The case of the complainant, in brief, is that on 12/02/2016 the wife of the complainant (Smt. Payel Ghosh) was admitted into the Greenland Nursing Home under Dr. K.P. Biswas for delivery of baby and on the same day at 17:08 Hours she gave birth one male baby. At the time of birth the baby was fine and healthy and weight of the said baby was 2 Kg. 500 gm. On 15/02/2016 the wife and baby of the complainant were discharged from the said Nursing Home (O.P No. 2). The complainant is a police constable who attached with the Alipurduar District Correctional Home and used to reside with his family at jail quarter, Alipurduar. On 03/03/2016 the complainant and his wife noticed that their baby seemed to be fed lesser and declined to take adequate food (milk) and then and there they took the baby to Loknath Medical Store where the O.P No. 1 examined the baby and prescribed some medicines and advised the complainant to admit the baby to O.P No. 2 as he was attached to the said O.P No. 2. The complainant paid fees of Rs. 300/- to O.P No. 1. Thereafter, as per advised of O.P No. 1 they complainant went to O.P No. 2 and produced the prescription of O.P No. 1 and admitted his baby at 12:05 P.M. On 03/03/2016 O.P No. 1 came to Greenland Nursing Home at about 2:00 P.M. and examined the baby and assured the complainant and his wife that everything would be normal and started administering Saline to the said baby.

            The further case of the complainant is that the mother of the baby was all along present beside the baby and she was very much anxious and worried for her baby since the baby stopped taking breast milk after admission. On several occasions the complainant and his wife requested the on duty Nursing Home staff of O.P No. 2 to book a call to O.P No. 1 under whom the baby was admitted. Since the condition of the baby became deteriorated due to not taking food but the duty nursing staff did not call O.P No. 1 and they disclosed that O.P No. 1 would come when it would necessary. The O.P No. 1 doctor came in the said nursing home at night at about 1:30 P.M. on 04/03/2016 when the baby was shivering and on seeing the condition of the baby the O.P No. 1 started administering oxygen to the baby. The complainant and his wife requested the O.P No. 1 to disclose the conditions of the baby and also wanted to know that whether it would be possible to treat the baby in the said nursing home or not but the O.P No. 1 did not disclose the condition of the baby and assured the complainant and his wife that their baby would get well shortly and he did not refer the baby to any other hospital for better treatment. On 04/03/2016 at about 3 P.M. the complainant went to his residence by leaving his wife beside the baby and on that date in the early morning the nursing home authority gave a phone call to him and asked him to come immediately as the condition of the baby became serious. Thereafter, the complainant rushed to the O.P No. 2 and found his baby was dead.

            The further case of the complainant is that neither O.P No. 1 nor the O.P No. 2 rendered proper treatment to the baby of the complainant. Besides Saline water they did nothing and no thorough examination of blood was done by them. The attending doctor came twice i.e. at 2 P.M. on 03/03/2016 and at 1:30 A.M. on 04/03/2016 in the said O.P No. 2 Nursing Home. The O.P No. 1 was very much negligent in treating the baby of the complainant who expired due to gross negligent and deficiency in service on the part of him and by O.P No. 2. That on 04/03/2016 the O.P No. 2 issued death certificate of the baby of the complainant being signed by O.P No. 1 when the date and time of death was written as 04/03/2016 at 6:30 A.M. and the cause of death as “Septic Caemia & Malnutrition”. Besides this O.P No. 2 handed over the dead body of the baby to the complainant by taking Rs. 1,300/-. Further, the blood test report being supplied to the complainant subsequently which are manufactured since no blood taken from the baby of the complainant. Moreso, the expenses of blood test has not been taken by the complainant. O.P No. 3 has got close nexus with O.P No. 2 who prepared the vague and false blood test report. All the O.Ps have jointly made conspiracy by manipulating by false documents with a view to save their skin.

            Hence, this case has been filed by the complainant with a prayer that the O.Ps be directed to pay compensation amounting to Rs. 15,00,000/- for the death of their baby and also prayed that the O.Ps be directed to pay Rs. 4,75,000/- for their mental paid and shock + Rs. 25,000/- as litigation costs of the case.

            All the three O.Ps have appeared before this Forum and contested the case by filing written versions separately and denied all the material allegations as leveled by the complainant against them.

