SRI B. K. DAS, PRESIDENT:-
Deficiency in service of medical negligence in respect of wrong surgery of ‘Cyst’ by the Opp.Party-doctor are the allegations arrayed against the Opp.Party.
Complaint, in nutshell reveals that complainant operated her ‘Sebacious Cyst’ at right fore head under the treatment of OP-doctor Mr. Abanindra Nath by paying Rs.2000/- and promised to pay Rs.1000/-. The OP assured the complainant that the cyst will be cured within 10 days. On dt.04.11.14 OP-doctor operated the ‘sebacious cyst’ by not removing the whole. After the operation the ‘wound’ gradually aggravated, the OP assured the complainant to keep patience. As the pain was unbearable in the operation place the complainant met Dr.Ramesh Chandra Das M.S. M.Ch.(Plastic Surgery) for treatment for the said purpose. Complainant expenses Rs.15,000/-(Rupees Fifteen thousand)only towards consulting,operation and medicine. Hence, the complaint before the Forum to get a compensation of Rs.30,000/- for the wrong acts of OP-doctor Dr.Abanindra Nath. The compensation includes,financial loss,mental agony and cost of litigation.
Being noticed OP-doctor appeared through their Ld.Counsel and filed written statement into the dispute denied the allegation of the complainant challenged the maintainability of the complaint and submitting the facts, it is stated that OP is a doctor certified under Indian Board of Alternative Medicines(IBAM) in Ayurvedic Medicine. It is also stated that complainant has only consulted the doctor and OP advised him to adopt ‘Ayurvedic system’ to get relief accordingly issued prescription. OP has neither done any surgical operation nor has any idea about the same as alleged by the complainant. It is further stated that complainant to exploit the OP has foisted a false case against the OP which is to be rejected with cost. Learned Counsels for both the parties present. Heard the arguments,perused the documents and citations filed by the parties. Complainant to substantiate her case filed 2 nos. of attested photo copies prescription issued one by Dr.Abanaindra Nath and another by Dr.Ramesh Chandra Das apart from that attested photo copy of Blood Test report dt.15.01.2015 and list of medicine prescription issued by OM GAYATREE NURSING HOME. On the otherhand OP filed a Xerox copy of medical certificate of OP-doctor issued by Indian Board of Alternative Medicine,West Bengal.. During course of argument Ld.Counsel for OP submitted that, complainant has not produced a single scrap of paper to show that she has paid any ’consideration’ to OP-doctor to avail his service. In this regard we are of the opinion that when the OP himself admits that the complainant-patient has ‘consulted’ for treatment of ‘sebacious cyst’ strengthen the pleadings of the complainant regarding payment of consideration. In semi-urban and rural areas when a patient consult a doctor engaged in private practice always not demanded any printed money receipt in support of his/her payment. Further the OP has not taken the plea that the consultation given by the OP-doctor was without any charge or free of cost. Hence, the payment of ‘consideration’ can not be ruled out as stated in the complaint, though there is no specific evidence of payment of Rs.2000/- to OP-doctor.
The next argument of the Ld.Counsel for OP that the complaint petition is neither supported by a verification nor by an affidavit to judge the veracity of the allegation as per the CPC. ,a pleading without verification and affidavit may be outrightly rejected. In the circumstances, we are of the opinion that adjudication of the disputes in the Forums are guided by the provisions of C.P.Act,1986, though some part of the C.P.C. are applicable. Further too much technicalities are avoided in the Fora’s for giving justice to a consumer. Section-12 of C.P.Act,1986 (Manner in which complaint shall be made) does not contain any mandatory provision that a complaint should be supported by an affidavit or verification. In both the above points raised by Ld. Counsel for OP regarding ‘maintainability’, to our opinion the complaint is maintainable before this Forum.
Discussing the factual and legal position of the case, it is the allegation of the complainant that due to negligency of the OP-doctor her operated ‘sebacious cyst’ was aggravated as the cyst was not removed wholly,OP-doctor operated a part of the cyst for which she has to move to Cuttack for better treatment. Accordingly Mr.Ramesh Ch.Das, M.S.Mch.(Plastic Surgery) treated her and she cured. Countering the allegations of OP on his written statement states that he has never gone for the operation of the ‘cyst’ rather he had only advised the complainant-patient to adopt Ayurvedic system to get relief which is reflected in the prescription.
When the core allegation ‘operation of cyst’ is disputed by Opp.parties, it is to be decided by this Forum that whether any surgery of ‘cyst’ had taken place or not ? Ld. Counsel for complainant vehemently argued and gave much emphasis on prescription issued by OP-doctor Dr.Amarendra Nath. We, examined the said prescription issued on dt.04.11.2014, we do not arrived into a definite conclusion that whether the ‘cyst’ was operated or only advise was given by the concerned doctor to “ get it operated” alongwith application of other medicines. The plea of the treatment under Dr. Ramesh Chandra Das,M.S.Mch.(Plastic surgery) and by the complainant and examining his prescription it is nowhere discloses that the ‘cyst’ was operated by surgery prior to his treatment and the pre-surgery conducted by Dr.A.Nath (OP-doctor) was a wrong and negligent act of the concerned doctor. Except these prescriptions not a single evidence is produced before this Forum like expert opinion, affidavit, independent witness who can strengthen the version of the complainant. As it is the settled principle of law that onus lies with the complainant. Complainant has to prove that OP-doctor was conducted the surgery of the ‘cyst’ beyond all reasonable doubts. According to us complainant has failed miserably to prove her case beyond all reasonable doubts. As it is a case of ‘medical negligency’ without any substantial and full proof evidence, we can not liable the OP-doctor who is authorized and qualified to treat the patients by adopting Ayurvedic Method of treatment. If the allegations of the complainant is a fact and hence the surgery done by the OP-doctor is a criminal offence which is punishable U/S-15(3) of the Indian Medical Council Act,1956 and to comply the grievance of the complainant she has to take proper action under the law of the land. We,freed OP-doctor from any such liability of deficiency in service.
Having observations reflected above, the complaint is dismissed on contest.
No order as to cost.
Pronounced in the open Court, this the 19th day of August,2015.
