West Bengal

Birbhum

CC/134/2015

Ekramul Haque, S/o Lt Abdul Hai - Complainant(s)

Versus

Dr. D. Malakar, Neeramoy Clinic - Opp.Party(s)

Self

11 Jan 2019

ORDER

The Case of the Complainant in brief is that he visited Neeramoy Clinic on 29/08/2015 to consult Dr. Dilip Malakar on his general visiting hours for his ailment, being Hydrocele (Right Side) and had received the O.Ps consultancy through which he underwent inefficient and imprudent diagnosis and treatment and finally ended up with a fatal consequence of Hydrocele Infection due to the some improper treatment by the OPs. The complainant and the OP both had consented upon an agreement of Rs. 3200/- for the treatment of the complainant’s ailment which is reflected in the prescription of the OP dated 29/08/2015 against ample assurance on behalf of the OP towards the absolute cure of the disease. After agreeing upon such agreement, the complainant had deposited Rs. 500/- immediately on the same date and on the next appointment, on 05/09/2015 the complainant paid off the rest amount of 2000/- rupees. On 05/09/2015 the OP extracted some fluid from the effected area, i.e. Right Testis by applying a disposable syringe piercing on the same area and further assured the complainant thereby about his cure. The complainant never breached the agreement between him and the O.P. On 09/09/2015, the complainant fell ill with fever and severe physical distress which compelled him to consult Dr. Chinmoy Chandra but all efforts of recovery went in vein. After receiving further medication from the OP on 14/09/2015, the complainants ailment deteriorated as the Hydrocele (Right Side) inflated abruptly and moreover blood started discharging during urination. The complainant was intimidated with the situation and consulted Dr. Partha Sinha and was diagnosed ‘Hydrocele Infection’ which is reflected from Dr. Partha Sinha’s prescription, who also referred him for better treatment. The complainant received his further treatment, which was rather a survival attempt in this perspective, from Dr. Ajit J. Thomas at Durgapur Mission Hospital on 19/09/2015.

            It is the further case of the Complainant that he underwent all the undesirable occurrence   due to insensible treatment by OP Dr. Malakar and he has sustained serious physical, mental and financial crisis due to fault of OP Dr. Malakar. Hence this case for directing the OP Dr. Malakar to pay Rs. 50,000/- as compensation with cost of the case.

            The OP Dr. Malakar has contested the case by filing written version denying all material allegation of the complainant contending inter alia the case is not maintainable and complainant has no cause of action to bring this case.

            It is the specific case of the OP that the fact remains that the complainant on 29/08/2015 came to the clinic of the OP with an ailments of Hydrocele and the O.P after observing the complainant advised him to undergo a surgery with consultations to a reputed Sargent and merely prescribed him some oral medicine. The O.P never used any syringe or operative instruments over the complainant and as such the complainant’s

 

claim against the O.P are all false and after-thought.

            Ultimately the O.P prayed for dismissed of the case.  

Point for Determination.

1. Whether the complainant is a consumer under Sec. 2(1)(d)(ii) of the C.P. Act.?
2. Whether this Forum has jurisdiction to try this case?
3. Whether there is any deficiency in service or unfair trade practice on the part of the O.P.?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

DECISION WITH REASONS

During trial the Complainant Ekramul Haque has been examined as Pm. He has filed she documents.

Dr. Partha Sinha has been examined Pm. Both of them have been cross examined No OPW has been examined No documents has been file by the OP.

Heard argument of the Complainant.

Point No.1:- Evidently the complainant has got his treatment from OP Dr. D. Malakar, Neeramoy Clinic

on Payment of Rs. 2500/-.

            So, the Complainant is consumer under the OP by 2(1)(d)(ii) CP Act.  

Point No.2:- Chember of OP Dr. D. Malakar is situated at Illambazar within jurisdiction of the forum. Valuation of the case is Rs. 51,000/- which is for less than Rs. 20,000/- . So, this forum has jurisdiction to try the case.

Point No.3&4:- Both points are taken up for discussion as they are related to each other.

            We find that it is case of the Complainant that he came to an argument with OP Dr. Malakar that he would pay Rs. 3200/- by two instalments for his treatment i.e on 29/08/2015 Rs 500/- and on 05/09/2015 Rs. 2000/-.

            But no such argument is forth coming before the forum.

