DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

MUCHIPARA, BURDWAN.

Consumer Complaint No 292 of 2013

Date of filing: 31.12.2013                                                                           Date of disposal: 29.01.2016

Complainant:           Sanatnandan alias Sanat Nandan Prasad, S/o. Sri Ram Chandra Prasad, resident of Kshudiram Pally No. 2, North Bazar, Andal, District: Burdwan, PIN – 713 321.

-V E R S U S-

Opposite Party:        Dr. P. K. Banerjee, “UPASANA”, Tagore Road, Ushagram, Asansol, District: Burdwan, PIN – 713 303.

Present:        Hon’ble President: Sri Asoke Kumar Mandal.

                        Hon’ble Member: Smt. Silpi Majumder.

Appeared for the Complainant:     Ld. Advocate, Jayanta Kr. Mukhopadhyay,

                                                                     Durgaprasad Sarkar & Somali Ghosh.

Appeared for the Opposite Party:  Ld. Advocate, Subrata Ghosh.

J U D G E M E N T

This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging medical negligence against the op-doctor as the op-doctor has failed to provide proper treatment to him as per standard medical practice.

          The brief fact of the case of the complainant is that he is a patient of the op for long time. In the year 2005 he went to the op due to diabetes and subsequently he underwent treatment for hypertension, Xanthelasma symptom continuously years after years. On 11.8.2009 he consulted with the op with the complaint of cold, cough and occasional fever. Upon clinical examination some medicines were advised and advice was given for review after 10 days and repeat chest X-ray (PA). He consulted the op on 17.8.2009, 09.9.2009 and 07.12.2009 for the aforesaid problems and the op advised medicine and told the complainant to avoid to intake narikel, banana, dahi, chilled drinks and water. Complainant followed the advice of the op religiously

 with the said restrictions and medicines were also taken by him regularly, not only that time to time he also checked the blood sugar level from the pathological centre. Though the complainant was a known patient of diabetes but the op did not taken any caution over the issue and all the time treated the patient negligently and indifferently as during most of the visits the op did not bother to prescribe any medicine to control sugar level which subsequently became very much alarmingly high and damaged the cardiac and respiratory system of the complainant, which has been detected afterwards at the Apollo Gleneagles Hospital, Kolkata. As a old and known patient of the op he again consulted the op on 05.4.2013 with  the same complaint of cough, cold and occasional fever and at that point of time also he was advised some medicines and the op added inhaler, namely, Budamate 200 Rothalation twice daily (don’t stop) and also advised to review after two weeks, but those medicines were advised without any specific diagnosis through pathological, radiological or sonological means/test and simply on a piece of white paper advise was given for AFB test for sputum. The complainant meticulously took all the medicines according to the advice of the op and also underwent for sputum for AFB test on 12.4.2013. The report shows no AFB detected on micro scopical examination. No other pathological test like TC, DC, ESR, Elisa test and/or bronchoscopy, lungoscopy, chest X-ray was advised for specific and proper diagnosis. As no improvement was made and problem remained as before, in order to get rid of such precarious intolerable condition the complainant met with the op on 19.4.2013, AFB report was shown to him but very cleverly without noting down the complaint /history in prescription simply noted 126/80 and nothing else and five medicines were prescribed which are related to bronchoasthame and tuberculosis without ruling out the proper disease/ailment as if a test therapy was administered upon a ginipig. Though the complainant took all the medicines, but without any relief so he consulted with the op on 26.4.2014 explaining his unbearable restlessness due to such problem, but the op simply noted ‘Rep’ in his prescription and again advised seven medicines along with advice for review after 7 days and a repeat chest X-ray (PA). In accordance with the advice of the op the complainant took all the medicines, chest X-ray was done on 01.5.2013 which shows ‘evidence of cyst involving in left paracardiac region’ and consulted with the op on 03.5.2013 and on that day also op usually prescribed a series of medicines for one month and told him to review after 30 days along with a report of fasting plasma glucose estimation. Although the complainant requested the op earnestly and wanted to know about the exact diagnosis, treatment, management, but the op kept himself mum and not only that he did not bother to refer him at any higher centre for proper management and treatment and the op remained indifferent and unresponded. As per advice of the op the complainant started using of the prescribed drugs but he did not get any relief at all within a span of about 12 days on the one hand and on the other hand the problem and pain aggravated beyond tolerance. Due to deterioration of his health he rushed before the Apollo Gleneagles Hospital, Kolkata and consulted with Dr. Ashok Sengupta of respiratory medicine on 16.5.2013 and 17.5.2013 who after clinical evaluation advised him for admission for a period of two weeks. Accordingly the complainant got admission therein on 18.5.2013 for proper diagnosis, better treatment and future management. He was therein from 18.5.2013 to 01.6.2013 and got discharge on 02.6.2013 and during his stay as in-patient a series of pathological, radiological, sonological, biochemical tests and CT Scan were done and ultimately final diagnosis was made as (i). LEFT LOWER LOBE MULTIPLE LUNG ABSCESS, (ii). POORLY CONTROLLED DIABETES MELLITUS TYPE-2 (HBAIC – 8.8%). The total cost of treatment incurred by the complainant to the tune of Rs. 1, 69,000=00 includes investigation charges, bed charges etc. At the time of discharge from Apollo Gleneagles Hospital Dr. Ashok Sengupata advised for follow up after three weeks or SOS and orally the complainant was told that such ailment may require surgical intervention and in that event the cost of operation would be approximately for Rs. 3, 00,000=00. Keeping in view of financial stringency the complainant could not reach at the conclusion that how he arranges the funds for undergoing the aforesaid proposed surgery in order to get the ailment properly treated. Considering the situation the complainant discussed the issue with his relatives and friends and finally he moved before the Post Graduate Institute of Medical Education and Research, Chandigarh for further treatment. He got admission therein on 13.6.2013 with chronic complaint of fever and cough for last 15 years and he stated that he failed to get proper treatment and diagnosis till date. Thorough check up, investigations and evaluations have been done and the complainant was diagnosed as LEFT LOWER LOBE SEQUESTRATION WITH BRONCHIECTATIC CHANGES WITH UNCONTROLLED TYPE 2 DM and on 04.7.2013 operation was done i.e. LEFT LOWER LOBECTOMY + ICM FLAT REINFORCEMENT OF THE BRONCHIAL STUMP THROUGH LEFT POSTEROLATE RAL THORACTOMY and the surgery was done at Nehru Hospital. This type of treatment is completely different from the treatment of the OP and the latter treatment proves that the OP ought to have diagnosed the aliment of the complainant before providing treatment. Due to such maltreatment the complainant had to face trauma, enormous pain and financial loss. The complainant got discharge therefrom on 19.7.2013. Inspite of the said surgery the complainant has not gain as yet full capacity of normal life and he had to remain confined at hospital bed consecutively for prolonged period owing to the negligence of the op. Had the op diagnosed the ailment initially and advised correctly the complainant would not have to undergo costly surgery. Besides his physical pain the complainant had also suffered from monetary loss due to negligence of the op, actually he has to spent a sum of Rs. 2,34,000=00 for his medical treatment and Rs. 43,140=00 due to travelling charges from one hospital to another including food and lodging charges of Rs. 31,500=00. According to the complainant the op is under obligation for making payment of entire amount due to his negligent treatment. The complainant had filed this complaint before this ld. Forum praying for direction upon the op for making payment of Rs, 19, 00,000=00 in total towards the cost of the treatment, compensation and litigation cost. The complainant has also prayed for interest @18% p.a. over the said amount.

