In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/71/2020.

Date of filing: 13/10/2020.                     Date of Final Order: 19/7/2024.

Amaresh Dutta,

s/o Lt. Jaharlal Dutta,

r/o Arambagh, Puratonbazar,

Rathtala, ward no. 4, Arambagh,

Dist. Hooghly, Pin. 712601.                                                             ..….complainant

  -vs 

1. Dr. B.B. Pan (MBBS DGO, M.D.),

Having chamber at New Atul Pharmacy,

Arambagh, Link Road, Arambagh,

P.O. & P.S. Arambagh, Dist. Hooghly, Pin. 712601.

2. The proprietor of Teresa Scan Centre (P) Ltd.

Link Road, P.O. & P.S. Arambagh,

Dist. Hooghly, WB, Pin. 712601.

3. Superintendent of S.D. Arambagh Hospital,

Arambagh S.D. Hospital, P.O. & P.S. Arambagh,

Dist. Hooghly, WB, Pin. 712601.…….opposite parties

Before:            President, Shri Debasish Bandyopadhyay.

                          Member,  Debasis Bhattacharya.

                         Member, Babita Chaudhuri.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the wife of the petitioner suspected her pregnancy and visited Dr. OP-1 on 6^th May 2019.  The petitioner took his wife to consult with the OP-1.  OP-1 confirmed the pregnancy and advised for certain clinical and pathological test and also prescribed for certain medicine.  The  OP-1 also advised the wife of the petitioner for further check up after one month.  The complainant accordingly paid the professional fees oftheOP-1.  The complainant again took his wife for check up on 5.6.2019 to the OP-1 and doctor accordingly after examining his wife prescribed medicine and also suggested for further check up on 14.7.2019.  The complainant took his wife to the OP-1 on 14^th July 2019 and OP-1 after examination prescribed medicine and also suggested for USG test at the clinical lab of the OP-2.   As per advice of the OP-1 the complainant took his wife for USG test to the OP-2.  When the complainant took his wife for USG he came to learn that the Op-1 himself give the USG test report.  After USG the complainant came to learn that his wife is carrying twin babies.   As per the report of USG the OP-1 started treatment the wife of the complainant and prescribed medicine accordingly as per twin babies.  The petitioner’s family were overwhelmed when they came to learn that two new members are coming in their family and they are also mentally prepared to give warm reception to the twins. 

The petitioner’s wife started strictly following the advice of the OP-1.  The petitioner took his wife for further check up again on 15.9.2019 and 19.10.2019.  On all occasions the OP-1 suggested that the twin babies are in normal conditions and has no such complications.  On 29.10.2019 the wife of the petitioner faced some complications in her physical health.  The petitioner immediately took her to the Op-1 and as per the advice again ultra sonography was done at the diagnostic centre of OP-2 and on that day also the OP-1 reported that in the USG report the wife of the petitioner is caring twin babies. With the passage of hours the wife of the petitioner faced acute labour pain the OP-1 advised him to admit his wife at Arambagh Sub division Hospital immediately.  On the self same day i.e. on 29.10.2019 the petitioner admitted his wife to the Arambagh Hospital at 12 noon and there his wife gave birth of a premature single child.  The delivery was normal.

The petitioner relying in the report claimed the second child from the hospital authority and the doctors of hospital authority stated that his wife gave birth of a single child.  The petitioner became speechless when he came to learn from the hospital authority that his wife gave birth of a single child and her wife was carrying  single child. The petitioner also  showed the test report and other prescription of Op-1 and OP-2  to the hospital authority but the hospital authority clearly stated that his wife was carrying a single baby and there was no existence of twin baby.  The petitioner there after met with OP-1 and accordingly he with full confidence expressed that he has no deficiency in his treatment procedure and the wife of the petitioner was carrying twin babies and both the USG report were correct.  Thereafter an enquiry was conducted regarding the incident by the hospital authority and hospital authority clearly stated that his wife gave birth of a single baby and his wife was not carrying twin babies.  Due to wrong advice of the OP-1 his baby started facing different complications and since birth the baby of the petitioner is facing various types of ailments and is under treatment.

Complainant filed the complaint petition praying direction upon the opposite party nos. 1 and 2 to pay a sum of Rs. 25,00,000/- as compensation and to pay a sum of Rs. 4,00,000/- for mental agony and to pay a sum of Rs. 10,000/- as litigation cost.