            In written version the O.P No. 1 made categorical denials against the complainant. The defence of the O.P No. 1 is that on 03/03/2016 the complainant and his wife brought their baby for treatment to the O.P No. 1 at Loknath Medical Stores, North Point, Alipurduar and he also admitted that he had examined the baby and prescribed medicines and injections. O.P No.1 / Doctor M.K. Paul also admitted that considering the critical condition of the baby he without taking any risk or chance advised the complainant for admission of the baby. But he denied that he advised the complainant to admit the baby in Greenland Nursing Home (O.P No. 2). He has further stated in his written version that on 03/03/2016 when the baby was first brought for treatment to the O.P No. 1 it transpired that the weight of the baby has got reduced to 1.554 Kgs. which itself shows that the baby was grossly under nourished as such he started his treatment in such a condition. He has further averred that immediately upon admission, the baby was duly attended by him at about 12:10 P.M. on 03/03/2016 itself and it appear that the baby was grossly mal nourished and otherwise extremely weak and feeble (Cachectic). The baby was also found to be reluctant to feed and the skin texture appeared blackish and immediately blood samples of the baby were collected and sent for examination to the O.P No. 3 (Dooars Clinical Laboratory).

            Thereafter, upon received of the said report clear symptoms of Septicemia was found as presence of toxic granules were confirmed and C-Reactive protein showed substantive variation from the normal range.  Based upon those observations and clinical findings of appropriate treatment was rendered and close monitoring had been insured and several injections were administered. But he denied that he did not monitor the condition of the baby or that proper treatment was not given. The O.P No. 1 has also averred that considering the critical condition of the baby he constantly monitored the relevant medical parameters throughout the day on 04/03/2016. However, since the conditions deteriorated at night, he rushed to the nursing home at about 1:10 A.M. and at about 3:05 A.M. in the morning he left the nursing home. Thereafter, at about 6:20 A.M. in the morning all of a sudden severe grasping by the baby was reported and he again rushed to the nursing home and additional injection was administered to save the life of the baby. Soon thereafter, the respiration rate of the baby started to fall and the baby was put into ventilation but the life of the baby could not be saved inspite of doing everything. This O.P has stated that the whole course of treatment is based upon the medical report which was made available to him and there is no question of manufacturing or manipulating such report. He submitted dismissal of this case with exemplary costs.

             O.P No. 2 appeared and made categorical denials in the written version. The case of the O.P No. 2 (Greenland Nursing Home) is that the case is not maintainable in accordance with the C.P. Act, 1986. This O.P does not agree with the averments regarding keeping the child with utmost care and baby was found to be quite normal and jubilant. This O.P also stated that regarding admission of baby by the complainant to the nursing home on 03/03/2016 etc. all are matters of record and this O.P added here that as per instruction of the medical officer the medical management of the baby so admitted had been started immediately. This O.P has also further stated that O.P No. 1 has done all needful for well being of baby and this nursing home also rendered it service as per direction of O.P No. 1 throughout the night and the O.P No. 1 and other paramedics working in the nursing home were given their best to save the life of the baby of the complainant. But as ill luck would have it inspite of all such stupendous efforts the baby died in early morning. This O.P has denied the allegations of the complainant that the baby died due to gross negligence and deficiency in service on his part.  This O.P also denied the allegation regarding any non-issue of proper bill.  This O.P also denied the other allegations made by the complainant against him as such he has prayed for dismissal of the case with cost.

            O.P No. 3 made categorical denials in his written version against the complainant represented by it’s proprietor Sri Utpal Kr. Acharya it has been averred by O.P No. 3  (Dooars Clinical Laboratory) in his written version that the case is not maintainable in this present form. This O.P has stated that on 03/03/2016 being informed by the staff of O.P No. 2 sample of the baby was directly collected from the nursing home itself and considering the critical condition of the baby the sample was duly examined and the report was prepared and sent to O.P No. 2 nursing home. This O.P has denied that there was any collusion or malpractice in preparing the said report. He has further stated that the complainant , his wife and others had joint their hands and head to hatch a mala-fide conspiracy with the ulterior motive and extracting illegal and unfair money which is nothing but a mode of extorting by way of resorting to abuse the legal process. This O.P has also prayed for dismissal of the case with exemplary costs.

            In the instant case the complainant has filed evidence-on-affidavit as well as written argument to strengthen his case.

            On the other hand all the O.Ps have also filed evidence-on-affidavit as well as written argument separately in support of their respective cases.

            Both the parties have also filed documents by “firisty” in support of their respective cases.

             We have also heard arguments from the both sides and also perused the materials on record meticulously.

           Considering the above pleadings the following issues are necessarily come out for consideration to reach just decision of the case.      

                                              POINTS FOR CONSIDERATION

1. Is the complainant a consumer u/s.2 (1)(d)(ii) of Consumer Protection Act, 1986 ?
2. Has this Forum jurisdiction to entertain the instant case?
3. Have the O.Ps any deficiency in service as alleged by the complainant?
4. Is the complainant entitled to get any relief/reliefs as he prayed for?

                                   DECISION WITH REASONS

              Considering the nature and character of the case all the points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience.

