In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/33/2020.

Date of filing: 26/08/2020.                     Date of Final Order: 22/11/2024.

Shrabani Banerjee,

W/O-Late Bijon Komar Banerjee,

resident of 344, B. Dey Road,

Maheshtala Barodauri PO & District Hooghly,

PS Chinsurah, Pin-712103.                                                         …..Complainant

  vs 

1. Dr. Santanu Dalal,

Resident of Rosevilla Chatterjee Lane,

PS-Chinsurah, P.O. & District-Hooghly. Pin-712103

2. Kanak Nursing Home,

1 No. Netaji Park, Lichubagan G.T. Road, Bandel, Hooghly.

3. Extent Medical & Surgical Centre,

1032, Rue-De-Cordierie, Barabarar, Chandannagore, Hooghly.

…….Opposite Parties.

Before:            President, Shri Debasish Bandyopadhyay.        

                         Member, Babita Chaudhuri.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that  the complainant's husband Bijon Kumar Banerjee died on 04/06/2017 duc to wrong treatments and negligent acts of the O.P.s.

That the complainant is the legal heir as well as beneficiary of her deceased husband and as per provision of law she has become the consumer under the O.P.s in place of her deceased husband as patient/consumer under the O.P.s.

That the Complainant's husband Bijon Kumar Banerjee was initially under treatment under the O.P. No.-1 due to his old age diseases.

That on 17/05/17 the complainant's husband due to physical discomfort was taken for treatment before the O.P. No.-1. That be it mentioned here that on the same date ie. on 17/05/17 the son of the complainant namely Rivu Banerjee due to his illness was also been taken to the O.P. No.-1.

That on the said date i.e. on 17/05/17, the O.P. No. 1 treated the complainant's husband and her son and prescribed medicines for them in his prescription dated- 17/05/17.

That be it mentioned here that in the said prescription dated 17/05/17 of said Rivu Banerjee, the O.P. No.-1 also prescribes the medicines to be taken for the complainant's husband which is beyond the norms of any medical practioner and which tentamounts to gross negligence of the O.P. No.-1.

That accordingly as per the said prescription dated 17/05/17, the complainant's husband purchased medicines from Loknath Pharmacy.

That after in-taking the medicines as per the said prescription dated 17/05/17 of the O.P. No. 1, the physical condition of the patient i.e. the complainant's husband was detorating expidiously and accordingly he was taken to the O.P. No.- 1 for treatment. But when the condition of the Complainant's husband was in serious nature the complainant requested the O.P. No.-1 for taking proper steps urgently but the O.P. No.-1 did not pay any heed to that. That detecting the symptoms of the patient, the complainant challenged before the O.P. No.-1 regarding the improper medicines that was suggested as per the prescription dated-17/05/17.

That when the patient was going to last condition as the proper steps was not taken inspite of several requests of the complainant then as per prescription dated- 26/05/17, the O.P. No.-1 prescribed some medicines in the same and on the said prescription wrote the name of the Kanak Nursing Home i.e. the O.P. No.-2 along with the phone numbers for referral for better treatments.

That accordingly as per advice as well as the prescription dated- 26/05/17 of the O.P. No.-1, the patient i.e. the complainant's husband was admitted to Kanak Nursing Home i.e. the O.P. No.-2. That there the patient was diagonised as CKD, Septicaemia, Dyselectro Lytemia.

That as the patient's condition was not at all improved and was detoriating so, the O.P. No.- 2 discharged the patient and referred him to the Higher Centre for better treatment on 27/05/17 as per Referral Discharge Certificate of Kanak Nursing Home dated-27/05/17.

That accordingly the patient i.e. the complainant's husband was treated at Extent Medical & Surgical Centre i.e. the O.P. No. 3 on and from 27/05/17 to 04/06/17.

That thereafter on 04/06/17 the patient i.e. the complainant’s husband expired at Extent Medical & Surgical Centre i.e. the O.P. No.-3.

