FINAL ORDER/JUDGEMENT
Presented by:-
Shri DebasishBandyopadhyay, President.
Brief fact of this case:-This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that on 09.12.2017 marriage was solemnized by and between him and Ms. Soumita Bhattacharya. For both groom and bride this was the first marriage. For the first few days after marriage the bride maintained a normal relation with groom’s family. But after returning from ‘Ostomangala’ she started segregating herself from groom’s family by way of not taking part in any of the household activity, keeping herself confined within the bedroom by shutting the door of her bedroom, visiting her parental house every now and then whenever she felt like. She even did not bother to seek consent of groom’s family. Further whenever the groom wanted to know about her whereabouts and schedule of return bride would threaten the groom stating that in the event of any interference in her daily life she would take drastic step from her family against the groom’s family and would sent groom’s family behind bar.
On 05.04.2018 Ms. Soumita took the complainant to Medicine department of Medical College & Hospital, Kolkata (MCHK). She presented the case to the doctors of Medical department accusing complainant a mental patient. Medicine department referred the case to psychiatric department of MCHK. In the evening of 05.04.2018 Ms. Soumita’s father Mr. Tapas to Ms Soumita to her parental house. As was jointly decided by the parents of groom and bride on 06.04.2018 the complainant with his uncle and the bride with her father visited the psychiatric department of MCHK. Based on the bride’s arrogant & violent statement regarding the alleged mental and physical inability of the complainant the doctors advised the complainant, if he could get admitted in the psychiatric department (Indoor patient – mental sanatorium) for observation, diagnosis and treatment, if required. In view of the allegations made by Soumita and her father, tomake himself free from all the allegations, complainant got himself admitted at the said medical college and hospital under the OP and his team. As per rules of MCHK the father of the complainant was required to stay with his son i.e. the complainant for the purpose of his protection from any unwarranted situation from any other patient, if required. During the period of admission of the complainant some blood tests have been carried out. And it was detected that the “SGPT” and “SGOT” were beyond higher limit. But unfortunately the said psychiatric department did not pay any importance to the said diagnosis of “SGPT” and “SGOT” and as a result of which they did not refer the complainant to the concerned appropriate department of the Medicalcollege and Hospital, Kolkata for the purpose of necessary treatment of lever and or kidney of the complainant as his “SGPTY”and “SGPT” were beyond the limit higher range and the complainant further states that during the period of admission/stay in the said Department of psychiatry of the medical college and hospital Kolkata, the complainant was interrogated time and again by almost all the physicians, nurses, interns and senior students of Department of Psychiatry. In this regard, it is very pertinent to mention that none of the above medical personnel could identify diagnose any unnatural and abnormal behavior during such period and 10.4.2018 “Personality Test”of the complainant was conducted by the said Department of Psychiatry of the Medical college and Hospital, Kolkata. But unfortunately and surprisingly enough, no report of the said test was supplied to the patient party, being the complainant hereof, on the new plea that the concerned specialist was on leave and the complainant states that, however, he was discharged on 11.4.2018. And it is needless to mention that he was not at all prescribed a single medicine at that time of discharge. In spite of that, surprisingly enough, in the Discharge document it was written that “diagnosis deferred” and advised “serial psychotherapy session for the couple”. In this regard, it is very much pertinent to mention that, despite several requests made by the father of the complainant, the doctor concerned refused to enlighten the meaning of such observation “diagnosis deferred”. As a result of which, not only the complainant, but also the father of the complainant as well as his all family members were kept in dark by the concerned doctor regarding observation made in the discharge document. More so, such observation “diagnosis deferred” not only create tremendous fear in the mind of the Complainant, create huge mental agony and shock, but also it lead to Ms. Soumita Bhattacharya and her family to make a conclusion that complainant is a person of mental disorder andnot capable of maintain a conjugal life with his wife. More surprisingly, as stated by the father of Ms. Soumita Bhattacharya on 30.5.2018, that while the father of the complainant requested them to send back Soumita at her in laws house, that on 11.04.2018 prior to discharge of the complainant, the concerned specialist doctor OP-1 had advised Ms. Soumita Bhattacharya to break the marriage tie with complainant. This was the version of the father of Mrs. Soumita Bhattacharya, as it was happened in presence of him, as stated by him. Though, the complainant as well as his family members was completely kept in dark till 30.05.2018 about the advice of the complainant.
