Tripura

West Tripura

CC/14/55

Smti Tandra Das - Complainant(s)

Versus

Dr. Shymal Sarkar - Opp.Party(s)

Mr.D.Sarkar,Mr.N.Mukharjee

20 Jan 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM
WEST TRIPURA : AGARTALA

    CASE NO:  CC-  55 of 2014

Smt. Tandra Das
D/O- Sri Khitish Ch. Das,
Ramnagar, Road No. 8,
Agartala, West Tripura.            ............Complainant.
    
         ______VERSUS______

Dr. Shyamal Sarkar 
S/O- Lt. Naresh Sarkar,
Ramnagar Road No.5/6,
Agartala, West Tripura.     & Others    .........Opposite Parties.
            

                    __________PRESENT__________

 SRI A. PAL,
PRESIDENT,
  DISTRICT CONSUMER  DISPUTES REDRESSAL FORUM,
      WEST TRIPURA, AGARTALA. 

SMT. Dr. G. DEBNATH
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

SHR. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

C O U N S E L

For the Complainant        : Sri Dilip Sarkar, 
                      Sri Niladri Mukherjee and
                      Sri Suman Bhattacharjee,
                      Advocates.
    
For the Opposite parties        : Sri P. K. Biswas,
                      Sri Pramod Sahu and 
                      Mrs. Rupa Mahajan,
                       Advocates.              
                                                         

JUDGMENT  DELIVERED  ON: 20 .01.16

J U D G M E N T
        This case U/S 12 of the Consumer Protection  filed by the complainant, Tandra Das against Dr. Shyamal Sarkar and others. The complaint in brief is that the complainant had been suffering from pain around the sides of her buttocks and she went to  consult the doctor. She carefully went to the chamber of Dr. Shymal Sarkar. Doctor advised the complainant and demanded professional fees. Prescription was given prescribing some medicines. But the complainant did not get any relief and pain was unbearable. So, she went to the chamber of another doctor, Rajib Ghosh. The doctor clinically examined her and advised her for surgery. She then went to Kolkata for better treatment and was treated by Dr. Shibnath Mondal, Surgeon. She was treated in the Peerless Hospital and spent a huge amount. She filed this complaint for medical negligence and demanded an mount of Rs.10,14,400/- from the O.P. No.1, Dr. Shyamal Sarkar. It is to be noted here that she also filed complaint to the Medical Council of India/ Tripura, Director of Health, Secretary of Health and Family Welfare but she did not get any redress. 

        O.P. No.1 appeared and by filing W/S & denied the claim. It is  stated that the complainant did not pay any professional fee to the O.P. No.1 as she was known to the doctor. She was not at all a consumer and the doctor prescribed as per his knowledge and advised her to visit after 7 days. 

        On the basis of rival contention as put forward by both the parties we shall now decide the following points.
        i) Whether the O.P. Dr. Shyamal Sarkar negligently treated the petitioner and caused damaged to her?
        ii) Whether the petitioner is entitled to get compensation for medical negligence?

        Petitioner side produced the prescription issued by O.P. No.1, treatment report, discharge summary, photocopy of FIR, advocate's notice etc. which are exhibited and marked as Exhibit- A series.

        Petitioner side examined one witness P.W.1, Tandra Das.
        
        On the other hand O.P. No.1 produced copy of the complaint petition submitted to the President M.C.I, Letter of correspondence of Tripura Medical Council, also examined two witnesses. O.P. No.1, himself & another witness, O.P.W.2, Dr. Jayanta Kr. Das. 
        Complainant thereafter also produced the FIR, Air tickets, prescription report of Apex Institute of Medical Science, report of Peerless Hospital and bills, Bhidhan Nagar City Police Passenger copy and colour photocopy which are exhibited and marked as Exhibit- 1 series.
    
