This appeal is preferred against the final order dated 04/04/2018 delivered by Ld. D.C.D.R.F, Jalpaiguri in CC/11/2017. The fact of the case in brief is that the appellant/complainant Smt. Parijat Ghosh (Neogi) met with a road traffic accident on 15/05/2015 and sustained serious injuries like broken shaft of right femur. She was shifted to an X-Ray clinic where the respondent no. 1 Dr. Kamalesh Biswas attended the injured thereon and admitted her at Touch Nursing home, Jalpaiguri for primary treatment of such injury and on the very next day, she was shifted to Siliguri Nursing home and a surgical operation was conducted to manage the broken shaft of right femur of the injured under the care of him. But after the operation the injured could not be recovered properly and she was constantly touched with the treatment prescribed by Dr. Kamalesh Biswas time to time. Ultimately, on 16/01/2016 Dr. Biswas conceded the fact that there was a failure of the implant done with the injured and for that reason, there was further need for reoperation for removal of the implant. Then the injured/complainant was compelled to go to Dr. Avisek Agarwal at Life Cure Medina at Jalpaiguri where under his advice the screws attached with the said implant surgery was removed. But in spite of the said second operation, her position was not properly cured and she was again visited at Patna for further medical treatment of her at Paras HMRI Hospital under the care of Dr. John Mukherjee where a reoperation was done there on 28/06/2018 and at the time of reoperation the plating and bone grafting was done there after spending a huge expenses total Rs. 1,09,686/-. The complainant/injured felt that due to medical negligence and deficiency of service on the part of Dr. K. Biswas and others, she had to suffer a lot and for that reason, she approached before the Assistant Director of Consumer Affairs Department, Jalpaiguri by a complaint where the mediation procedure was failed for non-cooperation of the opposite party to redress the complaint through mediation. So, she was compelled to register the instant consumer complaint.
The respondent no. 1 Dr. K. Biswas, CMOH of Jalpaiguri District Hospital, the Director of Touch Nursing Home and Siliguri Nursing Home and Medina Nursing Home were made parties to the consumer complaint while OP no. 2 did not contest the case. The OP no. 1 Dr. K. Biswas and OP no. 3 to 5 has submitted the written version separately and they have denied all the material allegations levelled against them and contended inter alia that due to careless attitude of the complainant,the kinking of screw and bowing of nail due to early weight bearing upon the limb and has caused implant failure and such implant failure was held due to careless and negligence act of the patient.
Ld. Forum has decided the instant dispute on the basis of complaint and written version submitted through affidavit by the parties of the case. Ld. Forum has not pursued to have recorded evidences of both sides before adjudicating the instant dispute. And thereafter came to a conclusion that the complainant has miserably failed to prove the case and for that reason, the case was dismissed.
Being aggrieved with the said order this appeal follows on the part of the patient Parijat Ghosh against the said order to the score that order of Ld. Forum suffers from gross irregularity and mistake and liable to be set aside.
The appeal was registered before the Hon’ble State Commission, Kolkata Bench and the said appeal was reassigned here for disposal. Accordingly, both the appellant and the respondent has recorded their presence before this Commission and contested the appeal through Ld. Legal Counsels.
DECISIONS WITH REASONS
During the course of hearing of the appeal, it is pointed out that the instant consumer dispute was adjudicated without taking evidences from either side which is a gross mistake on the part of the Ld. Forum. After hearing both sides, it appears to us that there is a mandatory provision in sub-Section (2) of Section 13 of CP Act, 1986 where it has been clearly enunciated that District Forum shall proceed to settle the consumer dispute,
- On the basis of evidence brought to its notice by the complainant and the opposite party where the opposite party denies or disputes the allegations contained in the complaint.
Here, the consumer dispute has been categorically challenged on the part of the respondents in their written versions and for that reason, recording evidences was a mandatory duty of the Ld. Forum before meeting out the disputes. The word “evidence” connotes, ‘the instrument by which the relevant facts are brought before the Court so that it may come to a right decision.’ Here, the evidence includes all the legal means exclusive of mere arguments. Ld. Forum in this particular case has opted to solve the dispute on the basis of mere arguments of the parties to the case. The consumer complaint and written versions are nothing but the statement of the parties to the dispute and nothing more. On the other hand, evidence in legal occupation includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation is established or disproved. The Court or adjudicating authority generally receive the evidence to prove or disprove of certain facts, the existence of which comes in question before the adjudicating authority. So, without the basis of evidence the allegations in the complaint or the counter allegations in the written version cannot be adjudicated properly. Rather both parties of any adjudication process should have the opportunity to cross examine each other or to put the questionnaires in support of their cases.
So, the Commission in this particular case thinks it fit to remand back the case to the Ld. Concerned Forum to adjudicate the dispute in a proper manner after giving opportunities to both parties to adduce their evidences and to cross examination to each other by putting questionnaires. So, the finding of the Ld. Forum appears to be very irregular and liable to be set aside.
Hence it is,
O R D E R E D
That the instant appeal be and the same is hereby allowed on contest without any cost. The final order dated 04/04/2018 in reference to CC/11/2017 of Ld. D.C.D.R.F, Jalpaiguri is hereby set aside. The case is sent back on remand to the Ld. D.C.D.R.F, Jalpaiguri with a direction to give opportunities to the parties to adduce evidences followed by questionnaires and reply along with documents. Thereafter, the Ld. Forum will decide the case again afresh on merit according to law.
Both the parties are asked to appear before the Ld. D.C.D.R.F, Jalpaiguri for fresh hearing on 03/03/2020.
Let a copy of this order be supplied to the parties free of cost and the same be communicated to the Ld. Concerned Forum through e-mail service.
