IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
MURSHIDABAD , AT BERHAMPORE.
CASE No. CC No. 159/2009.
Date of Filing: Date of Admission : Date of Disposal:
24.07.2013 12.08.2013 11.12.2017
- The Substituted Legal Heirs of
Late Sukhendu Bikash Roy,
S/o Late AbhayaPada Roy,
- RajibLochan Roy,
S/o Late Sukhendu Bikash Roy
- Padma Palash Roy,
- Arup Roy,
- Sarup Roy,
- Smt. Maya Roy,
W/o Late Sukhendu Bikash Roy,
all of Vill: Thira, P.O. Mohisar,
P.S. Khargram, Dist. Murshidabad. …………… Complainant.
-vs-
Cont. ……….…. 2
= 2 =
- Dr. Saibal Maity, MBBS, MS,
Vill & P.O. Kumarchak,
P.S. Nanda Kumar,
Dist. Midnapore,
Presently residing at the House of
Sri Rabindranath Chakraborty,
Jail Road, Kandi,
P.O. & P.S.Kandi,
Dist. Murshidabad.
- The Substituted Legal Heirs of
Late Dr. Sobhendra Nath Dutta,DMS
S/o Late Dr. Sisir Kumar Dutta,
Proprietor of ‘Kandi Nursing Home’
At College Road,Kandi,
P.O. &P.S.Kandi,
Dist. Murshidabad.
a) Tripti Dutta,
b) Rina Dutta,
c) Sourin Dutta
(Minor represented by mother Rina Dutta)
……..…..... Opposite Parties.
Sri , Advocate ...………. for Complainant
Sri , Advocate …………. for Opposite Parties
Cont. ……….…. 3
= 3 =
Present : Smt. Chandrima Chakraborty ……. Member.
Sri Manas Kumar mukherjee ............ Member.
J U D G M E N T
Chandrima Chakraborty, Presiding Member.
Interference of this Forum has been sought for by the Complainant, contending gross negligence, deficiency and unfair trade practice in rendering service towards the Complainant by the Opposite Party.
In epitome, the fact stated in the complaint, is that, the Complainants are the legal heirs of the deceased Chanchal Roy who is the victim of this case. On 16.02.1998, Chanchal Roy felt acute pain in his abdomen and was taken to the Kandi Hospital and the Opposite Party No. 1, who was a Govt. Medical Officer and as well as a Private Medical Practitioner also, after attending/treating the patient had prescribed some medicines and advised for Appendix surgery by him in the Nursing Home named ‘Kandi Nursing Home’ owned by the Opposite Party No. 2 who was a Homeopath doctor and not possessed any MB or MBBS degree and without having any knowledge and/or training in Allopathic system of treatment. And Smt. Barnali Mondal and Tapan Mondal were appointed by the Opposite Party No. 2 as nurse and male attendent to attend the demised patient.
Cont. ……….…. 4
= 4 =
The patient demised Chanchal Roy was admitted to the said Nursing Home owned by the Opposite Party No. 2 on 30.05.1998 at about 9.30 am for Appendix Surgery as advised by the Opposite Party No. 1 who promised to operate the patient at about 1.00 pm and the Complainants had been paid a sum of Rs. 1,800/- only in cash on that day as consideration amount to the Opposite Party No. 2 on demand. But the Opposite Party No. 1 came at 4.30 pm and after performing the said operation had left the Nursing Home at 4.50 pm in a hurry informing the Complainants that the operation was successful. The patient was shifted to the General Bed 5/6 minutes before the Opposite Party No. 1 left the Nursing Home at 4.50 pm when the patient regained his sense to some extent and after thereafter the patient had started complaining of burning sensation and pain in the place of operation and both legs. The matter was informed to the Opposite Party No. 2 and to the Opposite Party No. 1 twice or thrice but the Opposite Party No. 1 came at 8.30 pm but left the Nursing Home without checking up the patient stating that the same was normal post–operative maladies. The Opposite Party no. 2 had left the Nursing Home at 10.00 pm when the patient twisting with pain and became pale and before leaving the Nursing Home he advised the attending female nurse Barnali Mondal to push one injection said to be a sleep–inducer and another parenteral administration of another drug to the patient without referring the patient to any other Hospital for better and proper treatment and had treated the patient negligently. At the time of pushing the said injection the brother of the patient tried to prevent the Hospital Authority with warning that the patient remained in empty stomach for more than 30 hours and
Cont. ……….…. 5
= 5 =
might not tolerate such drug and asked to wait for the Opposite party No. 1 Doctor but the same was administered by that Barnali Mondal under instruction of the Opposite Party No. 2 and the patient started suffocating and ultimately when the Doctor came the patient collapsed and died. After death of the said patient the matter was informed to the concerned Police Station and a GD was entered being No. 1265 and a PS Case No. 70/98 was duly registered against the Opposite Parties and the Post Mortem of the deceased was duly done by proper authority.
