Date of Filing                                  : 28.6.2011

Date of Final Order                        : 28.4.2015

Present:

i)                Sri Asoke Kumar Mandal                        Hon’ble President

ii)               Smt. Silpi Majumder                                Hon’ble Member

iii)              Sri Durga Sankar Das                              Hon’ble Member

Debnath Sadhu,

S/o. Late Jitendran Nath Sadhu,

Resident of Village: Bantir,

Post Office: Bantir,

Police Station: Raina,

District: Burdwan.                                                                                                                         Complainant

                 -VERSUS-

1. Dr. Sachindram Patra,

M.B.B.S., D. Ortho,

Resident of Manasik Arogya Niketan, G.T.Road,

District: Burdwan.

2. The Officer-in-Charge,

Dreamland Nursing Home, Indraprastha,

Baburbag, Burdwan.                                                                                                                            Opposite Party (s)

3. Dr. T. N. Banerjee,

Resident of 5, J.N.Roy Road, Burdwan.

4. Dr. Rajib Basu,

Of AMRI Hospitals, P-425, CIT Scheme

LXXII, Block-A, Gariahat Road (Beside Dhakuria Bridge),

Kolkata – 700 029.

5. The Officer-in-Charge,

AMRI Hospitals, P-425, CIT Scheme

LXXII, Block-A, Gariahat Road (Beside Dhakuria Bridge),

Kolkata – 700 029.                                                                                                        Proforma Opposite Party (s)

Appeared on behalf of the Complainant: Ld. Adv. Tamal Dutta

Appeared on behalf of the Opposite Party No. 1,3&4:  Ld. Adv. Deb Krishna Sinha.

Appeared on behalf of the Opposite Party No. 2:  Ld. Adv. Nargis Begum.

Appeared on behalf of the Opposite Party No. 5:  Ld. Adv. Subrata Ghosh.

J U D G E M E N T

INTRODUCTION:

This complaint is filed by the complainant u/S. 12 of the Consumer Protection Act, 1986 alleging medical negligence as well as deficiency in service on behalf of the OP-1 in respect of providing medical treatment to the complainant.

THE BRIEF FACT:

The brief fact of the case of the complainant is that accidentally he fell down at his residence on 13.11.2010 at about 6 PM and due to severe pain in his right thigh he was admitted at the OP-1 wherein the attending medical officers of the OP-2 examined him and advised for some tests including X-ray. On 14.11.2010 X-ray was done at Chittaranjan Ultra Sonography & Eco Cardiograpy Clinic, Burdwan and Medinova Diagnostic Centre, Burdwan.  Upon examining the report of blood, X-ray etc. the OP-1 stated that the femur of right thigh of the complainant had broken and for this reason operation of the said portion became emergent. Accordingly the OP-1 took decision for operation at the OP-2 on 15.11.2010. After operation the complainant got discharge on 19.11.2010. In the discharge certificate it is mentioned that the condition of the patient was good and there is nothing to be worried about normal pain during post-operative period. After returning home the complainant felling discomfort and uneasiness went to the adjacent chamber of the proforma OP-3 i.e. Dr.T .N. Banerjee in the evening on 19.11.2010. Dr. Banerjee  examined the blood report dated 19.11.2010 which was done in accordance with the prescription of OP-1 and Dr. Banerjee became astonished after perusing the blood report and advised for transfusion of blood immediately for increasing hemoglobin level. The complainant further met with the OP-3 on 20.11.2010 along with the blood test report done by Dr. Avijit Kumar Mukherjee and upon perusal

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of the said report the OP-3 advised him to be admitted at the Motherland Nursing Home for blood transfusion. After three days the complainant got discharge from the said nursing home and during discharge he was advised by Dr. Banerjee to approach before the OP-1 for check up of the operated right thigh. The complainant met the OP-1 and he was advised for further X-ray of the operated right femur. On 30.11.2010 the OP-1 examined the X-ray report and removed the stitch from the operated part and advised to come further after one and half month. In the meantime the complainant felt severe pain at the operated thigh i.e. right femur and met the OP-1 who advised that it was post-operative pain and should not be worried about it and within few days the pain will subside.  As the pain did not subside the complainant discussed the matter with some relatives and took decision to approach before the OP-4 i.e. Dr. Rajib Basu on 02.12.2010 who upon examining the blood report, X-ray along with other clinical reports etc. advised for further operation since the first operation became failure and accordingly the complainant got admission at AMRI, Dhakuria, Kolkata on 03.12.2010. The fracture of the right femur was operated upon by the OP-4 on 4.12.2010 replacing the INROD and screws as implanted by the OP-1, stating that the system of the first operation was wrong. The complainant got discharge from AMRI on 10.12.2010. On discharge several medicines and physiotherapy were prescribed. The complainant began to feel better after the second operation and since then he is not suffering from any pain or swelling. According to the complainant the first operation was totally wrong and the same was done in a negligent manner on the part of the OP-1 and as such the complainant had to suffer severe pain and discomfort for a considerable period. As the OP-1 did not provide medical service properly as per medical science hence, without finding any other alternative the complainant had approached before this Ld. Forum by filing this complaint praying for direction upon the OP-1 for making

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payment of Rs. 10, 00,000=00 to him towards compensation due to future medical expenditure as incurred by him, mental and physical sufferings, mental agony, as well as, litigation cost.

WRITTEN VERSION OF OP-1:

The petition of complaint has been contested by the OP-1 by filing written version wherein it is stated that the OP-1 is a renowned orthopaedic surgeon and used to perform number of bone surgery every month. The OP-1 is also an experienced and sincere surgeon. So it cannot be believable that there was any fault or negligence on the part of this OP during operation or post-operative period, whatever it may be. It is submitted by the OP-1 that the complainant informed the OP-1 about his injury on 13.11.2010 over telephone and upon hearing advise was given for getting admission in a nursing home and accordingly the complainant got admission at the OP-2 on the same day wherein he was initially treated by a residential medical officer. The X-ray was done on 14.11.2010 wherein it was detected that the complainant got a long spinal fracture starting from subtrocantic region of right femur and extending at distal one third of shaft of femur. This is a fracture which is difficult to treat. The OP-1 suggested for fixing with recon nail which is one of the most modern method to fix this type of fracture. The complainant and his relatives agreed with the said proposal given by the OP-1 and gave their consent for necessary operation. On 15.11.2010 the OP-1 performed operation and fixed the fracture successfully. Though the operation was a difficult one but good physiological reduction was achieved and the OP-1 got success to fix with interlocking screws at both sides. It is further submitted by the OP-1 that during operation the patient may have loss hemoglobin and as such percentage of hemoglobin was tested and found that it was not very low. Thereafter on being satisfied the OP-1 discharged the complainant on 19.11.2010. On 30.11.2010 the complainant visited the

