Sri. Apurba Kr. Ghosh          ……….President

The Complainant has filed this case against the O.P. under the provisions of Consumer Protection Act and praying for the following order / reliefs :-

1. Directions against the O.Ps to pay a sum of Rs. 11,61,500/- as pecuniary loss and compensation for unfair trade practice and for deficiency of service causing pain, injury, damage, mental agony, harassment, insult, humiliation for the act of the OPs
2. Directions against the O.Ps to pay a sum of Rs. 25,000/- to the complainant towards the cost of legal proceedings.
3. Interest @ 9% per annum on the said amount.
4. Any other relief/ reliefs to which the Complainant is entitles as per law and equity.

BRIEF FACT OF THE COMPLAINT

1. That the complainant is a consumer of the OPs within the meaning of Consumer Protection Act, 1986.
2. That the complainant on 12.03.2017 met with an accident at his own residence in his bathroom cum toilet, sustain injuries on his right ankle during the morning hours/ he went to the OP No. 2 a well known nursing home of Siliguri and attended before the OP No. 1’s chamber for proper and necessary treatment for the said injury along with his other family members.
3. That the OP No. 1 looking after the said injury of the complainant on his right ankle joint in a most casual manner, told the complainant that the said injury is very simple in nature and should not be worried for that/ after washing the blood oozing out from the said injury and dressing there applied bandages without detecting the seriousness or grievousness of the same/ he prescribed some medicine for him in a most casual manner and released him suggesting to revisit after two days on 15.03.2017 for further dressing verbally which was not mentioned in the prescription.
4. There was profuse bleeding of the complainant for the said cut injury and there was also swelling and huge unbearable pain of which the complainant repeatedly tried to tell the OP No. 1 but he ignored to that and after payment of the charges to the reception counter of the OP No. 2 purchased medicine but no proper receipt was delivered to the complainant from the said counter.
5. That the complainant as instructed with his serious injury as well as severe pain, returned back to his residence only with instruction/ advise of the OP No. 1 with such assurance.
6. The Complainant after returning home feeling more and more pain spreading on his right leg and no relief or improvement was there at all, but finding no alternative he had to tolerate for two days and again went to the OPs / the OP No. 1 again without adhering the complainant properly again in most casual manner only did dressing over the injured area and supplied bandages but made no reference in the prescription and suggested the complainant to revisit after 7 days on 22.03.2017 and told that, the condition will improve in the meantime/ the complainant complained of his severe pain and gradual loss of strength of his said leg which appeared to be deteriorated instead of improve.
7. That the complainant in a helpless condition being a layman again following such advise of the OPs, visited OPs and told the OP No. 1 about increasing in pain and loss of strength in his leg but the OP No. 1 did not pay attention to that, only removed three stitches of the injured place and also dressing therein, further bandages were done and again suggested him to revisit them despite such severe pain and deteriorated condition/ the complainant again visited the OPs after 3 days when again other stitches were removed and dressing were applied but the OP No. 1 denied to listen to the deteriorated condition of the complainant and on the other hand expressed his disgusted for which the complainant became disappointed and helpless.
8. That the complainant thereafter unable to bear the pain and suffering and as no improvement rather deterioration of the condition on 28.03.2017       approached   Dr. Amlanjyoti    Roy, MBBS, MS, Artho at his chamber at Maa Sarada Medical, Nibedita Market, Siliguri who found the serious condition of the complainant and observing the wrong treatment on the part of the OPs suggested various investigations/ examinations with 3 weeks rest and also prescribed medicine for him and also found not only the cut injury but TA TEAR wound unhealthy, infested, pus coming out from the wound.
9. That the complainant on 29.03.2017 as advised did the investigation/ examination from BDS Mediscanners and also made so many investigation and examination on 31.03.2017 at Anandalok Sono Scan Center Pvt. Ltd, Siliguri and thereafter on 03.04.2017 again visited Dr. Amlan Jyoti Roy who observing the seriousness of the condition of the complainant again advised for different investigation and admission at Basus’ Clinic Healthcare Pvt. Ltd. and admitted there and on 04.04.2017 where he was treated with repair of tendon with Ethybond and Vicryl Suture under SA on 04.04.2017 and was discharge after such operation on 05.04.2017, was prescribed for taking medicine and rest and other precaution.