The complainant states that however, as advised by the Hospital, MCHK, the complainant duly attended the serial counseling on 18.4.2018., 25.4.2018, 02.05.2018, 09.05.2018 and 16.5.2018. parent counseling of both the bride and groom was undertaken by the counselor. During the said parent counseling, the counselor had declared that both bride and groom are mentally and physically capable of maintaining their conjugal life and advised Ms. Soumita to return her in laws house. But again, surprisingly enough, even after final counseling, the complainant declined to conclude the diagnosis. Ms. Soumita did not attend the counseling on 18.04.2018 and 16.05.2018 and for the purpose of treatment of higher range of the “SGPT” and “SGOT”, the complainant had visited the Urology department of the said Medical College and Hospital, Kolkata on 04.06.2018. On request of the complainant, to conduct his sex ability test, the concerned Urologist had referred the case of the complainant again to the OPD of the Department of Psychiatry, to know whether the patient is fit mentally to perform coitus. In the same day i.e. on 04.06.2018 the complainant accompanied with his father met with the complainant and Dr. Subhadeep Roy for the purpose of obtaining such certificate as asked by the concerned Doctor/Urologist of the Urology Department. But unfortunately, said the complainant refused to issue such certificate as asked by the Urology department. More so, he had said that “had it been necessary doctor would have arranged a medical board for the same”. The term “diagnosis deferred” have been explained by Dr. Subhadeep Roy by saying that, if you do not have diabetes today does not mean you will not have it tomorrow. On the same self day i.e. on 04.06.2018, the father of the complainant have asked the complainant about his advice toms. Soumita to break the marriage tie with the complainant, said the complainant stood by his statement and rudely stated that he did not need anyone’s advice about whom to say what.
The complainant further states that during his admission and stay in the psychiatry Department of the said Medical College & Hospital, Kolkata, the complainant time and again requested the concerned doctor(s) to convey his wife about the actual status of his mental and physical condition, so that the marital disharmony between the spouse be resolved but all in vain.
The complainant states that for such action on the part of the concerned treating doctor Ghosal of Psychiatry Deptt. Medical College, Kolkata, thus holding the diagnosis in the discharge certificate of the complainant by using the term “Diagnosis deferred” instead of diagnosing any specific disease mentaland physical, lead the complainant’s matrimonial status to the path of divorce, for which, the complainant suffered tremendously. For such tremendous negligent act on the part of the said Dr. Ghosal of the psychiatric Department, Medical College and Hospital, Kolkata, complainant’s entire life has been frustrated. His wife asked for divorce due to misinterpretation of the said observation “Diagnosis deferred and also claimed for huge monetary compensation from him. Not only that the complainant’s social prestige and status have been completely prejudiced for the same, since he belongs to very educated and cultured family and working at the Central Govt. office, hissocial status have been absolutely ruined for the same, though he hasno fault on his part by any means whatsoever.
