This appeal is directed against the Final order dated 09/08/2019 passed by Ld. DCDRC, Alipurduar in CC No. 09 of 2018.

The instant CC was registered with allegation of medical negligence against the Ops which was disputed by the Ops by filing WV and subsequently adjudicated not in favour with the allegation and prayers of the complainant for which the appeal has registered challenging the final order of the Ld. Forum.

The complainant  case in short is that on 12.02.2016 the wife of the appellant/complainant (Smt. Payel Ghosh) was admitted into the Greenland Nursing Home (Respondent No.2) under Dr. K.P. Biswas for delivery of baby and on the same day at 17:08 Hours she gave birth one male baby. At the time of birth, the baby was fine and healthy and weight of the said baby was 2 Kg. 500 gm. On 15.02.2016 the wife and the baby of the appellant/complainant were discharged from the said Nursing Home (Respondent No. 2 herein). The wife and the baby of the appellant/complainant, after getting discharged from the Nursing Home followed the advice of doctor with utmost care and the baby was found to be quite normal and jubilant. On 03.03.2016 the appellant/complainant and his wife noticed that their baby seemed to feed lesser and declined to take adequate food (milk) and then and there they took the baby to Loknath Medical Store where the Respondent No. 1 examined the baby and prescribed some medicines and advised the appellant/complainant to admit the baby to Respondent No. 2 hospital as he was attached to the said Respondent No. 2 hospital. The appellant/complainant paid fees of Rs.300/- (Rupees Three Hundred) only to Respondent No. 1. Thereafter, as per advice of Respondent No. 1, the complainant went to Respondent No. 2 and produced the prescription of Respondent No. 1 and admitted his baby at 12:05 P.M. On 03.03.2016 Respondent No. 1 came to Greenland Nursing Home at about 2:00 PM. and examined the baby and assured the appellant/complainant and his wife that everything would be normal and started administering Saline to the said baby.

The further case of the appellant/complainant is that the mother of the baby was all along present beside the baby and she was very much anxious and worried for her baby since the baby stopped taking breast milk after admission. On several occasions, the appellant/complainant and his wife requested the on-duty Nursing Home staff of Respondent No.2 to book a call to Respondent No. 1 under whom the baby was admitted. Since the condition of the baby deteriorated due to not taking food but the duty nursing staff did not call Respondent No. 1 and they disclosed that Respondent No. 1 would come when it would be necessary. The Respondent No. 1 doctor came in the said nursing home at night at about 1:30 PM. On 04.03.2016 when the baby was shivering and on seeing the condition of the baby the Respondent No.1 started administering oxygen to the baby. The appellant/complainant and his wife requested the Respondent No. 1 to disclose the condition of the baby and also wanted to know that whether it would be possible to treat the baby in the said nursing home or not but the Respondent No. 1 did not disclose the condition of the baby and assured the appellant/complainant and his wife that their baby would get well shortly and he did not refer the baby to any other hospital for better treatment. On 04.03.2016 at about 3 A.M. the appellant/complainant went to his residence by leaving his wife beside the baby and on that date in the early morning, the nursing home authority gave a phone call to him and asked him to come immediately as the condition of the baby became serious. Thereafter, the complainant rushed to the hospital i.e. Respondent No. 2 and found his baby was dead.