10. That the complainant even thereafter, had to remain under observation of Dr. Amlan Jytoi Roy and was undergoing checkup and dressing in a precarious conditions and had to confined with bed rest due to the said injuries and consequence deterioration of the said injuries since 12.03.2017 by the OP No. 1 and 2 and unless the complainant took decision for his treatment with Dr. Amlan Jyoti Roy his life could have been in danger/ the OP No. 1 not only treated the complainant casually, lightly and negligently in most careless manner and stitch the wound applied dressing and bandages without due attention and proper application of the mind and even after such deteriorating condition when visited on different dates as advised with serious pain for the injury and even payment of the  charges as claimed by the OPs they did not care to listen to the complainant , on the other hand expressed their disturbing attitude or misdemeanor towards the complainant which is gross and willful misconduct on the part of the OP No. 1.  
11. That the complainant also could know that the OP No. 1 was not competent or qualified to treat the case of the complainant for which he ought to have refer to orthopedic surgeon like Amlan Jyoti Roy or any other doctor but the OP No. 1 instead of referring him to the competent doctors treated the complainant casually, lightly and negligently in a most careless manner and even no improvement was there for the said injury, on the other hand it was deteriorating day to day but he did not care to listen to him and allowed to damaging and endangering the life of  the complainant as infection found to be there as detected by the Dr. Amlan Jyoti Roy and injury of the complainant was more grievous in nature than that of taken for treatment lightly., casually and negligently by the OP No. 1 for which he was not competent and qualified but with his malafide intention and wrongful and ulterior gain he took up the case and took charges amounting to Rs. 1500/- without issuing any receipt/ the OP No. 1 on subsequent date on 12.03.2017 when the complainant visited him did not made any reference in his prescription which is also a misconduct on the part of the OP No. 1.
12. That the complainant for his further treatment by Dr. Amlan Jytoi Roy not only suffered with his injury with pain and deterioration of the condition therewith but had to incur a further expenditure of Rs. 70,000/- including his operation charges, expenditures, for different investigation, examinations, medicine etc. till 06.05.2017/ the complainant is suffering with his mental pain agony , anxiety harassment for his complete recovery / complainant is still under treatment and from the prescription of Dr. Amlan Jytoi Roy issued on 03.04.2017 in the diagnosis part it shows about the prognosis as discussed and about probability of skinnecrosis – may require plastic surgery later or infection –other normal operative complication present and on 11.04.2017 dressing was done / all such serious deterioration was due to the casual, negligent and wrong treatment which was done by the OP No. 1 and 2 and both of them are jointly or severely responsible.
13. That, the OPs are guilty for their professional misconduct as also for negligence to treat the complainant with due care and attention as well as for unfair trade practice and deficiency in service, they failed to discharge their obligation while treating the complainant and the complainant is therefore entitled to get the pecuniary loss of Rs. 1500/- +70,000/- = Rs. 71,500/- for his expenditure and in addition to that, Rs. 10,00,000/- for continuing pain, anxiety and sufferings and besides monetary loss due to his inability to join in his work of business for which he has already suffered a loss of  Rs. 90,000/- and will continue to suffer through out his life and thereby he is entitle to get a sum of Rs. 11,61,500/- to which the OPs are jointly and severally liable to pay the complainant.
14. That the complainant issued a notice dated 06.05.2017 to the OPs demanded the sum of Rs. 11,61,500/- and the notice was duly served upon the OP No. 1 who make a reply on 13.05.2017 through their advocate asking for sending the prescription and the complainant complied the same through a letter dated 30.05.2017 and thereafter the complainant received a letter dated 28.06.2017 from the OP No. 1 in which he admits the treating  the complainant at the nursing home of the OP No. 2 and also the condition of the complainant and in para No. 9 he stated that, the treatment was done properly and in para No. 10 stated infrastructure and hospital facility available with Fortis Hospital and in para No. 11 stated about his skills diligence, knowledge and expertise. It is also stated that, only to cover up the latches he stated evasive statements and asked to pay Rs. 20,00,000/- to him within from the date of receipt of the same or to withdraw the same seeking unconditional apology for loss of reputation besides the cost of reply of notice of Rs. 5,000/- to be paid by the OP No. 1 and 2.
15. That the cause of action of this complaint firstly arose on 12.03.2017 when the complainant met with an accident, sustained injuries, went for treatment to the OPs and on each and every day which is still continuing.

