West Bengal

Paschim Midnapore

CC/144/2014

Md. Hanif - Complainant(s)

Versus

Dr. H.K.Giri - Opp.Party(s)

Tapas Kumar Mandal

26 Jul 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

     Bibekananda Pramanik, President,

Pulak Kumar Singha, Member.

and

Sagarika Sarkar, Member.   

 

Complaint Case No.144/2014

 

             Md. Hanif, S/o Md. Jalik, father of deceased Sultana Bibi of Bhawanipur

             (Jharkhand Manjil), Ward No.5 (New), P.O. Kharagpur, P.S. Kharagpur (T),

             District – Paschim Medinipur. …………..………..……Complainant.

                                                                              Vs.

             Dr. H. K.Giri alias Hare Krishna Giri, attached to Egra Sub-Divisional Hospital, P.O. &

            P.S. Egra, District Purba Medinipur, West Bengal....……….….Opp. Party.

                                                     

              For the Complainant: Mr. Shamik Banerjee, Advocate.

              For the O.P.               : Mr. Kshitish Palmal, Advocate.

 

Decided on: - 26/07/2017

                               

ORDER

                          Bibekananda Pramanik, President – – Complainant Md. Hanif has filed this consumer complaint u/s 12 of the C.P. Act  alleging deficiency in service and medical negligence against the O.P.-Dr. H. K. Giri.

Facts of the case, in brief, is that Sultana Bibi, since deceased, was the daughter of the complainant.  After her pregnancy, Sultana Bibi was on regular treatment under O.P.- Dr. H. K. Giri of S. D. Hospital, Kharagpur and finally she was admitted on 24/12/2012 in the said S. D. Hospital, Kharagpur under the supervision and treatment of Dr. H. K. Giri,  the O.P. no.1.  On 25/12/2012   

 

      Contd……P/2

 

                                                                                                               ( 2 ) –

 

at about 1.30 p.m., Sultana Bibi gave birth of a male child after caesarean operation.  After such delivery, the mother and the baby both were fine as told by the O.P. no.1 at the operation theatre and after 20 to 25 minutes thereafter, she was shifted to the bed from the operation theatre.  After 20 to 25 minutes thereafter, the attending nurse at the direction of the O.P. no.1 pushed a penicilin injection in the hand of Sultana Bibi and also injected  the saline bottle without testing the same and just after that, Sultana Bibi felt severe pain and she cried out.  The family members of Sultana Bibi then called the O.P. no.1 and O.P. no.1 along with other doctors attended the patient and pushed another injection on her for relief and on being asked,  the O.P. no.1 told that the previous injected medicine had reacted badly.  It is stated that it was observed by the complainant and his family members that there was no proper care on the patient  after post operation thereby resulting continuing bleeding from the operated portion and there was scanty of blood on the body of Sultana Bibi.  At about 6 to 6.30 p.m., O.P. no.1- Dr. H. K. Giri asked the patient party to arrange for blood and he accordingly arranged blood which was given to the patient.  When the conditions of that patient became critical at about 7.30 p.m.,  then she was referred to District Sadar Medical College & Hospital at Medinipur without  escorting any medical staff  with the patient and when the patient reached the District Sadar Medical College & Hospital at about 8.30 p.m. in serious condition, then 10 minutes of her arrival there, the daughter of the complainant Sultan Bibi died in the said hospital.  It is alleged that due to negligence of duty on the part of the O.P. and his companion doctors, Sultana Bibi died leaving behind her minor baby and other family members thereby causing irreparable loss and mental agony.  Thereafter the complainant made complaints  to the different concerned authorities for such negligent act of the O.P.  Hence the complaint,  praying for an award of compensation of Rs.20,00,000/- against the O.P. -Dr. H. K. Giri and or against any competent authority.

      The opposite party-Dr. H. K. Giri has contested this case by filling a written objection.

       Denying and disputing the case of the complainant, it is the specific case of the opposite party that the present complaint is not maintainable in it’s present form and prayer, that the complainant has no cause of action to file this case and that the complainant is not a consumer under the O.P. within the meaning of Section 2(1)(d) of the Consumer Protection Act.  It is also the specific case of the O.P. that the O.P. no.1 gave his sincere service to the deceased patient free of cost at S. D. Hospital, Kharagpur, who was admitted in Kharagpur S.D. Hospital on 24/12/2012 at about 3 to 4 p.m. under Dr. Arkaprava Goswami (M.O) and she was first seen by O.P.- Dr. H. K. Giri on 25/12/2012 at 9.30 a.m. as an on- call emergency obstetrician during routine round on

 

Contd……P/3

 

 

 

