HON’BLE MR. KAMAL DE, PRESIDING MEMBER

Order No. : 07

Date : 18.12.2019

Challenge in the instant Appeal is against the impugned judgement dated 29.01.2016 passed by the Ld. DCDRF, Burdwan in DF 292 of 2013.

In preferring the instant Appeal U/Sec. 15 of Consumer Protection Act, 1986, it is alleged by the appellant that the Ld. District Forum has erred in law as well as in fact in passing the impugned judgement.

It is also alleged that the Ld. District Forum while deciding the instant complaint case has failed to take into consideration, the fact that the Consumer Protection Act, 1986 is beneficial legislation and every case ought to have been decided in the light of the intention of the legislation.

It is stated that the Ld. District Forum has failed to appreciate that the OP has treated the appellant in violation of prescribed procedural and norms of Medical Council of India and has committed material irregulates in passing the impugned judgement.

It is also ventilated that the Ld. District Forum has not considered that OP has treated the complainant as a patient of tuberculosis in spite of the fact that he was not diagnosed with such disease by any medical examination prescribed in this regard by the Medical Council of India.

It is also alleged that OP – respondent has treated the appellant in contravention of prescribed rules and norms of the Medical Council of India and there was deficiency in service to the appellant by the OP.

It is also alleged that Ld. District Forum ought to have appreciated that the OP neither prescribed any medical prescription which could detect the actual disease of the complainant and ever after observing the symptoms of the complainant did not refer the complainant to any specialist/expert doctor.

It is also alleged that Ld. District Forum has failed to appreciate that non-mentioning of the registration number in the prescription by the OP – respondent is clear violation of medical ethics and norms as prescribed by the Medical Council of India.

It is also alleged that the Ld. District Forum has failed to treat that printing of the photograph by the prescription of the Doctors for the self-advertisement is prohibited under the existing rules of Medical Council of India.

It is also alleged that the Ld. District Forum while pronouncing the impugned judgement has failed to appreciate that the respondent diagnosed the ailments of the complainant. The appellant – complainant has prayed for setting aside the impugned judgement passed by the Ld. Forum below in complaint case No. 292 of 2013.

Let us take a cursory glance to the case of the complaint petition and written version.

The case of the complainant as illustrated in the petition of complaint is that the complainant is a resident of a remote place away from Asansol Sub-Division town.

In the year 2005, the complainant consulted the OP with the complain of diabetes, hypertension, xanthelasma symptoms and was under the treatment of OP continuously year after year. The complainant, thereafter, consulted the OP on 11.08.2009 with the complain of cold, cough and occasional fever and after clinical examinations by the OP some medicines were advised including repeat chest (PA) X-Ray and to review after 10 days. Complainant consulted the OP on 27.08.2009. 09.09.2009 and 07.12.2009 for review examination of the aforesaid problems. OP advised medicines for 7 categories with same dietary restriction. Complainant followed up advice of the OP and took medicines and followed regular check up and so on.

It is also stated that the complainant is a confirmed diabetic and OP did not pay any heed over the issue and treated the complainant negligently and indifferently without prescribing any medicine for controlling the blood sugar which subsequently became alarmingly high causing damage of cardiac and respiratory system which was detected afterword at Apollo Hospital at Kolkata. Complainant consulted the OP on 05.04.2013 with some complain of cough, cold, occasional fever and the complainant was advised some medicines with newly added inhaler i.e. budamate 200, Rothalation twice daily, don’t stop, antihate, Rothalation once daily don’t stop and also advise the review after two weeks.

It is alleged that OP advised those medicines without any specific diagnosis or pathological radiological, sonological tests but simply on piece of white paper advised for A.F.B. test for sputum. The complainant meticulously took all the aforesaid medicines with full course as per advise by the OP and also underwent sputum for A.F.B. tests from Clinilab Durgapur, dated 12.04.2013 and the report shows no A.F.B. detected on microscopical examination but no other pathological like T.C.D.C. E.S.R. Elisa Test and/or Bronchoscopy, Lungosespy, chest X-Ray was advised for specific and proper diagnosis.

