Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         President

                    (2)     Smt. Karishma Mandal,

                              Member

Date of Order : 15.09.2015

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To pay Rs. 1,00,000/- ( Rs. One Lac only ) for economic loss.
2. To pay Rs. 1,00,000/-/- ( Rs. One Lac only ) for physical pain and harassment.
3. To pay Rs. 1,00,000/- ( Rs. One Lac only ) for mental agony.

2. Brief facts of the case which led to the filing of complaint are as follows:-

1. The complainant was pregnant and she was expected to deliver a child in the month of July 2005.
2. The complainant felt delivery pain on 15.07.2005 and on her complaint her husband Pankaj Kumar, Sister – in – law ( Nanad ) Veena Devi and her neighbours Sri Chandrajit Yadav, S/o Late Chamku Yadav, Sri Lakhan Vishwakarma S/o Sri Saryug Mistri, decided to go to Bihta for delivery. While they are witing for conveyance to go to Bihta at Patut Bazar, Manoj Kumar Lab Technician S.M. Patho Lab, Patut came to them and suggested them to go to ‘Janta Seva Sadan & Nursing Home’ for delivery. He further took them to Janta Seva Sadan and introduced them to Vijay Prasad Verma who disclosed that he runs a Nursing Home namely ‘ Janta Seva Sadan ewam Nursing Home’ Patut, where delivery cases are tacked there by experienced and competent lady Doctor who come from Patna every day by 10:00A.M. and he insisted them to get admitted in the said Nursing Home. He assured that very nominal charges for delivery would be taken from the patient. He further assured for all medical facilities there equivalent to clinics at Bihta and even Patna without any harassment of travelling and excess expenditure. The complainant, her husband and Sister – in – law being lured by the assurances given by the opposite party came to his said Nursing Home.
3. The opposite party admitted the complainant in his Nursing Home at about 4:00 P.M. and got deposited Rs. 5,000/- in advance for getting delivery done by an experienced lady Doctor. He asked Manoj Kumar, Lab technician who was present there to collect and examine the blood of complainant. Manoj Kumar collected blood from the hand of complainant and examined in his Lab namely ‘S.M. Patho Lab’ and gave report thereof on the same date. ( Vide Annexure – 1 )
4. After the admission of patient/complainant the opposite party administrated two injections in her body as a result of which pain aggravated but delivery didn’t occur. At about 9:00 P.M. the opposite party started to infuse saline which was continued uptill morning. The complainant remained in unbearable pain during whole night.
5. In the morning of 16.07.2005 at about 5:00 A.M. the husband of complainant asked opposite party that they would take the patient/complainant to Bihta for better treatment. But the opposite party assured him that he had called his lady Doctor who would come within half an hour to his Nursing Home. After the assurance of opposite party the husband of complainant decided to wait for the said lady Doctor.
6. The trouble and pain of complainant was increasing continuously as a result of which she became restless and serious. Then the opposite party took the complainant in operation theator with the help of his assistants. He told the husband of the complainant that the patient/ complainant has been transferred to operation theator for necessary check up according to the direction of lady Doctor through Mobile Telephone Contact, who is on way and coming within ten minutes to the Nursing Home.
7. The opposite party thereafter did caesarean operation on the abdomen of complainant with the help of his assistant Lalkeshwar Paswan and a nurse and got her deliver a female child. The opposite party did not take any consent before operation from the husband of the complainant.
8. After operation the opposite party told the husband of complainant that the condition of complainant was very serious. So he had no other option except doing operation to save the life of complainant and her child. The opposite party also told that he was also a competent surgeon. The opposite party wrote some drugs on the pad of his Nursing Home which the patient/complainant had to purchase from medicine shop.  ( Vide Annexure – 2 )
9. Within four days of operation the wound became infected. The opposite party asked the complainant to take antibiotic regularly as mentioned in prescription.
10. The complainant stayed for a week in ‘ Janta Seva Sadan and Nursing Home’. The opposite party discharged her on 23.07.2005 after removal of supture. He asked the husband of complainant to pay Rs. 10,000/- for operation, drugs, nursing, bed charge and other items. The husband of complainant paid Rs. 10,000/- to the opposite party and went home with the complainant.
11. The wound of complainant cured after about two months from the date of operation. In this period the complainant took antibiotic drugs worth Rs. 5,000/- according to the advice of the opposite party. The complainant’s post operation troubles continued for as long as 2½ months.
12. The complainant felt some trouble in her abdomen within three months from her operation. The complainant with her husband went to ‘ Janta Seva Sadan’ and consulted with opposite party who told that trouble may be due to gastric problem. Then the complainant went in the clinic of Dr. Sindhu on 21.10.2005 at Bihta. Dr. Sindhu checked up the complainant properly and asked her to consult with surgeon. The Doctor told her that the trouble might be due to hernia which has developed due to unskilled operation. ( Vide Annexure – 3 )
13. The complainant went to Indira Institute of Medical Sceince, Sheikhpura, Patna with her husband on 03.11.2005 and consulted with the Doctor of said Institute, Who checked up the complainant and advised her for some tests. After proper check up the Doctor said the complainant that hernia had been developed due to unskilled operation previously done. The Doctor of the Institute advised her for second operation to save her life and also advised to admit in IGNIMS on 26.11.2005.
14. The complainant was admitted in IGIMS on 26.11.2005 for the operation of large incisional hernia. The operation was done on 02.12.2005 after pre operation essential check up. The complainant was discharged on 13.12.2005 from the hospital and went home with her husband and other family members. ( Vide Annexure – 4 )
15. The opposite party is not a registered medical practitioner. He is not qualified and authorised to practice in allopathic system of medicines but operated the abdomen of the complainant which amounts to negligence ‘ Pre se’.
16. The opposite party is not a competent surgeon. He doesn’t held such skill which a surgeon should have. He didn’t maintained standard of surgeon during operation of the complainant. So he is guilty of medical negligence and is liable to pay compensation to the complainant for economic loss, physical pain and mental agony.
17. Due to negligence act of the opposite party the complainant suffered from heavy loss. About 70,000/- has been apent during four months of treatment of the complainant. The husband of complainant remained engaged in the treatment of complainant and thus he suffered a loss of Rs. 30,000/- in his business.