Defense Case:-  The opposite party No. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that Mrs. Puja Dutta came to this OP-1 on 6.5.2019and she disclosed her LMP was on 12.03.2019 so naturally immediately UPT (urine pregnancy test) was done  in the chamber of the doctor itself and the result was positive and hence pregnancy was confirmed. Accordingly the doctor endorsed the expected date of delivery (EDD) as 19.12.2019. Necessary prescription was made. Professional fees was paid. The mother was verbally advised to come on 05.06.2019 for review. According to the advice of the O.P. no. 1 the mother came to O.P. no. 1 on 05.06.2019, she was properly checked/examined and appropriate prescription was made and then she came on 140.7.2019 and on that day after examination proper medicines were prescribed and there was advice for USG and that was just a routine investigation. Thereafter on 14.07.2019 the USG was done and the O.P. no. 1 doctor himself did the USG. IT IS SUBMITTED THAT THIS DOCTOR (O.P. NO.1) IS A POST GRADUATE IN A GYNAE & OBSTETRICS AND DURING HIS POST GRADUATION COURSE HE WAS TRAINED IN OBSTETRICAL USG AND HE HAS ALSO THE PERMISSION/SANCTION TO PERFORM USG FROM THE COMPETENT AUTHORITY FROM THE DISTRICT i.e. THE CHAIRPERSON OF THE DISTRICT, APPROPRIATE AUTHORITY UNDER PC & PNDT ACT. [The copy of the same is annexed herewith as Annexure-I, similarly the certificate of Master’s Degree is annexed as Annexure-II]. The USG print dated 14.07.2019 as brought out by the O.P. no. 1 is hereby annexed as Annexure-III wherefrom it clearly appears there were two heads in same plane which was suggestive of twin pregnancy and the illustration thereof is there in page 783 of William’s Obstetrics, figure 30-18A and the O.P. no. 1 will submit the same before this Ld. Commission and thus the doctor was in no fault in his observation of twin babies in his report.

The O.P. no. 1 prescribed medicines but it was never a treatment for twin babies. The treatment would be same both for twin babies or single baby. On 15.09.2019and 19.10.2019 the mother came to the doctor for routine check ups and no further USG was done on any of those dates. There is no endorsement in the prescription of those dates particularly that the twin babies were in normal condition. The doctor treated her on clinical examination and practically there was no complications.

On 29.10.2019 the mother came to O.P. no. 1 with preterm labour and on that day further USG was done and there was advise for admission and thereafter the patient party immediately took the mother to Arambagh Sum-divisional Hospital wherein she was admitted and she gave birth to a premature single child and that was a normal delivery. It is submitted here that the preterm delivery was 30-32 weeks. As the first sonography suggested the existence of twin babies and there was no external interference the doctor had no fault in observing that there were twin babies but the mother delivered a single baby. Regarding vanishing of the other baby it is termed as vanishing twin syndrome and again it has been written in William’s Obstetrics page no. 769 (21^st edition) that one twin may be lost or vanishes in 21-63% cases. So in view of the fact and more particularly when the delivery was a normal delivery without any external interference either by this O.P. no 1 or by the Doctor of Arambagh Sub-divisional Hospital , there was no responsibility of either of the doctors in the mother’s delivering a single baby which was again at the cost of repetition a normal delivery. It is further submitted that during the second USG the mother was in midway of labour and there was frequent uterine contraction. During uterine contraction the bag of water gets divided into for water and hindwater. The forewater rounded in shape gave the image of second fetal head and so again there was no irresponsibility of the doctor O.P. no. 1 in his observation on that sonograpy which was done on 29.10.2019 that  there was twin baby. In this regard reference may be had to William’s Obstetrics – 25e- Physiology of labour-fig. 21-18 and this is also illustrated in fig 12.5- text book of Obstetrics by D.C. Dutta, page 120 6^th edition. That is why during midway of labour as the forewater appeared to O.P. no. 1 as second twin baby and as his mind was set about twin pregnancy in previous USG report he was of observation that there was twin baby. The print out of USG of 29.10.2019 is annexed as annexure-IV. It is further submitted that the USG activities did no initiate, nor interrupt the labour process and within 1 and half hour mother delivered her baby and returned back whatever in the womb.

The complainant is not entitled to any relief as prayed for and in the above premises the complaint is required to be dismissed with costs.