It is also alleged that as no improvement or relief was developed and the problems remained as before with the persistent of pain, the complainant again met the OP on 19.04.2013 and AFB report was shown to the OP who very cleverly without noting down the history in the prescription simply noted 126/80 and nothing else but surprisingly prescribed 5 medicines which were related to Bronco asthama and ‘Tuberculosis’ without detecting the proper ailment. The complainant took all the medicines and consulted the OP again on 26.04.2013 and explained his unbearable restlessness but OP simply noted ‘Rep’. In his prescription and given advised 7 medicines along with advice for review after 7 days and repeat X-Ray chest (PA). Complainant took all medicines and the X-Ray Chest (PA) was done on 01.05.2013 at Scan X Medical Centre, Durgapur and the report revealed - “Evidence of cyst involving in left pericardial region”. The complainant again consulted the OP on 03.05.2013 but the OP advised a series of medicines for one month and advised for review after 30 days although the complainant requested OP earnestly for referral to any higher centre for proper management and treatment but OP remained indifferent and unresponded. The complainant, thereafter, started using the prescribed drugs for about 12 days but the trouble of the complainant considerably aggravated beyond tolerance and the complainant rushed to Apollo Gleneagless Hospital, Kolkata and consulted Dr. Ashoke Sen Gupta, consultant Respiratory Medicine on 16.05.2013 and 17.05.2013 who after clinical evaluation advised admission for a period of about 2 weeks. Complainant remained at the hospital from 18.05.2013 to 01.06.2013 and was discharged on 02.06.2013.

During the period of hospitalization, a series of pathological, radiological, sonological, biochemical, C.T. Scan, and other tests were done and final diagnosis was arrived as follows :

Final Diagnosis :

*Left Lower Lobe multiple Lung Abscess

* Poorly controlled Diabetes Multites Type 2 (HBAIC – 8.8%)

Complainant incurred expenses to the tune of Rs. 1,69,000/-. Dr. Ashoke Sen Gupta also advised surgical repair which would be amounting to cost of Rs. 3,00,000/- approximately. The complainant thereafter moved to Post Graduate Institute and Medical Education and Research, Chandigarh and admitted himself on 13.06.2013 with chronic complaint of fever with cough for last fifteen years without proper treatment and diagnosis. On 04.07.2013 operation was done. The complainant was finally discharge on 19.07.2013.

It is alleged that the complainant remained confined at hospital owing to the negligence of the OP. The OP failed to diagnose the disease and performed duties negligently. Had the OP diagnosed the ailment initially the complainant would not have to undergo costly surgery, enormous fair, anxiety and trauma. Complainant has alleged negligence and deficiency in service on the part of the OP.

OP contested the case in filing written version contending inter-alia that the complainant has no cause of action to file the complaint and the case is not maintainable in its present form and character.

OP has denied deficiency in service. OP submits that in 2005 for the first time Sri S.N. Prasad, the complainant came before the OP the complainant presented with Xanthelasma which means deposition of cholesterol around the eyes. This condition is also associated with increase of blood of other fats and Sugar. Diabetes is often associated with infections in the chest, which gives rise to cough, fever, breathlessness etc. So regular treatment is mandatory. But the complainant was very irregular in attendance. After 2005, the complainant visited OP on 18.10.2006, he was advised to come after 2 weeks but he came on 22.11.2006 (after 34 days from the due date). On 22.11.2006, he was advised to come after one month but he visited the OP on 11.0.2007 (after 20 days from due date). On 11.01.2007 he was advised to come after three months. But the complainant visited OP on 17.05.2017 (after 36 days from due date). Thereafter, the complainant came on 28.05.2007 and he was advised to come after 15 days but he came on 04.07.2007 (after 21 days from due date). On 04.07.2007 he was advised to come after two months but he came on 14.01.2008 (after 5 months from due date). The complainant again visited the OP on 27.08.2009, he was advised to come after 8 days. But he came on 09.09.2009 (after 5 days from due date). The complainant again visited the OP on 21.09.2009 and he was advised to come after 4 weeks but he came on 07.12.2009 (after 2 months 15 days from due date).