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OP-1 for removal of stitches. At that time it was found that the wound became dry and clean and the OP-1 removed the stitches and instruction was given for necessary exercise and some medicines were prescribed. On that date i.e. 30.11.2010 the complainant brought one X-ray report as per the advice of the OP-1 and the OP-1 upon perusal of the same became satisfied with the reduction. Since then the complainant did not make any contact with the OP-1 till receipt of the instant legal notice from the Ld. Forum. The OP-1 fixed the fracture of the complainant successfully  for which Rs. 25,000=00 was charged from him including doctors fees, nursing home and operation theatre charges, cost of the medicine etc. Be it mentioned that in medical parlance reunion and/or union of fractured bone takes time and as such those patients require patience and capable to bear pain. Since 30.11.2010 the patient never turned up for check up before this OP. It is further mentioned by the OP-1 that there was no medical negligence, as well as, deficiency in service on behalf of this OP in respect of providing medical treatment along with surgery to the complainant  and for this reason he is not at all liable or responsible for making payment of any amount towards compensation to the complainant. The complainant has filed this complaint only to squeeze some money through an illegal manner from this OP. For this reason the instant complaint is liable to be dismissed with exemplary cost as the complainant has unnecessarily harassed and damaged the reputation of the OP-1 who is a renowned doctor in the locality.

WRITTEN VERSION OF OP-2:

The petition of complaint has been contested by the OP-2 wherein it is contended that it is a well equipped institution having several life saving  facilities and wherein large number of patients are treated everyday and not only that different eminent doctors are used to refer patients at this nursing home for admission and treatment. As at the OP-2 several specialist doctors are available quality treatment are

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provided by them. This OP has valid permission and license from the concerned authority to run this nursing home. The OP-2 has well equipped OT, ICU etc. for rendering treatment to the patients. On 13.11.2010 the complainant got admission at the OP-2 under Dr. D.K.Gupta and subsequently the OP-1 was engaged for his treatment. After conducting several clinical and pathological tests the OP-1 performed surgical operation along with other team members upon the complainant on 15.11.2010. Thereafter, the OP-1 has rendered treatment properly and the complainant got discharge from the OP-1 on 19.11.2010. It is mentioned by the OP-2 that it took every possible care upon the complainant according to the advise and suggestion given by the OP-1, as well as, other doctors during his stay at the OP-2 and the OP-2 never neglected in providing treatment by its staff and the treatment can be termed as one of the best treatment available in mofussal town of Burdwan. Treatment was supported by almost all available modern facilities. After recovery from his aliment the complainant got discharge from the OP-2 on 19.11.2010 and thereafter there was no scope to turn up by the complainant before this OP-2. The OP-2 took approximately Rs. 25,000/- towards the treatment from the complainant. Neither the Nursing Home nor the OP-1 received a sum of Rs. 5,00,000/- from the complainant towards the treatment and as such the allegation to that effect is totally false, frivolous and baseless. The complainant in order to grab some money has filed this complaint with mal-intention, as well as, to malign the reputation of the OP-2 before the society and the medical community. By no stretch of imagination it can be said that this OP is deficient in rendering service and committed gross negligence in providing treatment or adopted unfair means in giving treatment to the complainant at the OP-2. Accordingly prayer has been made for dismissal of this complaint with exemplary cost.

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WRITTEN VERSION OF OP-3:

The rebuttal case of the OP-3 against the petition of complaint is that the complainant came to the clinic of this OP with the complaint of dizziness, sweating and acidity. He was examined properly and found anemic for which this OP advised him for some investigations. From the investigation report produced by the complainant it was revealed that the hemoglobin level of the complainant was 7.2% for which this OP advised him for hospitalization for blood transfusion. Since the departure from the clinic of this OP the complainant did not turn up for any kind of further treatment. It is mentioned by the OP-3 that he did not render any treatment to the complainant neither in any hospital nor any nursing home particularly at the OP-2. The complainant was treated at his own private clinic on 19.11.2010. Therefore, it is clear that this OP was neither negligent nor deficient in service in rendering medical treatment to him and this fact will be reflected from the complaint itself as because the complainant did not raise any allegation against this OP nor claim any relief from him for which this present complaint is liable to be dismissed. Though this OP had filed a separate petition for expunging his name from the instant complaint as no relief has been sought for against him, but the Ld. Forum did not entertain the same. According to the OP-3 as this complaint has been brought by the complainant which is false, frivolous, baseless and speculative, the same should be dismissed with cost.

WRITTEN VERSION OF OP-4:

The OP-4 has contested the complaint by filing written version contending that the Complainant came to him with an injury and swelling in his right thigh and after thorough check up and perusing the investigation reports the Complainant was advised for immediate admission at the OP-5 on 03.12.2010. On 04.12.2010 the Complainant

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underwent surgery by this OP at the OP-5 where the fracture of the Complainant was re-enforced by plate and screw fixation along with cobalt chrome cable system. Subsequently, the Complainant was discharged from the OP-5 on 10.12.2010 after complete recovery. The Complainant till filing of this complaint used to follow up the routine check up to this OP as per medical protocol and he never disclosed that he is suffering from any kind of uneasiness and discomfort after the operation performed by this OP. The OP-4 has mentioned that prior to this operation the Complainant underwent with a surgery for the same issue and injury by the OP-1 at the OP-2 on 15.11.2010 which is evident from the medical documents submitted by the Complainant. This OP did not commit any fault, imperfection and deficiency regarding treatment of the Complainant and the same will be evident from the complaint itself wherein the Complainant did not raise any allegation regarding medical negligence and deficiency in service against this OP, as well as, did not claim any relief and compensation against this OP. Under this circumstances prayer has been made by this OP for dismissal of the complaint against him with cost. 

