Ld. Advocate(s)
For Complainant: Makbul Rahaman
For OP/OPs : Kajal Ghosh
Date of filing of the case :21.12.2015
Date of Disposal of the case : 10.05.2023
Final Order / Judgment dtd.10.05.2023
Complainants above named filed the present complaint against the aforesaid opposite parties u/s 12 of the Consumer Protection Act, 1986 and prayed for compensation amounting to Rs.18,00,000/- (Rupees eighteen lakh), litigation cost Rs.1,50,000/- (Rupees one lakh fifty thousand), expenditure Rs.50,000/- (Rupees fifty thousand) and interest @ 9% per annum over the aforesaid Rs.20,00,000/-(Rupees Twenty lakh) and other reliefs.
They alleged in the petition of complaint that complainant no.2 is the father of complainant no.1. Mother of complainant no.1 namely Mamoni Ghosh aged about 19 years became pregnant and she was brought by her husband to OP NO.3 Dr. S Gupta who is a renowned gynaecologist and he used to run private chamber at Karimpur Hospital gate. OP No.3 after examining Mamoni Ghosh for the first time on 21.05.2013 advised some tests which were done at Laldighi Medical Centre Private Limited. He also advised USG and same was also done. On 20.12.2013 said Mamoni Ghosh was produced at District Sadar Hospital Krishnagar with all documents relating to her previous treatment. She was admitted under Doctor S. Sarkar i.e OP No.1 at District Sadar Hospital, Krishnagar, after perusing all those documents and reports, OP NO.1 decided to do L.U.C.S. on 20.12.2013 and accordingly OP NO.1 did the operation and a male baby was born i.e the complainant no.1. After posts L.U.C.S, condition of Mamoni Ghosh was deteriorating gradually and OP No.1 did not take proper care. Lastly on 21.12.2013 at about 3:15 p.m. Mamoni Ghosh was expired. In the death certificate cause of death was written by doctor of District Hospital, Nadia " Haemodynamic shock due to primary PPH in L.U.C.S. Said Mamoni Ghosh was died due to negligence on the part of OP No.1 as well as the OP NO.2 who knowingly the fact that HB percentage of the deceased was below the normal range did not take care to stop PPH even L.U.C.S. They have shown gross negligence medical treatment.
(3)
OP No.1 contests the case by filing a W/V. He denied the entire allegations made in the petition of the complaint. He further stated that patient Mamoni Ghosh was referred from Tehatta Sub-divisional Hospital but the complainant has suppressed the said fact. The patient was referred on 20.12.2013 at 2:30 a.m. Patient was admitted at Sadar Hospital on 20.12.2013 at 5:10 a .m. Patient was kept for L.U.C.S. for non-progress of labour and L.U.C.S was done on 20.12.2013 at 8:09 p.m. and living baby having weight 3.4 kg was delivery. OP attended the patient on call at 9:20 p.m. and treated accordingly and blood requisition was done at that time. Thereafter, blood transfusion was started he also attended the patient on call at 11:25 p.m. of 20.12.2013 and treated the patient accordingly. Further the patient was referred to higher centre at Kalyani/N.R.S. Medical College and Hospital but said referral was not complied. There was gross negligence of the patient party rather nothing on the part of OPs. OP No.3 filed W/V and denied the entire allegations. He also denied any kind of negligence on his part.
Trial
During trial complainant filed affidavit in chief. Interrogatories were made on behalf of OP NO.1 & 3 and complainant gave the answer. OP NO.1 Doctor S.R. Sarkar filed affidavit in chief. Complainant made questionnaires and Doctor Sarkar also gave answer. OP NO.3 Doctor S. Gupta filed affidavit in chief. Complainant made interrogatories. Doctor Gupta also gave answer.
Brief Notes of Argument
Complainant filed BNA.
OP No.1 filed BNA and OP NO.3 also filed BNA.
Documents
Complainant produced the following documents viz :
1)Prescription of issued by Dr. Snehasis Gupta dated 21.05.13.......(One sheet)......(Original).....(Annex-1)
2)Document of Laldighi Medical Centre Pvt. Ltd. dtd. 22.05.13.....(One sheet).......(Original)......(Annex-2)
3) Document of Laldighi Medical Centre Pvt. Ltd. dtd. 22.05.13.....(One sheet).......(Original)......(Annex-2A)
4) Document of Laldighi Medical Centre Pvt. Ltd. dtd. 22.05.13.....(One sheet).......(Original)......(Annex-2B)
5) Document of Laldighi Medical Centre Pvt. Ltd. dtd. 22.05.13.....(One sheet).......(Original)......(Annex-2C)
(4)
6)USG of FPP report issued by Dr. Aghore Ch. Poly Clinic & Diagnostic Centre........(One sheet).......(Original)......(Annex-3)
7)Discharge Report dtd.21.12.13........(One sheet).......(Original)..........(Annex-4)
8)Death Certification issued by Medical Officer, District Hospital dtd.21.12.13.......(One sheet)........(Original).......(Annex-5)
9)Certificate of Death issued by Executive officer, Krishnagar Municipality.......(One sheet)........(Original).......(Annex-6)
10)Certificate of Birth issued by Krishnagar Muncipality.........(One sheet)......(Original)........(Annex-7)
OP No.1 and 3 did not file any documents.