Ld. Advocate of the Complainant files the following documents:

1. Copy of the prescription dated 12.03.2017 of Dr. P.K. Agarwal for Biswajit Kundu in 1 (one) page.
2. Copy of prescription dated 28.03.2017, 29.03.2017, 03.04.2017, 11.04.2017, 18.04.2017 and 12.05.2017 of Dr. Amlan Jyoti Roy in three (03) pages.
3. Copy of investigations / examinations and cash memo bill dated 29.03.2017 of B.B.S Mediscanners (P) Ltd. in two (02) pages.
4. Copy of examination dated 29.03.2017, 03.04.2017 of Niramay Diagnostic Centre of Biswajit Kundu in four (04) pages.
5. Copy of report dated 31.03.2017 of Biswajit Kundu of Anandaloke Sonoscan Centre Pvt. Ltd.  in one (01) page.
6. Copy of money receipt dated 03.04.2017 in the name of Biswajit Kundu of North Bengal Digital X-ray centre in one (01) page.
7. Copy of advance receipt in the name of Biswajit Kundu amounting to Rs. 10,000/- (Rupees Ten Thousand) and certificate showing payment of Rs. 34,200/- (Rupees thirty Four Thousand Two Hundred) for team charge and a bill showing payment of Rs. 5,728/- (Rupees Five Thousand Seven Hundred Twenty Eight) and refund amount Rs. 4,272/- (Rupees Four Thousand Two Hundred Seventy Two) and a prescription dated 25.04.2017, 02.05.2017 discharge summary and prescription dated 04.04.2017, 05.04.2017, 05.06.2017, 05.07.2017 in the name of Biswajit Kundu of Basu’s Clinic Health Care Pvt. Ltd. in eight (08) pages.
8. Copy of Cash Memo Bill dated 05.04.2017 and 02.05.2017 in the name of Biswajit Kundu of Basu’s Clinic Health Care Pvt. Ltd. in six (06) pages.
9. Copy of notice dated 06.05.2017 to P.K. Agarwal and Arogya Niketan Nursing Home in eight (08) pages with two (02) postal receipt dated 06.05.2017 issued by Suvankar Dam (Advocate) in 10 (ten) pages.
10. Copy of letter dated 13.05.2017 in the name of Suvankar Dam (Advocate) from Power Plead Legalities Pvt. Ltd. issued by Abhay Charan Jana (Advocate) dated 13.05.2017 and a reply letter dated 30.05.2017 to Abhay charan Jana (Advocate) from Suvankar Dam (Advocate) with prescription dated 12.03.2017 along with a postal receipt dated 30.05.2017 in four (04) pages.
11. Copy of Cash Memo Bill dated 28.03.2017, 29.03.2017, 12.05.2017, 05.06.2017, 28.07.2017 in the name of Biswajit Kundu of Ma Sarada Medical & Medimart in five (05) pages.
12. Copy of notice dated 28.06.2017 issued by Abhay charan Jana (Advocate) to Suvankar Dam (Advocate) in four (04) pages.

Notice was sent from this Commission to the OPs. On receipt of notice both the O.Ps appeared before this Commission through Ld. Advocate, filed separate  written version, denied all the material allegations of the Complainant.