It is alleged that the complainant – patient disappeared and came after more than 3 three years later in the year 2013.The complainant was very irregular in following the advice. The complainant was advised to do repeated X-Ray Chest (PA) on 26.04.2013 but the same was never done. On 07.12.2009, the complainant was advised to get blood sugar estimation every month but the complainant did not comply with the advice and did not bother to show the reports to the OP. OP also advised the complainant not to stop medicine for Diabetes. But on 14.01.2006, the complainant reported this OP that he has stopped the antidiabetic drugs after 15 days.

It is stated that the complainant after a gap of 4 years came on 11.08.2009 complaining that he had had been having cough from March 2009. An immediate X-Ray was done. The X-Ray revealed that bronchitis which is very common in the polluted coal belt and he was given anti-biotic and was advised to come after 10 days with repeat X-Ray Chest, but repeat X-Ray was not done. He was advised anti-biotic and was advised to come after 8 days when he visited the OP on 27.08.2009 i.e. after 12 days on 09.09.2009 he came with catch in with breath with cough. He was prescribed antibiotic and was advised to come after 2 weeks. This time also he did not present any X-Ray report. On 21.09.2009 he came with mild cough and came after 1 month. But the patient came after 4 years on 05.04.2013 with cough. Immediate X-Ray Chest was done which revealed bronchitis. On 19.04.2013 he came with cough, fever etc. An immediate X-Ray was done which showed a small infected zone in lower part of left lung. CT Scan was not done because the rule is that in case of infective patch after a course of 2 weeks repeat X-Ray should be done. So Antibiotics were given and this time the Antibiotic did not work and the patient did not come and sent some representative on 26.04.2013 who stated that he had cough and shortness of breath. OP advised him an immediate X-Ray Chest and prescribed symptomatic medicines and advised to come after 7 days. On 03.05.2013 he came with shortness of breath and did not till then do the repeated x-ray chest. After that the complainant – patient disappeared and did not turn up any more. After receiving the summons OP came to learn about the subsequent treatment.

It is stated by the OP that there is no iota of evidence of negligence on the part of the OP and the complainant has filed the case with malafide intention to harass the OP and the allegation of deficiency in service against the OP is speculative one and without basis. The OP states that he is a qualified and experienced physician and there is no deficiency and negligence on the part of the OP in treating the complainant and the OP followed medically accepted procedures and the treatment was done in accordance with the procedure prescribed by medical science.

It is stated that the complainant on the other hand did not follow the advice of the OP. This OP submits that the complainant is not entitled to get any relief as prayed for and the case is liable to be dismissed in limini.

Ld. Forum below upon contested hearing was pleased to dismiss the complaint case without any cost.

Being aggrieved by and dissatisfied with the impugned judgement/order the appellant has preferred the instant Appeal.

Point for decision

Whether the Ld. Forum below committed any illegality, impropriety or irregularity in passing the impugned judgement?

To put it otherwise -  Whether Ld. Forum below has committed any error either in fact or in law in delivering the impugned judgement?

Medical negligence is defined as lack of reasonable care and skill or wilful negligence on the part of a doctor in respect to acceptance of a patient, history taking, examination, diagnosis, investigation, treatment – medical or surgical etc. resulting any injury or damage to the patient.

The terms ‘damage’ means physical, mental or financial injuries to the patient. The law requires that the practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. The law does not except the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case.

In general, a professional man owes to his client a duty in tort as well as in contract in advice or performing service.

Medical practitioners do not enjoy any immunity and they can be sued in contract or in tort on the ground that they have failed to exercise a reasonable skill and care of the patient. 

The test as embodied in the Bolam’s Case is the standard of ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises ordinary skill of an ordinary competent person exercising that particular skill.