Decision with Reasons
We have carefully gone through the petition of complaint as well as W/V filed by OP NO.1 & 3. We have also carefully gone through the documents which have been filed in this case during trial.
On careful scrutiny of the evidence on record as well as documents on record we find that it is admitted position that Mamoni Ghosh was at first admitted at Karimpur Hospital and thereafter, she was referred to District Sadar Hospital. When Mamoni Ghosh was produced before District Sadar Hospital, it was listed under OP NO.1 i.e doctor S. Sarkar . OP NO.1 after examining her felt the necessity of urgent L.U.C.S and L.U.C.S was done on 20.12.2013 at about 8:09 p.m. and living baby having 3.4 kg was delivered said living baby is the complainant no. 1 of this case. At about 9:20 p.m. OP NO.1 received call from hospital and he , accordingly treated her and advised blood requisition but patient party produced blood almost after three hours i.e 12:20 a.m. and immediately blood transfusion was initiated. It is allegation of the complainant that OP NO.1-2 did not take proper care of the patient namely Mamoni Ghosh and due to their gross negligence in duty Mamoni Ghosh died.
In this context we have carefully gone through the decision of Hon’ble Supreme Court in Indian Medical Association v. V.P. Shanta reported in AIR 1996 SC 550 [1995 (3) CPJ 1 (SC) , 1995 (3) CTJ 969 (SC) (CP)].
We find that Hon’ble Justice Kuldip Singh, Hon’ble Justice S.C. Agrawal and Hon’ble Justice B.L. Hansaria passed the said judgement on 13.11.1995.
Hon’ble Supreme Court in this common judgment decided a writ petition and two appeals by special leave. A common question that has arisen is whether and , if so, in what circumstances a medical practitioner can be regarded as rendering service under section 2(1) (o) of Consumer Protection Act 1986.
(5)
Connected with this question was the question whether the service rendered at a hospital/nursing home could be regarded as service.
Hon’ble Supreme Court after examining number of foreign Judgments, medical literature, and Indian decisions in civil suits, consumer complaints and writ petitions dealing with medical negligence held :-
- Service rendered free of charge by a Medical Practitioner attached to a Hospital/nursing home, all medical officers employed in a hospital/nursing home where such services are rendered free of charge to all, is not a “service” under the Act.
- Service rendered in a non-government hospital/nursing home where no charge is collected from all patients is not covered by the Act.
- But, service rendered at non-governmental hospital/nursing home where charges are collected from some and non collected from some others, falls under 2(1) (o) of the Act, irrespective of the fact that the service rendered free of charge to some poor persons. The patient obtaining free service is also a consumer under the Act.
- Service rendered at Government hospital/health centre/dispensary where no charge is levied on any patient is outside the purview of the Act.
- But, service rendered at a Government Hospital/health centre/dispensary where services are rendered on payment of charge to some and rendered free of charge to other persons, falls under Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to some poor persons. The patient obtaining free service in such case also is a consumer under the Act.
- Where as a part of consideration of service the employer bears the expenses of medical treatment of an employee and his family members, the service to such an employee and his dependents by a Medical Practitioner or a hospital/nursing home would not be free of charge and would constitute “service” under the Act.
- In most government hospitals there are separate paying wards where affluent patients seek admission and the general ward where poor patients are treated free of charge. Both the types of patients are entitled to protection under the Act”.
Patient Mamoni Ghosh was at the first treated before OP NO.3 but she did not continue the said treatment. Complainants stated in the petition of complaint that as the complainants are very poor they did not continue the treatment before the OP NO.3. Due to their financial condition they produced the patient before OP NO.1 and OP NO.2 for the treatment of Mamoni Ghosh.
(6)
Accordingly, we find that there is no role of OP NO.3 for treatment of Mamoni Ghosh before District Sadar Hospital.
Accordingly, we find that OP NO.3 has no involvement in the death of Mamoni Ghosh during her treatment before District Hospital, Krishnagar. Accordingly, we find that OP NO.3 is an unnecessary party in this case.
Complainants alleged that due to negligence part of the OP NO.1-2 during the period of treatment at District Hospital, Sadar Hospital, Krishangar, Mamoni Ghosh died.
It is clear before us that complainants lodged the present complaint against the Doctor of District Sadar Hospital, Krishnagar and Superintendent, District Sadar Hospital, Krishnagar. There is no doubt that District Sadar Hospital is a government hospital and OP NO.1-2 are the employee of a government hospital i.e District Sadar Hospital, Krishnagar.
Having regard to the aforesaid discussion and in view of the aforesaid decision of Hon’ble Supreme Court, it is clear before us that present case is not maintainability against the OP NO.1-2.
In the result present case fails.
Hence,
It is
Ordered
that that the present case be and the same is dismissed on contest against the OP NO.1&3 and dismissed the ex-parte against the OP NO.2 but without any order as to cost.
Let a copy of this order be supplied to the parties as free of cost.
Dictated & corrected by me
............................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
We concur,
........................................ .........................................
MEMBER MEMBER
(NIROD BARAN ROY CHOWDHURY) (MALLIKA SAMADDAR)