Moreover the Opposite Party No. 2 had been running the said Nursing Home without having the required license and the female nurse Barnali Mondal has no Diploma or training in nursing and both the Opposite Party No. 2 and Barnali Mondal had acted beyond their ability and knowledge, what amounts to negligence and deficiency in rendering service by the Opposite Party towards the Complainants for which being victimized and harassed the Complainants has to file the instant case seeking adequate redressal against the Opposite Party.
Resisting the complaint, the Opposite Party No. 1 had filed the Written Version denying the contention made by the Complainants in his complaint and stating inter alia that the case is not maintainable and the complainant has no cause of action to file the instant case and the Opposite Party No. 2 who was deceased after filing the Written Version and his legal heirs were duly substituted in the instant Case nut none of them was appeared to contest the case for which the Written Version filed by the deceased Opposite Party No. 2 has been considered at the time of passing the Judgment.
Cont. ……….…. 6
= 6 =
The deceased opposite Party No. 2 had filed the Written version stating inter alia that the case is not maintainable and all the allegations made by the Complainant in the petition of complainant was false and baseless and the complainants have no cause of action to file the instant case.
The specific case of the Opposite Party No. 1, in terse, is that this Opposite Party No. 1 is a recognized Doctor having MBBS and MS degree with vast experience. The demised patient was admitted in the Opposite Party No. 2 Nursing Home with Appendix and after examining the patient this Opposite Party No. 1 suggested for operation and the brother of the deceased patient gave the consent for the same. The operation was successfully done on 30.05.1998 at about 4.00 pm and this Opposite Party No. 1 had left the Nursing Home after examining the patient with due care at about 8.00 pm after applying the medicines when the vital functions of the patient was normal. After leaving the Nursing Home this Opposite Party had got no massage from the Nursing Home at night about the condition of the patient. The Opposite Party No. 1 was informed about the condition of the patient on next day at about 6.00 am immediately rushed to the Nursing Home and found the patient had already expired. This opposite Party No. 1 never instructed to push any injection to the patient during night and never administered and/or advised any adverse drug for the patient.
But unfortunately the FIR was lodged against this Opposite Party No. 1 along with others without any deficiency and/or negligence on his part. So the Opposite Party No. 1 denies any deficiency and negligence towards the deceased family member of the Complainants for which the complaint is liable to be dismissed.
Cont. ……….…. 7
= 7 =
The specific case of the demised Opposite Party No. 2, in gist, is that the Opposite Party No. 2 did not assured the patient and his brother about the arrangements and facilities of the Nursing Home. The patient was treating by the Opposite Party No. 1 Doctor who like other Surgeons also used to have his patient treated and operated at this Nursing Home. The patient had admitted for operation on advice of the Opposite Party No. 1 who is a MS Doctor and the deceased Opposite Party No. 2 did not assured the patient or his brother. Being the Surgeon the Opposite Party No. 1 was responsible about the post operative treatment of the patient wherein the Opposite Party No. 2 has no authority to say or to take any decision in this matter and/or had no scope to refer the patient to any Specialist Doctor. The opposite Party No. 2 never instructed the female nurse Barnali Mondal to push any injection to the Patient at night and no treatment was done as per advice of this Opposite party No. 2. All medicines were administered only by the surgeon doctor Opposite Party No. 1.
The actual fact is that the patient only admitted in the Nursing Home of the Opposite party No. 2 but entirely treated by the Opposite party No. 1 wherein this Opposite Party No. 2 has nothing to do. Thus the Opposite Party No. 2 has strictly denied any deficiency and/or negligence in rendering any service towards the demised family member of the Complainants and prayed for dismissal of the instant case.
Cont. ……….…. 8
= 8 =
Point for Determination
1. Whether the instant case is maintainable ?
2. Whether there is negligence or deficiency in service
on the part of the O.Ps ?
3. Whether the complainant is entitled to get the relief as prayed for ?
Decision with Reasons
All the points are taken up together for consideration for convenience and brevity.
