F I N A L   O R D E R

The petitioner Anusuya Roy through her natural guardian namely Suman Roy filed this application u/s.12 of the Consumer Protection Act 1986 for seeking relief which was registered as Consumer Case No.08/2017 in this Forum.

The fact of the case as revealed from the petition as well as from the evidence is that the petitioner Anusya Roy is a minor child of Suman Ro. Suman Roy is represented her minor daughter in this case and the instant case has been filed by Anusuya Roy through her father. The Fact of the case is that all in a sudden Anusuya Roy fell ill due to severe abdominal pain and she was treated by Dr. Dhiman Pal ho advised for doing ultra sonography of Anusuya Roy. As per advise of Dr. Dhiman Pal father of the complainant took Anusuya Roy to the X-Ray Clinic of O.P.No.2 i.e. Nirupan X-ray Clinic & Nirupan Mediscan Centre on 30.04.15 for performing her whole abdominal U.S.G test for which Suman Roy, the father of Anusuya Roy paid Rs.700/- to the O.P.No.2 with proper receipt. In the said clinic USG test was conducted and in the report it has been mentioned that PANCREAS APPEARS HYPOECHOIC. O.P.No.1 suggested the said report…..Impression: SUGGESTIVE OF ? SUB ACUTE PANCREATITIS. After receiving the said report the father of Anusuya Roy visited the chamber of Dr. Dhiman Pal who suggested him that as per said report his child requires to be gone through the surgery and for immediate admission in the hospital. On that date Anusuya Roy took the pain killer tablet and she was relieved from abdominal pain. By this time the father of Anusuya Roy decided to consult with a doctor of Kolkata. He took some days to collect money for the purpose of medical expenses. Accordingly the father of Anusuya Roy went to Kolkata where he visited Dr. Abhijit Choudhury, M.D., D.N.B D.M, Hazra Road, Kolkata . The said doctor after examination advised the father of Anusuya Roy for again doing the USG of Anusuya Roy. According to the advice of Doctor Abhijit Choudhury the father of Anusuya Roy took her to Apollo Gleneagles Heart Centre for USG where whole abdomen of USG was done. Where it was found that no treatment is required for Pancreatitis as the same is normal condition. The further case of the complainant is that  the report  of the O.P in respect of Anusuya roy is not correct and it does not reflect the actual position, as such the report is totally wrong. According to the petition the said test was conducted either by bad medical instrument or the same was held negligence of O.Ps.  The further case of the complainant is that the negligence of O.P may cause the life of Anusuya Roy in danger and without any diseases any surgery may caused the death of Anusuya Roy. Due to the act of the O.P the complainant has suffered mental pain and agony. For which he prayed for Rs.3,00,000/- as compensation, Rs.50,000/- as mental pain and agony and Rs.5,000/- as litigation cost .

The petition has been contested by the O.Ps by filing the written version denying all the material allegations leveled against them contending inter alia that the petition is not maintainable and there is no cause of action to file this case against the O.Ps. The definite defence case is that the USG was done by the O.Ps on 30.11.15 for which Rs.700/- was paid by the complainant. The further defence case is that due to the negligence of the O.P. the life of Anusuya Roy was not in danger and without any diseases surgery may cause death of Anusuya Roy. Further defence case is that the O.P also suggested SERUM AMYLASE ND SERUM LIPASE ESTIMATION and FURTHER RELEVANT INVESTIGATIONS follow up study and clinical corroboration. The further defence case is that the O.Ps is not aware any further USG by any doctor of Anusuya Roy. In the written version the O.P has stated nature of treatment of acute Pancreatitis and the USG of Anusuya Roy was done by doctor with best of his knowledge, skill and concentration. Considering the above facts and circumstances the prayer as made by the complainant is dismissed.

                                   DECISION WITH REASONS

In order to prove the case the petitioner was examined as p.w.1. He has filed some documents in Xerox copy. The O.P did not adduce any evidence to his defence.

Now the point for determination: - Whether there was any negligence on the part of the O.Ps to conduct the USG and whether there was any mental pain and agony of the complainant due to the USG done by the O.Ps.