WRITTEN VERSION OF OP-5:

By filing written version the OP-5 has submitted that it had filed a petition praying for expunging its name from the cause title of this complaint on 24.09.2013, but the same is still pending open for disposal as this Ld. Forum has mentioned that the said petition will be taken up for hearing and disposal at the time of final hearing of this complaint. The OP-5 has stated that the allegation has been made by the Complainant basically against the OP-1 and OP-2 for negligent treatment. The Complainant was admitted at the OP-5 under the OP-4. He approached with an injury and swelling in his right thigh before the OP-4 and after thorough checking and investigation he was advised for immediate admission at the OP-5 on 03.12.2010. On 04.12.2010 he

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underwent with a surgery by OP-4 at the OP-5 where the fracture was re-inforced by plate and screw fixation along with cobalt chrome cable system. Subsequently, the Complainant got discharge from the OP-5 on 16.12.2010 after complete recovery. Since then the Complainant used to visit the OP-4 for routine and follow up as per medical protocol. It is stated by the OP-5 that prior to come at the OP-5 the Complainant underwent with a surgery for the same issue and injury by the OP-1 at the OP-2 on 15.11.2010 and got discharge from the OP-2 on 19.11.2010. The OP-5 did not commit any fault, imperfection and deficiency regarding treatment of the Complainant which will be revealed from the petition of complaint itself wherein the Complainant did not raise any allegation regarding medical negligence against the OP-5 as also did not claim any relief along with compensation from this OP. Accordingly prayer has been made by the OP-5 for dismissal of the complaint against it with cost.

EVIDENCE & CROSS EXAMINATION:

The Complainant and all the OPs have filed their respective evidences on affidavit. The Complainant was cross-examined by the OPs separately and all the Ops were cross-examined by the Complainant through questionnaire and reply accordingly. The Complainant has filed brief notes of argument. The Complainant has mentioned some citations of judgments passed by the Hon’ble Supreme Court in support of his contention, but the Complainant did not file the entire copy of all those judgments. On 05.02.2013 an Expert namely Dr. Debasish Sinharoy, being the Professor and Head of the Department, Burdwan Medical College and Hospital was cross-examined by the Complainant on dock. Subsequently the Complainant had prayed for production of the bed head tickets of him by the OP-2 and OP-5, where he was treated and operated upon and in this connection two separate Miscellaneous Applications were filed and the same were allowed by this Ld. Forum. The OP-2 and OP-5 have filed the bed head

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tickets of the Complainant before this Ld. Forum on 18.06.2014. After production of the same the Complainant by filing one Miscellaneous application had prayed for taking an expert opinion from the expert doctor in the field of orthopedic from SSKM Hospital, Kolkata. It was mentioned in the said application that the expert opinion can be given by any reputed doctor other than Burdwan Medical College and Hospital. Accordingly this Forum was pleased to pass an order for sending down all the necessary requisites to the Orthopedic Department, SSKM Hospital, Kolkata for expert opinion. Accordingly Professor Ananda Kishore Pal, Professor & HOD, Department of Orthopaedics, IPGME&R-SSKM Hospital, Kolkata had furnished his expert opinion dated 13.01.2015, which have not been challenged by the contesting parties by filing questionnaire. Be it mentioned that the OPs also did not cross-examined Dr. Sinharoy, who appeared on dock.  

 POINTS TO BE DECIDED:

1. Whether the Complainant can be termed as Consumer?
2. Whether this complaint is maintainable?
3. Whether the petition dated 25.09.2013 filed by the OP-5 is liable to dismissed?
4. Whether two expert opinions can be accepted or not?
5. Whether there is any medical negligence/deficiency in service on behalf of the OP-3, 4 and 5?
6. Whether there is any medical negligence/deficiency in service on the part of the OP-2?
7. Whether there is any medical negligence/deficiency in service on the part of the OP-1?
8. Whether the Complainant is entitled to get any relief/compensation from the OPs or not?
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DECISION WITH REASONS:

1. At the very outset it is to be adjudicated as to whether the complainant can be termed as a consumer of the OPs or not. From the pleadings of the Complainant it is evident that the Complainant has hired or availed of medical service from the OPs subject to making payment of due consideration amount. No case has been made out by the OPs that services rendered to him free of cost. Therefore in view of the Section 2(1) (d) (ii) of the Consumer Protection Act, 1986 the Complainant can easily termed as a Consumer.
2. Now we are to see as to whether this complaint is barred by territorial, pecuniary jurisdiction or by limitation. The petition of complaint reveals that the accident took place at Burdwan and thereafter the Complainant was operated upon due to that accident by the OP-1 at the OP-2, which is within the territorial jurisdiction of this Ld. Forum. In the prayer portion the Complainant has prayed for compensation to the tune of Rs.10, 00,000/-, which lies within the pecuniary jurisdiction of this Ld. Forum and as this complaint has been initiated within the statutory period of limitation in view of the Section 24A of the C.P. Act, 1986, this complaint cannot be regarded as barred by the law of limitation. Therefore the point no-2 is thus decided in favour of the Complainant.
3. It is evident from the record that after appearance by filing vokalatnama the OP-5 had filed one petition  dated 25.09.2013 praying for expunging its name from the cause title of this complaint on the ground that no relief has been prayed for by the Complainant and no material allegations has been made out within the four corners of the petition of complaint. According to the OP-5 the Complainant has unnecessarily incorporated its name in the present complaint. We have noticed that the Ld. Forum has ordered in respect of the above petition to
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consider the same at the time of final hearing. Accordingly the said petition was taken up for hearing at first. Upon hearing the contesting parties we are of the view the name of the OP-5 cannot be expunged at this juncture because the Complainant was treated subsequently at the OP-5 under the OP-4 and wherein further operation was performed by the OP-4. Therefore for proper adjudication of the complaint the existence of the OP-5 in necessary and accordingly prayer for deletion of the name of the OP-5 from the cause title is hereby dismissed on contest without any cost.

4. Admittedly two expert opinions are forthcoming in the case in hand. One given by Dr. Sinharoy of BMCH and another by Dr. A.K. Pal of SSKM Hospital. Both of them are Professors and Head of the Orthopaedic Department of their concerned Hospitals. Therefore both the doctors having special skill and knowledge submitted their expert views. During argument of this complaint the Ld. Counsel for the OP-1 and OP-2 have submitted separately that much weightage should be given to the expert opinion of Dr. Sinharoy than the opinion given by Dr. Pal as Dr. Pal has put much emphasis regarding low percentage of haemoglobin level of the Complainant than medical negligence in providing treatment to the Complainant as alleged by the Complainant during operation and post-operative period. The Ld. Counsel for the Complainant has argued that the opinion of Dr. Pal is more important as it will help the Ld. Forum for coming to a conclusive decision. According to the Complainant the opinion given by Dr. Sinharoy has not been corroborated with standard medical literature and authentic books. Upon hearing from the both sides now we are to adjudicate what steps should be taken in respect of the two expert opinions for proper adjudication of this complaint. In this respect we may refer to the judgment passed by the Hon’ble Supreme Court
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in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee, reported in 2009 (4) RLW 3625 (SC), wherein in the paragraph no-42 & 43 it is mentioned by Their Lordships which runs as follows:-

42. “A Court is not bound by the evidence of the experts which is to a large extent advisory in nature. The Court must derive its own conclusion upon considering the opinion of the experts which may be adduced by both sides, cautiously, and upon taking into consideration the authorities on the point on which he deposes.