The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the Op-2 is a scan centre of repute.  The OP-2 uses machines of great quality in its facility.  On 3.5.2016 a USG machine was purchased of the company under Wipro G.E. Health Care.  Wipro G.E Healthcare is one of the most reputed manufacturers of USG machines in the world.  Op-2 obtained required permission from statutory authority of the District of Hooghly to run USG clinic for pre Natal Diagnostic procedure and the said machine was approved by  the said statutory authority and the permission was granted till 28.9.2023 covering the period in question.  The Department of Health and Family Welfare, Govt. of West Bengal, issued USG license to the Op-2.  The same was issued by Chief Medical Officer of Health, Hooghly covering the period in question.  The machine in question was successfully installed by the manufacturer namely Wipro G.E. Health Care.  The OP-2 sought permission from the ADM(G), Hooghly to appoint OP-1 DGO MD(D&O) as a Sonologist in the OP-2 facility.  The said permission was granted by ADM(G) Hooghly and thereafter the OP-2  appointed theOP-1 as a Sonoligist in the diagnostic centre being the OP-2.  The OP-1 also accepted the said offer of the OP-2.  The OP-2 submits that the machine in question had covered diagnosis of more than 1000 cases.  No fault was detected of the machine.  The OP-2 all along provide proper service in its facility and the machine contained no fault at any point of time.  The OP-2 humbly submits that it is the duty of the OP-2 only to provide the machine and the report is issued by the concerned Sonologist after his clinical observation.  The OP_-2 is a very reputed centre.  The OP-2 cater service to the persons to the best of its ability.  The OP-2 till this date is not at fault and have never failed to provide what is required of the OP-2 to any persons who seeks its service.  The answering OP-2 was never at fault with respect to the alleged complaint.  The case is liable to be dismissed with cost.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party nos. 1 and 2 filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the ld. Lawyers of the complainant and the opposite party nos. 1 and 2 heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/points of considerations which have been framed on the ground of maintainability and / or jurisdiction, cause of action and whether complainant is a consumer in the eye of law or not, are vital issues and for that reason these three points of considerations are clubbed together and taken up for discussion jointly at first.

For the purpose of deciding the fate of the above noted three points of considerations there is urgent necessity of scanning the material of this case record as well as examining the evidence on record.   Regarding these above noted three points of considerations it is important to note that the OPs even after appearing in this case and after filing written version, have not filed any separate petition on the ground of maintainability of this case.  Under this position this District Commission has been pleased to proceed with this case.  On the background of the above noted position it is very mention/worthy that the OPs have challenged the maintainability point, jurisdiction issue and cause of action issue in their written version.  This District Commission after going through the material of this case record finds that the complainant is a resident of Arambagh under the District of Hooghly and the OP-1 is a Doctor of Arambagh area and Op-2&3 are running their business and/or official function at Arambagh which is under the district of Hooghly and coming under the purview of territorial jurisdiction of this District Commission.  So it is crystal clear that this District Commission has territorial jurisdiction to try this case.  Moreover, the complainant has filed his claim which is far below than Rs.50, 00000/-which is limit of pecuniary jurisdiction of this District Commission and so it has also pecuniary jurisdiction to try this case.  Thus the point of jurisdiction which has been alleged by the OPs that the District Commission has no jurisdiction to try this case, cannot be accepted.  The OPs also have raised plea of limitation and it has been pointed out in the written version that this case is barred by limitation.  But in this connection it is important to note that the provision of section 69 of the Consumer Protection Act 2019 is very important and according to the provision of section 69 of Consumer Protection Act 2019 the complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of two years if the complainant satisfies the ld. Commission that he or she has sufficient ground for filing this case beyond the time limit of two years.  In this instant case the complainant has been able to prove that the cause of action of this case has been continued and so the above noted point of limitation which has been raised by the OPs in the written version is also not maintainable.  On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case against the OPs.  Now the question is whether complainant is a consumer under the Ops or not.  In this regard it is revealed from the written version filed by OP-1 that he had taken fees from the complainant for treating the complainant’s wife Smt. Puja Dutta during her pregnancy.  This matter is clearly indicating that the complainant is a consumer under the OP-1 who is a service provider.  Moreover, the wife of the complainant had to undergo USG under the Op-2 by payment of fees through her husband who is the complainant of this case.  In other words it can be said that the Op-2 conducted USG of the wife of complainant at the OP-2 institution by taking fees and so the complainant is a consumer also under the OP-2.

Thus it is crystal clear that the complainant is a consumer under the Op nos.1&2 and as per section 2(7) the complainant is a consumer under the OP-1&2.

Thus the above noted point of consideration is also decided in favour of the complainant side.

            A cumulative consideration of the above noted discussion goes to show that this case is maintainable, this District Commission has territorial and pecuniary jurisdiction to try this case and this case is not barred by limitation and the complainant has cause of action to institute this complaint case.  It is also reflected from the above noted discussion that complainant is also a consumer under OP-1&2.  So the above noted points of considerations are decided in favour of the complainant side.