The main dispute between the Complainant and the Opposite Parties is that, whether the Opposite Parties are deficient and/or negligent in rendering the medical service towards the demised family member of the Complainant or not.
On overall evaluation of the argument made before the Forum by the Ld. Advocate for the Complainant and the Ld. Advocate for the Opposite Party No. 1 (but none was present on several calls on behalf of the substituted Opposite Parties No. 2a, 2b & 2c before the Forum for hearing the argument) and critically perusing all documents submitted by both parties as material evidences on record, it is evident that admittedly the youngest son (demised Chanchal Roy) of the Complainant No. 2 was admitted with acute pain in his stomach which was detected as appendix pain in the ‘Kandi Nursing Home’ owned by the deceased Opposite Party No. 2 and was treated and advised for surgery by the Opposite Party No. 1 Doctor and ultimately operated by the Opposite Party No. 1 on 30.05.1998.
Cont. ……….…. 9
= 9 =
Admittedly the Complainants had paid a sum of Rs. 1,800/- only towards the Opposite Party No. 2 on demand as consideration amount for such surgery and treatment which has never been denied by any of the Opposite Parties in their respective Written Versions.
The Complainants alleged in the Paragraph No. 10 of the petition of complaint that the said Nursing Home named ‘Kandi Nursing Home’ had no required and/or proper license to continue the same wherein many critical medical treatment and surgeries had been done/undertaken. Now it is revealed from Written Version filed on behalf of the deceased Opposite Party No. 2 that at Paragraph No. 11 of the same it was denied and disputed as a whole but not specifically denied the allegation and stated that he had continued with the said Nursing Home with required and proper licence and never produced any such document to show that the said ‘Kandi Nursing Home’ had proper licence for medical treatment and surgery which is definitely comes under ‘Unfair Trade Practice’ under Section 2(r) of the Consumer Protection Act, 1986, and for which the deceased Opposite Party No. 2 and presently the legal heirs of the said deceased the Opposite Party No. 2(a) , 2(b) & 2(c) who were substituted after his demise are held liable for Unfair Trade Practice.
The Complainants stated in the petition of complaint that on 30.05.1998, the Opposite Party No. 1 came to the said Nursing Home and
the said operation was held at about 4.30 pm and the patient was shifted to the General Bed, 5/6 minutes before the Opposite Party No. 1 left the Nursing Home at 4.50 pm when the patient regained his sense to some extent and
Cont. ……….…. 10
= 10 =
thereafter the patient had started complaining of burning sensation and pain in the place of operation and both of the feet, which was duly informed to the Opposite Party No. 2 and to the Opposite Party No. 1 twice or thrice but the Opposite Party No. 1 came at 8.30 pm but left the Nursing Home without checking up the patient stating that the same was normal post–operative maladies. But denying such allegation the Opposite Party No. 1 stated that the Opposite Party No. 1 had left the Nursing Home after examining the patient with due care at about 8.00 pm after applying the medicines when the vital functions of the patient was normal.
The Complainants alleged that when the patient suffered from rigorous pain at night the Complainant severally informed the matter to the Opposite Party No. 2 and the attending Nurse Barnali Mondal and they attempted to push an injection named phial Allclox and it is the fact that the brother of the patient cautioned both of them the fact that the patient was in empty stomach for more than 30 hours for which he might not tolerate such potent drug and asked to wait for Doctor’s arrival but the Opposite Party No. 2 did not paid any heed to it and after administering the said injection the patient started suffocating and ultimately collapsed and died.
The Complainants further alleged that the Opposite Party no. 2 pushed one injection said to be a sleep–inducer and another parenteral administration of another drug to the patient without referring the patient to any other Hospital for better and proper treatment and had treated the said patient negligently.
Cont. ……….…. 11
= 11 =
But the said allegation was strictly denied by the deceased Opposite Party No. 2 and specifically stated that patient had admitted for operation on advice of the Opposite Party No. 1 who is a MS Doctor and being the Surgeon only the Opposite Party No. 1 was responsible about the post operative treatment of the patient wherein the Opposite Party No. 2 has no authority to say or to take any decision in this matter and/or had no scope to refer the patient to any Specialist Doctor and any other Hospital and all medicines were administered only by the surgeon doctor Opposite Party No. 1.
