IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/113/2012.
Date of Filing: Date of Admission: Date of Disposal: 01.10.12 31.10.12 06.12.23
Complainant: Sabina Yasmin
W/O- Md. Abu Tarif,
Vill- Beldanga Najrul Polly,
P.O. & P.S.- Beldanga
-Vs-
Opposite Party: 1. Dr. B. Sarkar
District Hospital Matrishadan,
Berhampore, Murshidabad,
2. C.M.O.H. Murshidabad
District Hospital, Matri Sadan,
Berhampore,Pin- 742101
Agent/Advocate for the Complainant : Bidishya Sarkar
Agent/Advocate for the Opposite Parties : S.S. Dhar
Present: Sri Ajay Kumar Das………………………….......President.
Sri. Nityananda Roy……………………………….Member.
FINAL ORDER
Sri.ajay kumar das, presiding member.
This is a complaint under section 12 of the CP Act, 1986.
One Sabina Yasmin (here in after referred to as the Complainant) filed the case against Sabina Yasmin & Anr. (here in after referred to as the OPs) praying for compensation alleging deficiency in service.
The material facts giving rise to file the complaint are that:-
The Complainant was admitted on 15.05.12 in Berhampore Sadar Hospital at Matri Sadan for delivery of her child under Dr. B. Sarkar. After examining the Complainant, the OP No. 1 searched out her husband as well as her family members and told them that serious operation is necessary to make the delivery. After hearing the same her husband went to the OP No.1 and the OP No.1 stated that it is required to make the delivery immediately. And the OP No.1 asked her husband to sign in a paper. After signing the Complainant was transferred to the operation theatre from bed.
Though the Complainant was transferred to operation theatre for delivery but the operation was not made then and there. After 3 hours the said operation was made. There is no reason behind it to make operation after 3 hours by transferring the Complainant to the operation theatre. The Complainant gave birth to a female child through cesarean delivery.
The OP No. 1 i.e. Dr. B. Sarkar made five stitches at Complainant’s lower abdomen after such cesarean operation. But after the delivery, the Complainant felt severe pain in the lower abdomen and as such the Complainant and her husband informed this to the OP No.1 but the OP No.1 did not pay any heed and told not to be worried and the pain would be disappeared due to laps of time.
The OP No.1 had cut away the said stitches on 22.05.12. But after cutting the said stitches, bleeding started from the cesarean part. Thereafter the attending nurse came to the Complainant and found the same. The attending nurse informed the OP No.1 regarding the said bleeding but the OP No.1 did not came to visit then and there.
OP No.1 came after a long period and he advised the staff of the hospital to transfer the Complainant again at the operation theater.
The OP No.1 again stitched at the cesarean part on the same date i.e. 22.05.12. After that the Complainant received heavy pain at night on the lower abdomen due to the surgery. Regarding her pain the Complainant told the attending nurse but the attending nurse did not pay any attention regarding the pain.
Thereafter the Complainant’s husband and family members asked the OP No.1 regarding the situation and condition of the patient. But the OP No.1 did not utter anything. Thereafter on 23.05.12 again the Complainant was transferred to the operation theater for dressing the cesarean part.
After that again stitches are done in consciousness condition of the Complainant which gave the Complainant a death feeling pain and her life was in danger. But the Complainant did not get any result and the pain was same as it was and the OP No.1 forced her husband to transfer the Complainant from the said hospital.
Thereafter, on 24.05.12 her husband took discharge from the said hospital i.e. OP No. 2 and he took her at home. Her husband took the Complainant at Diamond Nursing Home at Beldanga for better treatment as from her stitches a bad smell was coming out. Dr. Ashoke Ghosh did her treatment there and he stated that cesarean part had got infected. The doctor advised the Complainant for several dressing and appointed a nurse to take care of her. He prescribed her medicine and ointment which made her well.
After that, many times of dressing for many days her cesarean part got well and her life came out of danger. Due to wrong treatment as well as not taking care properly her life went to the said stage by which her life was in danger. If the OP No.1 properly took care of the Complainant, the Complainant did not go to that stage. The OP No.1 completely responsible for the said situation and condition noted above which is completely deficiency on the part of the OP No.1.
