The two appeals Bearing No. A/14/2021 and A/11/2021 have arisen out of an order dated 28.01.2021 delivered by Ld. D.C.D.R.F., Malda in CC No 30 of 2018. The fact of the case in brief is that the appellant of A/11/2021 Smt. Pratima Das for her treatment as there was a small Furskuri in her right breast came to Dr. S.P. Chowdhury as Homeopathy Doctor who after examining her advised for ultrasound on 30.05.2016. After Ultrasonography report the appellant Pratima Das again visited the said doctor along with her report and after examining the report the doctor S.P. Chowdhury assured her for nothing to be worried and it would be cured by taking medicines and he gave the medicine from his chamber. The appellant Pratima Das on the basis of such assurance took the medicines as she had good faith upon the treatment of Dr. Chowdhury. But after one month of such treatment that Furskuri become converted into an Ulcer and at that time Dr. S.P. Chowdhury prescribed some other medicines and the Complainant was going on to take such medicines keeping faith upon the treatment of Dr. S.P. Chowdhury. But the Ulcer was not healing. Thereafter, she was referred to Dr. Manoj Jha. Dr. M. Jha advised her for FNAC on 07.03.2012 she came to know from the FNAC report that she was suffering from Carcinoma. After detection of such Carcinoma without killing any time she rushed to Mumbai at Tata Memorial Center and treatment started and due to negligent treatment on the part of Dr. S.P. Chowdhury the Complainant had to suffer a lot and for that reason she claimed for compensation to the tune of Rs. 20 Lakh. Dr. Paul Chowdhury as O.P. of that case has contested the case by filing the W.V and denied any medical negligence on his part for the treatment of the patient. His positive case is that he found that the patient had a history of small lump on the supra surface of her right breast in the last six months. Dr. Chowdhury attended her first time on 30.05.2016 and asked her to have an Ultrasonography test. The Complainant came on 03.06.2016 with Ultrasonography report and on the basis of the report the doctor prescribed medicines for seven days and the treatment was continuing under him on regular basis. On 03.01.2017 when the patient came to his chamber again, he found some new additional problems was there in her body and at that time the patient was referred to doctor M. Jha a surgeon of Calcutta for better opinion. The patient did not follow the advice instantly and she had some delay in consultations with expert. The doctor Chowdhury has no latches on his part. He rendered his best treatment applying his knowledge and efficiency and for that reason the Consumer Complaint was found frivolous with intention of ulterior motive. The Ld. D.C.D.R.F., Malda after recording evidence and after going through the documentary evidences as well as on hearing the arguments of both sides delivered the impugned order by which Rs. 50,000/- was awarded as compensation for mental pain and agony. Being aggrieved the appellant P. Das preferred the appeal Bearing No A/11/2021 as she found the quantum of compensation amount was very meagre and the ascertainment of compensation on the part of Ld. D.C.D.R.F., Malda was not correct one. On the other hand, Dr. S.P. Chowdhury preferred the counter appeal Bearing No A/14/2021 on the ground that the findings of Ld. Forum regarding medical negligence was erroneous and unauthorized in law. Both the appeal was registered in due time and notice was sent to the concerned respondents who has contested the appeal through Ld. Advocates. Mr. D. Banerjee who has represented the case of Smt. P. Das whereas Ld. Advocate Mr. J.N. Chowdhury has represented Dr. S.P. Chowdhury. Both the appeals were heard simultaneously and on the basis of the prayer of them the two appeals will be disposed of by a single Judgement.