3. The Petition of Rejoinder on behalf of Opposite Party Vijay Kumar are as follows :-

1. The petitioner Vijay Kumar is resident of village – Ajwan, P.S. Naubatpur, District – Patna and his name is Vijay Kumar and he has wrongly described as Dr. Vijay Prasad Verma in the above and has been wrongly made opposite party in the above case at the instance of local enemies of the village. It is submitted that this petitioner who has wrongly described opposite party in this case is not Dr. Vijay Prasad Verma and this petitioner is not Doctor and he does not runs any clinic in the name of ‘Janta Seva Sadan Yewam Nursing Home’ at Patoot, P.S. Ranitalab, District – Patna. It is submitted that the petitioner is a simple man and is a poor farmer and he has no any ‘clinic’ as ‘ Janta Seva Sadan Yewam Nursing Home’ at Patoot at all and he does not know any clinic at Patoot and there was or is no any such clinic in existence at Patoot and the petitioner does not know about any such clinic at Patoot.
2. The petitioner Vijay Kumar lives at village – Ajwan and does his agriculture work as farmer and he is not connected with any clinic either at Patoot or Ajwan. It is submitted that this petitioner has no any clinic at village – Ajwan also. The fact is that the petitioner is not concerned with any clinic as falsely alleged as ‘ Janta Seva SadanYewam Nursing Home’ at Patoot as there is no any such clinic at Patoot or Ajwan nor there was ever any such clinic at Patoot or Ajwan. The fact is that this petitioner Vijay Kumar has no clinic at Patoot and beside the house of petitioner at Ajwan one Ram Rup Lohar has illegally made a Jhopari beside the house of petitioner at Ajwan and there is dispute for passage between the petitioner and Ram Rup Lohar who makes and sales country made pistol which is opposed by the petitioner and the sister of the Ram Rup Lohar of Ajwan was married to Patoot and Ram Rup Lohar always picks up the dispute with the petitioner’s family and Ram Rup Lohar threatened the petitioner to kill him and or many times previously also the petitioner Vijay Kumar was threatened by Ram Rup Lohar that he will implicate in many cases as he has return with several criminals and therefore Ram Rup Lohar has been enemical terms with this petitioner and he has asked this petitioner to falsely implicate in false cases. The house of the complainant Smt. Reeta Devi is also near Ram rup Lohar relative aforesaid and both are on friendly terms and has good relation with complainant and therefore Reeta Devi has falsely implicated at the instance of Ram Rup Lohar due to enemity with this petitioner.
3. It is submitted that there is Govt. Health centre at Patoot and Barah in which MBBS Doctors are posted since long works in the Health centre which is just close to the house of the complainant and hence the story of creating ‘ Janta Seva Sadan Yewam Nursing Home’ is false and imaginary and concocted to falsely implicated the petitioner in this case.
4. It is submitted that the complainant is a Bhaktini and she “Devta Khelati hai Uchhalati Kudati Hai” and she is quite hale and hearly and she has been set up by said Ram Rup Lohar to file this false case against this petitioner who has been wrongly described as opposite party in this case.
5. The above case has been filed against the petitioner under a pre plan conspiracy without any basis for the same.
6. The entire statement made in the complaint are wrong and false and concocted and the entire annexure have been forged for the above false case.
7. Any statement made against the petitioner wrongly described as opposite parties are wrong and false and are hereby denied and the complainant are put to strict proof of the same.
8. The complainant is not entitled to any claim as falsely made by her in the above case.
9. This petitioner is a poor man and he has about 16 Kathas with house in his share in joint family with his two minor sons who are also maintained by the joint family.
10. This petitioner never run the said clinic at Patoot and hence there is no question of any treatment or operation of the complainant and she is not entitled to any amount of the relief of compensation against this petitioner and the complaint case is fit to be dismissed.