43. ………………Whether such evidence could be admitted or how much weight should be given thereto, lies within the domain of the Court.”

In the paragraph no-44 of the said judgment the Hon’ble Apex Court has relied on the judgment passed by the Hon’ble Court in the case of State of H.P. vs. Jai Lal & Others {(1999) 7 SCC 280} wherein in the paragraph no-18 it was held as under:

18. “An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criterion to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.”

Having regard to the abovementioned observations of the Hon’ble Supreme Court we are of the opinion that relevant portion of both the expert opinions should be considered corroborating the same with the medical documents and papers i.e. treatment sheets filed by the Complainant, as well as, produced by the OP-2 and 5.

5. Now we are to see as to whether there were any medical negligence and/or deficiency in service on the part of the OP-3, 4 and 5. We have carefully perused the petition of complaint and it is seen by us that within the four corners of the complaint no material/immaterial allegation in respect of medical negligence/deficiency in service has been made out by the Complainant against these OPs. In the prayer portion also compensation has been prayed for only from the OP-1. The expert opinions do not throw any light towards medical negligence in respect of these OPs. The Complainant was cross-examined by these OPs and in the reply given by the Complainant nowhere allegation has been made against these OPs. In the reply in respect of questionnaire of the OP-5 the complainant has replied that on 04.12.2010 the second operation was done at the OP-5 by the OP-4 and since then he did not have any pain at the operated/injured site. It is further mentioned by the Complainant that the OP-4 had performed the operation diligently and he did not raise any specific allegation against the OP-5. The Ld. Counsel for the OP-3, 4 and 5 have submitted that though no allegation has been made against these OPs, but unnecessarily they have been made parties to this proceeding and for this reason all the OPs have prayed for dismissal of the complaint with exemplary cost. In this regard we are to say that as the Complainant was treated by these OPs, if the Complainant did not make them parties, then the other OPs may pray for dismissal of the complaint due to non-joinder of necessary parties. Secondly, as the Complainant
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was treated by these OPs, until and unless the medical documents are produced on their behalf, it will be very difficult to adjudicate the complaint. Therefore we cannot hold that the Complainant has unnecessarily made these OPs as parties in the petition of complaint because the contentions of these OPs as mentioned in their respective written version help us for coming to a conclusion. So in our considered view the OP-3, 4 and 5 are not entitled to get any amount towards cost from the Complainant as sought for. As the Complainant did not make any allegation against these OPs hence, this complaint has no merit against the OP-3, 4 and 5.

6.  At this juncture we are to adjudicate as to whether there was any medical negligence and/or deficiency in service on behalf of the OP-2 or not. From the petition of complaint it is evident that admittedly the Complainant’s injury was operated upon at the OP-2 by the OP-1 wherein he got admission on 13.11.2010 and discharge on 19.11.2010. Further admitted fact is that the Complainant paid Rs.25, 000/- towards the cost of his medical treatment including OT charge, doctor’s fees, charge of the OP-2, cost of medicines etc. After getting discharge from the OP-2 as per discretion of the treating doctor-OP-1 the Complainant did not turn up at the OP-2 till filing of this complaint. The pleading of the complaint also reveals that there is no whisper in respect of medical negligence or deficiency in service on behalf of the OP-2. Nowhere it is mentioned that the Complainant did not get proper medical service and facilities as per medical science. No amount towards compensation or cost has been prayed for by the Complainant against this OP-2. But in the expert opinion given by Dr. A.K.Pal it is mentioned that ‘but the service rendered by the OP-2 using some medicine and discharge was apparently deficient’. In respect of such opinion we are to say that either in respect using/prescribing some medicines or discharge, there was no
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role of the OP-2 because medicines was used or prescribed by the OP-1 and signature put in the discharge certificate also by the OP-1. The above-mentioned two fields fall under the domain of the OP-1, not the OP-2. Moreover the expert could not corroborate such opinion with any documentary evidence. Therefore, we are not inclined to accept such opinion in view of Malay Ganguly’s case (Supra). As the Complainant has failed to make/prove any allegation against the OP-2, in our considered view the service rendered by the OP-2 does not suffer from any medical negligence and/or any kind of deficiency in service. But considering the facts and circumstances of the complaint there is no order as to cost as prayed for by the OP-2.

7. Now we are to adjudicate the most vital and important allegation as alleged by the Complainant in the petition of complaint as to whether there was any medical negligence and/or deficiency in service on behalf of the OP-1 or not. We have noticed that in the POC entire allegation has been made out against the OP-1 and relief has been sought for by the Complainant from the OP-1. The case of the complainant as contended in the POC is that accidentally he fell down at his residence on 13.11.2010 at about 6 PM and due to severe pain in his right thigh he was admitted at the OP-1 wherein the attending medical officers of the OP-2 examined him and advised for some tests including X-ray. On 14.11.2010 X-ray was done at Chittaranjan Ultra Sonography & Eco Cardiograpy Clinic, Burdwan and Medinova Diagnostic Centre, Burdwan.  Upon examining the report of blood, X-ray etc. the OP-1 stated that the femur of right thigh of the complainant had broken and for this reason operation of the said portion became emergent. Accordingly the OP-1 took decision for operation at the OP-2 on 15.11.2010. After operation the complainant got discharge on 19.11.2010. In the discharge certificate it is mentioned that the condition of the patient was good and there is
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nothing to be worried about normal pain during post-operative period. After returning home the complainant feeling discomfort and uneasiness went to the adjacent chamber of the proforma OP-3 i.e. Dr.T .N. Banerjee in the evening on 19.11.2010. Dr. Banerjeeexamined the blood report dated 19.11.2010 which was done in accordance with the prescription of OP-1 and Dr. Banerjee became astonished after perusing the blood report and advised for transfusion of blood immediately for increase hemoglobin level. The complainant further met with the OP-3 on 20.11.2010 along with the blood test report done by Dr. Avijit Kumar Mukherjee and upon perusal of the said report the OP-3 advised him to be admitted at the Motherland Nursing Home for blood transfusion. After three days the complainant got discharge from the said nursing home and during discharge he was advised by Dr. Banerjee to approach before the OP-1 for check up of the operated right thigh. The Complainant has alleged that inspite of perusing the blood report dated 19.11.2010 the OP-1 without taking any proper step for increase of hemoglobin level had discharged him from the OP-2, which according to the Complainant is an example of medical negligence, as well as, deficiency in service on behalf of the OP-1. In this respect the Complainant has relied on the judgments of Poonam Verma (Supra) and Jacob Mathew (Supra). In this regard we have carefully perused the questions put forward by the Complainant and replies given by the OP-1 along with the treatment papers and documents of the Complainant corroborating the same with the pleadings of the Complainant and the OP-1 and perused two expert opinions. It is seen by us that the Complainant was advised for ECG, Blood for TC, DC, Hb%, ESR, Urea Creatinine, BT, CT etc. on 13.11.2010 and requisitioned for 2 units of blood. Accordingly examination of blood and other tests were done on 14.11.2010.