                                                                                                                    ( 3 ) –

25/12/2012.  The O.P.-doctor after discussion held caesarean operation on Sultana Bibi and she gave birth of a child and after half an hour of post operative observation at O.T., she was sent to the word. At about 3 a.m. an emergency call was received from the Maternity Ward to the effect that Sultana Bibi was suffering from chest pain and other difficulties.  As O.P. no.1 himself was busy with operation of another patient in the operation theatre, so he asked the anesthetist to attend Sultana Bibi and immediately after completion of operation, he also attended the patient.  O.P.-Dr. H. K. Giri then found the patient was alert, conscious and co-operative and she told that after getting an injection by on duty stuff nurse, she felt restlessness, chest pain and difficulties in taking respiration and it was heard from anesthetist that it was probably due to anaphylactic shock and treatment.  As there was some complications, so the patient was sent to Medinipur Medical College and Hospital at 6 p.m. for proper treatment and appropriate management.  It is stated that O.P.-Dr. H. K. Giri tried his best to treat the patient without any negligency but it is unfortunate that due to post operative hazard, the patient was suffered and she was therefore referred to the Medinipur Medical College and Hospital for better treatment after arranging government ambulance.  The O.P.-doctor being a Government employee, gave his service to the patient in a government hospital very seriously and without any negligence.  It is therefore prayed by the O.P. no.1 that the petition of complaint be dismissed.  

 To prove his case, the complainant has examined himself as PW-1 by tendering a written examination-in-chief, his wife Manowara Bibi as Pw-2,  one Sukumar Banerjee, said to be a doctor as PW-3 and one Prof. (Dr.)  Runa Bal as PW-4.  The documents, relied upon by the complainant, have been marked as exhibit 1 to 1/13- B respectively.  On the other hand, O.P. adduced no evidence.

 

                                                                 Points for decision

1. Is the case maintainable in it’s present form and prayer?
2. Is the complainant consumer under the O.P. no.1?
3. Was there any deficiency in service and medical negligence in treating the deceased patient Sultana Bibi by O.P. no.1?
4. Is the complainant entitled to get the reliefs, as sought for ?

                               Decision with reasons

 Point nos. 1 & 2.

                        In paragraph 1 & 3, O.P no.1 has questioned maintainability of this case on the ground that the complainant is not a consumer of the O.P. within the meaning of Sec. 2(1)(d)(ii)  of the C.P. Act.  The present case has been filed by the complainant Md. Hanif alleging deficiency in service by the O.P.-Dr. H. K. Giri regarding medical treatment of his daughter Sultana Bibi,    

                                                                                                                                                                                          Contd……P/4

 

( 4 ) –

since deceased, at Sub Divisional Hospital, Kharagpur.  It is not denied and disputed that the said  Sub Divisional Hospital, Kharagpur is a Government hospital and nowhere in his petition of complaint, the complainant has claimed that for such treatment of his deceased daughter Sultana Bibi in the said hospital, he had to pay any sort of money or charges. Sec. 2(1)(d)(ii) defines consumer  as the person who hires or avails any services for  consideration which has been paid or promised or partly paid or partly promised or under any system of deferred payment and includes beneficiary of such services.  Service  as defined in Sec.2 (1) (o) of C.P. Act.,  means of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.  We have already stated that nowhere in his petition of complaint, the complainant has stated that for such service of medical treatment in the said Govt. hospital of the O.P.-doctor, he paid any charges for treatment of his daughter Sultana Bibi, since deceased.  So the service of medical treatment by O.P. no.1 in the said Govt. hospital so availed by the complainant for her daughter was free of charge.  In his petition of complaint, the complainant does not say that in the said hospital service of medical treatment is also rendered on payment of charges.  It is well settled that ‘service’ rendered free of charge by a Medical Practitioner attached to a Govt. hospital, where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service, is outside the purview of the expression service as defined in Sec.2(1)(o) of the Act.  So in view of the above settled principal of law, the present complainant, who availed medical services for his deceased daughter under the O.P. –doctor in the Govt. hospital free of charges, is not a consumer as defined in Sec. 2(1)(d)(ii) of the C. P. Act. and as such,  it is held that the present case is not maintainable.

                  Both the points are accordingly decided against the complainant.

Point nos.3 & 4.

 

                 In view of our above findings  under point nos.1 & 2, the question of deficiency in service does not arise and the complainant is not entitled to any relief, as prayed for.

                All the points are accordingly decided against the complainant. 

                In the result, the complaint case fails.  

Contd……P/5

 

 

 

                                                                                                               ( 5 ) –

 

 

                                                  Hence, it is,

                                                     Ordered,

                           that the complaint case no.144/2014  is hereby dismissed on contest but in the circumstances without cost.

                               Let plain copy of this order be given to the parties free of cost.

Dictated and Corrected by me

        Sd/-B. Pramanik.            Sd/- P.K. Singha          Sd/- S. Sarkar                Sd/-B. Pramanik. 

               President                        Member                      Member                          President

                                                                                                                           District Forum

                                                                                                                       Paschim Medinipur