Complainant filed the complaint petition to pass a decree against the opposite party no.-1 declaring that there is gross negligence and deficiency of service in respect of the prescription dated 17/05/17 wherein, the O.P. No.-1 prescribes the medicines to be taken for the complainant's husband in the prescriptions of Complainant's son, Rivu Banerjee which is beyond the norms of any medical practioner and which tentamounts to gross negligence of the O.P. No.-1 and to give direction to op no. 1 to pay a sum of Rs. 5,00,000/- as compensation and to give direction to op nos. 2 and 3 to pay a sum of Rs. 3,00,000/-  for deficiency of service and to give directions to all the ops to pay a sum of Rs. 60,000/- for mental harassment and to pay a sum of Rs. 40,000/- as litigation cost.

Defense Case:-  The opposite party No. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that That the present Complaint Case is barred by limitation. The treatment of Bijon Banerjee was rendered by the answering O.P. on 25/05/2017 and on 26/05/2017 only and subsequently said patient Bijon Banerjee reported to have died on 04/06/2017; but the present Complaint Case appears to has been filed on 26/08/2022, that is after expiry of the limitation period of 2 years.

It is, however, fact that on the said date on 17/05/2017, the Complainant's son Rivu Banerjee was brought before the answering O.P. No.1 and on examining him, the O.P. No.1 duly given proper advice to the said patient and thus prescribed medicines for him which the answering O.P. thought necessary. At the time of leaving the chamber of the answering O.P., the Complainant reported about some further petty problems of her son Rivu Banerjee and in the result the answering O.P. No.1 prescribed some more nominal medicines for said Patient Rivu Banerjee on the back side of the said Prescription dated 17/05/2017 to control loose motion on emergency and for indigestion and worm, if needed. But the same can never be for his father Bijon Banerjee since he was not brought before OP-1 on that day. The Cash Memo issued by the Pharmacy for such medicines in the name of Bijon Banerjee without basis of any Doctor's Prescription in his name was beyond any ethics and norms on the part of a licensed Pharmacy.

that since the answering O.P. No.1 never treated the Complainant's husband on 17/05/2017, so the question of prescribing any medicine for complainant's husband Bijon Banerjee on the prescription dated 17/05/2017 never arose. The allegation of prescribing any medicine for Bijon Banerjee on the same Prescription dated 17/05/2017 for the Complainant's son Rivu Banerjee is beyond ethics on the part of a Medical Practitioner and the answering O.P. No.1 never did it, as alleged.

That in reply to the statements contained in para 9 of the Petition of Complaint, the answering O.P. No.1 admits that said patient Bijon Banerjee was brought before the answering O.P. No.1 on the very day on 25/05/2017 for the first time with Chest infection, along with high BP, high Rotassium with respiratory distress, swelling body. On prescribing some medicines, which was found necessary, he was advised for some investigations and then to brought the Report on 26/05/2017 evening at the Chamber.

 On the immediate next day evening on 26/05/2017 the Investigation Reports were brought to the O.P. No. I. It was very bad report of Septic and Renal Failure with animia. The answering O.P. No.1 told the patient party for immediate hospitalization  with proper nephrology set up. Some initial medicines were wrote to start initially, after admission to give oxygen and told to obtain urgent nephrology opinion.

 In addition to prescribing some medicines advised for referring the patient to any nearby Nursing Home. The Complainant was told that she may admit the patient at Kanak Nursing Home and thus provided with Phone numbers for convenience for the patient party.

That the answering O.P. No.1 has come to know later that the patient Bijon Banerjee was taken to Kanak Nursing Home on the next day in gasping condition. But the O.P. No.1 was not informed. The said Nursing Home authority tried initial management (intensive Care). Under supersession of the R.M.O. The R.M.O. consulted with the O.P. No.1 over phone; But the O.P. No.1 was out of station then and so he had no scope to visit the patient personally.

That it should not be out of place to submit here that the answering O.P. has later on came to know that during the admission of the patient at Kanak Nursing Home, in their official papers the patient has been unethically shown to be under treatment of the answering O.P. No.1, Dr. Santanu Dalal; But fact remains that the answering O.P.No.1 was out of station at that period and so the patient was under supervision of the R.M.O. The Discharge Certificate is in support of this fact. The entire Discharge Certificate stands in the hands of and under signature of the R.M.O. and the answering O.P. No.1 never treated the patient there at any point of time. Inspite of this fact, the said Nursing Home (Kanak Nursing Home) has most illegally shown the name of this O.P. No.1 in their Bill dated 27/05/2017, as if a fee of Rs 500/- has been paid to Dr. S. Dalal.