We have gone through the documents on record viz. so the prescriptions on different dates reports of lab tests, medical papers of Apollo Gleneagles Hospital, Nehru Hospital, Chandigarh and other documents on record.

It appears that the complainant approached the OP in the year 2005 with problem of xanthelasma. In 2006 we find from the prescription of OP that the patient suffered from DM/xanthelasma. Xanthelasma as we know is a sharply demarcated yellowish deposit of cholesterol underneath the skin.  It usually occurs on and around the eyelid (Xanthelasma palpebrarum, abbreviated XP). One is likely to get these growths if one has High LDL (Bad) cholesterol and low HDL (‘Good’) Cholesterol.

It appears from the prescription of the OP that the complainant visited the OP during the period from 2005 to 2009.

It is true the complainant skipped the days and he was not so much regular in visiting the chamber of the OP from 2005-2009. But it is at the same time true that no major problem cropped up during the said period. The complainant also did not go there for any major complication. The complainant, thereafter, visited the Doctor in the year 2013. It appears from the prescription of the OP that the complainant visited the OP for consultation on 26.04.2013 with complaint of cough cold and occasional fever and the OP advised some medicines including inhaler that is budamate 200, rota halation (twice daily) and also advised ‘not to stop’ medicine. We find from the prescription that the complainant underwent sputum for AFB test as advised by the OP on 12.04.2013. The sputum for AFB test shows that no AFB detected on microscopical Examination. Thereafter, the complainant visited the OP on 19.04.2019 and he was prescribed combmnex 800 Lupix - ½ X 2 for 30 days.

It is alleged by the complainant that the complainant met the OP on 19.04.2013 with the report of AFB test but the doctor did not take any notice of AFB test and prescribed 5 medicines including combumex 800 which is related to tuberculous without diagnosing the probable disease/ailment. It is, however, alleged by the OP that the complainant did not show him any report of AFB test. But the question remains why the patient would not show the report of sputum of AFB test when he visited doctor on 19.04.2013? From the different medical literates we find that combumex 800 tablet is a combination of two medicines. It is prescribed to treat tuberculous. It fights against the bacteria to kill microorganism, it may be used in the treatment of active tuberculous, a type of lung infection caused from Mycobacterium tuberculous. It is, therefore, used for treatment and prevention of tuberculous. Doctor may perform a physical examination and do a chest X-Ray, C.T. Scan, broscoscopy to locate tuberculous. Two types of tests are used for diagnosing T.B. (1) T.B. Skin Test (2) T.B. blood test. Tuberculous is a bacterial faction that usually affects the lungs. It is caused by bacteria called Mycobacterium tuberculous when it affects the lungs the Symptoms of pulmonary (lung) include (1) constant cough for lasting 3 weeks or from (2) shortness of breath (3) blood in the cough (4) weakers or fatigue (5) loss of appetite (6) Fever (7) Chest pain, red rashes on the legs.

We are afraid, OP prescribed the medicine – ‘comumex 800’ without diagnosing the probable disease or ailment.

It is crystal clear that the complainant/patient was treated by the OP as a TB patient without any test or clinical investigation. OP not being a TB specialist advised tablet combumex 800 lupin. OP doctor advised the Anti Tuberculous drug without any confirmation test and even ignoring sputum A.F.B. test report dated 12.04.2013. In the A.F.B. test there was no detection of AFB on microscopical examination. We also find that X-Ray of Chest (PA) dated 01.05.2013 reveals - ‘Evidence of a cyst involving left para cardiac region’.

Complainant visited OP – Doctor on 03.05.2013 that is after X-Ray of chest (PA) but we are afraid OP in his prescription dated 03.05.2013 prescribed more or less the same medicine – Budamate 200, Rotahalation, Rotahaliation and advised for coming after 30 days also advised fasting plazma glucose estimation after 4 weeks. It is strange that even after detection of evidence of a cyst involving in left pericardiac region, OP doctor continued the same treatment and did not refer the patient to any higher centre for the management of cyst.