The further case of the appellant/complainant is that neither Respondent No. 1 nor the Respondent No. 2 rendered proper treatment to the baby of the appellant/complainant. Besides Saline water what they provided did nothing and no thorough examination of blood was done by them. The attending doctor came twice i.e. at 2 P.M. on 03.03.2016 and at 1:30 A.M. on 04.03.2016 in the said Respondent No. 2 Nursing Home. The Respondent No. 1 was very much negligent in treating the baby of the appellant/complainant who expired due to gross negligent and deficiency in service on the part of Respondent No.1 and by Respondent No. 2. That on 04.03.2016 the Respondent No. 2 issued death certificate of the baby of the appellant/complainant which was signed by Respondent No. 1 and the date and time of death was written as 04.03.2016 at 6:30 A.M. and the cause of death as "Septic Camia & Malnutrition". Besides this the Respondent No. 2 handed over the dead body of the baby to the appellant/complainant by taking Rs. 1,300/- (Rupees Thirteen Hundred only). Thereafter the appellant/complainant on 14.04.2016 made an application to the OP No.2 Nursing Home to provide the bed head ticket and the detailed investigation reports pursuant to which the OP no.2 supplied manufactured reports to the appellant/complainant since no blood was taken from the baby of the appellant/complainant. Moreover, the expenses of blood test have also not been taken from the complainant. The Respondent No. 3 had got close nexus with Respondent No. 2 who prepared the vague and false blood test report. All the Respondents have jointly made conspiracy by manipulating  false documents with a view to save their skin. Thus the complainant filed the consumer case.

The Respondent No.1 / Opposite Party No.1 filed the written version below the Learned Forum and the contentions were that the case is not maintainable in its present form and the appellant/complainant has no locus-standi or cause of action to file the complaint. Further the complaint is barred in law under the provisions of Consumer Protection Act, 1986. Further the Respondent/Opposite Party No. 1 denied that he never advised the appellant/complainant to admit their baby in the Respondent/Opposite Party No.2 hospital. The Respondent/Opposite Party No.1 did admit the fact that he advised the appellant/complainant for hospitalization of the baby but did not specify any particular hospital. The Respondent/Opposite Party No.1 alleged that the weight of the baby had reduced to 1.554 Kgs, which itself shows that the baby was grossly under nourished and otherwise extremely weak and infirm. The Respondent/Opposite Party No.1 also found that the baby was found to be reluctant to feed and the skin texture appeared blackish. The said conditions were duly explained to the appellant/complainant and his wife by the Respondent/Opposite Party No.1 and immediately blood samples of the baby were collected and sent for examination to the Respondent/Opposite Party No.3. Upon receipt of the said report, a clear symptom of Septicemia was found as presence of toxic granules were confirmed and C-Reactive protein showed substantive variation from the normal range. The Respondent/Opposite Party No.1 also denied that the Respondent/Opposite Party No.1 did not monitor the condition of the baby or that proper treatment was not given, The Respondent/Opposite Party No.1 considering the critical condition of the baby he constantly monitored the relevant medical parameters throughout the day on 04.03.2016. However, since the conditions deteriorated at night, the Respondent/Opposite Party No. 1 rushed to the nursing home at about 1.10 a.m.

Further the Respondent/Opposite Party No.1 having observed signs of seizure/convulsion the appropriate drugs and injections were prescribed/administered and resultantly no further convulsion was observed and sufficient progress was found. Accordingly, at about 3.05 a.m. in the morning, the Respondent/Opposite Party No.1 left the nursing home and headed towards his residence.

Thereafter at about 6.20 a.m. in the morning, all of a sudden severe grasping by the baby was reported. The Respondent/Opposite Party No. I once again rushed to the Nursing Home and two additional injections were immediately administered under the supervision of the Respondent/Opposite Party No.1 to save the life of the baby. Soon thereafter, the respiration rate of the baby started to fall and the baby was put into ventilation.

The Respondent/Opposite Party No.1 states that to the best of his ability, knowledge and experience proper and appropriate treatment was given to the baby, considering the fact that the baby was already suffering from SEPTICEMIA and severe MALNOURISHMENT. The circumstances were beyond the control of any doctor and can happen despite providing the best of treatment and care. As such there is no question of negligence or deficiency of service by the Respondent/Opposite Party No.1. The Respondent/Opposite Party No. 1 has duly discharged his duty as a dutiful and responsible doctor throughout. The cause of death as stated in the death certificate finds conclusive support from the blood report of the baby.

