This is a case under Section 11(2) (c) and Section 12 of the Consumer Protection Act, 1986.

Brief facts of the complainant’s case is that, the complainant had visited O.P. No. 1, on 02.03.2017, for medical advice and who had prescribed several tablets and capsules for 20 days. He also asked the complainant to undergo several tests and checkup. The complainant had paid Rs. 700/- as fees to the O.P. No. 1. The complainant had then under gone various tests and examination on 06.03.2017, at O.P. No. 4, whose Directors are O.Ps. No. 2 & 3, for which he had to pay a lot of money. The U.S.G. (whole abdomen) report indicated that the gall bladder was distended, thin walled and showed calculus of 7m.m. Ongoing through the report the O.P. No. 1 had allegedly declared immediate surgery.

The complainant suffered mental pain and agony, after receiving the U.S.G. report, but as his mother was undergoing treatment for cancer at Mumbai, for which he had to travel to Mumbai regularly, for which reason he could not cross check the diagnosis and the report of O.P. No. 1 and 4, respectively. On getting an opportunity, the complainant visited B.S. Diagnostic Centre, which was unit of Dr. Goswami’s Diagnostic Centre Private Limited, Siliguri, on 24.07.2017 and had done the U.S.G. of the upper abdomen. The report received indicated, “Gall Bladder is well distended with normal wall thickness. No obvious Intraluminal Echo reflective calculus. Small Echogenic focuss noted in Gall Bladder was of approx. 6mm.”  On receiving such report, the complainant became confused and wanted to verify the same from another institution, from outside West Bengal. Thereafter, on procuring finances, he travelled to Hyderabad by flight and visited Asian Institute of Gastroenterology on 01.09.2017. He underwent U.S.G. of abdomen, where it was again detected that the gall bladder had no trace of any stone, as is evident from the report:- “Normal in size. No calculi. Evidence of few small echognic foci, largest measuring 5.1 mm attached to the luminal wall with no acoustic shadowing. Wall thickness is normal.”

But as the complainant became busy with the treatment of his mother and also to pursue his profession as an Advocate, he filed this case on 12.04.2019 even though the cause of action had arisen on 24.04.2017. Hence, this case.

The O.P. No. 1 has appeared to contest this claim by filing Written Version, wherein he has only admitted that the complainant had visited is O.P.D. on 02.02.2017 for C/O HTN/HBE disease (Thallasemia) / Mild Jaundice /Indigestion /Abdominal distention /Mucoid Stool /Loss of Sleep with Increased Gas Formation.  He had then, examined the complainant and had diagnosed him to be suffering from Mild Jaundice and high B.P. He had then advised, the complainant for necessary tests for further diagnosis. His U.S.G (abdomen) reports, indicated gall bladder stone and bilirubin content, was also found to be high and gastric ulcers were found during Endoscopy. The complainant had then been advised medicines for treatment of Ulcers/Jaundice/Gall Stones/HTN and Sleep Problem.

The O.P. No. 1 had relied on the U.S.G. report performed by the Radiologist at SKS Diagnostics and had then prescribed tablet Ursocal-300 for twenty (20) days, for dissolving the stones, which was the standard medical practice.

He has denied all the remaining material allegations and on the contrary, stated that the B S Diagnostic Centre, Siliguri and Asian Institute of Gastroenterology, Hyderabad should have been made necessary parties in the instant case. He has further stated that the case was defective, as no Medical Board or Enquiry Committee had been appointed, in the instant case, for which reason it would be difficult to adjudicate this case. He then prayed for dismissing the case with costs.

O.P. No. 2 has also appeared to contest the claim and has filed Written Version wherein she has denied the complaint’s case. She has categorically stated that she never examined the complainant and also stated that the case was defective, due to non-joinder of parties and the non-appointment of the Medical Board or Enquiry Committee. She then prayed for dismissal of the case with costs.

The O.P. No. 3 has also appeared to contest the claim by filing Written Version, wherein it has denied the claims made by the complainant and therefore, prayed for dismissal of the case with costs.

The O.P. No. 4 has appeared to contest the claim by filing Written Version wherein it has denied the claims made by the complainant, but only admitted that the U.S.G. of the complainant had been done in LOGIQ P5 Machine, which in itself is a latest technology machine (GE Company), and had discharged its duties according to established medical procedure and then prayed for dismissal of the case.