The OP No. 1 in his written version has stated that, the complainant has filed this case which is wholly misconceived, groundless, frivolous, vexatious, which is not sustainable in the eye of law and he has filed the case only to harass, defame the OP No. 1 with a view to extort illegal sum of Money from him and therefore the complaint is liable to be dismissed/ in the complaint  there is no specific, scientific and justified allegation with regard to negligence or deficiency in service against the OP No. 1 and the complainant has failed to explain as how the OP No. 1 was negligent and the complainant has also failed to explain the cause of action against the OP No. 1 and thereby the complaint is liable to be dismissed. The OP No. 1 has further stated that, he has not committed any negligence in this case while providing the treatment and the complaint is totally false, fabricated, baseless, and thereby the complaint is liable to be dismissed/  the complaint case is also liable to be dismissed on the grounds of non joinder of necessary party as the complainant did not implead the Oriental Insurance Company Limited as OP though the OP No. 1 insured with the said insurance company through its professional indemnity policy being No. 272200/48/2017/5263 effective from 08.06.2017 to 07.06.2018.(Annexure R1).  It is further stated in the W/V of the OP No. 1 that he is a well qualified and reputed doctor with substantial goodwill and experience of long standing successful medical practice since 12 years (Annexure R2). The OP No. 1 further stated that, the complainant went to the emergency of the OP No. 2 with cut injury over ankle region on 12.03.2017 when the OP No. 1 was present in the hospital, he was called to see the patient as no other doctors were available in the hospital, OP No. 1 saw the patient found his wound, oozing blood and he advised for the need of dressing and stitch with antibiotics and painkillers/ the stitch and dressing was done by RMO / OP No. 1 was only consulted for which he was given consultancy fees of Rs. 300/- , he advised the patient to consult with surgeon and asked the patient to report after 7 days but the patient never come back and the treatment done by the OP No. 1 was done diligently, prudently, with utmost due care and caution in treating the patient. The OP No. 1 in his W/V has further stated that, the statements made in the complaint are totally false, fabricated and by suppressing the actual fact the complainant has filed this case knowing fully well that there was no negligence on the part of the OP No. 1 towards the complainant.  

On receipt of notice the OP No. 2 appears before this Commission through Vokalatnama, filed W/V, and denied all the allegations of the complainant and has stated that, the complaint is not maintainable in its present form and in law and the complainant has twisted the fact of this case for the purpose of his illegal and wrongful gain/ the complainant has filed the case to harass the OPs to fulfill his illegal desire and has not filed the complaint in clean hands, the complainant is not a consumer within the meaning of C.P. Act , there is no cause of action to file the complaint/ the complaint is barred by principles of waiver, estoppels and acquiesence / the complaint is bad for non joinder of parties/ the complainant has not filed documents to justify his complaints / there was no negligence or latches or deficiency in services on the part of the contesting OPs in any way/ the complaint is wholly misconceived, groundless, false, frivolous, vexatious, and thereby the complaint is not sustainable in the eye of law / the complainant was / is aware about the quality , infrastructure and facility available at the OP No. 2’s nursing home which is of repute, prestige and satisfactory quality and there was no deficiency in service in any way,/ the Doctors availability in the OP No. 2’s nursing home were also having proper knowledge, expertise and skill to treat the patient/ the complainant paid a sum of Rs. 300/- on account of consultation fees of the OP No. 1 and Rs. 500/- on account of stitches, dressing  charges against bill cum receipt on 12.03.2017 at 1:50 PM. The OP no. 2 has further stated that, the statements made in the complaint  are totally false, fabricated, and denied by the OPs and the complainant never visited the nursing home for checkup by the OP No. 1 excepting the first date. By filing the W/V the OP No. 2 praying for dismissal of the complaint.

In support of the W/V the OP No. 2 filed the following documents:

1. Xerox Copy of visiting doctor, collection receipts dated 12.03.2017
2. Xerox Copy of the bill cum receipts dated 12.03.2017, 14.03.2017, 20.03.2017, 23.03.2017 issued by the OP No. 2 to the complainant.

Having heard the Ld. Advocate of both the parties and perusal of the written version, evidence of the parties including the documents the following points are to be considered by this Commission.

POINTS FOR CONSIDERARTION 

1. Whether the complainant is a consumer?
2. Whether the case is maintainable under the C.P. Act 1986?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant?
4. Is the Complainant entitled to get any award and relief as prayed for as per the prayer of her Complaint?

                   Decision with Reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.

