BY -    SRI ASISH DEB, PRESIDENT

Brief facts of the complainant’s are that Complainant is a permanent resident of the above noted address and a citizen of India by birth. Complainant is a hapless and poor widow, who lost her husband Sukdeb Adhikari (38 years of age at the time of his unfortunate demise) due to gross medical negligence and utmost failure & deficiency in rendering proper medical treatment and service by the Ops jointly and severally in collusion with each other, and is now suffering in penniless condition along with two minor children (one son and one daughter) and mother in law. The OP No.1 is an Ayurvedic Doctor, pretending to be a Consultant Ayurvedic Physician, having chamber and place of business at the Ayurvedic Meidicine Shop. The husband of the complainant  namely Sukdeb Adhikari felt some pain in Abdomen with problems of urination and others, and was taken to the Chamber of OP No.1 by the complainant on 27.05.2017. The OP no.1 after check up and without advising or performing any clinical test diagnosed that the husband of your complainant was suffering from a tumour in his large bladder. Then both the Ops sitting in the said chamber convincingly advised complainant and her husband (since deceased) that the Ayurveda is the most appropriate, effective, surgery less, low cost and proper treatment for such tumour and has no side effects as like allopathic treatment. They also guaranteed and assured that the OP No.1 can cure the tumour in just six months if these directions are followed properly. Being a common man complainant and her deceased husband had no other option but to believe upon the words of the doctor and a famous Ayurvedic medicine seller (i.e. the Ops), and therefore the OP No.1 since 27.05.2017 till 19.12.2017 kept continuing the Ayurvedic treatment on regular basis. During the course of such ayurvedic treatment, the OP No.1 opted for “USG of whole abdomen” for several occasions and on each time, after perusing the report, he confidently affirmed and assured the complainant and her husband (since deceased) that the Tumour is curing satisfactorily. However, the condition of the patient gradually and drastically fell and became worse day by day and the husband of the complainant lost 12 kgs of weight in just 6 months, along with severe problems of abdominal pain, renal problems, and loss of appetite etc. Complainant, seeing no improvement in condition of the patient after only one month or so from the commencement of treatment by the OP No.1, started requesting the OP No1 to refer the patient at any authentic medical institution for better treatment, but in all time both the Ops assured that the patient is curing rapidly and now if the ayurvedic treatment is abandoned or stopped, the condition of the patient will deteriorate and even there will be a risk of even loss of life of the patient. Being feared, both complainant and her husband had nothing to do but to keep faith upon the Ops. After the expiry of six months when the condition of the patient was damn serious,  complainant took the patient to Apollo Hospital, Chennai and to the Christian Medical College (CMC) at Vellore on and from on 29.12.2017, and in both the institutions the treating doctors, after performing several tests and pathological examinations like CT scan, Bone Scintigraphy, USG, ECG, etc, confirmed that there was “Metastatic Urethral Carcinoma Bladder with paraaortic Lymphodenopathy, Left Hydronephrosis with perinefric collection (Urinoma) Anemia+”. The doctors of Apollo and CMC have also confirmed that the patient developed such serious condition and Cancer due to wrong, and unauthentic treatment done by the OP No.1 who wrongly diagnosed the disease as “ large bladder tumour” and with his sweet language of assurance and planned process of killing the patient softly, and by virtually keeping the patient out of the purview of proper and authentic allopathic and surgical treatment, he along with the OP No.2 ( the Medicine seller) had thrown the patient on the verge of death. The doctors of CMC vellore performed surgery upon the patient, and both the doctors of Apollo and CMC tried their level best to save the life of the patient and released him with advise of undergoing “Chemotherapy in Kolkata under the supervision of an Oncologist”. It is to be mentioned here that the OP No1 & 2 jointly took a sum of Rs. 90000/- from the complainant since 27.05.2017 till 19.12.2017 on several dates mentioned in prescription as the fees and cost of treatment & medicines, and your complainant had to spent a further sum of Rs. 150000/- (approx) for treatment at Apollo Hospital and CMC, Vellore. Thereafter the complainant informed the whole matter of cheating and deliberate unauthentic treatment by the Ops to the local people, and when they asked the Ops to explain the same, the OP No.1 admitted the whole fact and assured that he will pay a sum of Rs. 110000/- to the complainant towards compensation and costs of proper treatments of the patient by virtue of a Written Acknowledgement dated 06.02.2018. However since then the OP No1 fled away and the Op No2 tactfully removed the name of the OP No1 from the signboard, and expressed that he had no connivance or relation with the OP No.1 at any point of time. Thereafter, the fateful day came on 05.05.2018, Saturday at 9:20 am when husband of the complainant breathed his last. Thus, the unfortunate husband of the complainant died due to fatal and gross negligence and deficiency in rendering service by the Ops, apart from commitment of cheating and deliberate act of murdering him by their unauthentic and wrong line of treatment. The gross negligent act of the Ops not only ended the life of the husband of the complainant at an age of just 38 years, but also ruined the family of the complainant and her minor children and her aged and ailing mother-in-law and also caused a serious mental agony and pain.