              It is admitted fact that on 12/02/2016 the wife of the complainant was admitted into the Greenland Nursing Home (O.P No. 2) under Dr. K.P. Biswas for delivery of baby and ultimately the wife of the complainant gave birth one male baby on 12/02/2016 and on 15/02/2016 the wife of the complainant and the baby were discharged from nursing home (O.P No. 2). Thereafter, on 03/03/2016 the complainant and his wife went to Loknath Medical Stores, Northpoint Damanpur; as their baby declined to take adequate food; where O.P No. 1 was available there. The O.P No. 1 Dr. M.K. Paul examined the baby and advised the complainant to admit the baby in O.P No. 2 who rendered treatment of the baby of the complainant and did everything but unfortunately, on 04/03/2016 the ill fated baby was expired. The cause of death as per doctor opinion is “Septic Caemia & Malnutrition”. All the O.Ps rendered treatment of the baby at the costs of the complainant.

              Having heard of the both sides and considering the materials available on record we find and hold that the complainant is a bona fide consumer as per provisions laid down u/s.2(1)(d)(ii) of the C.P. Act, 1986.

Whereas the complainant is a resident of Vill. & P.O. – Jateswar, P.S. – Falakata, Dist. – Alipurduar and O.P No. 1 has been practicing at Alipurduar as medical officer and O.P Nos. 2 & 3 both also situated at Alipurduar as such we also find and hold that this Forum has territorial jurisdiction to try this case and whereas the claim amount does not exceed the pecuniary jurisdiction of this Forum as such this Forum has pecuniary jurisdiction to try this case.

            On perusal of the materials of both sides available on the case record as well as on hearing of arguments of both parties it is appeared that the complainant submitted his documents as per his “firisty” to substantiate his allegations against the O.Ps. But the documents on part of the complainant can not be accepted since the O.P side also submitted their respective documents to counter the documents of the complainant though the documents of both parties lying as not proved. Virtually the O.P side has challenged the documents of the complainant. Under this situation it is very difficult to determine as to whether there was any negligence on part of O.P side or not. Similarly, it is very difficult to ascertain as to whether the allegations as raised by the complainant against the O.Ps are true or exaggeration?

           As per guidelines of the Hon’ble Apex Court in case of tortuous liability in negligence; negligence has three meanings –

They are –1. a state of mind, in which it is opposed to intention;

2. careless conduct; and

3. the breach of duty to take care that is imposed by either common or statute law.

The 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 of care, prescribed by law, thereby committing a breach of such duty; and
3. damage which is both causally connected with such breach and recognized by the law has been suffered by the complainant.

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

Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown;-

1. that there is a usual and normal practice;
2. that the defendant(here O.Ps) has not adopted it; and

3. that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary case.

At least three weighty considerations can be pointed out which any Forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are –

1. that legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds;
2. that the patients  will be better served if the real causes of harm are properly identified and appropriately acted upon; and
3. that many incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation;

            Therefore, to establish the allegations by the complainant such as manipulation of the medical papers; after death of the baby by the O.P side or not attending the doctor in proper times when needed or lack of infrastructural availability (such as I.C.U. etc.) against the O.Ps require to prove such allegations by adducing oral / documentary evidence as per Indian Evidence Act and similarly it requires to disprove the documents submitted by the O.P side.

            It is also required to prove the documents submitted by the O.P side as per Evidence Act for the sake of adverse proof against the allegations of the complainant.

            Since both sides submitted their documents to establish their respective pleas but those documents have not been proved or disproved as per Evidence Act, as such we are unable to hold as to whether there is deficiency in service on part of the O.Ps or not.

            For the sake proper adjudication when the O.P side submitted adverse documents against the allegations of the complainant invocation of exhaustive procedure of Evidence Act, such as examination; cross-examination and exhibiting the documents and proving; disproving the same inter-alia all are required which is a lengthy process. This Forum has limited scope since the Consumer Protection Act, 1986 stands on summery proceedings. Following the exhaustive procedure of the Evidence Act must frustrate the purpose of the C.P. Act, 1986. Hence, the complainant may seek his reliefs from appropriate Civil Court.

            Considering the negative result of Point No. 3 positive results of Point Nos. 1 & 2 became needless and Point No. 4 does not require to be discussed.

            Thus all the points are disposed of accordingly.

            Death of the baby is irreparable loss of the complainant but considering the legal position of this case as discussed above we are very sorry to say that the instant case has failed to achieve it’s success. In drawing such decision we have followed these references;-

1. Jacob Mathew -vs- State of Punjab and Anr. on 5^th August, 2005 (Supreme Court of India).
2. Martin F.D. Souza –vs- Mohammad Ishfaq on 17^th February, 2009 (Supreme Court of India).
3. 2019(2) CPR 767 (National Consumer Disputes Redressal Commission, New Delhi, June, 2019, Part – 6, Page – 767).

                Fees paid are correct.

                Hence, for ends of justice; it is;-

                                                              ORDERED

            that the instant case be and the same is dismissed  on contest but without costs. However, the complainant will be at liberty to seek reliefs as he prayed before appropriate Civil Court.

             Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.