The Respondent No.2 / Opposite Party No.2 filed the written version below the Learned Forum and the contentions were that the case is not maintainable in its present form. There is no cause of action for filing the complaint against the Respondent/Opposite Party No.2. The Respondent/Opposite Party No.2 stated that the proceeding is bad in law in as much as the absence of Dr. K.P. Biswas whose presence in the proceeding for just decision of the case is essential. Moreover, the complaint is not maintainable in accordance with the provisions of the Consumer Protection Act and the allegations against the Respondent/Opposite Party No.2 as found in the complaint are all false, frivolous and has been filed with ulterior motive. The Respondent/Opposite Party No.2 stated that the happenings before the admission are not known to the Respondent/Opposite Party No.2 save and except an opinion that Dr. M. K. Paul

i.e., the Respondent/Opposite Party No.1 is a well experienced and qualified pediatrician and has been working in this area since a long time and has earned good reputations. Further the conversation between the appellant/complainant, his wife and Respondent/Opposite Party No.1 are not known to the Respondent/Opposite Party No.2. The Respondent/Opposite Party No.2 positively admits that the Respondent/Opposite Party No.1 has done all needful for wellbeing of the baby and the nursing home also rendered its services as per the direction of the said doctor throughout the night. The doctor i.e., the Respondent/Opposite Party No.1 and all other paramedics working in the nursing home gave their best to save their life of the baby of the appellant/complainant. The allegations of the appellant/complainant that the baby died due to the gross negligence and deficiency in service on the part of the Respondent/Opposite Party No.2 are all myth, hence denied in toto. The Respondent/Opposite Party No.2 has also admitted in the said written version that the doctor's opinion i.e., Respondent/Opposite Party No.1 over the cause of death as Septicemia with mal nutrition also supposed to be just and proper. The opinion was definitely based upon symptoms and other related vital factors which could be gathered from the blood test reports and cannot be challenged by layman.

The Respondent No.3 / Opposite Party No.3 filed the written version below the Learned Forum and the contentions were that the case is not maintainable in its present form and the appellant/complainant has no locus-standi or cause of action to file the complaint. Further the complaint is barred in law under the provisions of Consumer Protection Act, 1986. The Ld. Forum has no jurisdiction to entertain the complaint as the total compensation as claimed by the appellant/complainant exceeds the limit of pecuniary jurisdiction of the Ld. Forum. The Respondent/Opposite Party No.3 submitted that there are no allegations against the Respondent/Opposite Party No.3 except in Paragraph No. 14 of the compliant. The Respondent/Opposite Party No.3 stated that on 03.03.2016 being informed by the concerned agent, representative/employee of the Respondent/Opposite Party No.2 nursing home, blood samples of the baby was directly collected from the nursing home itself. Considering the critical condition of the baby, the sample was duly examined and the report was prepared and transmitted to the Respondent/Opposite Party No.2 nursing home in compliance with the standard procedure and practice. The Respondent/Opposite Party No.2 vehemently denied that there was any collusion and/or mal practice insofar as the preparing the said report is concerned. The appellant/complainant, his wife and others have joined their hands and head to hatch a malafide conspiracy with the motive of extracting illegal and unfair money which is nothing but a mode of extortion by way of resorting to abuse of legal process. Further the Respondent/Opposite Party No.3 submitted that the appellant/complainant is not entitled to get any relief/s as prayed for by him in the complaint.

Ld. Forum has conducted the hearing collected evidence forum both sides and there after came to the conclusion that both sides have produced lots of documents for proving and disproving. The allegations and counter allegation all are required within a lengthy process while the proceedings of CP Act are a summary trial and for that reason the Ld. Forum has negativities the claim of the complainant and advised the complainant to go to civil court for proper remedies.

Being aggrieved with the approach of the Ld. Forum, this appeal has registered with the grounds mentioned in the memo of appeal (ops) which has contested by the respondents.

Ld. Forum Mr. M. Paul represented the appellant and Ld. Advocate Mr. C. Chakraborty has represented the respondents (ops).

Appeal was heard in presence and in active participation of Ld. Advocates of both sides.

