C.F. CASE No. : CC/11/38
COMPLAINANT : Majid Mondal,
S/o Abdul Mondal,
Vill. & P.O. Padammala
P.S. Chapra, Dist. Nadia
OPPOSITE PARTIES/OPs: 1) Dr. Debashis Majumder
Consultant Pathologist,
Nirnoy, Pathological Laboratory
I M A Bhawan, 9 Church Road
P.O. Krishnagar, P.S. Kotwali, Dist. Nadia
2) The Manager,
Nirnoy, Pathological Laboratory
I M A Bhawan, 9 Church Road
P.O. Krishnagar, P.S. Kotwali, Dist. Nadia
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 1st September, 2011
: J U D G M E N T :
In brief, the case of the complainant is that he was suffering from fever and met Dr. A.C. Mondal for treatment on 16.06.10. As per his advice pathological test was done, but the report card is lost. On the basis of that pathological report, Dr. Mondal prescribed medicine for malaria. As the petitioner was suffering from the same type of fever, so he met Dr. Mondal on 03.10.10 and on that date, Dr. Mondal advised some pathological test i.e., TC, DC, ESR, HB, MP malaria as vivex and fale. He also prescribed some medicine to the petitioner with the advice of widal test. As per his advice pathological test was done over the blood to the petitioner on 04.10.10 by the OP No. 1, Nirnoy Pathological Laboratory. The report of the Nirnoy Pathological Laboratory was signed by Dr. Debashis Mondal in which it was reported malaria parasite not found P.vivax- negative P. falciparum-negative. Dr. A.C. Mondal drew a note of the report on the prescription and suggested another pathological test. As per his suggestion the complainant’s blood was examined by the OP No. 3, Central Pathology on 13.10.10. In that report, the pathologist found P.vivex as positive and malaria parasite as matured trophozotine form and P. Vivax (+) present and on the basis of the second report Dr. A.C. Mondal prescribed medicine on 13.10.10 for the petitioner. It is the specific contention of the complainant that due to negligence of the OP No. 1 the blood test report was wrong as no malaria parasite was detected by him though in the second report malaria parasite was detected by the pathologist. So it is a gross deficiency in service on the part of the OP No. 2 and therefore, he has filed this case praying for the reliefs as stated in the petition of complaint.
The OP No. 1 has filed a written version in this case, inter alia, stating that the case is not maintainable in its present form and nature. It is his submission that he is a medical practitioner and attached to Nirnoy Pathology. As per advice of Dr. A.C. Mondal blood test of the complainant was done by the laboratory and it was found to be absolutely normal and a very good hemoglobin content of 13.02 gm/dl which was absolutely unlikely to be seen in a case of chronic/acute/relapsing malarial infection. In normal blood test of a patient suffering from fever, the number of parasites were so few that they are not detectable even in antigen test. Without DNA test i.e., ‘polymerse chain reaction test’ accuracy malaria cannot be detected. He also submits that the patient had tested MP antigen in another laboratory on 13.10.10 after a gap of 8 days and in those days the patient might have acquired infection of the same. So it is quite clear that this OP discharged his service carefully and sincerely and there was no deficiency in his service. So no question of negligence does arise on his part in the blood test of the complainant. Therefore, the complainant has no cause of action to file this case and the same is liable to be dismissed against him.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
Both the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of complaint along with the annexed documents filed by the complainant and also the written version filed by the OP it is available on record that this complainant was examined by Dr. A.C. Mondal on 16.06.10 who advised for blood test i.e., TC, DC, ESR widal test, malaria parasite etc. The complainant’s contention is that as per advice of Dr. Mondal his blood was examined, but the test report is missing. So he is unable to produce the same before the Forum. But in a reply of question No. 6 of interrogatories, this complainant has categorically stated that prior to 03.010.10 on the basis of the prescription of Dr. A.C. Mondal some pathological test was done before the Central Pathology and the report of which is missing. At the same time, he has also stated that the figure of the result of the pathological test is shown or reflected in the prescription of Dr. A.C. Mondal. From the prescription of Dr. A.C. Mondal, dtd. 03.10.10 it is also available that he noted TC-8800, ETR-30, Himoglobin 13.2 malaria AG – Vibex not found and fale not found and he also advised for widal test. Accordingly, complainant’s blood was examined by the OP No. 2, Nirnoy Pathological Laboratory on 04.10.10 and in that report no malaria parasite was found by the OP and P. Vivax and P. Falciparum were also negative. Complainant’s blood was, therefore, examined by one Central Pathology on 13.10.10 in which malaria parasite (antigen test P. Vivax) was positive. Complainant’s specific allegation is that the report of the OP No. 2 is incorrect as in the report dtd. 13.10.10 malaria parasite was available in his blood. So he has claimed compensation against the OP No. 2. Now the question is whether the OP No. 2 committed any error or negligence in testing the blood of the complainant. From the prescription of Dr. A.C. Mondal dtd. 03.10.10 and the reply of the complainant against interrogatory No. 6 we find that prior to 03.10.10 his blood was tested by Central Pathology and that report was not filed by the complainant. But from the doctor’s prescription dtd. 03.10.10 it is established that in that report no malaria parasite was detected by the pathologist after examination of the blood of the complainant due to which Dr. A.C. Mondal advised for widal test. Accordingly, complainant’s blood was tested by the OP No. 2 who also did not find any malaria parasite in his blood. Complainant has stated in his evidence that Dr. Mondal did not believe this OP No. 2 and so he advised to examine his blood by another laboratory. But to that extent there is no note by Dr. A.C. Mondal in his prescription either on 03.10.10 or any other day thereafter. On the other hand, the contesting OP has categorically stated that the malaria parasite in the blood of the complainant was detected by Central Pathology on 13.10.10 i.e., after a lapse of 8 days and during this period there is every possibility on the side of the complainant to be attacked with malaria. This view of the OP No. 2 cannot be ignored as the complainant has not challenged this view by supplying any evidence of Dr. A.C. Mondal who treated him. We do also hold that after a lapse of 8 days, there is a chance on the side of the complainant to be attacked with Malaria and so the report of Central Pathology was positive.
In view of the above discussion, our considered view is that the complainant has not become able to prove and establish by any cogent medical evidence that the OP No. 2 was negligent in the test of his blood and the report of the OP No. 2 is also an incorrect one. We do also hold that we don’t find any deficiency in service of the OP No. 2 in the blood test of the complainant and in submitting his report on 04.10.10. In result the case fails.
Hence,
Ordered,
That the case, CC/11/38 be and the same is dismissed on contest against the OPs without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