Decision with reasons
During the course of hearing the argument of the two appeals Ld. Advocate Mr. J.N. Chowdhury on behalf of Dr. S.P. Chowdhury mentions that in the instant Consumer Complaint Case the Complainant P. Das filed an Affidavit-in-chief on 6th February 2019. On 25.07.2019 on behalf of Dr. S.P. Chowdhury a questionnaire was submitted towards the evidence of P. Das who has never replied the questionnaires. Ld. Advocate further mentions that every evidence-in-chief is subjected to cross-examination in full but in this case. Ld. D.C.D.R.F., Malda skipped the very essence and vital part laid down by the legislature. He further mentioned that on 04.03.2020 Dr. S.P. Chowdhury has tendered his evidence by submitting the affidavit and the respondent P. Das did not file any questionnaires against the said evidence and invariably the Ld. Forum has skipped the process of cross-examinations and Ld. Forum did not ask the Complainant P. Das to submit the questionnaires against the evidence of Dr. S.P. Chowdhury. He further mentions that in this case of medical negligence and to substantiate the charge the Complainant has the bounden duty to prove her case beyond any doubt as a medical practitioner is always duty bound to do his duty in a prudent manner and blaming him for any negligent act is very serious in nature and such onus always lies upon the person who blames a doctor for medical negligence. The person against whom such blames was levelled should have the opportunity to cross-examine the witness to ascertain the truth. But the said chance was not given to the doctor to prove his innocence. Ld. Advocate of P. Das countered this argument that in order to save the time Ld. Forum has skipped the process of lengthy cross-examination and for that reason no questionnaires was allowed to be furnished on the part of the parties to the case. After hearing both sides it has become crystal clear that in any judicial trial both parties should be given equal opportunities to cross-examine each other. The finding of the Judicial Authority are based on testimonials which are oral and documentary in nature. In oral testimony cross-examination is an imperative part and no purposeful adjudication could be completed without availing the opportunity of Cross-examination of each other in any judicial trial. After going through all the necessary documents related to the treatment of P. Das it appears that Dr. S.P. Chowdhury has continued the treatment of patient P. Das for a long period that is from 30.05.2016 till 25.02.2017 while the Carcinoma was detected on 09.03.2017. Ld. Forum in the Judgement opined that in the instant case Dr. S.P. Chowdhury took the liability for treatment of the patient for a long day and never advised the patient for proper diagnosis through FNAC and it was one of the breaches of the duty on the part of the doctor. It was also found in the Judgement of the Ld. D.C.D.R.F., Malda that the doctor had knowledge that there might be a chance of conversion of Sebaceous cyst into Carcinoma and Dr. S.P. Chowdhury was not qualified one to treat a Carcinoma patient. So, it was a gross negligence on the part of the doctor. Fact remains that after a long treatment by Dr. S.P. Chowdhury the problem of the patient was aggravated and she was compelled to visit Mumbai at Tata Cancer Research Center where she had to spend a lot of money and to endure sufferings and pains and the amount 50,000/- as compensation awarded by the Ld. Forum is not to the proportion of the loss and pain suffered by the patient. So, the order of Ld. Forum appears to be misconceived and liable to be set aside. Thus, in merit both the two appeals should be allowed and the impugned Final Order should be set aside for the purpose of meaningful justice.
Hence, it’s ordered
That the two appeals Bearing No A/14/2021 and A/11/2021 arising against the Final Order dated 28.01.2021 in CC No 30 of 2018 delivered by Ld. D.C.D.R.F., Malda are hereby allowed on contest without imposing any cost. The Final Order dated 28.01.2021 delivered by Ld. D.C.D.R.F., Malda in CC No 30 of 2018 is hereby set aside. Ld. D.C.D.R.F., Malda is hereby requested to ask the parties to the instant case for furnishing the questionnaires towards the evidence against each other and after obtaining the reply of the questionnaires and on hearing the argument afresh of both sides a Final Order shall be delivered within a short span of time.
Both the parties of the two appeals are asked to appear before the Ld. D.C.D.R.F., Malda on 02.11.2021 to reopen the case as per schedule to be fixed by the Ld. D.C.D.R.F., Malda.
Let a copy of this order be supplied to the parties free of cost and the order to be communicated to the Ld. D.C.D.R.F., Malda for taking necessary action.