Decision with reasons

The admitted and already established picture in this case is that the wife of the complainant delivered the birth of a male child under the care of Dr. Biswas at Respondent No.2 nursing home on 12.02.2016. the baby was fine and healthy since his birth having normal weight.

On 03.03.2016, the parents of the baby took notice that the baby seemed to be fed lesser and declined the respondent No.1 who examined the baby, prescribed the medicine and advised them to admit the baby at Greeland Nursing home (Respondent No.2) as indoor patient for the treatment under the case of respondent No. 1 on 03.03.2016 at 12 hours in the noon.

The Respondent no.1 attended the said baby and prescribed the process of treatment for the baby through medical stuffs of the nursing home. Respondent No.1 again attended the baby at about 1.30 hours in the night on 04.03.2016 and in the early at about 04.03.2016 the baby left the world for ever within 22days since his arrived in the world.

Now the question is weather on the part of respondent No.1 there was any lack of knowledge in medical science and whether he has exercised a reasonable care.

Ld. Advocate of the respondents, at the time of argument, mentioned it is admitted that the baby was discharged on 15/02/2016 in a normal and jubilant condition weighing 2.5 kg while on 03/03/2016 when the baby was first brought for treatment the weight of the baby got reduced to 1.554 kg indicating gross malnutrition and extreme weakness and infirmity (cachectic). Further submitted that the pleadings/averments as contained at para no. 6 are not correct and that upon admission to the said hospital Respondent No. 2 the Respondent No. 1 duly attended the child and as the skin texture of the baby appeared blackish the said conditions were explained to the complainant and his wife and the blood samples were collected and sent to Respondent No. 3 for examination and as per the report C-Reactive protein showed substantive variation from the normal range and presence of toxic granules confirmed clear symptoms of Septicaemia accordingly the Respondent No. 1 adopted all standard and prescribed medical protocols and the condition of the baby continued to be critical in spite of administering the required medications including lifesaving drugs the doctor respondent no. 1 depended on the pathological report for the diagnosis of the medical condition of the child and the treatment of the baby of the complainant was done as per the protocol of the treatment and with a reasonable degree of skill and knowledge and he exercised a reasonable degree of care. As per the judgment and decree of the Hon'ble Supreme Court it is specifically mentioned in the judgment CPJ (2009) 32 (SC) in Halsbury's Laws (Annexure marked as 4) of England, the degree of skill and care required by a medical practitioner is stated as follows: "The practitioner must bring to his task a reasonable degree of skill, knowledge and must exercise a reasonable degree of care.

Neither the very highest or low degree of care and competence, judged in the light of the particular circumstances of each case is what the law requires and a person is not liable in negligence because someone else of greater skill or knowledge would have prescribed different treatment or operated in a different way, nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical man.

A medical practitioner is not liable to held negligence simply because thing went wrong from mischance or misadventure or through an error judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fails below that of the standard of a reasonable competent practitioner in his filed. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa and others Vs. State of Maharashtra and others AIR 1996 Supreme Court 2377 or operates on the wrong part of the body or he would be also criminally liable if he operates on some one for removing an organ of illegitimate treat.

In this present case negligence was not found as because the statement made by the complainant appellant in his complaint in brief that on 12.02.2016 the wife of the complainant was admitted into the Greenland Nursing Home under Dr. K.P. Biswas for delivery of a baby and on the same day she gave birth one male baby. It is admitted that at the time of birth the baby was fine and healthy. The complainant/appellant husband of the patient is a police constable who use to reside with his family at Jail Quarter, Alipurduar and on 03.03.2016 after 19 days the appellant and his wife noticed that the baby seems to be feed less and declined to take adequate food which is after discharge from the hospital when the baby was under the custody of his mother. Therefore, no question of any negligence was found by the treating doctor.

Ld. Advocate of the appellant mentioned in his arguments that the Learned District Forum has in several places taken cognizance of the fact that the Opposite Parties have filed documents but fact remains that the Opposite Parties have not filed any documents at all before the Learned District Forum. The Learned District Forum basing upon its own whims, wishes and accord categorically pointed out the said fact in several places of the Final Order / Judgment that the Opposite Parties have filed documents.

