IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC /220/2006 .
Date of Filing: 17.11.2006. Date of Final Order: 29.06.2015.
Complainant: Ismail Mondal, S/O Late Hazi Kasar Mondal, Vill. Bablabone, P.O. P.T. Rasulpur,
P.S. Domkal, Dist. Murshidabad.
-Vs-
Opposite Party: 1. Dr. Nurabul Islam, S/O Late Sapatulla Mondal, Prop. Niew Belview
Nursing Home, Domlal Hospital More, P.O. P.T. Rasulpur,P.S. Domkal,
Dist. Murshidabad.
2. Dr. T.K. Ghosh, New Subarna Nursing Home, 49, Babulbona Road,
P.O. & P.S. Berhampore, Dist. Murshidabad.
Present: Sri Anupam Bhattacharyya ………………….President.
Sri Samaresh Kumar Mitra ……………………..Member.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C.P. Act, 1986 for a direction upon the OP No.1 to pay a compensation of Rs.2, 00,000/- in favour of the complainant for suffering physical and mental pain, agony and any other relief or reliefs as the Forum deems fit and proper.
The complainant’s case, in brief, is that the complainant came to the chamber of OP No.1 with abdominal pain, acidity and vomiting tendency who observing pathological report as per his advice informed the complainant that he had been suffering from harnea and to be operated and at that complainant expressed to undergo operation by specialist surgeon of Kolkata. Then OPNo.1 tried to convince the complaint that Dr. K.S. Ahmed is celebrate surgeon of this district will operate in his chamber. Thereafter, when the complaint visited Op no.1 in his chamber he informed that Dr. K.S. Ahmed will not be available on that date and for that OPno.2 will operate him. Thereafter when complaint consulted with OPNo.2, he assured that they will operate. Accordingly, the complaint was admitted in the Nursing Home of OP No.1 on 30.08.2005 and when he was taken to operation theatre he found that Op no.2 was absent there and then he expressed his unwillingness to undergo operation but he was operated by Op No.1 by force and the operation was not successful. Now, he cannot walk and seat properly and cannot perform his daily duties. For the negligent and careless operation by OP no.1 the complaint has become physically handicapped and for that the complaint has filed this complaint praying for compensation of Rs.2, 00,000/- and cost. Hence, the instant complaint.
The written version filed by OP No.1, in brief, is that the OP No.1 has denied the entire allegation of the complainant against him. The OP No.1 being a Homeopathy Practitioner he had never any intention or never operated upon the complainant. On enquiry he came to know that Dr. T.K. Ghosh along with Dr. P.N. Saha, anesthetist operated the complainant. The entire allegation of the complainant is baseless and for that the complaint is liable to be dismissed. Hence, the instant written version.
The written version filed by OP No.2, in brief, is that the complainant with abdominal pain came to the Opposite Party No.1’s Nursing Home. The Opposite Party No.2 examined the patient and detected that he is suffering from Harnea and advised him operation. Accordingly, a date was fixed for operation All pathological tests were done. A;; precautions were taken. The complainant and his relatives expressed their intentions to do the operation by Opposite Party No.2 who with great care did the operation. There were no post operative complications. So, he was released from the Nursing Home. The operation was successful and OP No.1 being Homeopathy practitioner did not operate the complainant. The OP No.2 had no laches in that operation. OP No.2 had no deficiency in service and for that the complaint is liable to be rejected. Hence, the instant written version.
Considering the pleadings of both parties the following points have been framed for the convenience of discussion.
Points for decision.
- Whether complaint is maintainable in law and facts?
- Whether there is any cause of action to file the present complaint?
- Whether this complaint is barred by law of limitation?
- Whether the complaint is barred by waiver, estoppels and acquiescence?
- Whether the complainant is entitled to get any relief as prayed for?
- To what other relief/reliefs the complainant is entitled to?
Decision with reasons.
Point Nos. 1 to 4.
All these points are taken up together for the sake of convenience.
During hearing argument Ld. Lawyer for the OP has not raised any objection against these points.
Considering the material on record we do not find anything adverse against the complainant on those points and as such we find that all these points are disposed of in favour of the complainant.
Point Nos. 5 & 6
Both these points are taken up together for the same of convenience.
The instant complaint is for compensation of Rs. 2, 00,000/- for medical negligence.