The complainant was given opportunity to prove its case by adducing evidence. In order to prove the case the complainant has examined himself. He filed written deposition in the form of an affidavit. In the written deposition the complainant has specifically stated/ corroborated the statements made in the written complaint. He stated on which day he was examined by the OP No. 1 and stated that both the OPs are guilty for their professional misconduct as also for negligence during treatment of the complainant with due care and attention as also for unfair trade practice and deficiency in service. In the written evidence the complainant has also stated that, the OPs have failed to discharge their obligation while treating the complainant. He further stated in his evidence that, on 12.03.2017 when the complainant went to the OP No. 2 he was attended by the OP No. 1 for proper treatment but the OP No. 1 in a casual manner told that the injury is of a simple in nature and not to be worried/ he without detecting the seriousness or grievousness of the same, he prescribed medicine in a casual manner and advised to revisit after two days for further dressing / the complainant again went thereafter two days when he having profuse bleeding from injury with swelling and unbearable pain tried to tell the OP No. 1 but he ignored and then the complainant paid the charges to the reception counter of the OP No. 2 and purchased medicine but they did not issue any receipt but the same has been admitted by the OP No. 2. The Complainant has further stated that, again he went to the OP No. 1 after two days when again dressing was done and bandages were applied without hearing him in a most casual manner asking him to revisit after 7 days for dressing on 22.03.2017 telling that, the condition will improve but the complainant was feeling gradual loss of strength of the said leg and even thereafter he visited the OPs complained about his helpless condition but the OP No. 1 did not pay any attention to the complainant and removed 3 stitches and again bandages and dressing was done so the complainant again visited after 3days when again stitches were removed and dressing was applied but the OP No. 1 denied listening to the deteriorated condition of the complainant and expressed his disgust  for which the complainant became disappointed and helpless. The complainant has also stated in his evidence that, had he not been treated by Dr. Amlan Jyoti Roy he will fall in danger and due to negligent , careless and casual act of the OPs he was suffering for a long period and the condition of the complainant was deteriorating day by day, there was no improvement, and endanger in the life of the complainant as infection found there and as detected by Dr. Amlan Jyoti Roy  the injury was more grievous in nature than that taken for treatment as such by the OP No. 1 and he was not also competent for that but with malafide intention and for wrongful financial gain took the case as well as charges amounting to Rs. 1500/- without giving any return receipt.

To falsify the case of the complainant the Op no. 1 and 2 filed separate evidence. In those written evidence the OP No. 1 and 2 has stated that, the complainant has filed this case on some false allegation knowing fully well aware that there was no negligence on the part of ops. at the time of treatment of the complainant. They further stated that the complainant suffers from various defects and the case is liable to be dismissed. Both the ops have stated in their evidence that the complaint wholly misconceived, groundless, frivolous and the complainant has filed this case only to harras, defame, extort money from the ops. By filing Written Evidence both the ops praying for dismissal of this case.

At the time of argument Ld advocate of the complainant submits that the complainant has been able to prove the case against the Op’s and he is entitled to get the relief as prayed for. He also argued that the complainant has produced several vital documents to substantiate its case to the effect that there was negligence, deficiency in service of the part of the op’s who failed to fulfill their obligation towards the complainant. He further argued that, the written version which are filed on  behalf of the op’s are full of contradiction with the other and the complainant has  submitted reply to the questionnaires of the op’s which clearly disproved the allegations of the Op’s. He further argued that, the questions put by the op’s are irrelevant and to avoid their responsibility they stated contradictory statement in the deposition of the op no.1 and the op’s are very much silent in their written version and in evidence about the sufferings, deterioration to the injury and  pain of the complainant for which he was compelled to visit Dr. Amlan Jyoti Roy on and from 28.3.17 and had to undergo subsequent treatment.

 At the time of argument Ld advocate of the complainant referred decision reported in AIR 2010 SC1162 and AIR 2014 SC795.