We have heard the Ld. Lawyers of both the sides. Perused the materials, on record, as well as the rulings, relied, on by both the parties.

The admitted position is that the complainant visited the chamber of O.P. No. 1 on 02.03.2017 for his health problems and he was advised certain tests, among which U.S.G. (whole abdomen) had also been prescribed. The complainant had then, done the tests and U.S.G. (whole abdomen) from the Laboratory of O.P. No. 4, on 06.03.2017.  After the reports of the tests, done on 06.03.2017, including U.S.G. (whole abdomen), the complainant had been prescribed certain medicines, as the Gall Bladder showed a calculus of 7mm. The allegation of the complainant is that he had suffered mental pain and agony, on the suggestion of operation of the Gall Bladder. But, in this regard, the complainant in his reply had stated that the suggestion was done verbally. This is further corroborated by the prescription issued by the O.P. No. 1 on 02.03.2017, which nowhere suggests surgery of the Gall Bladder. Therefore, the allegation of suffering mental pain and agony on the ground of suggestion of operation of Gall Bladder by O.P. No. 1, has not been proved. In other words, the allegation on the above ground cannot be sustained.  

Now, to move to the other allegation, regarding, causing of suffering of mental pain and agony, owing to the finding of calculus of 7mm., in the report of U.S.G.  (whole abdomen), done by O.P. No. 4. In this regard, O.P. No. 4 has stated in his evidence-on-affidavit that the U.S.G. (whole abdomen) had been done and conducted in LOGIQ P5 Machine, which in itself, is a latest technology machine. (GE Company). There is nothing on record, to show, that the above U.S.G. (whole abdomen) had been done in a negligent manner. In view of the above findings, it cannot be concluded that the O.P. No. 4 was at fault for the U.S.G. (whole abdomen) report dated 06.03.2017, showing calculus of 7mm. 

However, the U.S.G. (upper abdomen) report of B.S. Diagnostic Centre, Siliguri, dated 24.04.2017 states with regard to, “Gall Bladder is well distended with normal wall thickness. No obvious intraluminal echoreflective calculus. Small echogenic focus noted in Gall Bladder wall of approx 6mm”. The report, U.S.G. (abdomen) of Asian Institute of Gastroenterology all shows the Gall Bladder “Normal in size. No calculi. Evidence of few small echogneic foci, largest measuring 5.1 mm attached to the luminal wall with no acoustic shadowing. Wall thickness is normal”.  

Therefore, on the plain reading of the findings percolating from the above two reports, it can be concluded that there was no calculus in the Gall Bladder. Now, the question, whether the report from the Lab of O.P. No. 4, was done in a negligent manner or not, so as to induce mental pain and agony in the complainant, needs to be ascertained. In this regard it was earlier observed that the U.S.G. (abdomen) test done from the Lab of the O.P. No. 4 had been done without any negligence. There is nothing on record, to show that the reports have been obtained negligently. This is further corroborated from the testimony of O.P. No. 4, that the stone of 7mm. or polyps of 6mm. is not harmful. In this regard the report dated 06.03.2017 issued from the Lab of O.P. No. 4 also does not indicate that the calculus in the Gall Bladder of 7mm., needed to be treated, immediately. Moreover, there is no evidence on record, to show that the report was issued with a mala fide intention.  Under the circumstance, there is no reason to believe that the complainant should have suffered mental pain and agony on receipt of such report.

Therefore, to sum up, the complainant’s suffering of mental pain and agony had arisen when the O.P. No. 1 had prescribed medicines on the basis of the U.S.G. (abdomen) report from the Lab of O.P. No. 4. But, from the above observation, there was no negligent action, on the part of both O.P. No. 1 as well as O.P. No. 4, to induce the complainant to suffer mental pain and agony.

The O.P’s.. No. 2 & 3 are have clearly indicated that they have had no interaction with the complainant and the complainant also has no evidence to show that the O.P’s. No. 2 & 3 were involved in the mental pain and agony suffered by him. Under the circumstance, the complainant’s case against the O.P’s. No. 1 & 2 has no legs to stand.

Hence, it can be safely concluded that the complainant had failed to prove the mental pain and agony arising from the facts as stated in the complaint. As a result the instant case is bound to fail.

It is therefore,

                                                             O R D E R E D

That the instant case be and same is dismissed on contest, but without costs.

Copy of the Judgement be delivered free of cost both the parties.