DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. NO- 45/2016
Date of Filing: Date of Admission: Date of Disposal:
21.01.2016 04.02.2016 10.10.2018
Complainant :- Mr. Balbir Singh, S/o. Major Singh,
Green Park, P.O. Michael Nagar,
P.S. Airport, Kolkata-133.
=Vs=
Opposite Parties :- 1. Dr. Kashinath Poddar, Prop. of Clinical Laboratory
Ashirbad Building, 534A, Rabindra Sarani,
Kolkata-700003.
2. Bapi Pal, C/o. Pranabananda Medical Hall,
Post- Michael Nagar, P.S. Airport, Kolkata-133
…….O.Ps.
- Paramedical Centre, Pathological Laboratory,
471, School Road, Kolkata-51.
- Theism, 3A/6, B. K. Pal Lane, Kolkata-30.
……Proforma O.Ps.
P R E S E N T :- Sri. Bankim Chandra Chattopadhyay………..…..President.
:- Smt. Silpi Majumder ……………………………………Member.
Judgment
This complaint has been filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the Ops.
The brief fact of the case of the complainant is that he examined his blood under O.P. NO.1in Clinical Laboratory through O.P. No.2 for hematological examination relating to blood group and blood RH Factor on 29.06.2015 and the sample was collected by O.P. No.2 on that date i.e. 29.06.2015. The report was issued by O.P. No.1 under ID No. CL/15/6/F-20842 which reveals the blood group of complainant was mentioned as ‘B’ and blood RH Factor as ‘Positive’.
Being doubtful about the said report issued by O.P. No.1, the complainant further examined the same in ‘Paramedical Centre’ i.e. Pro. O.P. No.1which reveals ‘ABO’ blood group of the complainant as ‘B’ and RH and RH(D) Factor as ‘Negative’ and the examination was done on 05.07.2015 after providing the sample on the same date.
Again being doubtful about the report issued by the O.P. No.1 the complainant again examined the same in Pro. O.P. No.2 (Theism) which reveals ‘ABO’ blood group of the complainant as ‘B’ and RH(D) Factor ‘Negative’ Factor and the examination was done on 24.07.2015 after providing the sample on the same date.
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On receiving the said reports from Pro. O.P. Nos. 1 and 2, the complainant was convinced that the O.P. No.1 examined the blood of the complainant negligently without any proper care and issued a false report which is dangerous if the complainant has to continue respective treatment on the basis of the blood group or any blood transfusion on the basis of the report. It causes serious injury to the patient even inevitable death.
The complainant issued a notice to the O.P. No.1 for necessary clarification through his Ld. Lawyer. Thereafter, on 12.08.2015, he sent a reply which received by the complainant. O.P. No. 1 deliberately caused negligent and deficient in service. If the blood of the complainant ought to have utilized at the time of blood transfusion to the father of the complainant in that case the complication would have been arising out. As such the complainant has prayed for damages of Rs. 50,000/- for negligent act and deficiency of service of O.P. No.1.
The O.P. No.1 appeared and filed written version. The O.P. No.1stated that the complainant’s case is harassive motivated and intentional. According to the O.P, the complainant’s case is liable to be dismissed in limini. The allegations of the complainant involved medical negligence which is highly technical in nature. It is to be adjudicated by evidence of expert. The evidence of the parties which involves elaborate oral and documentary evidence of the parties. It has been alleged that the blood sample given for test was not procured by O.P. No.1 and the same was not procured by his authorized agent directly at the laboratory. The sample of the blood was collected at random by some collectors in some date placed at their own risk. The O.P. No.1 has been running his concern for about 35 years and the same is being run with good reputation. Self –engaged collectors draw the blood as desired by the patient and the same was leveled with sticker on blood container. The blood collectors distribute blood sample to various laboratories concerns for testing on daily schedule. In the present case the blood collectors distributed the blood sample to the O.Ps and they carefully preserved the blood and during examination processing of the blood was done observing pre-analytic measures so that perfect result may be obtained. It is carefully observed that there is no negligence on the part of the Laboratory Concern. The precaution was observed till the report was delivered to the correct person. The O.P always takes maximum precaution for achieving perfect result and serves the public with proper dignity and reputation. The allegation as labeled against the O.Ps in the petition of complaint are baseless, vague , bogus, unwanted, uncalled for. It is a product of futile brain of the complainant. The variation and / or differences in the report is beyond the knowledge of the O.Ps. No liability could be imposed in so many collected uncertain situations involved in different factors. The O.P made the report with due care and skill and there is no negligence on the part of the O.P. The blood samples as delivered to O.P are properly tested and proper report was given.
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The allegation against the O.P is liable to be dismissed . The complainant has misereably failed to make out any case of negligence or deficiency in service. Consequently, the O.P has prayed for dismissal the case with cost.
The complainant in order to establish the instant case filed some photo copy of documents:-
- The Lawyer’s letter of complainant dated 12.09.2015.
- Reply letter of O.P. No.1 dated 24.08.2015.
- Advocate letters dated 03.08.2015.
- Laboratory report of O.P. No.1- Clinical Laboratory dated 29.06.2015.
- Report of examination of blood of Pro. O.P. Nos. 1 and 2 dated 05.07.2015 and 24.07.2015 respectively.
We have carefully perused the record, documents as filed by the contesting parties and heard argument at length advanced by the Ld. Councel for the parties. It is seen by us that the complainant has alleged deficiency in service as well as negligence on behalf of O.P. No.1 in rendering service on the ground that O.P. No.1 provided a false and wrong blood report of the complainant mentioning the RH(D) Factors as ‘Negative’. At the very outset, we are inclined to adjudicate the complaint on the point of territorial jurisdiction of the Ld Forum before entering merit of this complaint. We have noticed that the O.P. No.1 is carrying on business i.e. Clinical Laboratory at Rabindra Sarani, Kol-700003, which obviously does not situate within the territorial jurisdiction of this Ld. Forum. Similarly, the address of the Pro. O.P. Nos. 1 and 2 also does not exist within the territorial jurisdiction of this Ld. Forum. Only the O.P. No.2 is residing within the territorial jurisdiction of this Ld. Forum. The O.P. No.2 did not contest this complaint by filing written version. In respect of O.P. No.2 we are to say that the complainant has made the O.P. No.2 as a party with a view to invoke the territorial jurisdiction of this Ld. Forum. But no casue of action has arisen at the said address as the complainant has alleged that the O.P. No.1 provided false and long blood report in respect of the RH Factor. Therefore, the cause of action for preferring this complaint has arising at the address of O.P. No.1, not at the address of the O.P. No.2. In view of the judgement passed by the Hon’ble Supreme Court in the case of Sonic Surgical (Supra) wherein Their Lordships have held that the branch office means where the cause of action has actually arisen. As in the case in hand, cause of action has arisen in respect of the O.P. No.1 which does not fall within the territorial ambit of this Ld. Forum, hence in our view having regard to the above mentioned observation of the Hon’ble Supreme Court the complaint is hopelessly barred by territorial jurisdiction.
As the complaint is not maintainable from the point of its territorial jurisdiction, we are not inclined to enter into the merit of this complaint. The O.P. No.1 has placed reliance on several judgments its support of its contention, but as the complaint is not maintainable in view of the Section 11 (2) of the C.P. Act, 1986, the Rulings need not be explained.
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Going by the foregoing discussion, hence it is ordered that the complaint is dismissed on contest being barred by territorial jurisdiction. Considering the facts and circumstances of the complaint, there is no order as to cost.
Let plain copy of this order be given to the parties free of cost as per the CPR, 2005.
Member President
Dictated & Corrected by
