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

CONSUMER CASE NO. : 76/S/2016.                              DATED : 19.07.2017.   

BEFORE  PRESIDENT              : SMT. KRISHNA PODDAR,

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

                      MEMBER                : SMT. PRATITI BHATTACHARYYA.

COMPLAINANT             : BIPUL SARKAR,

  S/o Late Sudhir Chandra Sarkar,

  Deshbandhupara, P.O. & P.S.- Dhupguri,  

  Dist.- Jalpaiguri, Pin- 735 210.

  Ph. No.90021 44705   

O.Ps.              1.                       : DR. B. P. ROY,

   Siliguri E.N.T. Clinic,

   8-B, Nivedita Market, P.O. & P.S.- Siliguri,  

   Dist.- Darjeeling, Pin- 734 001. 

                                    2.                     : BASU’S CLINIC,

  Nandalal Basu Sarani, College Para,

  P.O. & P.S.- Siliguri, Dist.- Darjeeling, Pin- 734 001.

  (Lic. No.CE-2-81 DT. 09/02/81).

  e-mail : basusclinicslg@gmail.com

FOR THE COMPLAINANT         : Sri Santanu Chakraborty, Advocate.

J U D G E M E N T

Smt. Krishna Poddar, Ld. President.

Brief facts of the case is that the complainant visited the OP No.1 on 14.03.2016 with some health problem who advised him some tests, accordingly, the complainant performed the said tests at Rama Diagnostic Centre on 14.03.2016.  Thereafter, on 26.02.2016 the complainant visited the OP No.1 at his chamber with some breathing trouble.  The OP No.1 advised him some medicines and told that if his breathing problem is not cured by medicine, he will have to undergo surgery.  The complainant did not get good result even after application of said medicine and he again visited the OP No.1 on 15.03.2016 and his date of operation was fixed on 26.03.2016 at the Nursing of OP No.2.  The complainant had to pay Rs.10,000/- as advance for the said operation and he was discharged on the same day after operation of septoplasty.  For the said operation complainant again paid Rs.5,547/- on 29.03.2016 and OP No.1 had taken a sum of Rs.18,500/- on 29.03.2016 as operation charge from him.  The treatment of OP No.1 and surgery performed by him

Contd.....P/2

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at the chamber of OP No.2 did not cure the problem of the complainant and the breathing problem of the complainant increased day by day and as such the complainant again visited the OP No.1 on 01.04.2016. 06.04.16, 12.04.16, 27.04.16, 27.05.16, 28.05.16 and 28.06.2016 respectively but his breathing problem was not cured. 

It has been asserted by the complainant that OPs have jointly made a false institution to grab money of the public without rendering adequate service and there is medical negligence and deficiency of service on the part of the OPs.  The OPs are guilty of adopting unfair trade practice and they did not have bonafide intention to cure the complainant and to give the best service as well as treatment and the complainant is still suffering from nasal problem.  The complainant spent a total sum of Rs.40,000/- for the entire treatment and operation and accordingly the complainant has filed the instant case for a direction upon the OPs for payment of Rs.40,000/- towards treatment costs, and Rs.2,00,000/- for loss of time, mental agony and harassment and other relief/reliefs.                

The OP Nos.1 & 2 entered appearance and contested the case by filing two separate written version wherein the material averments made in the complaint are denied and it has been contented inter-alia that the present case is not maintainable.  It has been stated by the OP No.1 that he advised the complainant to undergo surgery to straighten the nasal septum and septoplasty operation was done on the complainant on 26.03.2016 to straighten the nasal septum which was deviated to the right side and the complainant had difficulty in breathing and the operation of the complainant was successful and he did not suffer any post operative complication and after clinical examination nothing wrong was found within his nose and hence he was referred to a Psychiatric on 28.06.2016 for getting rid of the feeling that he had not been cured.  It has been further contended by the OP No.1 that he had operated the complainant to the best of his ability and there is no negligence or deficiency in service on his part in operating the complainant and accordingly the present complaint is liable to be dismissed with cost.

The OP No.2 has contended that he has been falsely implicated in this case and he had no role in the treatment of the complainant and there was no negligence or deficiency in service on the part of the OP No.2 and accordingly, complainant is not entitled to any compensation whatsoever from the OP No.2 and the present case is liable to be dismissed with cost. 

To prove the case, the complainant has filed the following documents:-

1.       The Xerox of the said diagnostic is marked as Annexure-A.

2.       The prescription dated 26.02.2016 is marked as Annexure-I.

Contd.....P/3

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3.       The Xerox of the advance receipt is marked as Annexure-II.

4.       The Xerox of the said discharge from the OP No.2 is marked as Annexure-III.

5.       The Xerox of the bill of the OP No.2 is marked as Annexure-IV.

6.       The Xerox of the said receipt from the OP No.1 is marked as Annexure-V.

7.       The OP No.2 continued their process of medicine bill as is Annexure-VI.

8.       The Xerox of the prescriptions of the OP No.2 is marked as Annexure - VII.

OP No.1 has filed the following documents :-

1.       Photocopy of the literature relating to Septoplasty of Mayo Clinic.

2.       Photocopy of literature relating to Septoplasty; Background, History of the Procedure of Medscape. 

3.       Photocopy of PL Dhingra’s “Diseases of EAR, NOSE and THROAT, from page Nos.368 to 371.

4.       Photocopy of literature on Septoplasty Treatment & Management, (Medical Therapy, Surgical Therapy, Preoperative Details) etc.