The Complainant spent Rs. 1,50,000/- for this total treatment and operation.
Finding no other alternative the Complainant filed this instant case for proper redressal and the Complainant prays for directing the OPs to pay a sum of Rs. 1,50,000/- with compensation.
OPs are contesting the case by filing written version contesting inter alia that the case is not maintainable and the case is barred by law of limitation. On 15.05.12 the Complainant came to the OP No. 1 with abdominal pain. The OP No. 1 examined the patient and decided to go for an emergency cesarean section to save the life of the Complainant as well as for her baby. The operation was high risk in nature. So it was necessary for the patient party to execute a written high risk consent form. The bond was executed and it was informed to the patient party that complications side effects, may arise out of such emergency operation.
They have stated that the patient party executed the bond and after that this OP started the operation after taking all precautionary measures and medicines were applied. Operation was successful. Two units of blood was safely given to the patient. To prevent infection medicines were applied. At last the patient was discharged from the hospital with advice to take some specific medicine, to apply ointment and most important advice was to attend in emergency or outdoor. But the Complainant was not interested to follow such advises.
They have further stated that the operation was successful even that the operation was high risk in nature and there was no latches on the part of the OPs and the Complainant did not pay any amount to the Hospital Authority for her treatment as such she is not a consumer under the definitions of Consumer Protection Acts. As such they pray for dismissal of the instant complaint.
On the basis of the complaint and the written versions the following points are framed for proper adjudication of the case :
Points for decision
1. Isthe Complainant a consumer under the provision of the CP Act, 1986?
2. Has the OP any deficiency in service, as alleged?
3. Is the Complainant entitled to get any relief, as prayed for?
Decision with Reasons:
Point Nos. 1,2&3
All the points are taken up together for the sake of convenience and brevity of discussion. Ld. Advocate for the OPs submitted that the Complainant did not pay any amount to the Hospital Authority for her treatment as such she is not a consumer under the definitions of Consumer Protection Acts. As such they pray for dismissal of the instant complaint.
Ld. Advocate for the Complainant prayed for adjournment several times for collecting the documents regarding payment made by the Complainant to the Hospital Authority.
In support of his contention Ld. Advocate for the OPs cited a decision of the National Consumer Disputes Redressal Commission reported in Major Singh vs State of Punjab & Ors. on 5th November, 2014. Ld. Advocate for the OPs drew our attention to Para 6 of the said decision which may be quoted here :
“6. Learned State Commission placed reliance on judgment of Honble Apex Court in Law Finder Doc Id # 71349 = 1996 (1) Consumer Law Today 1 (SC) Indian Medical Association Vs. V.P. Shantha & Ors. and held that complainant does not fall with purview of consumer. Paragraph 44 of the aforesaid judgment runs as under:
The other part of exclusionary clause relates to services rendered “free of charge”. The medical practitioners, Government hospitals/ nursing homes and private hospitals/nursing homes (hereinafter called “doctors and hospitals”) broadly fall in three categories :-
- where services are rendered free of charge to everybody availing the said services.
- where charges are required to be paid by everybody availing the services and
- where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay are rendered service free of charges.
There is no difficulty in respect of first two categories. Doctors and hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of “service” under Section 2(1) (o) of the Act. The payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals. So far as the second category is concerned, since the service is rendered on payment basis to all the persons they would clearly fall within the ambit of Section 2(1) (o) of the Act. The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2(1) (o) of the Act.
In the light of aforesaid observation it becomes clear that where services are rendered free of charge to everybody availing the said services, patient does not fall within purview of consumer. In the case in hand, learned Counsel for the petitioner could not place any document on record to prove that OPs were not rendering services to the Complainant free of charge and in such circumstances, complainant does not fall within purview of consumer.
Reasons for delay
The Case was filed on 01.10.12 and admitted on 31.10.12. This Commission tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.
In the result, the Consumer case fails.
Fees paid are correct. Hence, it is
Ordered
that the complaint Case No. CC/113/2012 be and the same is dismissed on contest against the OPs.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
President
Member President.