            Rather a copy of prescription dated 29/08/2015 issued by Dr. Malakar in favour of the Complainant shows that he was treated for Hydrocele and there are notes, that 29/08/2015 Rs. 500/- and 05/09/2017 Rs. 2000/-.

            But no money receipts are forth coming regarding such payment. Copy of the bill issued by Madhu   Pharmacy dated 05/09/2015 and 14/09/2015 show that someone purchased some medicines.

            But there are no such notes that whether the Complainant purchased the same as per prescription of Dr. Malakar or not.

            We find that it is the case of the Complainant that on 05/09/2017 the OP extracted some fluid from the affected area, i.e. Right Testis by applying a disposable syringe piercing on the same area and further assured the complainant thereby about his cure. On 09/09/2015, the complainant fell ill with fever and severe physical distress which compelled him to consult Dr. Chinmoy Chandra but all efforts of recovery went in vein. After receiving further medication from the OP on 14/09/2015, the complainant ailment deteriorated as the Hydrocele (Right Side) inflated abruptly and moreover blood started discharging during urination, he consulted Dr. Partha Sinha, who diagnosed “Hydrocele infection”.

            But no prescription or other paper is forth coming about treatment of the Complainant by Dr. Malakar on 09/09/2015 and 14/09/2018 before the forum.

            We find from the evidence of the Complainant and documents like prescription dated 11/09/2015 issued by Dr. Chinmoy Chardra, prescription dated 17/09/2015 issued by Dr. Partha Sinha, prescription

 

dated 19/09/2018 issued by Dr. Ajit J. Thomas of mission Hospital Durgapur, USG report dated 21/09/2018 for both testis of the Complainant, USG report dated 21/09/2015 for kidney of the Complainant that the Complainant was treated by different doctors for his aliment of Hydrocele and Hydrocele infection.

            But we find that there is no such indication that any mistake was done by previous doctor (Malakar).

            More so the Complainant was treated by four doctors like Dr. Malakar, Dr. Chinmoy Chandra, Dr. Partha sinha  and Dr. Ajit J. Thomas and in such a case it is very much difficult to ascertain that actually present OP Dr. Malakar has done any mistake (if any) in his treatment or not.

            It is settled Law that case of medical negligence is to be proved by adducing cogent evidence of medical expart.

            In the present the case the Complainant has examined PW2 Dr. Partha Sinha, who stated that he treated the Complainant and prescribed proper medicine.

            In his cross-examination he admitted that blood may come out with urine due to different reason. He also admitted that in his prescription he noted that he found injury in testical part of the Complainant but he cannot such said injury was caused by Dr. Malakar during his treatment or not.

            We find that it is the specific allegation of the Complainant that on 05/09/2018 Dr. Malakar extracted some fluid from the effected area i.e right testis by applying disposable syringe piercing on the same area and on 09/09/2018 he became ill with fever and severe physical distress.  

            But the OP Dr. Malakar in this W/V specifically stated that the Complainant on 29/08/2015 came to the clinic of the OP with an ailments of Hydrocele and the O.P after observing the complainant advised him to undergo a surgery with consultations to a reputed surgeon and merely prescribed him some oral medicine. The O.P never used any syringe or operative instruments over the complainant and as such the complainant’s claim against the O.P are all false and after-thought.

            We have already mentioned that the Complainant has failed to produce any prescription or medical paper to prove that actually on 05/09/2018 he was treated by Dr. Malakar and fluid by extracted from his effected area.

            We further find it is the further allegation of the Complainant that OP Dr. Malakar applied life threatening drug during his treatment PW 1 the Complainant Ekramul Haque in his cross-examination stated that life threatening drug was applied to him by Dr. Malakar but he cannot say the name of drug and he would adduced expert evidence in this regard.

            But Dr. Partha Sinha in his corss-examination admitted that that drug Omaz is not a life threatening drug.

            Considering over all matter into consideration and material on record we are constrained to hold that the Complainant has failed to prove any case of deficiency against the OP Dr. Malakar and the case is liable to be dismissed.

            Thus both the points are decided against the Complainant case fails.     

            Proper fees have been paid.

Hence,

O R D E R E D

that C.F case No. 134/2015 be and the same is dismissed on contest without any cost.

Copy of this order be supplied to the parties each free of cost.