The Complainant alleged that the Opposite Party No. 1 Doctor did not appear at the Nursing Home when he was called for but the Opposite Party No. 1 strictly denying the same specifically stated in his Written Version that after checking the patient at night the Opposite Party No. 1 had left the Nursing Home and thereafter this Opposite Party No. 1 had got no massage from the Nursing Home at night about the condition of the patient. The Opposite Party No. 1 was informed about the condition of the patient on next day at about 6.00 am immediately rushed to the Nursing Home and found the patient had already expired. This opposite Party No. 1 never instructed to push any injection to the patient during night and never administered and/or advised any adverse drug for the patient.
But it is manifestly evident from the photocopies of the documents (The decision of West Bengal Medical Council, Kolkata, along with the witnesses of the deceased Opposite Party No. 2 Dr. Sovendranath Dutta and the Male Attendant Tapan Dutta) that
Cont. ……….…. 12
= 12 =
the Opposite Party No. 2 specifically stated in his witness that when the condition of the patient was critical the Nursing Home authority called the Opposite Party No. 1, thrice on 30.05.1998/31.05.1998 but the Opposite Party No. 1 did not come to the Nursing Home to attend the said patient and the same was affirmed by the Male Attendant Tapan Mondal in his witness.
The record reveals that in the said alleged surgery no Anesthetist Doctor was properly appointed for anesthesia of the patient before the said operation. The Complainant alleged that at the time of operation the Opposite Party No. 1, the Opposite Party No. 2, the female nurse Barnali Mondal and the male attendant Tapan Mondal were present. By critically perusing the entire case record it is noticed that out of present doctors neither the Opposite Party No. 1 nor the Opposite Party No. 2 had any proper degree to do the anesthesia over the patient. But fact remains that the anesthesia had been applied by any of two present doctors who had/have no proper knowledge and skill regarding the administration of anesthesia which is also supported by the witness of the deceased Opposite Party No. 2 Dr. Sovendranath Dutta before the West Bengal Medical Council, Kolkata, that the Opposite Party No. 1 had himself administered the anesthesia towards the deceased patient Chanchal Roy which is very much deficient and/or negligent manner of proving service towards the demised patient. Moreover, the Opposite Party No. 1 never denied the fact that no skilled Anesthetist was present at the time of alleged surgery in his Written Version and for which the Opposite Party No. 1 is held liable for rendering deficient and/or negligent manner of service towards the demised patient under the Consumer Protection Act, 1986.
Cont. ……….…. 13
= 13 =
Furthermore, significantly it is clearly revealed from the said photocopies of the documents (The decision of West Bengal Medical Council, Kolkata) filed by the Complainant that on basis of the complaint lodged by these Complainants and after proper hearing the both parties, the West Bengal Medical Council, Kolkata had pronounced their decision and/or Order in favour of the Complainants and punished the Opposite Party No. 1 by suspending and/or removing the Medical Licence of the Opposite Party No. 1 for 6 months.
At the time of hearing the argument the Ld. Advocate for the Opposite Party No. 1 raised the point that the said decision of the said West Bengal Medical Council, Kolkata was not binding upon the Consumer Forum and as such the said document is irrelevant to this instant case. But the Ld. Advocate of the Complainants stated that the decision and/or order was passed after the proper hearing the both parties and thus the decision and/or Order of the West Bengal Medical Council, Kolkata is very much relevant to this case.
Considering all aspect and fact of the case, the Forum decided to consider the decision of the said West Bengal Medical Council, Kolkata as an Expert opinion regarding the said disputed matter as because the Members of the Medical Council who decided the fate of the matter were/are should be the medical persons having knowledge on the concerned medical subject and the decision of those Medical experts should/shall be taken as Expert Opinion.
Cont. ……….…. 14
= 14 =
In the instant case, manifestly the documents reveal that the West Bengal Medical Council, Kolkata decided to punish the Opposite Party No. 1 as guilty for the death of demise Chanchal Roy and removed the name of the Opposite Party No. 1 for a period of six months which confirms that the Opposite Party No. 1 Dr. Saibal Maity was held to be guilty for negligent treatment towards the demise Chanchal Roy.
Moreover, it is evident from the record that after death of the said patient the matter was informed to the concerned Police Station and a GD was entered being No. 1265 and a PS Case No. 70/98 was duly registered against the Opposite Parties and the Post Mortem of the deceased was duly done by proper authority and the said photocopy of the said Post Mortem Report evident that the cause of the death was due to the ‘defect of the surgical intervention’ , which also shows that the Opposite Party No. 1 was negligent in doing the surgery towards the demise patient.