From the blood report dated 14.11.2010 it is revealed that Haemoglobin was 8.8 gm/dl and the normal range is in respect of male person is 14%-16%. Therefore on 14.11.2010 percentage of Haemoglobin of the Complainant was below from normal range. Prior to discharge from the OP-2 after surgical intervention the Complainant was further advised for blood examination and the blood report dated 19.11.2010 reveals that the Haemoglobin level was 6.2% on the date of discharge which is admittedly much below from normal range. In the discharge certificate no advice was given for blood transfusion for increasing Haemoglobin level. In the discharge certificate some medicines was prescribed, patient released in stable condition and he was asked to turn up after two weeks from the date of discharge before the OP-1 for check up. It is true that the Complainant did not adduce any cogent evidence by producing the standard medical book to show us as to what should be the actual percentage of Haemoglobin at the age of 40 years old male person. But the blood reports show that the normal Haemoglobin percentage in respect of male person is 14%-16%. Therefore without taking any positive step for increase of Haemoglobin level inspite of knowing that the same became very lower than the normal range the OP-1 discharged the Complainant, which can be termed as medical negligence, as well as, deficiency in service in view ofJacob Mathew’s case (supra). In the cross-examination the Complainant put some specific questionnaire to the OP-1 and the same has been duly answered by the OP-1 i.e.

Q. Why you prescribed the blood test on 19.11.2010? (Q-6)

A. To find out the percentage of Haemoglobin.

Q. What steps you had taken after examining the blood report? (Q-7)

A. Advise for discharge.

Q. What is the normal range of Haemoglobin in blood of an adult person? (Q-8)

A. 11-14 percent.

Q. What was the percentage of Haemoglobin in the blood report dated 19.11.2010 of the patient? (Q-9)

A. 7.2%.

Q. What happens if the percentage of Haemoglobin is below the normal range? (Q-10)

A. The question is not clear.

Q. Whether you had prescribed any medicine/refer the patient to any other doctor to bring the percentage of Haemoglobin in normal range? (Q-11)

A. Neither I prescribed medicine nor refer to other doctors as because I felt that the patient was safe.

From the abovementioned questions and answers it is clear to us that though the Complainant had put specific questions, but the OP-1 has given cloudy answer because if the treating doctor wasin settled mind that no step will be taken in respect of lower level of Haemoglobin percentage, then question is cropped up in our mind that why the patient was advised for the said test. Though the OP-1 replied that he felt that the patient was safe, how he has arrived such decision, no cogent evidence has been adduced by him. It is very much interesting that the OP-1 did not bother to give answer upon careful perusal of the document because he replied that on 19.11.2010 Haemoglobin percentage of the patient was 7.2%, but the blood report shows that it was 6.2% and moreover where it is clearly mentioned that the normal range of percentage of Haemoglobin of a male person is from 14% to 16%, the OP-1 has replied the same from 11% to14%. From where he got the said data/range, the same had not been disclosed. Therefore we are to hold that the medical service provided by

the OP-1 to the Complainant and the answers given before this Ld. Forum, both had been done by him very casually, not sincerely. Such casual service towards the patient, where according to the OP-1 the operation was very critical, can be termed as medical negligence. In this regard we are to mention the opinions given by Dr. Sinharoy and Dr. A.K.Pal. We have noticed that Dr. Sinharoy did not throw any light or made any comment or formed an opinion in this context.Dr.Pal has mentioned that ‘Haemoglobin was found reduced as 7.6 gm/dl on 16.11.2010, 6.2 gm/dl on 19.11.2010, which needed the medical treatment including blood transfusion.’ Be it mentioned that the opinion of Dr.Pal has not been challenged by the contesting parties. We have noticed from the document that since surgical intervention Haemoglobin level was continuously reducing till 19.11.2010, but no fruitful step was taken to bring the level at/within normal range. After getting discharge from the OP-2 the Complainant went to the OP-3 due to feeling of uneasiness and discomfort where he was advised for blood transfusion and thereafter Haemoglobin level was increased at 7.2% on 20.11.2010 and 9% on 23.11.2010 respectively. At the time of getting discharge from the OP-3 he was advised to visit again with the OP-1 for check-up of the operation site. During argument the Ld. Counsel for the OP-1 has stated that as he had provided proper medical treatment to the patient hence such medical service cannot be termed as medical negligence. But the Complainant has initiated this complaint against him with mal-intention and therefore the Complainant is under obligation to prove by producing cogent document that the service of the OP-1 as rendered can be termed as medical negligence, as well as, deficiency in service. In this context we may mention to the judgment of the Hon’ble Supreme Court passed in the case of Smt. Savita Garg vs. The Director, National Heart Institute, reported in IV (2004) CPJ 40 (SC), wherein Their

Lordships have held in the para-10 ‘that once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated that patient that there was no negligence involved in the treatment.’ In view of the said judgment it can be said that the onus lies on the shoulder of the OP-1, who rendered medical service to the Complainant to prove that the said service is not suffering from any medical negligence or deficiency in service. But the OP-1 has failed to discharge his liability. In the brief notes of argument the Complainant has mentioned the definition of negligence wherein it is mentioned that ‘Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.’(Law of Torts, Ratanlal & Dhirajlal, 26^th edition, 2010, page-474). In Halsbury’s Laws of England (5^th Edition, vol-78) stated the nature of negligence liability as under:-

‘Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all.’