        On the basis of all the evidence we shall now determine the above points.
            FINDINGS AND DECISION OF POINT NO.1 AND 2:-

    It is admitted and established fact that the complainant visited the chamber of Shyamal Ch. Sarkar. She did not specifically said what amount she paid to the doctor but admittedly she visited the private chamber of the doctor. In the Complaint petition and also in the evidence the complainant stated that doctor received the professional fees as consultation fees but did not mention the amount. No receipt also produced. Copy of the prescription Exhibited- A series as admitted by Dr. Shyamal Sarkar. His qualification written as MBBS, MD (AIIMS), New Delhi. Tandra Das, complainant visited his chamber on 18.03.14. Clinical notes written in the prescription as per that note there was severe pain around anus, BP -130/80. 3 medicines prescribed along with one injection, Dolonax. Complainant did not visit Dr. Shyamal Sarkar thereafter. Thereafter she visited the chamber of one Rajib Ghosh on 26.03.14. that is after 8 days. Then Dr. Rajib Ghosh referred her to surgeon for further necessary action. He also prescribed 2 medicines. Complainant then went to kolkata and visited Apex Institute of Medical Science. As per discharge summary patient presented Large Nacrotic abscess heavy pain in the perennial area seen by doctors of Tripura who given antibiotics without examining the local area according to the patient. From the evidence of the complainant it  is found that allegation against O.P. No.1 is that without examination  local area he prescribed antibiotics. Then it developed into surgical case and the petitioner had to go to Kolkata and spent a huge amount. In Kolkata Report of discharge summary nothing stated about the damage due to late treatment. Nothing comes out from the prescription and evidence given by the complainant to support that the complainant was wrongly treated by O.P. No.1. Tripura Medical  Council on careful examination reported that O.P. No.1 treated adequately as a careful doctor. That report is however challenged and as per decision of the  Honble high court fresh enquiry is to be conducted and opportunity is to be given to the petitioner patient for hearing. It is true that doctor Shyamal Sarkar was negligent when he did not notice the effected area but this negligence did not cause any damage to Tandra Das. After 8 days when the pain did not subside then she visited another doctor and that doctor advised her for surgical intervention. After surgical intervention she was cured. Surgeon is also available in Tripura and there is nothing in the record that such surgery was not possible in Tripura. Negligence is careless state of mind which may amounts to indifference. It is careless conduct without reference to any duty to take care. Tortious liability arise from breach of duty primarily fixed by law. Negligence and tort involves violence consequence firstly by breach of legal duty to exercise due care secondly breach of duty thirdly consequential damage. Here petitioner failed to produce any sufficient evidence to support that O.P. No.1 Dr. Shyamal Sarkar was  not under legal duty to exercise due care to see the effected area and by his failure he committed no breach of duty. Petitioner side also failed to support that due to such breach of duty petitioner suffered consequential damage. Dr. Shyamal Sarkar prescribed some antibiotics hoping that the abscess might subside and pain might be removed. When the pain was not removed and petitioner had been suffering she did not visit the doctor again but went to another doctor after 8 days. That doctor then referred her to surgeon. For this 8 days delay in treatment she did not suffer any damage. There is no medical opinion to support that the prescribed antibiotics caused any damage to the effected area  & there is no medical opinion to support that the antibiotics were wrongly  prescribed and were not supportive in the treatment. So we are of the view that there was no medical negligence by doctor Shyamal Sarkar and he is not under any liability to pay any compensation. The petition has no merit. Both points are decided accordingly. 
    In view of the above findings above the prayer filed u/s 12 of the act is dismissed. Parties are to bear their own cost. The case is disposed of accordingly. 
 
12.                  A N N O U N C E D

 

SRI A. PAL
PRESIDENT,
DISTRICT CONSUMER  DISPUTES 
REDRESSAL FORUM,
WEST TRIPURA,  AGARTALA.

 

SHRI. B. BHATTACHARYA,
MEMBER,
 DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
  AGARTALA, WEST TRIPURA