The complainant’s case is that complainant came the chamber of OP No.1 with abdominal pain and after consulting pathological reports advised for Harnea operation and firstly offered for operation by celebrated surgeon D.K.S. Ahmed and he being not available assured that the OP No.2 will operate but in the operation theatre OP No.2 was not present and by force OP No.1 operated the complainant and operation was not successful and he cannot perform his daily duties and cannot sit properly and has became permanently disabled and the same has been caused for the negligent act of OP No.1 and denied compensation from OP No.1.
On the other hand, both OP Nos. 1 & 2 have denied the entire allegation of the complainant categorically. Both the Ops have stated in their respective separate written versions that OP No.2 operated with the help of anesthetist Dr. P.N. Saha successfully and there was no negligence on the part of OP No.2.
The OP No.1 has also stated categorically in his written version that he is a Homeopathy practitioner and question of operation by him does not arise and he has no connection with the alleged nursing home.
From the material on record it appears that his case was filed on 17.11.06 and the complainant filed evidence –in-chief by affidavit on 28.09.2007 and the case was fixed for cross-examination of PW-1 and ultimately on 16.12.09 the case was dismissed for default and the same was vacated and the case was restored to its original file and number on 31.5.11 on contest on the basis of restoration petition filed on 18.12.10 under OR-9 R- read with Sec. 151, CPC and the same was not challenged and as such the said order is in force.
In this case thereafter, the complainant has filed evidence in chief by affidavit on 7.09.11 along with 22(twenty two) documents by firisti.
PW-1 , the complainant has not been cross-examined by the OP.
On 21.1.14 this Forum passed an order dropping the recording of final order at that stage seeking expert opinion on the point whether the management, diagnosis and operation of the complainant and application of medicines by the OP No.2 were just and proper.
Accordingly, expert opinion as directed was received by this Forum on 228.10.14 and the concerned report of the Board of Doctors was given on 18.9.14 to the effect that on detailed scrutiny and examination of all reports and documents they found no negligence on the part of the doctor.
This report has not been challenged by the complainant.
The settled principle is that expert opinion is not a substantive piece of evidence and the same is a corroborative piece of evidence.
In this case the complaint has adduced evidence on affidavit along with several medical papers.
The complainant’s case is that the operation was unsuccessful and he cannot sit properly and has become permanently disabled.
The complainant has not adduced any cogent evidence as to the damages suffered for the alleged negligence.
Even, he has not filed any medical paper showing his permanent disablement which is his main case as to damages for the alleged negligence.
Regarding negligence of doctors in operation,
the dispute is who operated the complainant.
According to the complainant though there was programme for operation by OP No.2 but he was absent in the Operation Theatre and operation was held by force by OP No.1.
According to both the OP Nos. 1 & 2 the operation was held by OP No.2.
The complainant has filed several medical papers.
At the time of recording final order this Forum on the basis of material on record decided with detailed order dt. 21.1.14 for call for expert opinion wherein it was decided by this Forum that the operation of the complainant was held by Op No.2. This order has not been challenged by the complainant.
Expert opinion of the Medical Board was sought for on the point whether management, diagnosis and operation of the complainant and application of medicine by the OP No.2 were just and proper.
The report of the medical board dt. 18.09.14 was of no negligence on the part of Ops.
And this report has not been challenged by the ld. recorded lawyer for the complainant.
Sufficient opportunities have already been given to the complainant but he has not turned up for hearing argument and considering the period of pendency of this case as well as sufficient opportunities being already been given this Forum has no other alternative but to decide this complaint on merit.
The order of this Forum dt. 21.01.14 at the time of writing final order with detailed observation being not challenged this Forum cannot ignore the same at the time of disposal of this complaint in this final order.
Considering the evidence as to several medical papers filed by the complainant and also considering the case of respective sides as discussed above, it is clear that operation was held by OP No2 and also, considering the expert opinion along with the medical papers, we can safely conclude that the complainant has failed to prove negligence in the operation held upon him and also failed to prove that he has become permanently disabled for that operation.
On the basis of above discussions, we find that all these points are disposed of against the complainant and as such the complaint be dismissed.
Considering the decisions of all the points we can safely conclude that the complaint is liable to be dismissed.
Hence,
Ordered
that the Consumer Complaint No. 220/2006 be and the same is hereby dismissed on contest.
There will be no order as to cost.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
Member Member President
District Consumer Disputes District Consumer Disputes District Consumer Disputes
Redressal Forum. Redressal Forum. Redressal Forum.
Murshidabad. Murshidabad. Murshidabad.