 To falsify the case of the complainant the OP no 1 has adduced evidence in the form of an affidavit. In the written evidence the Op no 1 has stated & corroborated the written version and has also stated that he is a qualified and reputed doctor with substantial goodwill, experience of long standing successful medical practice for 12 years and the complainant went to the op no 2 on 12.3.2017 and the Op no 1 in the prescription asked the complainant to report after 7 days but he lost to follow up and never visit there and there was no negligence and deficiency in service on his part.

To falsify the case of the complainant the op no. 2 has also filed Written Evidence in the form of an affidavit where the op no. 2 has denied the statements so made by the complainant in his complaint as well as his Written Evidence.

 Ld. advocate of the Op no.1 and 2 during argument submits that, the complainant has failed to prove the case against the Op’s. It is further argument of the Op’s that, the alleged incident was occurred on the date of Holi festival as well as Sunday when most of the doctors including the surgeons were not available in the Nursing Home and the only doctor who was available was Op no 1 who  provided requisite treatment on that day and the complainant did not consult with the Op no 1 since after 12.3.2017 or  with any other doctor in between the periods from 12.3.2017 to 27.03.2017 it can be presumed that , the cut injury of the complainant was cured and had there been any deterioration of the wound he must have consulted with any other doctor and taken the advise for such treatment and he would not have waited for the further deterioration. It is further argument of the Op’s that, the complainant  has not explained in any way as to why he did not visit any doctor in between the periods from 13.3.2017 to 27.3.2017. Ld advocates of both the Op’s have stated that, they have already filed written notes of argument and stated everything these. Having heard the Ld advocate of both the parties and on  perusal of the written complaint, written version, documents of the parties ,  evidence it is admitted by both the parties that, the complainant went to the Op no 2 Arogya Niketan Nurshing Home on 12.3.2017 with cut injury over the ankle region. It is also admitted by both the parties that, the Op no1 saw the complainant advised for the need of dressing and stitch with antibiotics and painkillers. It is also admitted fact that, the OP No. 1 had written in the prescription to report after 7 days but the Complainant never met with the OP No. 1.

From the record it reveals that the Complainant did not consult with the OP No. 1 since after 12.03.2017 or with any other doctor in between the periods from 13.03.2017 to 27.03.2017. The Complainant has not explained as to why he did not consult with the OP No. 1 or any other doctor when he visited the OP No. 2 Nursing Home for dressing.

It is also not explained in the Written Complaint or in the evidence of the Complainant as to why he did not visit any doctor since 13.03.2017 to 27.03.2017.

From the record it reveals that, the Complainant had only consulted with the OP No. 1 on 12.03.2017 and there after he did not consult with the OP No. 1 or with any other doctor. But in the Written Complaint and in the deposition the Complainant has claimed that, on several occasions he consulted with the OP No. 1 but no such prescriptions or any other documents are filed on the side of the Complainant which clearly presumes that, the Complainant did not consult with the OP No. 1 since 13.07.2017 to 27.03.2017.

It is fact that, the complainant to substantiate its medical negligence case did not produce any report from the medical expert. He also did not adduce any evidence of any medical expert. It is needless to mention here that, in absence of any medical expert report or the evidence of medical expert it cannot be said that, there was/is any negligence or deficiency in service in treating the complainant.

From the record it reveals that, the complainant has relied the medical prescriptions 18.3.2017, 29.3.2017, 03.04.2017, 11.04.2017, 18.04.2017, 12.05.2017 of Dr. Amlan Jyoti Roy. But the complainant did not adduce evidence of the said doctor Amlan Jyoti Roy.

 From the Record it further reveals that, the complainant has filed medical prescriptions dated 25.04.2017, 02.05.2017 and discharge summary & prescription dated 04.04.0217, 05.04.2017, 05.06.2017, 05.07.0217 of Basu’s Clinic Health Care Pvt. Ltd. But the complainant has failed to bring evidence of the Basu’s Clinic Health Care in his favour.

 Considering all we are of the view that, the complainant has failed to prove that there was negligence, deficiency in service or unfair trade practice on the part of the Op’s towards the complainant .

Hence,

               It is therefore,

O R D E R E D

That, the instant Consumer case being No. CC/70/2017 is hereby dismissed on contest but without any cost.

Let a copy of this order be given to the parties free of cost.