In this context the Ld. Counsel for the Complainant has relied on the judgment passed by the Hon’ble Supreme Court in the case of Pooman Verma vs. Ashwin Patel & others, reported in AIR 1996 Supreme Court 2111, wherein in the para-13 it is held that ‘Negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would not do.’ In Jacob

Mathew vs. State of Punjab & Another (2005) 6 SCC 1, a three Judge Bench of the Hon’ble Supreme Court discussed the law of negligence under Tort Law, in extenso. It has been observed that negligence becomes actionable on account of injury resulting from the act of omission amounting to negligence attributable to the person sued. It was held that essential components of negligence, as recognized, are three- ‘duty’, ‘breach’ and ‘resulting damage’, that is to say:-

“(1) the existence of a duty to take care, which is owed by the defendant to the complainant;

    (2) the failure to attain that standard care, prescribed by the law, thereby committing a breach of such duty; and

     (3) damage, which is both  casually connected with such breach and recognized by the law, has been suffered by the Complainant.

If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.”

Having regard to the abovementioned judgments we are of the view that the Complainant has satisfied the Ld. Forum by producing evidence that the OP-1 has miserably failed to extend or render proper medical service as per the settled medical practice because the OP-1 did not bother to take care for improvement of the Haemoglobin level of the patient during post-operative period as the level was much below than the normal range. Not only that, during operation the level of Haemoglobin was also on the lower side. Moreover Dr.Pal, being the expert has opined that though the patient needed the medical treatment including blood transfusion, but the OP-1 did not take any step in this regard. It is seen by

22

us that the OP-1 has replied that he did not prescribe any medicine for improvement of Haemoglobin level and transfusion of blood does not arise at all because though the OP-1 had requisitioned two units of blood on 13.11.2010, but whether the same was transfused to the patient or not, no averment is available from the bed head ticket of the patient. Therefore we are inclined to hold that not taking of any step for improvement of Haemoglobin level of the patient can easily be termed as medical negligence.

Now it is to be adjudicated whether there was any medical negligence and deficiency in service on the part of the OP-1 during surgical intervention or post-operative period as alleged by the Complainant. Admittedly after surgical intervention on 15.11.2010, the Complainant got discharge on 19.11.2010 and at that point of time some medicine was prescribed and the patient was advised to come again after two weeks from the date of discharge along with X-ray report. Accordingly the patient visited the OP-1 on 30.11.2010 along with X-ray plate and report. It is stated by the Complainant that during visit on 30.11.2010 he told about pain at the operation site and upon hearing the same the OP-1 advised that it was a post-operative pain and need not be worried. But as the pain did not subside and was increasing day by day the patient getting relief met the OP-4 on 02.12.2010, who upon examination of the reports advised for further operation because according to the OP-4 the first operation was a failure one. The Complainant got admission at the OP-5 under OP-4 on 03.12.2010 and on the next day the fracture part of the right femur was operated upon replacing the INROD and screws as implanted by the OP-1, stating that the system of the first operation was wrong. The complainant got discharge from AMRI on 10.12.2010. On discharge several medicines and physiotherapy were prescribed. The

23

complainant began to feel better after the second operation and since then he is not suffering from any pain or swelling. According to the complainant the first operation was totally wrong and the same was done in a negligent manner on the part of the OP-1 and as such the complainant had to suffer severe pain and discomfort for a considerable period. As the OP-1 did not provided medical service properly as per medical science hence, this complainant praying for some relief. It is seen by us that though the Complainant has mentioned in the paragraph-6 of the POC that on 30.11.2010 he told about pain at the operated site, but no fruitful step had been taken by the OP-1, the said allegation has simply denied by the OP-1. Nothing has been shown by the OP-1 what step was taken by him for giving some relief to the patient from pain. In the Para-19 of the written version the OP-1 has contended that in medical parlance reunion and/or union of fractured bone takes time and as such those patients require patience and capable to bear pain. Admittedly after surgery there shall be pain at the operation site, but in medical science certainly several ways are available to give some relief to such patient from pain, but in the case in hand no such step was taken by the OP-1. Moreover though the OP-1 has mentioned reunion of fractured bone takes time, but how many days or month, the same has not been proved by adducing cogent medical books or standard medical literature. We have gone through the prescription dated 30.11.2010 issued by the OP-1, but in the left side of the same no history has been mentioned as per medical guideline. As the Complainant disclosed that he was suffering from pain, then the primary duty of the OP-1 was to write the said history in the prescription dated 30.11.2010. Moreover as per direction of the OP-1 X-ray was done, but the observation of the said report had also not been mentioned by the OP-1. No

24

evidence is before us as to whether the OP-1 had perused the X-ray plate & report or not. No whisper in this regard has been made by the OP-1 in his written version. The X-ray report dated 30.11.2010 reveals that ‘Skiagram showing multiple old fractures in the shaft of the right femur, fixed internally with IM nail and screws. The IM rod is seen to be exteriorized in its middle third.’ According to the Complainant as the IM rod was exteriorized, he had to suffer from severe pain and to get relief he rushed before the OP-4 on 02.12.2010 as the OP-1 did not take any step to give him relief from pain. It is very surprising to us that on 30.11.2010 the patient was advised to come again after 45 days inspite of knowing his sufferings and perusing the exteriorized IM rod. The prescription dated 30.11.2010 and the X-ray report clearly reveal that the service of the OP-1 obviously suffer from medical negligence as the OP-1 had failed to attain that standard of care, prescribed by the law, and thereby committed a breach of such duty. In this respect we are to say that when the OP-1 chose not to follow the observation of the X-ray report, why the Complainant was advised for the same. It is pertinent to mention the experts’ opinion in this regard. Dr. Sinharoy has stated that ‘the screw was properly implanted as revealed in the X-ray plate. Operation has been performed in perfect way and reduction is satisfactory. In case of medical treatment 100% guarantee cannot be given in this type of critical fracture/operation’. In respect of such opinion we are of the view that no observation is available in the X-ray report that screw was properly implanted, operation was perfect and reduction was satisfactory. So it is very difficult to ascertain that how and in which method Dr. Sinharoy has made such opinion as an Expert. No conclusive and convincing evidence has been adduced by him and moreover without adducing any documentary evidence Dr. Sinharoy cannot