4. The Opposite Party Vijay Kumar has filed a Petition are as follows :-

1. The Petitioner namely Vijay Kumar only and he is not Dr. Vijay Prasad Verma.
2. The petitioner had no clinic as ‘ Janta Seva Sadan’ and Nursing Home at Village – Patoot, P.S. – Ranitalab, District – Patna and there was no such clinic as at Patoot and the complainant was never the patient in that alleged nursing home as there was no such clinic and this false case has been filed due to wrong and false allegation due to ulterior motive which has been answered in the rejoinder petition by the petitioner.
3. The complainant of the above case has filed this case in this court and she has also got filed a complaint case no. 414 (C) 2006 through her husband, Pankaj Kumar and complainant with regard to the same facts and allegation which is in this complaint and in that case cognizance has been taken under Section 269 and 367 of the I.P.C. by order dated 15.05.2007 by the court of Sub – Divisional Judicial magistrate, Danapur with regard to the occurrence and allegation of the complaint of the case.
4. Under the law, no man can be prosecuted twice in two courts for the same occurrence and hence this petitioner can not be tried in two courts for the same occurrence in this very court and the court of Sub - Divisional Judicial magistrate, Danapur and hence the above case against the petitioner may be dropped. In the ends of justice to save this poor and innocent petitioner from illegal harassment to avoid future complication in the ends of justice.
5. A photocopy of the complaint petition no. 414 (C) 2006 is attached herewith for perusal of this court.

In her complaint petition she has asserted that she was pregnant and her expected date of delivery was July 2005. She felt delivery pain on 15.07.2005 and while she was with her husband and other relatives were waiting for conveyance at Patoot Bazaar for Bihta. One Manoj Kumar Lab technician SM Patho Lab Patoot came there and advised to go to Janta Seva Sadan and Nursing Home for delivery. He took them to Jnta Seva Sadan where he introduced them to Vijay Prasad Verma who stated that he runs a nursing home namely Janta Seva Sadan and Nursing Home, Patoot where there are Doctors who are expert in getting the delivery done in nominal charges. Thereafter the complainant was admitted in nursing home at about 4 P.M. and deposited 5,000/- in advance. Manoj Kumar collected blood from the hands of the complainant and got examined in his Lab ( Vide Annexure – 1 ).

It has been further asserted that opposite party did not allow her to go to Bihta when complication arisen and lastly he operated her with the help of his assistant Lal Keshwar Persun.

Thereafter a female child was born. It has been asserted that prior to her admission the opposite party did not take concern from her husband.

It has been asserted that after 4 days of operation the wound got infected thereafter the opposite parties advised her to take medicines which she took. Thereafter she was discharged byopposite party on 23.07.2005 after taking 10,000/- from her husband.