It is stated by OP doctor during the reply to the questionnaire that on 01.05.20013 no X-Ray plate was shown to him but such version, we think cannot be acceptable because the patient was suffering and he performed X-Ray of Chest (PA) and the report was with him and there is no reason or probability why he would not show the report doctor while he visited him on 03.05.2013. Such version of the OP doctor is not within the scope of reasonable probability. X-Ray chest (PA) was done on 01.05.2013 at scan X medical centre, Durgapur which shows ‘Evidence of cyst involving in left paracardiac region’ and complainant consulted the OP on 03.05.2013, on that occasion OP also advised for a serious of medicines for one month and advised for visit after 30 days and also advised for fasting plasma glucose estimation after 4 weeks. It is alleged by the complainant that although the complainant requested the OP to know about the exact diagnosis, and for treatment and management and despite request for referral for higher centre for proper management and treatment, OP remained indifferent and unresponded. Complications evidently developed and the complainant rushed to Apollo Gleneagles Hospital, Kolkata and consulted Dr. Ashoke Sen Gupta, consultant respiratory medicine on 16.05.2013, 17.05.2013, complainant also got himself admitted at Apollo Gleneagles Hospital at Kolkata on 18.05.2013 for proper diagnosis, better treatment and further management as per medical advise. Final diagnosis by the Apollo Hospital was as follows :

‘Left Lower Lobe multiple lung abscess’ and  ‘poorly controlled diabetes mellitus type – 2 (HBAIC - 8.8)’.

The complainant was treated therefrom 18.05.2013 to 01.06.2013 and was discharged on 02.06.2013. Consultant Dr. Ashoke Sen Gupta also advised for surgical repair. Accordingly the complainant moved to PGI ME & R, Chandigarh and admitted himself there on 13.06.201.

Doctor there also diagnosed there as :

‘Left Lower Lobe requestration with bronchiecTAtic changes with uncontrolled type 2 DM’ and on 04.03.2013 operation was done i.e. ‘Lower lobectomy + ICM flap reinforecement of the bronchial stump through left posterolate ral thoracotomy’ and the surgical treatment was done accordingly on urgent basis’.

It requires a common knowledge that in case of a cyst surgical intervention is necessary. A reasonable common man guided by reasonable consideration would ordinarily refer a patient having cyst involving in left para cardiac region for surgical intervention or for higher management. But OP doctor did not to that. On the contrary, he continued the treatment of the patient in conservative manner without referring the patient to any consultant in Respiratory medicine or to any competent surgeon. The principle of Resipsa loquitor is attracted.  Resipsa liquidator is applicable to medical negligence, the principle applies when negligence is evident. We observe that OP Doctor is not possessed of the requisite skill to manage a patient of cyst in his Para-precardiac region. He should have referred the patient to any higher in cementse for management. The complainant had to move before Apollo Gleneagles Hospital, Kolkata and the doctor there diagnosed the case as ‘Left Lower Lobe Multiple Lung Abscess’ and subsequently similar diagnosis was confirmed by Postgraduate Institute of Medical Education and Research, Chandigarh.  Doctor - OP ought to have referred the patient to any concerned specialist or surgeon for further treatment and management.

We think that it is a glaring example of negligence on the part of the OP treating Doctor. OP doctor failed to diagnose the ailment and even on detection of cyst in left para cardiac region, he did not refer the patient to any concerned specialised or surgeon for further treatment and management. The complainant’s condition became even worse and he had to undergo surgery and surgery at Nehru Hospital, Chandigarh provided some relief to the complainant. OP is not an expert in the field of pulmonary and cardio vascular as also thoracic surgery and OP ought to have restrained himself to continue the treatment of the complainant when his condition was deteriorating, and he developed cyst.

Let us now come to the controversy regarding the dosage of the medicine of combunex 800 lupin. OP – doctor prescribed the medicine ½ X ½ a day. It is appearing from medical literature that comunex 800 is normally prescribed as a single dose a day. There is, however, no bar that the dose cannot be split ½ X ½ or it has to be administered as only a single dose. It depends considering the body weight or other health condition of the patient. The fact remains that OP – doctor did not prescribe the medicine exceeding the dose permissible a day. There may be one or more perfectly proper standards, and if he conforms to with one of these proper standards, then there is no negligence.