That the Respondents/Opposite Parties have categorically stated that they had taken blood samples of the baby and the baby was diagnosed was "septicemia" but as per the bill given by the nursing home, it does not reflect that the charges for the blood tests. Hence it clearly indicates that the Respondents/Opposite Parties never did any blood tests of the baby. The said reports are absolutely false and self-manufactured to save the skins of the Respondents/Opposite Parties.

The Respondent No.2/Opposite Party No.2 has provided a hand written estimate bill to the Appellant/Complainant amounting to Rs.1300/- (Rupees One Thousand Three Hundred) only. Whereas from the perusal of Bed Head Ticket, it appears that several medicines were administered to the baby of the appellant/complainant which would definitely cost more than Rs.1300/- (Rupees One Thousand Three Hundred) only. Hence it is crystal clear that no such medicines were administered to the baby of the appellant/complainant rather the said Bed Head Ticket was self-manufactured by the Opposite Parties when the appellant/complainant by a letter dated 14.04.2016 requested to Opposite Parties to provide all medical records pertaining to the baby of the appellant/complainant.

After hearing both sides it has become crystal clear that Dr. Pal (Respondent No.1) could not get opportunity enough for the recovery of the baby. His treatment period covers the time since noon of 03.03.2016 till the late night on 04.03.2016 i.e., hardly 15 to 16 hours.

On the other hand, the bed head ticket of the baby patient and the estimated bill of treatment shown various medicines and supply of Oxygen and number of clinical and pathological investigation process was exhausted while the cost of treatment which had to pay the patients party confines only to Rs. 1300/- i.e., very meager amount which indicates and cast a doubt upon the attitude and deliberate attempt of saving skins on the part of treatment doctor and nursing home to manufacture some documents.

Rather, Ld. Forum has unnecessarily observed that “Since both sides submitted their documents to establish their documents have not proved or disproved as per Evidence Act, as such we are unable to hold as to whether there is any deficiency in service”. This observation of the Ld. Forum is absolutely misconceived regards to the spirit of CP Act, 1986. The complainant had chosen the forum to seek the remedies against the sufferance he felt. Forum had the ample opportunity to refer the matter to a competent medical board to seek expert opinion. Ld. Forum has no occasion to direct the complainant to approach the civil court for redressal of his grievances.

Ld. Forum does not choose the exhaustive procedure of the evidence Act, while in J.J. Marchant case hon’ble Apex Court has already formulated a simple course of procedure suitable for the speedy and simple proceeding the consumer courts.

Rather, LD. Forum by sending all the related Medical documents to the expert body could have sleeked the opinion whether there was any possibility on the part of OP NO.1 to 3(Respondents) to appeal all the process within such shortage of medical bill to the tune of Rs. 1300/- or there was any possibility or their part to manufacture documents to save their skins.

So, the final order of Ld. Forum appears to be erroneous, misconception or misappreciation of consumer law and against the spirit of natural justice.

Thus, this appellant’s bench comes to a considered view that the approach and observation of Ld. Forum in the Final order challenged in the appeal is just contrary to judicious approach.

                                                                                     Hance it is ordered

 That the appeal be and the same is allowed on contest without cost. The final order and judgement of Ld. DCDRF, Alipurduar dated 09.08.2019 in C.C. No. 9 of 2018 stands set aside.

The Ld. DCDRF Alipurduar is asked to seek an opinion of expert medical body by referring all the related documents and scrutinize the admissibility of the said documents in the light of evidence Act and hear the argument afresh and re-write a final verdict.

Both parties of this appeal are asked to appear before the Ld. Forum on 10.11.2011 for fixing a fresh schedule of hearing.

Let a copy of this order be supplied to the parties of appeal free of cost and the same to be communicated to the Ld. DCDRF, Alipurduar.