Today is fixed for passing order in respect of the petition filed by the complainant seeking expert opinion.

This matter has been contested by the op by filing W/O.

Over this issue heard both sides. Considered submission.

It is the main point of contention and argument of the complainant side that an expert who must be urologist is required to be appointed for giving expert opinion relating to the papers of medical treatment of the complainant and the said expert opinion is very important for the interest of proper and complete adjudication of this case. It is submitted that the expert report produced by CMOH is not just and proper and so there is necessity of appointment of another expert.

On the other hand ld. Advocate for the ops pointed out that this case is no more maintainable as there is no cause of action. As per submission of the ld. Advocate of the ops when there is no cause of action and as this case is not maintainable, there is no necessity of appointment of any expert in this case. It is also pointed out that the main allegation in this case has been raised against op no. 1 who is no more in this world and against him there is no cause of action. It is argued that against op no. 2 there is no allegation. For all these reasons the ops are praying before this District Commission for rejecting the above noted prayer and to proceed with the argument with the existing material and/ or evidence on record.

For the purpose of arriving at just and proper decision this District Commission after going through the materials of this case record finds that the op no. 1, Dr. Nimai Chandra Kundu expired on 13.10.2020 leaving behind his two sons namely, Dr. Kaushik Kundu and Sri Saikat Kundu. It is revealed from the case record that complainant side has filed an application for substitution but the said prayer after contested hearing was dismissed by this District Commission vide order no. 46 dt. 22.8.2022. In this regard it is important to note that the said order has not been challenged by the complainant side before the Higher Forum. So, against op no. 1, Dr. Nimai Chandra Kundu no cause of action is surviving. In this regard it is very important to note that the medical negligence is a liability of “tort” and in a “tort” of medical negligence the cause of action is personal against the person who has been negligent in discharging his duties and that cause of action does not survives against the estate or against legal heirs or legal representatives. In this regard the decision of the Hon’ble Apex Court which is reported in AIR 1997 SC page 20 is very important. So, it is crystal clear that there is no cause of action against Dr. Nimai Chandra Kundu who conducted the operation at first at op no. 2, nursing home. Moreover, on close examination of the complaint petition it is found that there is no allegation of negligence or deficiency of service against op nos. 2 and 5. As per paragraph no. 22 of the compliant petition the cause of action arose within the Arambagh P.S. Dist. Hooghly which is under the jurisdiction of this Commission. In this regard it is also important to note that when there is no cause of action against op nos. 1 and 2 and 5 this case cannot continue with the cause of action which has been pointed out at paragraph no. 22 of the petition of complaint.

Moreover, on close scrutiny of the materials of this case record it is revealed that against op no. 6 there is no allegation in the petition of complaint and so the cause of action against op no. 6 is no longer in force.

Now the question is whether there is any cause of action against op nos. 3 and 4? In this regard this District Commission on close examination of the petition of complaint finds that the complainant has not described as to when and as to how the cause of action has been arisen against the op nos. 3 and 4.

This District Commission after going through the materials of this case record finds that when this District Commission had sent the matter for expert examination by the doctors of the Imambara Sadar Hospital where there is no urologist, the complainant had not raised any objection. In other word it can be said that the complainant side is also relying upon the expert examination by the doctors of Imambara Sadar Hospital, Chinsurah, Hooghly. Now when the report submitted by CMOH, Hooghly is going against the complainant, she has come forward with another application although this is a case of the year 2015. In view of this position this District Commission finds that the second application filed by the complainant side for expert opinion is not maintainable and so it is liable to be rejected.

A cumulative consideration of the above noted discussion goes to show that the second application which is filed by the complainant for expert opinion is not maintainable and as no cause of action of this case is surviving, this District commission is of the view that there is no further necessity of dragging this case and so this complaint case is also liable to be dismissed.

In the result, it is accordingly,

ordered

that the petition which is filed by the complainant for further expert examination is rejected on contest.

As there is no further cause of action of this complaint case, this case is also dismissed on contest.

No order is passed as to costs.