nephro) & Dr. D. Tomar MD DM were also consulted.  Patient needs to stay for further treatment but party wants discharge against medical advice.  Hence, being discharged on Risk-Bond.  The risks involved in transferring such critically ill patient has been explained in detail to the patient’s relatives or family members in the language understood by them. 

But this discharge summary shows that hospital authorities did not want to release the patient because the patient was not completely well.  However, patient was taken to home.

The complainant also filed some different copies of tests done in different places. 

 

Contd……P/11

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The complainant has come before this Forum stating that the patient was initially treated by the OP doctor for seven says.  But the OP doctor did not apply due care and attention to discharge his duty regarding the treatment of the complainant.  The doctor had full knowledge regarding the pathological result of blood, urine.  In spite of that, the doctor prescribed some medicines with a direction to consume the medicines for fifteen days aggravating the unfavorable condition of the patient.  The patient was with just a pain (already directed by OP and having sugar as per pathological test).  The OP/doctor was fully aware of those feature and health.  Accordingly, the complainant has incurred huge money during the treatment at Anandaloke Hospital and other places, and has suffered pecuniary and non-pecuniary loss and mentally shocked.  As such the complainant prays for compensation before this ld Forum.         

Doctor has some professional duties towards the patient.  Patient comes before a doctor to be cured by the doctor.  Patient comes to a doctor not for pleasure, but to remove pain and cure. 

Ordinary doctor with expertise knowledge is sufficient for treatment.  It is not that he will be best man.  He is a man of vast experience, but a man of moderate knowledge to discharge his duty as a doctor.  It is the duty of a professional doctor to be conversant with the complaint of disease. 

The doctor/OP is an MD and Ph.D in medical science.  Accordingly, the complainant has approached before this resource person like the OP to be cured by the OP.  The complainant came for fever.  The OP has duty to verify all the complaint regarding pain, and sufferings, and this pain and sufferings of the complainant over the body and other parts of the body and for this the doctor takes necessary steps for diagnosis i.e., to find out what is defect in the body and where the

 

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defect lie and how to remove the defect.  With respect to doctor the complainant and his wife is a layman.  They can purchase the medicines and consume the medicines, but as per prescribed by the doctor.  The doctor prescribes the medicine after considering the physical condition of the patient, regarding temperature, appearance, blood pressure and other physical appearance visible and sensible by the doctor only pertaining attention with respect to the pathological test.  It is social expectation that patient will be diagnosed to be free from danger, although in all cases doctor may be successful or may not be successful. 

In this case, the complainant has come before this Forum with allegation of fragrant negligence on the part of the OP/doctor, which was about to cause destroy life of the complainant, and the act of the doctor has caused great suffering to the wife of the complainant, to the children of the complainant who were helpless.  The complainant was under forcefully required to collect money from different sources all on a sudden and on 19.11.2011.  The patient came before the doctor only with fever.  But after seven days that fever was dangerous to jeopardize to the life of the complainant and his family also.  To this effect complainant filed an affidavit and filed huge amount of bill, incurring expenditure and prescriptions regarding huge pathological test reports.

The complainant took admission being returned from the North Bengal Medical College & Hospital at Anandaloke Hospital under Dr. Dipali Bhaumik, wherein he was kept in ICU and later on CCU.  His respiratory system was dilated that ventilation was given along with ventilation IV injection and other supporting medicines were given which was symptomatic.  Pathological test was done.  Complications of heart, kidney, blood, urine were found and patient was detected to have been suffered from DM and ARDS infection. 

The discharge summary shows that the patient got admitted on

 

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19.11.2011 at Anandaloke Hospital and discharged on 05.12.2011.  Diagnosis is : MOSF with SEPSIS, Diabetes Mellitus.

History of present illness : “A 48 yrs old male patient admitted with the complaints of fever & vomiting for last 10 days associated with respiratory distress and altered sensorium followed by unconsciousness since last night.  Initially treated outside.  H/o DM or HTN – no medication”.

This discharge summary also proves that the condition of the patient i.e., complainant was very deplorable since last 10 days who was suffering from respiratory distress and sensorium and unconsciousness for which the wife of the complainant was compelled to take the patient in the Anandaloke Hospital for treatment.  The patient was actually about to die.  To avoid such consequence the wife of the complainant put the patient in this hospital, and incurred huge expenditure beyond her limitation.  

So, it is established that patient was treated from 10.11.2011 to 16.11.2011 by the OP doctor.  During misguide of OP, the patient’s condition became worsen.  The patient took admission in the hospital, later on Anandaloke Hospital on 19.11.2011.  Different live savings tests were done, blood was given, and supporting materials were given i.e., patient suffered very much critical condition during his ICU in the nursing home and for this purpose patient incurred huge amount of money to pay to the Anandaloke Hospital for treatment of the complainant.