The complainant states that the Mutual divorce suit was filed in terms of the insistence of the Ms. Soumita Bhattacharya. Ms. Soumita Bhattacharya also claimed for huge money. Ultimately on 15.02.2020 decree of divorce was passed on mutual consent and an amount of Rs.250000.00 only has been paid by the complainant to his divorced wife Ms. Soumita Bhattacharya and the complainant states that not only the complainant but also his entire family was completely shocked due to such entire incident and the mental peace of the entire family have been ruined and on 11.12.2019 the father of the complainant made a representation to the Superintendent, Medical College and Hospital, Kolkata thus stating all the facts and praying for an enquiry and for taking necessary steps towards the same. But no response has so far been received from the Superintendent, Medical College and Hospital, Kolkata. Thereafter on 18.1.2020 the complainant further made a representation before the said concerned treating doctor namely Dr. M.K. Ghosal of Psychiatry Department, Medical College and Hospital, Kolkata thus stating all the facts praying for satisfactory reply of his queries regarding his treatment but the said doctor did not bother at all to pay any heed towards the same. It is further stated that in the Discharge Certificate of the Medical College and Hospital, Kolkata dt. 11.4.2018 it was specifically advised that the “Serial Psychotherapy Session for the couple advised” and in the final diagnosis it was written as “diagnosis deferred” and in the very next page of the said Discharge Certificate in the “Chief complain” it was mentioned that “Accordingly to patient” – “seeking help to resolve his marital disharmony”. Statements made by both of them as well as the conversation with the doctors were described in the complaint petition. Again on 18.4.2018 complainant’s husband visited the OPD of the said Medical College and Hospital, Kolkata for his serial psychotherapy session as advised and on 18.4.2018 he was advised as “Refer to clinical psychotherapist for coping skills”. Thereafter on 4.6.2020 the complainant have visited the OPD of the URO Surgery Department, where he was advised for some blood and other tests and further he was “referred to Psychiatry OPD to know whether the patient is fit mentally to perform coitus”. Accordingly, on the same day the complainant along with his father visited the OPD of the psychiatry department and met his concerned treating doctor said Dr. M.K. Ghosal and Dr. Subhadeep Roy thus requested them to kindly act as asked by the doctor of the URO Surgery Department, but the said doctor Dr. M.K. Ghosal refused to issue any certificate to that effect saying “had it been necessary I would have arranged a medical board for the same”. At that time, Dr. Subhodeep Roy for the first time disclosed that the meaning of “Diagnosis deferred” means, somebody does not have diabetes today but may have diabetes someday and in the final diagnosis of the complainant the remark was written as “diagnosis deferred” means on that very date the complainant did not have any physical and mental deficiency but anticipating that on some day in his life time he may develop disease of any nature including physical and mental deficiency.
Complainant filed the complaint petition praying direction upon the opposite party no. 1 to pay a sum of Rs. 1,00,00,000/- for compensation and to pass such further order or orders as deem fit and proper.
Defense Case:-The opposite party No.1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complainant was admitted in the hospital for psychiatric analysis with his own consent. The material disharmony and discord between the complainant and his ex-wife further becomes evident from the assertions made in the corresponding paragraph of the complaint and the SGPT and SGOT levels are not concerned with the psychiatry department. Though SGPT and SGOT were in a slightly higher range, but we did not refer the case to the concerned department, because according to our clinical judgment, it was not needed to refer to the concerned department immediately. The diagnosis of the complainant was deferred as the same needed further time to arrive at a decisive conclusion . It is further relevant to highlight that psychiatric disorders cannot be put in a straight jacket formula to be diagnosed within a stipulated period of time and as such the same need time. It is further relevant to mention that as psychiatric disorders are primarily mental and behavioral disorders the same can take time to be identified especially in a controlled environment, however, the admission of the complainant was imperative to monitor and assess his mental state and behavior minutely. It is further borne out of the assertions made in the corresponding paragraph of the complaint that the complainant was duly attended and investigated by the staff at the hospital.
The discharge document of the complainant mentioned ‘diagnosis deferred’ on account of the fact that no conclusive diagnosis could not have been arrived and the case of the complainant needed further investigation. It is for this reason also that no medicine was prescribed to the complainant. It is further relevant to submit that psychiatric disorders are not only treated by medicines but also by psychotherapy. The discharge document of the complainant mentioned the advice of ‘serial psychotherapy session for the couple’. It is submitted that such an advice was given to serve a dual purpose, firstly, as there was history of marital disharmony between the couple, the psychotherapy sessions would helped them to bond and secondly, the psychotherapy sessions would help further investigate the case of the complainant and reach at a proper conclusion/diagnosis. It is further submitted that the meaning of the observation ‘diagnosis deferred’ was duly explained to the affected parties. The interpretation of the observations by the wife of the complainant and her family can in no way be attributed to the answering OP. The allegation that the answering OP had advised the wife of the complainant to break the marriage is specifically vehemently denied and is seriously objected to and the complainant be put to strict proof of the same. It is submitted that the answering OP is a respected psychiatrist and such bald allegations are defamatory and harm the reputation of the answering OP.
There are no laboratory investigations which can clinch the diagnosis of mental disorder as such, and they have to depend on the distress and dysfunction concept, to diagnose the mental disorder. If they consider a dysfunction in the case in the area of interpersonal sexual area of functions, so they can think of some disorder but they would not put a definite diagnosis, therefore they put the term “diagnosis deferred”.