But the point is can the medicine be prescribed when the sputum AFB Test report reveals ‘no detection of AFB on microscopy and Examination?’

OP – doctor did not stop the medicine even when the report came to him.

We think that OP – doctor acted in a careless and negligent manner. 

In general, a professional man owes to his client a duty in tort as well as in contract to advice or guide properly or performing service. Negligence means failure to act which a reasonable man ought to do by ordinarily consideration which ordinarily regulates human affairs. We should not do anything which a reasonable and prudent man would not do. Negligence does not also mean absolute careless but one of such a degree, of course, as is required in all circumstances. Negligence is failure to observe, for the protection of the interests of any person, a degree of precaution and vigilance which the circumstance justly demands whereby such other person suffers injury. The idea of negligence and duty are strictly co-related. Negligence means either subjectively a careless state of mind and objectively a careless conduct.

We are sorry to hold that the OP doctor committed negligence in taking proper care for the protection of the interest of the complainant, the degree of care precaution and vigilance which he ought to have taken in treating the complainant.

OP – doctor caused damage physical, mental and financial injury to the patient.

It is alleged from the side of the complainant that no medicine for control of diabetic was prescribed on 19.04.2013 and the complication aggravated for badly controlled diabetic mellites type II but we find that since the time of visit in the year 2006 (prescription dated 18.10.2006) OP prescribed medicine for diabetic as well as advised blood test for fasting and PP blood sugar. In the prescription dated 18.12.2006, 22.11.2006, 11.01.2007, 04.07.2007, 14.01.2008, we find that OP has advised fasting + PP blood sugar and also advised not to stop medicine. So, it cannot be said that OP neglected to control diabetic or did not advise fasting and PP blood sugar.

It is also the duty of a patient to maintain glucose level and report to the treating doctor so that the treating doctor can alter medicines or do the needful. 

It is also worthy to mention that at the very outset that there is no medical expert report in this case. In fact, neither of the parties have prayed for referring the matter to any medical expert or to any medical board to determine the medical negligence, if any, in this case.

We think that expert opinion is not necessary in all the cases. It is not also correct proposition of law that Consumer Fora has to refer the dispute of medical negligence to expert necessarily in all cases.

We are fortified by decision reported in Kishan Roa’s Case in this regard. Hon’ble Apex Court in Kishan Roa’s case has been pleased to hold that it is not necessary to obtain expert opinion in all cases.  

The decision of Martin D’Souza Case is not consistent with the law laid down by the larger bench in Mathew.

The guidelines, as laid down in Martin D’Souza, regarding expert opinion before proceeding with any case do not hold good in Consumer Protection Cases. Both judges in Kishan Roa’s Case held that observations of Martin D’Souza’s case were per incuriam.

In the instant case, principle resipsa liquitor is applicable. The maxim applies in a case in which certain facts proved by the plaintiff, by itself, would call for an explanation from the defeant without having to allege and prove any specific act or omission of the defendant.

(Kuma Mahua Daripa V. Aniruddha Ghosai (Dr.) 2015 (3) CPJ 671 (NCDRC), Sunil V. Om Multi Specliality Hospita 2016 (2) CPJ 561 (NCDRC). 

We are of considered view that the Ld. District Forum below failed to appreciate that there was negligence on the part of the doctor and he failed to do which a reasonable man guided by reasonable consideration regulating the conduct of human affairs we usually do and did something which a prudent and reasonable mind would not do.

We think that the complainant – appellant suffered as a consequence of negligence on the part of the respondent – OP.

The performance of the doctor falls below the expectation and amounts to negligence.

It also appears that the doctor failed to mention medical registration number in his prescription.

OP has also printed self-photograph in his letter heads/prescriptions. Code of Medical ethics as enumerated in the Indian Medical Council (Profession Conduct Etiquette and Ethics) Regulation 2002 (1.4) enumerates that physician shall display the registration number accorded to him by the said Medical Council of India in the client prescriptions, certificates, money receipts given to the patient.