Details of nursing home and pathological tests and other tests and money receipts have been filed.

The complainant was filed before this Forum.  After that the necessary papers were sent to the HOD, Medicine of North Bengal Medical College & Hospital for answer to the questionnaire of the doctor.

 

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The HOD, Medicine of North Bengal Medical College & Hospital answered some questions given by OP doctor.  The HOD did not appraise non-prescribing antibiotics on the first day and second opinion would have taken.  The expert also stated that it was not clear to him why a doctor of MD and Ph D (Medicine) is repeatedly claimed to be a primary doctor.  Thus, gone through the evidence of HOD, it appears that HOD categorically states the omission of some steps on behalf of Dr. Atanu Roy causing some negligence in the treatment of the complainant on 11,12,13 & 14^th November, 2011.  Better treatment was not given.  It is the doctor’s statement which shows that he (doctor) did not apply his mind to the need of the patient.  In spite of best efforts taken by the complainant’s wife who was alone with two children, on Sunday though chamber was closed and the matter of investigation was informed so, it was the duty of the doctor to consult with the patient clinically and prescribe medicine.  The doctor did not do so.  He prescribed medicines orally and later on he filled up the prescription. All these actions of the OP are beyond the act of an ordinary prudent man.  As such doctor is liable for negligence because if on 16.11.2011 doctor would show any adverse worth report of the patient, then a huge amount of risk might have been avoided by taking proper course.  In this way doctor made himself amenable to the profession of law of negligence.  The doctor has duty to the patient, the doctor did not carry out the duty towards the patient.  There is absence of due care and attention in the conduct of the doctor.  So, till this time, the material on record inspire evidence in the mind of the Forum that doctor is guilty for negligence in performing his duty with due care and attention and such act of the doctor caused a great suffering in the life of the complainant.  Luckily the complainant survived and is able to meet with other family members.  So, we are of opinion that OP doctor is found guilty for omission of his duty towards

 

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patient and the further defence that he took fees only one time is not sustainable in law.

Let us now consider the quantum of compensation. 

The complainant has prayed Rs.4,00,000/- i.e., the amount paid by the complainant regarding expenditure and cost of treatment.  The complainant has also prayed Rs.15,00,000/- in the head of mental pain, agony, harassment, cost and other reliefs.

Section 14 (d) of the Consumer Protection Act is as follows :-

(I)       If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods, complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely :

 (d)     to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.  

Provided that the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit.

In this case the complainant has stated that due to negligence and deficiency in service on the part of the OP doctor, he has to suffer very much.  His death was imminent and he took admission in the Siliguri Sadar Hospital, and thereafter to North Bengal Medical College & Hospital, from where he took admission in to the Anandaloke Hospsital as the North Bengal Medical College & Hospital, from where he took admission into Anandaloke Hospital, as in North Bengal Medical College & Hospital has no arrangement for ventilation.  He was treated for chest, kidney and other ailments of the body for which he has to pay huge amount of money for :

 

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1. Cost of medicines,
2. Bed charges,
3. ICU charges,
4. CCU charges,
5. Cost of pathological tests,
6. Cost of doctor’s visit,
7. Cost of conveyance charges by his wife from hospital to nursing home and others.

 

Complainant has filed some documents showing cost of his treatment in Anandaloke Hospital and later on in Bangalore.  The total amount of bill (vide annexure- a, b & c).

The complainant has also claimed compensation for mental pain, agony, harassment and suffering by the wife of the complainant.  The wife of the complainant after being known regarding danger of life of her husband, moved from pillar to post seeking advice, seeking shelter, seeking money because she had no cash which stated to be required for treatment in the Anandaloke Hospital, as the imminent danger of the life of her husband was told before the wife of the complainant.  The complainant has two children one of which seven years old and other two years old, who were kept unnoticed by the wife of the complainant because of fact complainant became tensed and moved here and there inquest of.  But there was no end of suffering of the complainant and his children.  Being informed by imminent danger complainant became so nervous that he could not move, he could not eat, as such intermittently failed unconsciousness because he had no heap of money or jewellery required for expenditure of treatment in the nursing home.  In the nursing home the complainant was suffering from different ailments and kept in ICU.  In general, a man fears ICU.  So, generally when the doctor

 

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told regarding coming bad situation became out of man.  As such he prays compensation to that effect.  He also stated that although suffers with respect to pecuniary loss, non-pecuniary loss, mental shock, physically uneasiness, physically weakness arose due to the negligent conduct of the OP who acted without due care and attention to him.  He was also advised by doctor to stay in the nursing home for another 12 days and he was discharged under bond.  He clearly stated that doctor is the responsible for all kind of suffering physically, mentally and pecuniary.  He further stated that his wife took loan at higher rate of interest under compelling circumstances for the life of the complainant.  Later he went to Dr. Davy Shetty’s Hospital in Bangalore.  As such huge sums of money have been incurred by the complainant, which he required to be compensated by the OP, who is the root of troubles.  In this way whole cracks of this case i.e., the story of negligence is pointed to the conduct of the OP doctor. 