That from the facts stated herein above, it would be clear enough by the Hon'ble District Commission that the answering O.P. No.1 has been wrongly implicated with the present Complaint case inspite of the fact that he has no negligence and/or deficiency in rendering his service towards the patient Bijon Banerjee.

That the answering O.P. No.1 does not admit any thing contains in the Petition of Complaint which has either been admitted or specially denied by the answering O.P. No.1.

That the answering O.P. No.1, Dr. Santanu Dalal prays for dismissal of the instant Complaint Case as against him.

The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that Mr. Bijon Kumar Banerjee Male/73 Yrs. Patient attended emergency at  Kanak Nursing Home on 27/05/2017 with a complain of Shortness of breath, respiratory distress, drowsyness in the known case Chronic Kidney Distress with Type-II diabetes admitted at 7:20 AM.

That Patient was admitted immediately, his vital was CBG272, Spo2-74%, P/R-79/Min. He was admitted under Dr Santanu Dalal. He was informed over phone and he advised for ABG and the findings of ABG were Ph- 7.2, PO2-44.6, Sao2-66%, Na- 136, K-5.69.

His total count (TLC)-17800, Creatinine -3.4. Patient party was asked to transfer the patient for further better management. Meanwhile primary management was given as advised by Dr.8 Dalal. Le-

1. Propped up position
2. IV 25% D+ 10V HAI+ Inj Cal 5/4 cente IV stat
3. K Bind Sachet
4. Tab Dytor
5. Inj Pipzo(2.24) IV,
6. Inj Lasix
7. Nebulization with budecort and levolin stat
8. Catherization was done.

Seeing poor prognosis party was repeatedly asked to transfer the patient to the higher set-up. Patient agreed for transfer on 27.05.2017 at 12:30 PM. The transfer note was made and patient was transferred to the higher set-up on 27.05.2017 at 1:35PM.

The nursing home total bills Rs. 4,548.00. The patient party had paid Rs. 4,348.00 after discount Rs. 200.00.

During time patient party was very pleased for service of this nursing home authorities. The patient party was fully satisfied service of this Nursing Home.

So, the instant case is not maintainable in the eye of law.

The opposite party No. 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the present Complaint Case is barred by limitation. As per admission by the Complainant herself, the treatment of Bijon Banerjee was rendered at the O.P. No.3, Medical Centre on and from 27/05/2017 to 04/06/2017 where he died; but the present Complaint Case appears to has been filed on 26/08/2022, that is after expiry of the limitation period of 2 years.

That there is practically not a single whisper within the four corners of the Petition of Complaint as to how and in which manner there can be any sort of negligence and or improper treatment rendered towards the patient Bijon Banerjee.

That there is no other explanation as to how and in which manner, the alleged deficiency in service on the part of the answering O.P. No.3 is rendered for which the Complainant justifies her claims for any compensation and/or litigation cost.

That the answering O.P. No.3 does not admit any thing contains in the Petition of Complaint which has neither been admitted nor specially denied above by the answering O.P. No.3.

That the present complaint case, as against the answering O.P. No.3, Extent Medical & Surgical Centre, is therefore. Liable to be dismissed with exemplary cost for causing unnecessary harassment.

That the answering O.P. No.3, Extent Medical & Surgical Centre, prays for dismissal of the instant Complaint Case as against this Centre with exemplary cost

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite parties filed written notes of argument. As per the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the ld. Advocates of the complainant and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three  points of considerations which have been framed on the ground of maintainability, jurisdiction, cause of action and whether the complainant is a consumer in the eye of law or not, are very vital issues and so these three points of considerations are clubbed together and taken up for discussion jointly at first.

Regarding these three points of considerations it is very important to note that OPs even after appearance in this case and after filing written version, have not filed any separate petition for determination of the issue of maintainability.  Under this position this District Commission has passed the order for further hearing of this case and for starting trial of this case.  Over this issue it is also very mentionworthy that the OPs in their written versions have pleaded the above noted points and / or issues.  On the background of this position and after completion of the trial of this complaint case this District Commission adopted the points of considerations for determination of the fate of this complaint case. This District Commission after going through the material of this case record finds that the complainant is a resident of Chinsurah, Hooghly and the OP-1 is carrying on his medical practice at Chinsurah, Hooghly  and Op-2 is carrying on the business of Nursing Home at Bandel Hooghly and OP-3 is also carrying on its Nursing Home at Chandannagar Hooghly which are under the District of Hooghly.  This factor is clearly reflecting that this Forum / Commission has its territorial jurisdiction to try this case.  Similarly this District Commission after making scrutiny of the material of this case record as well as the pleadings of the parties finds that the total claim of compensation of the complainant is Rs.900,000/- which is far below the pecuniary limit of jurisdiction of Rs.20,00,000/- as per provisions of Consumer Protection Act 1986.  Thus it is crystal clear that this District Commission has its pecuniary jurisdiction to try this case and so the issue of jurisdiction is decided in favour of the complainant side.