They have deferred the diagnosis as many a times further follow up is required for reaching a final diagnosis. In spite of all the clinical efforts and investigations, there are cases which they cannot diagnose properly. Moreover in the discharge certificate no where anything has been written, which can malign the status of complainant. And the assertion made that the answering op had denied to conclude the diagnosis amounts to forcing of a diagnosis on the answering op. It is submitted that the answering op could have given a final diagnosis after being sure as such the caution adopted by the answering op cannot be used against him. The complainant never approached the Deptt. Of psychiatry upon reference by the Department of Urology. All assertions regarding the advice of the answering op are again strongly denied and nowhere has the psychiatrist has commented the complainant is having problem with erection, so no question of issuing any certificate and that the complainant had approached the hospital on account of marital disharmony between the complainant and his wife as well as the families. It is relevant to submit that as per the assertions in the complaint itself, the wife of the complainant had not appeared for all the psychotherapy sessions. It is further submitted that since there was no conclusive diagnosis, the answering op could not have communicated anything to the wife of the complainant.
The event of divorce between the complainant and his wife cannot be linked with the investigations carried on under the supervision of the answering op. It is further submitted that there was marital disharmony and discord between the complainant and his wife and they were already living separately before they approached the Medical College, Kolkata, thus it is further submitted that the investigations carried out by parties. It is further relevant to submit that it was the intention of the answering op that the complainant and his wife continue happily in matrimony is borne out of the fact that the answering op had advised psychotherapy session for the couple which included both the husband and the wife. The answering op can in no manner be said to be negligent in the facts and circumstances of the present case. It is further submitted that the divorce between the complainant and his wife was mutual and not on any of the ;fault ground, thus the blame for the same cannot be fastened upon the answering op.
The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and prayed to dismiss this case.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
All the five points of consideration adopted in this case are clubbed together and taken up for discussion jointly as because the questions involved in this points of consideration are interlinked and/ or interconnected with one another. Over the issue of first three points of consideration the question of maintainability of this case is a vital question. In this regard, this District commission must have to consider the question as to whether the complainant is a consumer in the eye of law or not? Regarding this matter the definition of consumer which is depicted in Section 2(1) (d) of Consumer Protection Act, 1986 is very important. The definition of Consumer as per Section 2(1) (d) of Consumer Protection Act, 1986 runs as follows “Consumer” means any person who-
- buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
- [hires or avails of] any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails such services for any commercial purposes).
(Explanation- For purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.)
Overall, reading of the definition of Consumer which has been laid down in Section 2(1) (d) of the Consumer Protection Act, 1986 this District Commission finds that the complainant is not coming within the purview of the definition of the “Consumer”.
In this regard, the term negligence also playing a vital role. The term negligence has not defined boundaries and if any medical negligence is there, whether it is pre or pose operative medical care or any follow-up care, at any point of time of treating doctors or anyone else is always open to be considered by the Courts/ Commissions taking note of the ex-possession of the law laid down by the Court or which detailed reference has been made and such case has been examined on its own merits and in accordance to law. This definition has been observed by the Hon’ble Apex Court in the case of Chandra Rani Akhouri [Dr. (Mrs.)] &ors. Vs. M.A. Methusethupathi (Dr.) &ors. which is reported in II (2022) CPJ 51 (56). In this instant case, the complainant has failed to explain as to when the op no. 1, Doctor or op no. 2, medical institution were negligent and failed to proof negligence. In this regard, it is very important to note that the complainant was admitted to the op no. 2, hospital but the complainant has failed to clarify the categorically as to when the medical negligence was taken place. Thus, it is crystal clear that this case is lacking proof. It is also the settled principle of law in this regard that medical practitioner is not to be held liable simply because anything went wrong from mischance or misadventure or through error of judgements in choosing one reasonable course of treatment in the performance of the patient. This legal principle has been observed by the Hon’ble Apex Court and it is reported in Chandra Rani Akhouri [Dr. (Mrs.)] &ors. Vs. M.A. Methusethupathi (Dr.) &ors. which is reported in II (2022) CPJ 51 (56). Moreover in the said decision of the Hon’ble Apex Court it has also been observed by the Hon’ble Division Bench that no Doctor would assure full recovery in every case. Thus, it is crystal clear that the allegations which has been raised by the complainant against the op no. 1 is also not acceptable.