5.       Photocopy of pages 54 & 55 of Indian Drug Review, May – June, 2005, showing information regarding “Anxit Plus”.

          Complainant has filed evidence in-chief.

Complainant has filed written notes of argument.

          OPs have filed evidence in-chief.

OPs have filed Written Notes of Argument.

Points for determination

1.       Is there any medical negligency or deficiency in service on the part of the OPs?

2.       Is the complainant entitled to get any relief as prayed for ?

Decision with reason

          Both issues are taken up together for the brevity and convenience of discussion.

It is admitted position that the complainant was suffering from breathing difficulties and on 26.02.16 he visited the OP No.1 to his private chamber.  It is also admitted fact that OP No.1 advised him certain medicines but since those medicines did not have good results he advised the complainant to undergo surgery (septoplasty.  The OP No.1 has fixed his date of operation on 26.03.2016 at the Nursing Home of OP No.2 and on 26.02.2016 the septoplasty operation of the complainant was done by the OP No.1 and after operation he was discharged on the same day.  The complainant had to pay a total sum of Rs.40,000/- for the said operation out of which of the OP No.1 has taken a sum of Rs.18,500/- as operation charge. 

The case of the complainant is that even after surgery the problem of the complainant was not cured and he was suffering from breathing difficulties which

Contd.....P/4

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was increased day by day and accordingly the complainant visited the OP No.1 on several dates but his breathing difficulties is still continued.  The further case of the complainant is that the OP No.1 did not render adequate service to the complainant and he had no bonafide intention to cure the complainant and there was medical negligence and deficiency in service on the part of the OPs.

The OP No.1 on the other hand claimed that he conducted surgery (septoplasty) to straighten the nasal septum of the complainant which was deviated to the right side for which complainant had difficulty in breathing and the said operation was perfectly done and there was no post operation problem arose.

Upon hearing the ld advocates of both sides and considering the facts and circumstances of the case with regard to the materials and evidence of the parties on record, we find that OP No.1 is a doctor by profession having specialization in the field of ENT surgery.  The complainant visited him at his private chamber with breathing difficulties and after certain tests and application of medicines the OP No.1 advised him to undergo surgery (septoplasty) to straighten the nasal septum as it was found that the complainant’s nasal deviated to the right side and the complainant had difficulty in breathing.

On perusal of the photocopy literature relating to ‘Septoplasty’ and other documents submitted on the side of the OP No.1 we find that septoplasty is a surgical procedure to correct a deviated septum.  Deviated Nasal Septum (DNS) causing symptoms of nasal obstruction and recurrent headaches.  Septoplasty straightens the nasal septum by trimming, repositioning and replacing cartilage or bone.  As with any major surgery, septoplasty carries risks such as bleeding, infection and an adverse reaction to the anaesthetic.  Other possible risks specific to septoplasty include-persistence in previous symptoms such as nasal obstruction despite surgery, change in the shape of the nose, septal perforation, decrease in the sense of smell etc. and additional surgery may be required to treat some of these complication or if the outcome of the surgery does not match the expectation of the patient. 

In the present case, OP No.1 advised the complainant to undergo surgery (septoplasty) to straighten the nasal septum and after operation the complainant did not suffer any post operative complications and after clinical examination nothing wrong was found but he had feeling of persistence in previous symptom such as nasal obstruction.  Complainant claimed that the operation was not properly done and the OP No.1 did not render proper medical treatment and there was medical negligence on the part of the OP No.1 for which he is still suffering from breathing difficulties.  But we find that even after surgery (septoplasty) persistence in previous symptom such as nasal obstruction may occur. 

Contd.....P/5

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In such a case there is a need to have an expert’s opinion but in this case, complainant neither produced any E.N.T. specialist’s opinion nor he made any prayer seeking expert’s opinion who can opine whether the said surgery was correctly done or not.  Complainant’s claim of medical negligence on the part of the OP No.1 is not established by sufficient cogent evidence.  So, mere allegation that the OP No.1 has failed to render proper service or there was medical negligence on the part of the OP No.1 in the matter of surgery of the complainant cannot be accepted for want of sufficient evidence and accordingly it cannot be held that the OP No.1 had any negligence in the matter of rendering medical service to the complainant. 

From the materials and evidence on record, we find that the OP No.1 has properly undergone the operation and there was no post operation problem arose in the present case.  But the complainant had feeling of breathing difficulties even after the surgery for which he was advised by the OP No.1 to consult with a Psychiatric.  Here we don’t find anything wrong with it as it is found that even after septoplasty operation such problem of breathing difficulty may occur.

Under such circumstances, we are of the view that there was no medical negligence on the part of the OP Nos.1 & 2 as we find that OP No.2 did not play any role in the matter of septoplasty (surgery). 

Thus, Issue Nos.1 & 2 are decided against the complainant.                       

Accordingly, the case of the complainant fails. 

Hence, it is

                           O R D E R E D

that the Consumer Case No.76/S/2016 is dismissed on contest against the OP Nos.1 & 2 without cost.

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

 -Member-                                                          -President-