Ld advocate of the OP did not raise any argument on the point of compensation rather he submitted for fair compensation if the Forum desires at all and the complainant strongly argued regarding compensation of Rs.19,00,000/-. 

In a renowned case Master Abhishek Ahluwalia Versus Dr. Sanjay Saluja & others judgment pronounced on 1^st July, 2014, by National Commission.  

The principles of amount of compensation has been broadly discussed by their Lordship in the case Balaram Prasad Vs Kunal Saha and others [IV (2013) CPJ I (SC)].

In Civil Appeal No.2867 and C.A. No.2866 of 2012 and others.

In para 15 it has been discussed that in the case of Indian Medical Association Vs V.P. Santha and others, their Lordship observed that to deny a legitimate claim or to restrict arbitrary the essence of an award would amount to substantial injustice to the claimant.

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In Nizam Institute’s case the Hon’ble Apex court observed that the court must not be chary of adequate compensation and in an appropriate case seemingly large number of compensation is justified. 

In para 57 of the judgment, the Lordship observed that the claimant further urged that this is the fundamental principle for awarding “just compensation” and reiterated that principles of compensation is based on restitutio in integram i.e., the claimant must receive the sum of money which would put him in the same compensation as he would have been if he had not sustained the wrong. 

In this case there is no specific claim, but there was decision of the Hon’ble court that without prior pleadings claimant was entitled full relief e.g., Nizam Institute’s case, Oriental Insurance Company Vs. Jashuben and others, Raj Rani & Ors Vs. Oriental Insurance Company Ltd. and Ibrahim Vs. Raju & ors.  These references are quoted from the para 57 of the case in reference above. 

The financial condition of the family and other condition must be judged before granting compensation. 

In Arvinda Kumar Mishra Vs New India assurance Company Ltd., wherein the Hon’ble Apex Court has calculated quantum of compensation based on reasonable assumption abut prospective loss.

In this para it was also observed that in absence of expert opinion just compensation may be awarded. 

In that case the Hon’ble Apex court has given some guidelines.  This court has provided guidelines as to how the National Commission would arrive at an adequate compensation :-

1. Status, qualification of the victim and her husband.
2. Income and standard of living.

 

In a number of cases, the Hon’ble Apex court directed to make scientific calculation regarding loss of income of the claimant.  This direction has been given in number of cases. 

Contd……P/19

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It has also been observed by the Apex court that loss of pecuniary and non-pecuniary losses and future loss up to the date of trial must be considered for quantum of compensation.

Description of loss of the complainant from his income by his profession is also to be considered. 

It is also settled law that prospective loss of income was also to be considered.  In this way the compensation shall be attended in pecuniary, non-pecuniary, punitive and special damage.

So, as per the principles of law discussed in the above cases, vide para nos.73, 74, 76, 78 & 79 pecuniary damages can be arranges as follows :-

A-Head

1. Loss of earning,
2. Paid for treatment at the hospital/nursing home,
3. Paid for conveyance,
4. Legal fees.

 

B- Head

1. Punitive damage,
2. Special damage,
3. Loss of mentally damage,
4. Pain, suffering, injured by the victim. 

 

It appears from the document filed by the complainant to show the cost of the treatment as follows :-

1. Doctor’s fees                                                     Rs.43,600/-
2. Cost of medicine, nursing home

Charge, pathological tests etc.                          Rs.1,39,000/-

3. Conveyance + Oxygen                                      Rs.       700/-

from NBMC & H to Anandaloke Hospital.

Contd……P/20

-:20:-

 

 

4. Medicines (as per Pharmacy invoice

dated 05.12.2011)                                           Rs.1,15,586/- 

 

It appears from some printed receipts appeared to have been issued by Anandaloke Hospital on 05.12.2011 with seal and signature of money receiving authority that complainant paid total amount of Rs.2,98,886/-. 

The complainant incurred the aforesaid expenditure. 

The complainant suffered physically and mentally due to negligence on the part of OP doctor.  Therefore, the complainant is also entitled to get compensation for his personal sufferings those 20 days.  Therefore, he shall be compensated by another Rs.2,00,000/- to be paid by the OP/doctor. 

During those days when he was under treatment of OP and other doctors, he was unable to earn money, and he was unable to work for six months and in this way his income became shorten.  But regarding his monthly income the complainant did not state anything or did not submit any paper to show his income.  Supposing the income of a layman at present time is Rs.15,000/- per month and for six months his income would be Rs.90,000/-. 

