No. 46/04.09.2009.

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

Complainant through Mr. Chandra Sekhar Mukherjee, the Ld. Advocate and O.P. Nos. 1 & 2 through Mr. N. R. Mukherjee, the Ld. Advocate are present.  MA application being No. 21/09 was decided on 28.05.2009 by this Commission.  Next date was fixed on 18.06.2009 for filing BNA by the parties.  On 18.06.2009 Mr. Chandra Sekhar Mukherjee, the Ld. Advocate for the Complainant was present and Mrs. Koyeli Mukhopadhyay, the Ld. Advocate for the O.P. Nos. 1 & 2 was also present.  None of the parties filed BNA.  We fixed 06.07.2009 for hearing of the complaint.  On that day i.e. 06.07.2009 on behalf of the Complainant Mr. Chandra Sekhar Mukherjee, stated that his client is proceeding to prefer a challenge to the order passed by this Commission on 28.05.2009.  Though the matter is old one but in the interest of justice we granted time and fixed 06.08.2009 for hearing of the complaint.  On 06.08.2009 Mr. Chandra Sekhar Mukherjee, the Ld. Advocate for the Complainant informed this Commission that ultimately he could contact his client but unable to move the Hon’ble National Commission and further prayer was made stating that the Complainant has contacted Mr. Chandra Sekhar Mukherjee a week back and requested for some time to enable the Complainant to move the Hon’ble National Commission.  On the prayer of Mr. Chandra Sekhar Mukherjee we fixed 04.09.2009 for hearing peremptorily the complaint case expressing clearly that the matter is old one and on the next date matter will be heard finally.  Today again Mr. Chandra Sekhar Mukherjee, the Ld. Advocate for the Complainant stated that he contacted his client over telephone on 03.09.2009 and Mr. Mukherjee stated that this time he contacted Complainant No. 1 who is the wife of the Complainant No. 2 and, therefore, further time should be granted.  We are unable to differentiate between husband and wife as both are parties and admittedly the parties being the Complainants were contacted long before as was elaborated in earlier order.  Therefore, we do not feel further contact over telephone makes out a ground for further adjournment when we find that already a period of three months has passed and the complaint case filed in 2001 is overdue for disposal.  Accordingly the prayer for adjournment is rejected.   Mr. Chandra Sekhar Mukherjee appearing for the Complainants states that he is unable to advance any argument on the merit on complaint itself as he feels that his client is deprived of the opportunity for moving Hon’ble National Commission challenging order dated 28.05.2009.  Mr. Chandra Sekhar Mukherjee further states he having no further instruction to move the complaint petition order may be passed as may be deemed proper by the Commission.

This complaint was filed alleging medical negligence.  By order dated 04.06.2009 a Bench of this Commission dismissed the complaint considering the facts involved in the proceeding and the law referred to by the contesting parties.  The relevant findings of the said judgement are as follows :

“The main allegation of the Complainants is that the patient was admitted for left side tubular rupture but from the discharge certificate it is clear that laser bi-lateral drilling was not done on the left tube but on the right tube (this will be proved from the x-ray report dated 24-11-2000) even though right tube was well visualized and healthy and such wrong drilling weakened the right tube and blockage at corneal end was only in the left tube for which operation was sought to be done but not done at all.  It is alleged that the Complainants can no longer have their natural offspring due to the gross deliberate negligence and deficiency in service on the part of the O.P. No. 1 – Doctor.

But these allegations appear to have not been established.  The case of the O.P. No. 1 is that the Complainant’s allegations that the O.P. did not have any operation is totally false.  Operation was held and th entire operation process was video recorded and a cassette was handed over to the patient party and they were informed that such operation had only 30% chance of success moreover there will be a 5% chance of pregnancy in the tube (fallopian) ectopic.  The Complainants have not filed any affidavit in opposition against such positive and vitally important allegations of the O.P. nor they have adduced any evidence to refute or counter such serious allegations of the O.P.