It has been further asserted that after 3 months the complainant got some trouble in her operated wound and thereafter she was brought to opposite party hospital but opposite party simply stated that this may be Gas problem.

Thereafter the complainant came to clinic of Dr. Sindhu on 21.10.2005 and Dr. Sindhu has opined that she might have developed hernia due to unskilled operation ( Vide Annexure – 3 )

Thereafter the complainant went to IGIMS on 03.11.2005 and the Doctors after examination has supported the view points of Dr. Sindhu and stated that she had developed hernia due to unskilled operation. Thereafter on the advice of Doctor she was admitted on 26.11.2005 for operation of large incisional hernia and thereafter the operation was conducted on her by Doctors IGIMS on 02.12.2005 and she was discharged on 13.12.2005.

It has been asserted by the complainant that opposite party is not a qualified practitioner and hence the operation by him of the abdomen of the complainant amounts to deficiency in service and the complainant has demanded Rs. 3,00,000/- Rs. Three Lac only by mental and physical and economical harassment etc. on behalf of opposite party a rejoinder has been filed of the aforesaid complaint petition of the complainant.

In the rejoinder the opposite party has asserted that he is resident of Vill- Ajwan, P.S. – Naubatpur, Dist – Patna and his name is Vijay Kumar but he wrongly described Dr. Vijay Kumar by the complainant. He has asserted that he is simple man and a poor farmer and he has no any clinic as Janta Seva Sadan and Nursing Home at Patoot. He has also asserted that his name has been given in this case at the investigation of his enemy. He has given full detail in Para – 2 of his reply. He has also stated that there is a Government Health Center at Patoot and Barahim where MBBS Doctors are posted. He has further asserted in Para – 4 of his reply that complainant is a Bhaktini and she is quite hail and hearty and she has been set by Ram Roop Lohar to file this false case. He has denied all the allegation made in the complaint petition.

The petition have been filed on behalf of the opposite parties on 05.07.2007 stating there in that the complainant has filed a complaint case no. 414 ( C) 06 through her husband Pankaj Kumar in which the organization has been taken by learned Sub – Divisional Magistrate Danapur U/s 269, 367 of IPC vide order dated 15.05.2007 on the same fact.

On behalf of the complainant a re joinder to the aforesaid petition dated 05.07.2007 of the opposite party has been filed excepting this fact in which it is stated that criminal case has been filed and there is no bar in filling the complaint case in this forum besides criminal case before court of competent jurisdiction.

It appears further that pursuance to direction of Consumer Forum a medical Board was constituted and the medical Board has given expert opinion to the effect that opposite party is not a qualified medical personal and hence his act is illegal.

Now the question arises that whether the complainant has been able to prove her case in accordance with law or not because the opposite party has completely denied and stated that he is simple farmer and he has no clinic as asserted by the complainant. It is true that the complainant has asserted the fact on oath but from perusal of Annexure – 2 it is crystal clear that it is a photocopy of prescription of Janta Seva Sadan and Nursing Home but there is no name of any Doctor nor any person who has issued the Annexure – 2 has came to support this fact.

In the same way Annexure – 3 has been issued by Dr. Sindhu of Bihta. Annexure – 4 has been issued by IGIMS, Shekhpura. All these documents are photocopy which shows that the complainant was operated but these documents does not goes to prove that the complainant was operated by opposite party or opposite party runs Janta Seva Sadan and Nursing Home or any clinic.

From judicial record it appears that some documents were filed by way of evidence on 19.04.2007 but these are parrot type statements of some persons. It further transpires that in this affidavit which has been sworn by the complainant on 19.04.2007 the complainant has only repeated her fact asserted by her. It goes without saying that on the same fact the husband of the complainant has filed criminal case which is still pending. There is no chit of paper or documentary evidence to show that the aforesaid Janta Seva Sadan and Nursing Home belongs to opposite party and opposite party has operated on the complainant. Merely filling of affidavit by certain persons with parrot type statement who have not come to support their statement in this form cannot be made basis for saddling the opposite party with fine and compensation because it will have serious implications.

It was duty of the complainant to bring some documentary evidences to prove that the opposite party was running the aforesaid Janta Seva Sadan and Nursing Home and he has conducted operation on the complainant.

Considering the facts in case We do not find any merit in this case and as such it is dismissed but without cost.

                                        Member                                                         President