It is also manifestly revealed that the deceased Opposite party No. 2 had been continuing the said Nursing Home namely ‘Kandi Nursing Home’ without any proper licence for which the substituted legal heirs of the Opposite Party No. 2 is held liable for paying the compensation for ‘Unfair Trade Practice’ under the Section 2(r) of the Consumer Protection Act, 1986 towards the Complainants and also towards the Legal Aid Account.
Cont. ……….…. 15
= 15 =
The Complainants alleged that on direction and/or instruction of the deceased Opposite Party No. 2 (who was not an MBBS Doctor but only a DMS, Homeopath doctor), the female attendant Barnali Mondal had pushed an injection to the patient, whereas the brother of the demised patient severally asked the said female attendant to wait for the treating doctor but that Barnali Mondal did as per the direction of the Opposite Party No. 2 and after pushing the said injection the patient started suffocating and ultimately collapsed which the deceased Opposite Party No. 2 had denied and stated that all medicines and injections were administered as per direction of the Opposite Party No. 1.
The fact remains that an injection was administered over the deceased patient at the said night and after administering the same the patient started suffocating and ultimately the patient collapsed and died.
But in the evidence before the West Bengal Medical Council, Kolkata the Opposite Party No. 2 stated that at that night the Opposite Party No. 1 was severally called over telephone severally but he denied to come. So it is clear that the said injection was administered under the instruction of the demised Opposite Party No. 2. But though the Opposite Party No. 2 is deceased at present and he did all these as his personal skill, his legal heirs are not held to be liable for any wrong done by the deceased doctor in his personal skill and so the present Opposite Parties Nos. 2 (a), 2(b) & 2(c) are not held liable to pay any compensation.
Cont. ……….…. 16
= 16 =
Thus the unanimous decision of the Forum is that the Opposite Party No. 1 is held liable for rendering deficient and/or negligent manner of service towards the demise patient Chanchal Roy for which the Opposite Party No. 1 is liable to pay the appropriate compensation in favour of the Complainant No. 2 (as the Complainant No. 2 is the mother of the deceased patient, who is only 1st class heir of the deceased Chanchal Roy) and further it is the agreed decision of the Forum is that the Opposite Parties Nos. 2(a), 2(b) & 2(c) are also held liable to pay compensation in favour of the Complainant No. 2 for providing deficient and/or negligent manner of service towards the demised patient and for ‘Unfair Trade Practice’ for running the Nursing Home without any proper licence and further held liable to pay the penalty towards the Consumer Legal Aid Account for adopting the ‘Unfair Trade Practice’ .
Therefore in light of the above analysis, we are of the opinion that the Complainants have successfully proved the instant complaint case and are entitled to get the relief against the Opposite Parties as prayed for and consequently the points for determination are decided in affirmative in favour of the Complainants.
In short, the Complainants deserve success.
In the result, we proceed to pass
Cont. ……….…. 17
= 17 =
O R D E R
That the case be and the same is allowed on contest against both the Opposite Party no. 1 and the present Opposite Parties Nos. 2(a), 2(b) & 2(c) with cost of Rs. 50,000/- only payable in favour of the Complainants by both the Opposite parties jointly and severally within one month from the date of this ‘Order’.
That the Opposite Party No. 1 is directed to pay the amount of Rs. 6,00,000/- only to the Complainant No. 2 as compensation for rendering the deficient and/or negligent manner of service/treatment towards the deceased patient, within one month from the date of this ‘Order’.
That the Opposite Party No. 1 is further directed to pay the sum of Rs. 4,00,000/- only as penalty for doing ‘Unfair Trade Practice’ towards the Consumer Legal Aid Account within one month from the date of this ‘Order’ .
That the Opposite Party No. 2(a), 2(b) & 2(c) are directed to pay the sum of Rs. 4,00,000/- only as compensation to the Complainant No. 2 for doing ‘Unfair Trade Practice’ within one month from the date of this ‘Order’ .
That the Opposite Party No. 2(a), 2(b) & 2(c) are further directed to pay the sum of Rs. 3,00,000/- only as penalty for doing ‘Unfair Trade Practice’ towards the Consumer Legal Aid Account within one month from the date of this ‘Order’ .
Cont. ……….…. 18
= 18 =
In the event of non compliance of any portion of the order by the Opposite Party/s within a period of one month from the date of this ‘Order’, the default Opposite Party/s shall have to pay a sum of Rs. 400/- per day, from the date of this ‘Order’ till full satisfaction of the decree, which amount shall be deposited by the said default Opposite Party/s in the Consumer Legal Aid Account.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
MEMBER PRESIDING MEMBER