25

opine that the fracture/operation of the Complainant was critical, admittedly after the second operation by the OP-4 the Complainant became completely cure. As the opinion of Dr. Sinharoy in our opinion is full of surmise and conjecture, the same cannot be accepted at this stage as he has failed to corroborate his opinion with documentary evidence. Dr. A.K.Pal has mentioned in his opinion as an Expert that ‘no evidence of study regarding adequacy of fracture fixation was mentioned in the advices on the day of discharge i.e. 19.11.2010 by the OP-2’. Dr. Pal has opined above-mentioned which can be corroborated with the discharge certificate dated 19.11.2010, but due to inadvertence it is mentioned ‘by OP-2’, in our view it will be ‘OP-1’ because the OP-1 prepared the discharge certificate putting his signature, not the OP-2. It is further mentioned by Dr. Pal that ‘post-operative radiograph suggested by him on 30.11.2010 which showed there was multiple old fractures in shaft of femur and the nail was exteriorized in its middle third, which needed adequate comment and planning from the part of OP-1, increase of fragments around the fracture may be a complication during operation but the fact must be properly disclosed to the patient and party with proper addressing and planning for the situation which was not presented or documented in the prescription papers of OP-1.’ In this regard we are to say that admittedly no comment was made by the OP-1 regarding exteriorized nail and if the OP-1 thought that the fracture/operation was complicated and critical one, it was the duty of him as medical professional to disclose the same either to the patient and/or patient party. Therefore as the OP-1 has failed to discharge his duty, such inaction can easily be held as medical negligence, as well as, deficiency in service. In so far as the duties which owes to his patient are concerned, in Dr. Laxman Balkrishna

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Joshi V. Dr. Trimbak Bapu Godbole (1969) 1 SCR 206: AIR 1969 SC 128 the Hon’ble Supreme Court, dealing with a case under the Fatal Accidents Act, 1855, observed that a person (doctor) who holds himself out ready to give medical advice and treatment impliedly undertakes that: (i) he is possessed of skill and knowledge for that purpose; (ii) when consulted by a person, such a person owes a duty of care in deciding whether to undertake the case; (iii) a duty in deciding what treatment to give; and (iv) a duty of care in the administration of that treatment. A breach of these duties would give a right to the patient of action for negligence against the doctor. In our view afore-mentioned judgment is very much applicable in the case in hand.

For proper adjudication it is pertinent to mention the cross-examination of the Complainant to the OP-1.

1. Whether X-ray was done after final nail implantation? (Q-3)

Yes, but during discharge.

2. If not, then how you decided that implantation was successful?(Q4)

Does not arise.

3. Whether further operation was needed in case of a failure implantation? (Q-5)
4. 4. Before operation single fracture on the right femur was seen in the X-report and plate dated 14.11.2010, but multiple fractures were seen in the X-ray plate and report dated 30.11.2010, how it was possible? (Q-13)

The fracture was very long spiral fracture starting from the narrowest part of femur. It had also hairline cracks. Some part of fracture gave away during reaming.

27. 5. Whether you had noticed in the X-ray report dated 30.11.2010 that the IM rod was exteriorized in its middle third? (Q-14)
28. 6. How you became satisfied about the reduction of fracture even after exteriorized middle third of implanted IM rod? (Q-15)

Clinically the implant and the fracture were very stable. There was no shortening of limbs. During operation I palpated the fracture reduction and was satisfied which was supported by C-Arm.

From the abovementioned cross-examination it is clear that though the OP-1 replied that as per X-ray report dated 19.11.2010 he became satisfied about reduction of the fracture bone, but actually on 19.11.2010 no X-ray was done. In another question he replied that after clinical examination he got the knowledge that implant and fracture were stable. It is seen by us that to corroborate his replies the OP-1 did not produce any piece of documentary evidence in support of his contention. It is curious enough that in reply against the question no-5 the OP-1 has mentioned that further operation may be needed in case of failure of implantation and ultimately the patient was further operated upon at the OP-5 by the OP-1. Through this answer the OP-1 has admitted indirectly that the first operation was a failure one.

Observing that the test for determining medical negligence as laid down in Bolam case (Supra) holds good in its applicability in India. The Hon’ble Court inter-alia, came to the following conclusion:-

1. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
28.  
2. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
3. A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill, which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession.

In the case in hand no question has been arisen about skill and knowledge of the OP-1, as well as, the fixation tool used by him during surgical intervention of the Complainant, but he has failed to exercise his skill and  reasonable competence and for this reason the Complainant was further operated upon.  Therefore, having regard to the above-mentioned judgments we are of the opinion that the medical service along with treatment provided by the OP-1 suffers from medical negligence as also deficiency in service.

Having regard to the above-mentioned judgments we are of the view that inspite of having requisite skill and knowledge the OP-1 did not exercise due care and reasonable competence towards the Complainant and for this reason the service

29

rendered by him can be termed as medical negligence as well as deficiency in service. It is seen by us that Dr.Sinharoy, being an Expert has mentioned that in ‘medical treatment 100% guarantee cannot be given’. In this respect we are to rely on the Jacob’s case (Supra), wherein it has been held that merely because the desired result could not be achieved the same is not negligence, if the doctor in treatment has followed standard medical norms. In the case of V.P. Santha (Supra) (1995 6 SCC 651) Their Lordships have approved a passage from Jackson and Powell on Professional Negligence and held that ‘the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and they should exercise reasonable care in the discharge of their duties.  In general as professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing service.’ In Achutrao’s case (AIR 1996 SC 2377) the Hon’ble Supreme Court held that ‘…………. But as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended the patient with due care, skill and diligence and if the patient still not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.’ In the case in hand the OP-1 without taking any positive step or giving any advise had discharged the patient on 19.11.2010 knowing fully well that  his Haemoglobin level was at 6.2%, which is admittedly much lower than the normal range as per the document; without doing any X-ray the OP-1 has opined that the reduction was satisfied on 19.11.2010; though the X-ray report dated 30.11.2010 reveals that the IM rod implanted during operation was exteriorized, but no step was taken; inspite of knowing that the patient was suffering from pain at the operated site, the Complainant was advised to come again after 45 days; no step was taken to give him some relief from pain. Therefore

30

such examples prove that due care was not taken to the Complainant as per standard medical practice by the OP-1 and such medical service gave birth medical negligence.