Besides, the wife of the complainant was busy with the treatment of complainant.  The complainant has no other person to help him.  It is his only wife who brought the complainant to doctor and looked after the patient during his staying in the Anandaloke Hospital and North Bengal Medical College & Hospital.  The wife has suffered physically distress and mental agony for which she is entitled to get compensation.

The wife of the complainant faced serious hardship for want of complainant.  The two children also faced serious hardship and mental distress.  Above all the wife of the complainant was the most sufferer.  It

 

Contd……P/21

-:21:-

 

 

is the wife of the complainant who collected money, it is the wife of the complainant who looked after the patient in the hospital and looked after the children in the home because she has no alternative, and none stood beside the helpless lady.  It is a matter of surprise that the lady stood herself on leg to fight the odds blowing against her and it is the wife of the complainant who tried and succeeded to save her husband’s life and life of two children of seven years and two years old. 

The wife of the complainant has stated in her evidence-in-chief the causes of her grievance against doctor.  That lady took the complainant to the doctor.  So, it is the only the wife of the complainant who was attended conversant with the total facts of treatment, total facts of doctor, total facts of collection of money.  She did not hesitate to sell her own ornaments in lieu of money.  It is a doctor who was responsible and deficiency in service for want of due care and attention towards the complainant.  Accordingly, the OP doctor must give Rs.6,00,000/- as a compensation for mental pain, agony, harassment and torture for the wife of the complainant and two children of the complainant.                         

It is the OP doctor who is the root genesis of this case.  It is admitted position that the doctor treated the complainant on the relevant date.  But doctor did not apply his mind and neglected in the treatment of the complainant.  Accordingly, after treatment the complainant and his wife have come before this Forum begging compensation, begging cost of treatment, begging compensation for mental harassment, begging compensation of their children.  So, it is OP doctor who must bear all the compensation, all the cost of litigation, and the OP shall pay Rs.1,00,000/- for cost of litigation, and Rs.2,00,000/- as punitive damages to the wife of the complainant.

The complainant is also entitled to get interest @ 9% per annum from the date of appearance of OP before this Forum till full payment.

 

Contd……P/22

-:22:-

 

 

In the result, the case succeeds on contest. 

Hence, it is

                      O R D E R E D

that the Consumer Case No.134/S/2012 is allowed on contest.

The complainant is entitled to get Rs.2,98,886/- which he paid to Anandaloke Hospital for his treatment from 19.11.2011 to 05.12.2011. 

The complainant is also entitled to get Rs.2,00,000/- towards compensation for his personal sufferings.

The complainant is also entitled to get Rs.90,000/- for his six months income during those days when he was under treatment of OP and other doctors.

The complainant is also entitled to get Rs.6,00,000/- towards compensation for mental pain, agony, harassment and torture for the wife of the complainant and his two children. 

The complainant is further entitled to get Rs.1,00,000/- for cost of litigation. 

The complainant is further entitled to get Rs.2,00,000/- for punitive damages to the wife of the complainant. 

The complainant is also entitled to get interest @ 9% per annum from the date of appearance of the OP before this Forum, till full payment. 

The OP doctor is directed to pay Rs.2,98,886/- by issuing an account payee cheque in the name of the complainant towards his treatment at Anandaloke Hospital from 19.11.2011 to 05.12.2011, within 45 days of this order.

The OP doctor is also directed to pay Rs.2,00,000/- by issuing an account payee cheque in the name of the complainant towards compensation for his personal sufferings, within 45 days of this order.

 

Contd……P/23

 

-:23:-

 

 

The OP doctor is also directed to pay Rs.90,000/- by issuing an account payee cheque in the name of the complainant towards his income during those days when he was under treatment of OP and other doctors, within 45 days of this order.

The OP doctor is also directed to pay Rs.6,00,000/- by issuing an account payee cheque in the name of the complainant towards compensation for mental pain, agony, harassment and torture for the wife of the complainant and his two children, within 45 days of this order.

The OP doctor is also directed to pay Rs.1,00,000/- by issuing an account payee cheque in the name of the complainant for cost of litigation, within 45 days of this order.

The OP doctor is further directed to pay Rs.2,00,000/- by issuing an account payee cheque in the name of the complainant for punitive damages to the wife of the complainant, within 45 days of this order.

The OP doctor is further directed to pay interest @ 9% per annum from the date of appearance of the OP before this Forum, till full payment to the complainant, within 45 days of this order.

Failing which the awarded amount will carry interest @ 9 % per annum from the date of this order, till realization.

In case of default of payment as ordered above, the complainant is at liberty to execute this order through this Forum as per law. 

Copies of this judgment be supplied to the parties free of cost.

 

 

-Member-                       -Member-                        -President-