The complaint of medical negligence has been lodged by a non-medical person making wild allegation against the O.P. – Doctor and the Hospital.  There is no expert’s opinion or evidence on the part of the Complainants.  There is no documentary evidence to establish negligence on the part of the O.P. – Doctor.  Presently the Hon’ble Supreme Court in the matter of Jacob Mathew (Dr.) had set out the matrix of medical negligence case reported in (III) (2005) C.P.J. page 9 S.C.  The Hon’ble Supreme Court held inter-alia as follows :-

“……. Negligence in the context of medical profession necessarily calls for treatment with difference, difference between occupational negligence and professional negligence, standard to be applied to hold professional negligent, simple lack of care, error of judgement or accident is not proof of negligence on the part of medical professional, failure of use special or extra ordinary precautions which might have prevented a particular happening cannot be standard for judging alleged negligence ………”

The entire operation was recorded in video cassette and was given to the husband of the Complainant No. 1, but the cassettes have not been produced  before the Commission as documentary evidence, though the video cassettes would have been of major documentary evidence.  The Complainant suffered with ectopic pregnancy and the tube ruptured.  Such pregnancy was a known complication suffered by the congenital defect of the patient and hand nothing to do with the doctor.  Such rupture of the right tube has got nothing to do with the operation performed one year back on the left tube.

The complaint is absolutely frivolous moreover the Complainant has made deliberate suppression of material facts by not producing the x-ray plate and video recording and the fact that they were fully informed regarding the chances of ectopic pregnancy vide operation note to mislead the Hon’ble Commission.

No satisfactory reply to the above contentions is forthcoming from the side of the Complainants.  Moreover, the O.P. No. 1 has filed an affidavit giving full facts but the facts have not been subjected to cross-examination so that they remain unchallenged.

In view of the reasons drawn above, it is ordered that the complaint being devoid of any merit be dismissed on contest without cost”.

The Complainants challenged the said judgement before the Hon’ble National Commission by preferring First Appeal No. 451 of 2007 which was finally decided by order dated 17.10.2008.

From perusal of the said judbement it appears that the findings of the State Commission were not held to be wrong and no finding to that effect is available from the said judgement of the Hon’ble National Commission.  It appears that the Complainants did not filed the x-ray plate and video recording of the surgery before the State Commission but filed the same before the Hon’ble National Commission.  The sole consideration appears from the said judgement is as follows :

“It is pointed out by Mr. Mukherjee that despite respondent No. 1 seeking production of X-ray Plates and the Video recording though not filed before the State Commission by the appellant, it may be noticed that by the order dated 24.10.2007 X-ray Plates and Video recording in question have been allowed to be filed being material by the appellant and those have been kept in sealed cover.  In view of this order, X-ray plates and the Video recording need be connected in evidence by the appellant.  Respondents are also entitled to lead evidence in rebuttal thereto.  This would entail the remanding of the case to the State Commission for complaint being decided afresh on merit.

Accordingly, while allowing appeal aforesaid order dated 04.06.2007 is set aside and case remanded to the State Commission for complaint being decided afresh in the light of the observation made in the preceding para.  Both parties will appear before the State Commission 25.11.2008.

X-ray Plates and Video recording will be returned by the Registry to the appellant through counsel for being produced before the State Commission”.

After the matter came up before this Bench the direction of the Hon’ble National Commission was to be followed and the relevant direction is the X-ray plate and video recording were to be connected in evidence by the Appellant and the Respondents were held to be entitled to lead evidence in rebuttal thereto.  It was held that this caused the remand of the matter to the State Commission for deciding the complaint afresh on merit.  Accordingly the Hon’ble National Commission set aside the judgement appealed against dated 04.06.2007 and the case was remanded to the State Commission for deciding the complaint afresh in the light of the observation made in the body of the order.  Both parties were directed to appear before the State Commission on 25.11.2008.

First day after remand before this Commission the Complainants asked for time and was granted the same for taking instruction for filing document in terms of order of the Hon’ble National Commission.  On the next day on 15.12.2008 a date of hearing was fixed.  On such date of hearing of 16.01.2009 it was found by this Commission that the order dated 17.10.2008 referred to in order dated 24.10.2007 which was not available.  As the Ld. Advocate for both parties could not produce the same some time was passed.