Moreover, on close examination of the pleadings adopted by the complainant in his complaint petition and in the evidence on affidavit filed by the complainant it appears that no allegation has been revealed against the op no. 2 i.e. the Superintended, Medical Collage and Hospital Kolkata, 88, Collage Street, Kol-73. When there is no specific allegation and no proof against op no. 2, this District Commission has no other alternative but to dismiss this case against op no. 2 as well.
In this case, the complainant has time again given emphasis on the matter of “Diagnosis Deferred” which has been revealed from the discharge certificate of the complainant. To ascertain the meaning of “Diagnosis Deferred” the complainant has failed to conduct any expert commission for getting expert pinion over this issue. The case of the complainant has been suffering from defect in this respect. Inspite of getting sufficient opportunity in this case the complainant has failed to submit any prayer before this District Commission for appointment of the expert commission for getting expert opinion. So, it is crystal clear that the complainant has failed to prove his case by placing cogent evidence. In the complaint petition, the complainant has adopted the plea that due to the wrong observation of ops the marriage tie of the complainant with his wife, Ms. Soumitra Bhattacharya has been broken and the said marriage was broken due to the mutual divorce which was filed in terms of the insistence of Ms. Soumitra Bhattacharya and the wife of the complainant claimed huge money and so the complainant had to pay Rs. 2,50,000/- at the time of passing degree of divorce on 15.2.2020. But fact remains that on close examination of the divorce order which is passed in MAT suit no. 492 of 2019 by Additional District Judge, Serampore it appears that ld. Additional District Judge, Serampore at the time of passing mutual divorce nowhere has stated that the fact that due to wrong medical treatment of op no. 1, the wife of the complainant has taken divorce. From the said order it is revealed that the complainant and his wife voluntarily filed the said divorce case and they mutually decided to revoke the married tie. From the said order of divorce passed by Additional District Judge, Serampore nowhere it is revealed that the complainant had to pay Rs. 2,50,000/- to the wife of the complainant for obtaining the degree of divorce. So, the allegations of the complainant of payment of Rs. 2,50,000/- to the wife of the complainant which caused mental agony and harassment also has lowered down the prestige of the complainant in the society has not been proved by filing cogent documents.
All these factors are clearly reflecting that the complainant has also failed to prove his case against op no. 1.
Now the question is whether a Government Hospital/ Health Center/ Dispensary or Doctors attached to the said Government Hospital/ Health Center/ Dispensarywould come within the purview of the definition of “Service” under Section 2 (1) (O) of the Consumer Protection Act, 1986 or not? In this regard, the observation of the Hon’ble Apex Court in the case of Indian Medical Association vs. V.P. Shantha and others which is reported in AIR 1996 Supreme Court Page 550 is very important where the Hon’ble Apex Court has been pleased to observe that service rendered at Government Hospital/ Health Center/ Dispensary where no charge whatsoever is made from any person availing service of patient (rich or poor) are given free service – is outside the purview of the expression” Service” as defined in Section 2(1) (o) of the Consumer Protection Act, 1986. The payment of a token amount in registration purpose only at the Hospital/ nursinghome would not alter the position. This legal principle of the Hon’ble Apex Court is clearly depicting that the op nos. 1 and 2 are not at all responsible for providing service to the complainant. There is also not any proof of deficiency of service and unfair trade practice.
A cumulative consideration of the above noted discussion goes to show that the complainant is this case is not a consumer in the eye of law and the complainant has failed to prove his case against the op nos. 1 and 2 and the complainant has failed to accrue any cause of action for getting service of medical treatment by op no. 1 at the op no. 2 hospital. So, it is crystal clear that this case is not maintainable in the eye of law. In view of this position this District Commission has no other way but to dismiss this case on contest.
In the result it is accordingly
ordered
that the complaint case being no. 45 of 2020 be and the same is dismissed on contest.
No order is passed as to costs.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