It is no doubt that USG was done on 30.11.15 at Nirupan X-ray Clinic and Nirupan Mediscan Centre of whole abdomen of Anusuya Roy. Up to this level there is no allegation

Now the main conflict has come whether by the USG report the complainant was suffered mental pain and agony. From the X-rox copy of the USG report of Nirupan X-ray Clinic & Nirupan Mediscan Centre it is found  that Dr. Pradip Kumar Bhattachrjee has made an impression : SUGGESTIVE OF ? ACUTE PANCREATITIS and further suggested  for INVESTIGATIONS SERUM AMYLASE AND SERUM LIPASE ESTIMATION AND CLINICAL CORROBORATION IS NECESSARY.  Thereafter the complainant  was not satisfied  with the report. This is why he went to Kolkata for further investigation and he met a doctor of Kolkata at Apollo Gleneagles Heart Centre, the USG of Anusuya Roy was conducted where the report is found that there was no significant abnormality.

Now let is consider whether there was error in the report of Nirupan X-ray Clinic & Nirupan Mediscan Centre or not. At the time of argument Ld. Lawyer for the O.P submitted  that the impression of Suggestive  of ? Sub Acute Pancreatitis will depend on Serum Amylase and Serum Lipase Estimation. Unless and until such investigation is done how it can be said that the report is wrong or without any basis and Ld. Lawyer also refers some manual of diagnostic ultrasound, Clinical Sonography and Diagnostic Ultrasound.  Now the question of this Forum is that why the doctor of Nirupan X-ray Clinic & Nirupan Mediscan Centre  who conducted the USG give the impression of  Sub Acute Pancreatitis. The doctor should give the opinion that unless and until the investigation like Serum Amylase and Serum Lipase is done it is very difficult to pass such opinion. But the doctor of Nirupan X-ray Clinic & Nirupan Mediscan Centre  pass such opinion. He should reserve his opinion. Definitely due to such opinion the complainant suffered mental harassment and mental pain for which he had to rush to Kolkata for further examination. Where it is found that no Pancreatitis is found. So definitely it was the latches on the part of the doctor of Nirupan X-ray Clinic & Nirupan Mediscan Centre. From the report Nirupan X-ray Clinic & Nirupan Mediscan Centre it is found that the patient was referred by Dr. Dhiman Pal. But there is no documents to show that Dr. Dhiman Pal suggested him as per report that child requires to be gone through the surgery and immediate admission in the hospital. In this regard the Ld. Lawyer of the petitioner submitted that Dr. Dhiman Pal gave an oral suggestion to that effect, as such no prescription in this regard is in the hand of the complainant.

On the other hand the Ld.lawyer of the O.P submitted that how the Forum will come to a conclusion that Dr. Dhiman Pal suggested for surgery. It is immaterial whether there was suggestion or not by any doctor. It is the material when we find the difference of two reports. In this regard the Ld. Lawyer for the O.P submitted the Xerox copy of Diagnostic Ultrasound Vol.2. Ultrasound findings may be negative in the Milder Forms of Acute Pancreatitis. But on perusal of the report of Apollo Gleneagles Heart Centre we do not find any Pancreatitis. So, the argument made by the Ld. Lawyer of the O.P that findings may be negative in the Milder Forms of Acute Pancreatitis. No previous history of treatment has been filed by the O.P to show that Anusua Roy was suffering from Milder Forms of Acute Pancreatitis. As such the USG finding was negative. The burden of proof lies upon the O.P to show that Anusuya Roy was suffering from Milder Forms of Acute Pancreatitis. As such the presence of Pancreatitis was negative. As no history of Pancreatitis was found, so the references submitted by the O.Ps are not acceptable. The O.P did not adduce any evidence to the effect that USG may be varied due to lapse of time, as USG was done at Kolkata later on. On considering the evidence and documents on record it is found that there were latches and negligence and deficiency of service of the O.Ps, for which the O.Ps are liable to pay compensation.

Fees paid are correct.

Hence, it is

ORDERED,

That the instant consumer complaint being No. CC – 08/2017 be and the same is allowed on contest against the O.Ps but without any cost

 The complainant is entitled to get sum of Rs.1,00,000/- as compensation. Besides that he is entitled to get Rs.10,000/- as mental pain and agony and Rs.5,000/- as litigation cost   

The O.Ps are directed to make the payment within one month from the date of passing of this order failing which it will carry interest at the rate of 5% per annum over the awarded amount from the date of filing i.e 10.02.2017 till the recovery. In the case of failure of payment, the petitioner/ complainant is at liberty to execute the order for recovery of the amount as per provision of law.

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