          Hence, the complainant has initiated this case before this. Forum praying for the following reliefs-A. consolidated sum of Rs.19,90,000 towards compensation, costs, medical expenditures, mental agony, sufferings and loss of life. Litigation costs Rs.10,000/- and any other reliefs.

          Notices were issued upon the Opposite Parties. Despite service of notice the OP-1 did not appear to contest the case. Hence, the case is heard ex parte against the OP-1.

          The op-2 has contested the case by filing written version stating inter alia that the prayers of the petition are totally false, concocted, illegal, baseless, vague and indefinite and as such the complainant is not entitled to get any relief as prayed for. So the instant case is liable to be dismissed. The Opposite Party No. 02 is the proprietors/owners of the “Bandana Ayurvedic Medicine Centre” as Mahishadal Cinema Morh under P.S. Mahishadal, Dist. Purba Medinipur .The Op No.2 has been carrying his small business at above mentioned place and title since 01.04.1991 till now without any allegation. Since that year in different times various doctor started their chamber besides the medical shop and they go away for their own wish. The medicine shop and the chamber of doctor is separate from one another. As a medicine shopkeeper OP-2 has only sold the medicine according to the prescription of any ayurvedic doctor. It is not the duty of Op -2 as a shopkeeper to know about the decease or problem of any patient or assure any patient for their cure. Like other doctor Dr. Partha Pratim Dey had began his chamber beside the shop of Op -2 and like others op 2 had supplied the medicine according to the prescription of that doctor without verifying the problem or decease of patient or did not assure that patient for his cure like others or your OP -2 did not interfere any time between the talk of doctor and patient. The Dr. Partha Pratim Dey finally closed his chamber in the last part of the year 2017. Op-2 has come to know about the incident after receiving the summons of your honours’ court. The entire incident has taken place with the doctor in absence of the OP-2. Even the so called written acknowledgement dated 06/02/2018 of the doctor which mentioned in the written complaint also made in absence of this Op and also the Op -1 or complainant did not disclose about the whole incident before this Op. After receiving the summon knowing the fact this OP mourned for the unwanted situation, yet he has nothing to do or he had no negligence for the same. This Op had or has no ill mentality or he did not make any ill behave with the patient in his whole business life.

                   Points for determination are:

             1. Is the case maintainable in its present form and in law?      

2. Is the Complainant entitled to the relief(s) as sought for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

We have carefully perused the affidavit of the complainant and evidence produced by Complainant and op-2.The bundle of facts go to establish that complainant is a consumer and she has averred a case of medical negligence against the ops the case is maintainable in its present form and in law.

          In the present case, it was an unfortunate incident that Sukdeb Adhikari, the husband of the complainant died after a prolonged treatment. According to the complainant the op-1 gave false assurance for recovery of the patient. The complainant pleaded that due to the wrong treatment, negligent acts and false assurance of the ops unexpected death of the patient occurred. Now, in such a case the complainant has the onus to establish by reliable evidence that due to the wrong treatment, negligent acts and false assurance of the ops unexpected death of the patient occurred. The ‘causation’ of medical negligence is not visible. The general test for causation is that which requires the Complainant to show that the death would not have occurred “but for” the negligence of the doctor the Opposite Party only it occurred. It is important that the Complainant has to establish on a balance of probabilities that the ops tortuous act was a necessary cause of alleged severe deterioration of the patient condition. We do not find any failure of duty from the ops or there was any evidence to indicate any unexplained deviation from the standard protocol in the treatment process .In the case of Hucks v. Cole wherein it was observed that: “ a medical practitioner was not be held liable simply because things went wrong from mischance or misadventure or through an error of judgement in choosing one reasonable course of treatment in preference of another. A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonable competent practitioner in his field”. In the facts and specificities of the present case, in our considered view, the Complainant has failed to prove that the op-1 has exceeded the protocol of the standard medical practice. In the instant case, we do agree with the agony of the Complainant, but then, that by itself cannot be a cause for awarding damages for the passing away of her husband. Though our sympathy is for the Complainant, but it cannot translate into a legal remedy. In the light of the facts and the evidence adduced, in the instant case it is not feasible to determine medical negligence or deficiency in service on the part of doctor and medical shop i.e. the ops. Resultantly, the Consumer Complaint fails.

Thus, both the points are decided in accordingly.

Hence, it is

O R D E R E D

That CC/253/2018 be and the same is dismissed on contest against op-2 and ex parte against the OP-1 however, without any cost.

Let copy of the judgment be supplied to the complainant and OP-2 free of cost