From the petition of complaint it is evident that as the pain did not subside the complainant discussed the matter with some relatives and took decision to approach before the OP-4 i.e. Dr. Rajib Basu on 02.12.2010 who upon examining the blood report, X-ray along with other clinical reports etc. advised for further operation since the first operation became failure and accordingly the complainant got admission at AMRI, Dhakuria, Kolkata on 03.12.2010. The fracture of the right femur was operated upon by the OP-4 on 4.12.2010 replacing the INROD and screws as implanted by the OP-1, stating that the system of the first operation was wrong. The complainant got discharge from AMRI on 10.12.2010. On discharge several medicines and physiotherapy were prescribed. The complainant began to feel better after the second operation and since then he has not been suffering from any pain or swelling. From the treatment summary of AMRI Hospital signed by the OP-4 it is evident that on 02.12.2010 the Complainant approached him with complaints of deformity and swelling right thigh-movements painful and restricted. Accordingly as per advice the Complainant got admission at the OP-5 on 03.12.2010 and he underwent further operation at the same site on 04.12.2010. During admission the OP-4 examined the patient clinically and he noted that deformity of his right thigh was (++), tenderness shaft femur (+++), apparent shortening & rotation. During surgery at the OP-5 ILIMN was removed from right femur followed by biological fixation with 4.5 13 hole LCP-distal femur, locking & compression screws (synthes), augmented by 3 control cable, cable & sleeve-cobalt chrome (depuy) wires with incorporation of G bone under CSEA, C-arm control in lateral approach for comminuted fracture shaft femur right. From the above procedure it is revealed that the rod which was implanted by the OP-1, the same has been completely removed by

31

the OP-4 during second operation. Inspite of this it cannot be said that the rod implanted by the OP-1 was defective or not upto the mark. During second operation the OP-4 used different material. But it is true if the first operation became successful, the question for second operation did not arise at all. As the Complainant could not bear the pain he had to rush before the OP-4 for getting relief from severe pain. Though on 30.11.2010 the OP-1 was told about pain, but no step was taken by him and without finding any other alternative he had to incur further expenditure for second operation at the same site. It has been earlier mentioned that if the OP-1 took reasonable care and exercised his skill and knowledge, no occasion will crop up for second surgical intervention. Definitely since first operation till completion of the second operation i.e. 15.11.2010 to 04.12.2010 the Complainant had to face severe physical & mental pain and due to lack of care of the OP-1 he had to incur double expenditure. According to the Complainant after the second operation now he is completely cured. Therefore this point is hereby allowed in favour of the Complainant. 

8. The Complainant has prayed for Rs.10, 00,000/- towards sufferings, mental agony, litigation cost and medical expenditure due to negligence and deficiency in service on the part of the OP-1. In paragraph no-9 of the POC it is mentioned that he had to incur expenditure for Rs.5,00,000/- for the purpose of medicines, nursing home charges, doctor’s fees etc. and still he is bearing the expenditure. In respect of such claim we are to say that the Complainant did not submit the medical bills showing expenditure incurred by him either of OP-2 or OP-5. Therefore it is very difficult to ascertain as to how much amount he had to pay to the OP-5 & OP-4 for the second operation. In the written version the OP-1 and 2

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have respectively submitted that the Complainant paid a sum of Rs.25, 000/- towards medical treatment including nursing home charges, doctor’s fees, OT charges, medicines etc. But it goes without saying that the Complainant had to bear subsequent medical expenditure at the OP-5 for second operation of the same site, which was earlier operated upon by the OP-1. As the OP-5 is a renowned private hospital in Kolkata, obviously the said treatment was much costly than the earlier one. Moreover on the first occasion he was at the OP-2 for seven days i.e. 13.11.2010-19.11.2010, but later he had to remain at the OP-5 for fourteen days i.e. 03.12.2010-16.12.2010. Not only that within a very short span several pathological tests along with X-ray and others was done time and again and for this reason the Complainant had to bear unnecessary financial burden along with physical and mental pain and agony. Though the Complainant has mentioned that till date he has to take medicines for the said wrong operation, but in our view while the Complainant submits that after the second operation he became completely cured, so intake of medicine till date does not corroborate his earlier statement. As the Complainant has failed to submit the cogent documentary evidence showing expenditure of Rs.5, 00,000/- as prayed for, we are not in a position to allow the same blindly because based on surmise and conjecture no party can be punished financially. But it is an admitted fact that due to lack of post-operative care, casual treatment of the OP-1 the complainant had to bear severe pain for a long period, for which he suffered from physical and mental pain. Due to this reason the Complainant is very much entitled to get some amount towards compensation. Be it further mentioned that as the OP-1 did not exercise his reasonable competence the Complainant had to rush before

the OP-4 to get relief from severe pain and as per the advice of the OP-4 the Complainant underwent further surgical intervention, for which he had to incur further medical cost, mental and physical pain etc. For this reason also the Complainant is also entitled to get compensation for such unnecessary physical, mental and pecuniary harassment. Though the Complainant has disclosed that he is a businessman, but how far he had to loss in his business due to medical negligence and deficiency in service of the OP-1, the said sheet is not before us. But obviously he faced some financial loss in his business for prolonged illness. It is true whether he is a businessman or not, no evidence is before us, but on affidavit he has stated the same and the OPs did not raise any objection about his profession. As the Complainant has to approach before this Ld. Forum for redressal of his grievance and incurred some expenditure towards litigation, in our view he is also entitled to get some amount towards litigation cost. Therefore this point is allowed in part in favour of the Complainant.

Going by the foregoing discussion, hence, it is

O r d e r e d

that the complaint be allowed in part on contest with cost against the OP-1 and dismissed on contest without any cost against the OP-2, 3, 4 and 5. The OP-1 shall pay a sum of Rs.3, 00,000=00 (Rs. Three lack) only to the Complainant towards compensation due to harassment, mental & physical pain and agony along with medical negligence and deficiency in service within 45 (forty five) days from the date of passing of this judgment, in default, the abovementioned amount shall carry penal interest @ 9% p.a.

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for the default period. The OP-1 is further directed for making payment of Rs.10, 000=00 (Rs. Ten thousand) only towards litigation cost to the Complainant within 45 (forty five) days from the date of this final order, in default, the Complainant will be at liberty to put the entire decree into execution as per provisions of law. With the above-mentioned observation the complaint is thus disposed of accordingly.      

                 (Asoke Kumar Mandal)        

             Dictated and corrected by me.                                                 President       

                                                                                                          DCDRF, Burdwan

                      (Silpi Majumder)

                             Member

                    DCDRF, Burdwan

                                                    (Durga Sankar Das)                           (Silpi Majumder)

                                                           Member                                              Member    

                                                      DCDRF, Burdwan                            DCDRF, Burdwan