The Complainants filed an application being No. MA 21 of 2009 with the following prayers :

“In the view of the afore-indicated facts and circumstances as well as state of affairs, it is humbly prayed that this Hon’ble State Commission may graciously be pleased to send and/or forward the Very X-Ray Plates and the Video-recording (both kept in sealed Covers) along with a copy of this application and the copies as filed hereto vide Firisti/List of documents for an Experts’ opinion and/or Report to any recognized Medical Expert or any Medical Institution of National repute, outside/beyond the geographical ambit of the State of West Bengal, preferably from the ALL INDIA INSTITUTE OF MEDICAL SCIENCES (AIIMS) lying and situated at SAFDERJUNG Ansari Nagar, New Delhi, Pin – 110029, in the light of apprehension of your petitioners as highlighted in the foregoing para 9, and further be pleased to pass such other necessary order or orders as your Lordship may deem fit and proper.  And for this act of kindness, your petitioners, as in duty bound, shall ever pray”.

When the application was taken up for hearing on 28.05.2009 the background relevant facts and particularly the direction of the Hon’ble National Commission, were taken into consideration.  On perusal of the said order of the Hon’ble National Commission the State Commission expressed its opinion that the Hon’ble National Commission directed the X-ray plate and video recording are to be connected in evidence by the Appellant and accordingly the Ld. Advocate for the Complainants was asked as to whether the Complainants proposed to comply with the said direction of the Hon’ble National Commission and to connect the same X-ray place and video recording in evidence in the present proceeding.  The Ld. Advocate expressed that he has made a prayer in the application for appointment of an expert to give their views and, therefore, the Appellants are not required to take any other steps at that stage for connecting the said two materials in evidence in the present proceeding.  The Ld. Advocate for the Complainant further stated that only after expert opinion comes, he would take steps for connecting the said materials in evidence as desired by the Hon’ble National Commission.  In that circumstances the Bench expressed its inability to consider even on merit the said prayer for appointment of expert for obtaining opinion on the X-ray place and video recording particularly when the Hon’ble National Commission had given a specific direction for connecting the X-ray plate and video recording in evidence by the Complainants.  In the circumstances the application was dismissed at that stage.  As none of the parties express any intention to adduce any evidence further the date was fixed for filing Brief Notes of Argument (BNA) by the parties. 

As stated hereinabove today when the matter was taken up for hearing Mr. Chandra Sekhar Mukherjee, the Ld. Advocate for the Complainants stated that he had a talk with the Complainant No. 1 over telephone only on 03.09.2009 and, therefore, some more time should be granted to enable his clients to challenge the order dated 28.05.2009 before the Hon’ble National Commission. 

As we found that already three months’ time has passed after the date 28.05.2009 was passed, and the order dated 06.07.2009 took notice of the fact that the Complainants already intended to prefer a challenge before the Hon’ble National Commission, no further time should be granted to expedite the matter.

At this stage Mr. Chandra Sekhar Mukherjee, the Ld. Advocate for the Complainants stated that as the request of the Complainants had not be accepted by this Commission, unless the matter is moved before the Hon’ble National Commission and further directions were obtained no further argument can be advanced and Mr. Mukherjee as no such instruction to move the complaint on merit.

Mr. N. R. Mukherjee, the Ld. Advocate for the O.Ps contended that in the circumstances applying Section 13(2) of the Consumer Protection Act the matter should be decided on merit either applying sub-clause (i) or sub-clause (ii) Clause (b) of Section 13(2).

On perusal of the said provisions it appears to us that the Section 13(2) (c) cannot be applied because the present one is not a case where the Complainants fail to appear on the date of hearing and the Ld. Advocate for the Complainants is present but advanced the contention of the Complainants as the Complainants were advised.  Therefore, applying Section 13(2) (b) of the Act we decide to dispose of the matter on merit.

From perusal of the record it appears to us that the Commission at the earlier stage by its order dated 04.06.2007 decided the matter on merit and the Hon’ble National Commission has not recorded any finding upsetting any of the finding of this Commission.  The order of the Hon’ble National Commission made it clear that remand upon setting aside the impugned order was made only to grant opportunity to the Complainants to connect the X-ray plate and video recording in evidence.  The same having not been done by the Complainants as recorded in order dated 28.05.2009, we do not find any new material is required to be considered.  Therefore, for the reasons recorded in the order dated 04.06.2007as quoted hereinabove we feel that the complaint cannot succeed.  We have been persuaded by the reasons recorded in the judgement dated 04.06.2007 on the basis of the materials available from record as also from the fact that the Hon’ble National Commission did not record any finding as regards any of the observation in the said judgment holding the same to be wrong in any manner.

In above view of the findings the complaint fails and is hereby dismissed.