Now the question is whether the case is maintainable in its present form and in the eye of law or not?  For the purpose of determination of this point of consideration this District Commission finds that there is urgent necessity of making scrutiny of the material of this case record and also for scanning the evidence on record.  In this connection this District Commission after going through the material of this case record finds that the complainant has her son Rivu Banerjee but said Rivu Banerjee has not been impleaded as a party of this case. Said Rivu Banerjee son of Complainant and deceased Bijan Kumar Banerjee neither been impleaded as a complainant nor been added as OP although he is a necessary party.  In this regard the provisions of section 16 of Hindu Succession Act 1956 is very important.  It is crystal clear that complainant side has violated the provisions of section 16 of the Hindu Succession Act 1956.  Moreover, the complainant brought her Husband on 25.5.2017 and on 26.5.2017 to the OP-1 and the husband of the complainant was admitted to the OP-2&3 Nursing Home on 27.5.2017 but surprisingly the complainant has filed this case on 26.8.2020 which is three year and three months after the date of cause of action.  According to section 24A if Consumer Protection Act 1986 and as per provisions of section 69 of the Consumer Protection Act 2019 each and every complaint case is to be filed within two years from the date of cause of action but in this instant case these provisions of law has not been followed.  So it is crystal clear that this complaint case is barred by limitation.  In this regard it is very important to note that the complainant side has also not filed any separate application for condonation of delay.  This matter is also reflecting that this case is not maintainable and barred by limitation.  In this instant case this District Commission after going through the material of this case record finds that by considering the prayer of the complainant for soliciting expert opinion placed the matter and papers and documents of complainant before the CMOH, Hooghly for taking steps for expert examination and for submitting report and the CMOH Hooghly thereafter had taken steps for sending the said papers and documents to the Superintendent Hooghly District Hospital who formed a Board of Doctors consisting the Dr. Prakash Chandra Samanta, M.O. (Surgeon), Dr. B.R.Manna, M.O (Medicine), Dr. Avijit Misra, M.O (Ortho), and Dr. G.K. Mondal, M.O (G.O).  The said Board of Doctors after examination of papers of medical treatment of the husband of complainant passed the opinion that there is no medical negligence on the part of the OPs and the said report has also been forwarded to this District Commission through CMOH, Hooghly.  The expert opinion given by Board of Doctors of District Hospital Hooghly as practically demolished the claim of complainant for compensation of Rs.9,00,000/-.  In this connection it is the settled principle of law that when no medical evidence has been proved in respect of any specific kind of negligence on the part of the doctors, this District Commission has no other alternative but to dismiss the claim of compensation.  This legal principle has been observed by Hon’ble Apex Court in the case of Dr. S.K.Jhunjhunwala Vs. Mrs. Dhanwanti Kumar and another which is reported in AIR 2018 Supreme Court 4625.

All the above noted factors are clearly reflecting that this complaint case is not maintainable and it is barred by limitation and also bad for defect of parties.  So this District has no other alternative but to dismiss this case for want of medical evidence and as this case is not maintainable in the eye of law.

Thus the points of considerations very important on the point of maintainability cause of action and over the issue whether the complainant is a consumer or not, are all deciding against the complainant.

When the complaint case is found not maintainable in the eye of law, this District Commission finds no justification to discuss other points of consideration which have been adopted in this case.

In the result it is accordingly

ordered

that this complaint case being no. 33 of 2020 be and the same is dismissed on contest.

No order is passed as to cost.

Let a copy of this order be supplied to the parties / their ld. lawyers / agents on record at free of cost as early as possible.

Let this judgment be uploaded in the official website of this District Commission immediately.