OP in his reply to questionnaire has stated that he did not know that printing or mention of registration number in the prescription was mandatory. Acts which will constitute ethical conducts have been defined under chapter 6 of the Regulations of India Medical Council (Professional Conduct, Etiquette and Ethics) Regulation 2002 – They include – printing of self-photograph on a letter head or sign board. Printing of sketches, diagram of human body etc. is however, permitted. Astonishingly, OP printed his self-photograph on the prescriptions in violation of the Indian Medical Council (Professional Conducts, Etiquette and Ethics) Regulations 2002.

It is argued by the Ld. Senior appearing of the OP that the complainant has not pleaded such violation in the petition of complaint and as such these have not to be considered.

We are afraid, we cannot be consensus of such opinion as advanced by the Ld. Council appearing on behalf of the OP.

It is not necessary that the complainant has to plead such violation of code of medical ethics. Being a physician/medical practitioner in any medical discipline, he or she should know about such regulations and ethics. The prime object of the medical profession is to render service to humanity – reward or financial gain is a subordinate consideration.

We have held in the earlier paragraphs that OP – doctor was negligent in treating complainant. He treated the patient must casually and in neglected manner and failed to diagnose the disease, but prescribed medicines erratically. 

For a patient the doctor is like God and God is infallible. That is what the patient thinks. In reality, doctor is human being and may commit a mistake or may be negligent. The doctor is liable to civil law for paying the compensation. Only when the negligence was is gross and his act is so reckless as to endanger life of the patient, Criminal Law of offence U/S. 304 (A) of Indian Penal Code, 1860 will apply (Dr. Suresh Gupta’s Case, Supreme Court of India 2004 referred to).

In the instant case, complainant has prayed for award of compensation to the tune of Rs. 19,00,000/- against the OP, on account of actual cost of treatment, towards mental agony, tension, pain and anxiety etc.

We are surprised why the complainant has claimed such massive or heavy amount. Actually the complainant – patient suffered from cyst on left paracardiac region. We have observed that cyst obviously calls for surgical intervention and which is ultimately done in the case of the patient-complainant also.

It is not true that the complainant developed cyst due to the negligence or inaction or omission on the part of the OP – doctor or OP – doctor caused the development of cyst in left paracardiac region of the complainant. Cyst is a growth and is a medical condition. The lacuna on the part of the OP – doctor was not to refer the patient to higher appropriate management after detection of evidence of cyst in left paracardiac region in X-Ray of Chest PA View and there was also negligence on his part to prescribe the medicine combunex 800 when no AFB detected in sputum test.

We think that compensation must be just and proper.

Considering the facts and circumstances and considering the degree of negligence on the part of the OP – doctor we think that an amount of Rs. 5,00,000/- (Rupees Five Lakhs only) would be fit and proper and just as compensation.

In result, the case merits success.

This commission is of opinion that Ld. Forum below committed error in passing the impugned judgement both in fact and in law and the impugned judgement cannot sustain accordingly. 

Hence,

                                                          ordered

That the instant Appeal being No. RBR/A/30/2019 be same and is allowed on contest against the OP – respondent.

The impugned order dated 29.01.2016 passed by the Ld. DCDRF, Burdwan is set aside.

OP – respondent is directed to pay an amount of Rs. 5,00,000/- (Rupees Five Lakhs only) to the complainant as compensation apart from litigation cost of Rs. 30,000/- for medical negligence ad deficiency in service within 30 days from the date of this order failing which the complainant will be entitled to get interest @ 9% per annum on the decretal amount from the date of this judgement till compliance.

In the event of non-compliance, complainant shall also have liberty to file execution in the Ld. Forum below, in accordance to law as embodied in C.P. Act, 1986.

Let a copy of this judgement be supplied to the parties free of cost.

A copy of order be also sent to the Ld. Forum below for information and necessary action.