1. One Nazima Bibi has filed this case on 21.12.2016 under section 12 of C.P. Act against Anadalok Hospital and its doctor Dr. G. Bhowmik on the ground that during her stay there from 26.08.2014 to 29.08.2014 she was not properly treated.  
2. It is her case that she developed calculus in Kidney for which she was admitted to that Hospital. The attempt for surgery which was made on 26.08.2014 at a cost of Rs. 1 lakh turned out to be futile due to power -cut. But Even after that she continued to be treated by Dr. Bhowmik till 26.12.2015. Thereafter on being asked by Dr. D Bhoumik she went to Dr. S. Mukherjee at NRS Medical College and Hospital, Department of Euro Surgery, where the stone was removed by way of operation. She has, therefore, sought for refund of medical expenses of Rs. 100,000/-, compensation of Rs. 4 lakh and litigation costs by filing the aforesaid case.  
3. Both the opposite parties have contested the case by filing written version and evidence on affidavit. It is in the Written version and also in evidence that there was neither any deficiency nor any negligence on the part of either OP. It is in the written version of O.P. No. 1 that the procedure for operation as arranged on 26.08.2014 was abandoned due to (i) intra renal pelvis, (ii) technical problem with O.T. light,(iii)  C-ARM non -compatible O.T. table and (iv) high blood pressure of the patient. It is also in the written statement that there was no monetary transaction with the OP No. 1 and that he personlly arranged for PCNL surgery in URULOGY DEPT of NRSMCH by virtue of which the complainant's kidney stone was removed.
4. It needs to be mentioned here that no argument was advanced on behalf of the OP 2 - although the Ld. Advocate of the complainant and the Ld. Advocate of O.P.-1 took part in argument hearing.  
5. In support of her case the complainant has also filed  (i) evidence on affidavit, (1) copies of the prescriptions issued from Anandalok Hospital on 26.12.2015, 14.10.2014, 10.03.2015, 16.09.2014 and 01.08.2014 and (iii)  the discharge certificate dated 29.08.2014 which discloses that the complainant was an indoor patient from 26.08.14 to 29.08.2014.  The Opposite parties have not challenged any of those documents on any ground whatsoever.  We have given consideration to the material on record (including the medical documents) and also to contentions advanced by the Ld. Advocates.
6. Admittedly the complainant was under treatment of Dr. Bhowmik for nearly 1 year and 4 months (i.e. from 26.082014 to 26.12. 2015). It is interesting to see that the complainant had not raised any grievance either against the treating doctor or against Anandalok Hospital during that period. She was so overwhelmed that she promptly adhered to Dr Bhowmik's reference made on 26.12.2015. Long after that due to some extraneous consideration she has filed this case against them. Significantly enough, no other Doctor has opined that failure of the attempted operation resulted from either negligence or deficiency or from unlawful trade practice.
7. Now the only point which needs to be decided here is whether the complainant is entitled to the reliefs sought for or not.
8. The Discharge certificate dated on 29.08.2014 which bears the signature of O.P. No. 1 reveals that attempt for operation was made on 26.08.2014 at Anandalok Hospital on 26.08.2014-although her abdomen was not punctured. It further reveals that as the doctor failed to discover the location of the stone for which it was abandoned. As reflected in the prescription dated 26.12.2015, Dr. Bhowmik referred the patient to Dr. Mukherjee of NRS Medical College and Hospital, Department of Euro Surgery for doing the needful. Needless to say NRS Medical College and Hospital was higher Hospital than Anandalok Hospital and Dr. Mukherjee who was attached to it was personally known to Dr Bhowmik. Obviously, such a reference was made keeping in view the patients health condition and also the nature of her requirement of treatment. It is beyond dispute that the operation performed by Dr. Mukherjee at NRS Medical College was successful.  
9. It has been contended by the Ld. Advocate for the complainant that the patient could have tested recovery much earlier had the attempt for operation as made by Dr Bhowmik been successful. He has also contended that Dr Bhowmik did not have that much skill and expertise as may be necessary for doing such an operation and in spite of being deficient in skill and expertise he unjustly continued to treat the patient. According to his contention, in spite of having dearth of infrastructural facilities the Hospital retained the patient only for making unlawful gain. As asserted by him, both the Opposite parties should be held liable to compensate the complainant. On the other hand, it is the contention of the Ld. Advocate of O.P. No.-1 that what was done to the patient was rightly and wisely done and therefore the complainant will not get any relief.
10. Let us turn our eyes to Dr. Bhowmik's academic qualifications. The medical documents show up that he had bagged degree of MBBS (Gold medallist), M.S.(Cal) DNB FRCS (EDIN) FRCS(Glascow) FLAGES. The Hospital to which she was attached as a surgeon has also earned impeccable fame and recognition in treating different patients belonging to different parts of Bengal. Had he been deficient in skill and expertise the complainant would not have reposed trust and confidence upon the mode of his treatment up to 26.12.2015 or upon his professional judgement for which he made the reference to Dr. Mukherjee or to NRS Medical College and Hospital. 
11. That Dr. Mukherjee carried out surgery removing calculus from her kidney goes to suggest that she was guided in right direction. That apart the complainant never suspected Dr. Bhowmik's expertise or skill during the period from 26.08.2014 to 26.12.2015. It goes without saying that as a doctor or surgeon he was reliable to the patient and the patient was fully satisfied with skill and expertise of Dr. Bhowmik and was fully justified in placing upon his professional judgement driving the patient to Dr. Mukherjee.
12. The prescription dated 26.12.2015 indicates that stones location was invisible due to unavailability of back up light. But it would be unsafe to hold a view only for this that there was deficiency of back- up light on every other day. It was a Hospital of repute which has since been enjoying the confidence of the people. It is hard to believe that such a Hospital would run for 365 days without back up light. May be that back up light was somehow feeble on that particular day at the particular point of time for this or that reason.
13.  If we connect the discharge certificate with the prescription issued by Dr. Bhowmick surely we will fail to find any fault on the part of Dr. Bhowmick  That she was successfully operated upon at a later stage cannot be basis of an inference that Anandalok Hospital and its Doctor was negligent on 26.08.14. He could have but had not compelled the patient to cough up money by retaining the patient at any private nursing home. After adverting to his qualification, mode of treatment, professional judgement we see that he cannot be censured in any way for treating the complainant in the way he did. There is no evidence on record as to dctor's lack of skill or expertise, although such evidence is necessary in case of medical negligence. Therefore the case of negligence on the part of Dr. Bhowmick cannot be upheld.
14. Anandalok Hospital is expected to be blessed with all the infrastructural facilities as may be required for treating different ailments. The comment recorded in the prescription dated 26.12.2015 about the absence of back up facilities was a sporadic or incidental comment. Absence of back up light did not or could not be the sole reason for rendering the attempt made on 26.08.14 futile. It seems to us that for the welfare and greater interest of the patient the Doctor thought it proper to wait and watch and finally to refer the patient to Dr. D. Mukherjee. It is hard to believe that the hospital would continue to run for years together without back up facilities ignoring the interest of the patient. We are unable to put blame upon the hospital for the abstinence on the part of the doctor from performing surgery upon any particular patient. Neither the hospital nor the doctor can be directed either to return the money taken or to compensate the complainant. The onus of proving negligence or unlawful trade practice was upon the complainant and the complainant has failed to discharge the said onus and for this reason she is not entitled to any damages.
15. Hence, it is ordered that :-

        The case be and the same is dismissed on contest but without cost.

Let a plain copy be given to the parties free of cost as per CPR.

Dictated and corrected by

[HON'BLE MR. Lakshmi Kanta Das]
PRESIDENT