 The point of consideration no.4 is related with the question as to whether there is any deficiency of service on the part of the Ops or not and the point of consideration no.5 is connected with the question as to whether the complainant is entitled to get any other relief and / or relieves in this case or not?  These two points of considerations are interlinked and / or interconnected with each other and for that reason these two points of of considerations are clubbed together and taken up  for discussion jointly.

For the purpose of deciding the fate of the above noted two points of considerations and also for the interest of getting answers of the above noted questions there is urgent necessity of scanning the evidence on affidavit filed by both sides and there is also necessity of making scrutiny of the documents which have been filed by the parties of this case.

On comparative studies of the evidence on affidavit filed by complainant with the evidence on affidavit filed by the OPs and also after examining the interrogatories and their reply and on close compare of the documents of both sides it appears that it is admitted fact the wife of the complainant became pregnant and she was under the treatment of OP-1 and as per advice of OP-1 the wife of complainant had to undergo USG for three times at the laboratory of OP-2 and the said USG was conducted by the OP-1.  There is no dispute over the issue that as per report of the USG prepared by OP-1 the wife of the complainant was carrying twin babies and the wife of the complainant was admitted to Arambagh Sub-Divisional Hospital for the purpose of delivery and gave birth of a single baby at Arambagh Sub divisional Hospital. On this background the complainant side is adopting the plea that the reports of USG prepared by OP-1 & 2 are / were wrong and they were negligent in the matter of preparation of the USG reports and there was deficiency of service on the part of the OP-1 & 2 and for that reason the complainant side has claimed compensation and litigation cost from OP-1&2.  In this regard the OP-1 has adopted the plea of vanishing fetus syndrome.  Over this issue this District Commission after going through the material of this case record finds that the defence alibi which is adopted by the Op-1 is only possible at the initial stage of pregnancy but at the time of delivery the above noted defence alibi is not applicable.  At the same time it is very important to note that the complainant side has neither produced any ex part opinion nor cogent evidence to show that the USG reports of OP-1 and two were wrong and the OP-1&2 were negligent and there was deficiency on the part of the Ops.  In this regard it is also very important to note that the complainant side inspite of getting sufficient opportunity had not filed any prayer before this District Commission for expert examination of the papers and documents supplied by OP nos. 1 & 2 to the complainant.  Moreover no doctor or Radiologist has been examined in this case by complainant to prove that the reports submitted by OP nos. 1 & 2 were wrong.  In this connection it is also important to note that the complainant side has also argued that the OP-1 was not a Radiologist to conduct such USG examination but it has been done by OP-1 which is clear instance of negligence.  In this regard this District Commission after going through the material of this case record finds that the OP-1 has submitted documents and there is an order of ADM (G) and of CMOH Hooghly empowering the OP-1 to conduct such USG examination.  So the above noted points of contention of the complainant side cannot be accepted.

It is the settled principle of law that the term “negligence” has no defined boundaries and if any medical negligence is there, whether it is pre or post-operative medical care or in follow up case, at any point of time by treating doctors or anyone else it is always opened to be considered by this District Commission.  This legal principle has been observed by the Hon’ble Apex Court in the case of Chandra Rani Akhori and others Vs. JM.S. Methusethupathi (Doctor and others) and it is reported in II (2022) CPJ 51 (SC).  In this connection it is very important to note that the complainant has failed to produce any cogent evidence such as expert opinion or evidence of Radiologist or of any doctor to show that there was negligence or deficiency of service from the part of the Op-1 & 2.

From the material of this case record it is found that the Arambagh Sub Divisional Hospital authority has conducted enquiry over this issue.  But fact remains that the complainant side has neither called for the said enquiry report of the hospital authority nor summoned the Superintendent of the said hospital to adduce evidence regarding the enquiry matter and so the complainant has intentionally suppressed vital evidence before this District Commission.  This matter is clearly indicating that the complainant has not come before this District Commission in clean hand.  And for that reason the complainant is not entitled to get any equitable relief in this complaint case.

After going through the pleadings of the parties it is found that at paragraph no. 18 the complainant has described that the mother was also confirmed that she gave birth single baby.  Inspite of such type of averments of the complainant the complainant has neither approached before the Arambagh Police Station to lodge any FIR against the Ops for initiating criminal case or to investigate the said matter.  This matter is also clearly reflecting that the complainant has failed to establish this case beyond any shadow of doubt.

A cumulative consideration of the above noted discussion goes to show that the complainant has failed to prove the vital points of consideration nos. 4 & 5 and for that reason this District Commission has no other alternative but to dismiss this case on contest.

In the result it is accordingly

ordered

that the complaint case being no. 71 of 2020 be and the same is dismissed on contest.

No order is passed as to cost.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.