07.04.2011

HON’BLE JUSTICE MR. P.K.SAMANTA, PRESIDENT

Appellant through Mr. R.Dutta and Respondent No. 2 through Mr. Debasis Mondal, Ld. Advocates, are present.   Heard both sides at length.  Judgement is passed as under :-

Both the Revisional Application being RC/27/2010 and the Appeal being FA/342/2010 are taken up for disposal in presence of the Ld. Advocates for the parties in view of the judgement and order dt. 7.3.11 passed by the Hon’ble National Commission in Revision Petition No. 3808 of 2010.  The brief facts giving rise to the aforesaid Revisional Application, the above First Appeal as well as the Revision Petition before the Hon’ble National Commission are as under :-

One Mr. Santi Denre, the complainant, filed a complaint case being numbered HDF 6 of 2009 before the District Forum, Howrah, against the Doctor and the Nursing Home alleging medical negligence in the treatment of the wife of the complainant.  The above Forum upon receipt of the said complaint called for an enquiry report in relation to the complainant’s allegation from the Chief Medical Officer of Health, Howrah.  The said Chief Medical Officer of Health, Howrah, constituted an Enquiry Committee for the said purpose.  A report was submitted to the Forum by stating that the Enquiry Committee constituted for the purpose did not find any lacuna and negligence on behalf of the doctors’ team, which treated the wife of the complainant.  The Forum below  upon consideration of  the said report of the Chief Medical Officer of Health did not accept the same in toto and ultimately passed an order to proceed with the complaint case against both the Ops namely the Doctor and the Nursing Home as aforesaid.  The OP/Doctor challenged the said order of the Forum below in a Revision Petition before the State Commission.  The State Commission upon contested hearing of the said Revisional Application by its judgement and order dt. 10.5.10 was pleased to set aside the order of the Forum below whereby it decided to proceed with the complaint case against both the Doctor and the Nursing Home.  The Revision Petition was thus allowed by holding that there was no prima facie case of medical negligence against the OP/Doctor and the Forum had, therefore, no authority to issue any notice of the said complaint case to the said OP/Doctor.  The complainant challenging the said order dt. 10.5.10 passed by the State Commission moved the Hon’ble National Commission in the aforesaid Revision Petition No. 3808 of 2010.  The Hon’ble National Commission, however, has disposed of the said Revision Petition by holding that the complainant had been able to substantiate his allegation of medical negligence by producing his own evidence contra to the report of the Chief Medical Officer and, therefore, the order so made by the State Commission cannot be sustained in law.  The Revision Petition filed before the Hon’ble National Commission was thus allowed by sending the complaint case back on remand to the District Forum for deciding the same in accordance with the law.  The Hon’ble National Commission has directed the parties to appear before the State Commission.  Hence, the Revision Petition has been placed before us.

It may be stated herein that after the disposal of the Revision Petition as above by the State Commission,  the complaint case was proceeded with against the Nursing Home alone and furthermore, immediately thereafter on 24.5.10 the Forum below recorded disposal of the complaint case without going into the merits of the complaint case, only because of the order as above passed by the State Commission in the above Revision Petition.    The said order dt. 24.5.10 has been appealed against by the complainant in this State Commission, which has been registered as aforesaid being FA/342/2010.

Having regard to the facts and circumstances of this case and more particularly, regard being had to the fact that the complaint case even against the OP/Nursing Home had not been disposed of on merits by the aforesaid order dt. 24.5.10 and further since the Hon’ble National Commission has remanded back the complaint case to the District Forum for deciding the same in accordance with law, we are of the view that for ends of justice both the Revisional Application and the above Appeal should be disposed of by sending the complainant case as a whole back to the Forum below for deciding the same afresh on merits in accordance with law from the stage where the OP/Doctor was asked to file the written version to the complaint case.  However, it is made clear that the Forum below will give chance to the OP/Doctor to file his written version to the complaint case before proceeding with the same in accordance with law.  Both the Revisional Application and the Appeal are thus disposed of.  The parties to the complaint case are directed to appear before the Forum below on 28.4.11.