          The petition of complaint has been contested by the op by filing written version contending that in the year 2005 for the first time the complainant came before this op with Xanthelasma, which means deposition of cholesterol around the eyes. This condition is often associated with increase on the blood of other fats and sugar. Diabetes is often associated with infections in the chest which gives rise to cough, fever, breathlessness. So regular treatment is mandatory. But the complainant was very irregular in attendance. The details of irregular visit have been given by the OP such as:

Then he disappeared and he came again after more than 3 years i.e. in the year 2013. The complainant was not at all diligent in following the advice of the doctor. The complainant was advised to do repeated chest X-ray (PA) on 26.4.2013, but the same was never done. On 07.12.2009 the complainant was advised for blood sugar estimation every month but he did not comply with the said advice and not bothered to show the reports to this op. He was also advised not to stop the medicines for diabetes. On 04.01.2006 the complainant reported this op that he had stopped the ante-diabetic drugs for 15 days. The op has stated that after a gap of about four years the complainant came on 11.8.2009 complaining that he had been suffering from coughs and fever from March 2009. Immediate X-ray was done which shows features of bronchitis, which is very much common in this polluted coal belt. For this reason he was given antibiotics and directed to come after 10 days with a repeat chest X-ray. After 17 days on 27.8.2009 he came with cough but no X-ray report was bought by him. He was given antibiotics and advised to come after 8 days. After 12 days on 09.9.2009 he came with catch in breath with cough. He was prescribed antibiotics and directed to come after 2 weeks and this time he also did not bring any X-ray report. On 21.9.2009 he came with mild cough and advised to come after one month, but after about 4 years on 05.4.2013 he came with cough. Immediately chest X-ray was done which reveled bronchitis. On 19.4.2013 he came with cough, fever etc. After X-ray a small infected zone was detected. CT scan was not done because the rule is that in case of an infective patch after a course of 2 weeks repeat X-ray should be done, so antibiotics were given. This time the antibiotics did not work and he did not come personally and sent some representative on 26.4.2013 stating that he had cough and shortness of breath. The op advised him a repeat chest X-ray and prescribed symptomatic medicines and direction was given for coming after 7 days. On 03.5.2013 he came with shortness of breath but did not bring the repeat chest X-ray report. After that he disappeared and did not turn up any more. Thereafter upon receipt of the summon the op came to learn about the subsequent treatment from the complaint of the complainant. No iota of evidence of negligence will be transpired on the part of the op from the petition of complaint, so the complainant has filed this case with malafide intention only to harass this op as the allegation is a speculative and baseless one. The op has further stated that he is a qualified and experienced physician and being satisfied with his treatment the complainant used to come before him since 2005. In this case there is no negligence or deficiency in service on the part of the op as he followed medically accepted procedure and treatment was done in accordance with the procedure prescribed by medical science, on the other hand, the complainant himself did not follow the advice of this op and is not entitled to get relief as sought for. Accordingly prayer has been made by the op for dismissal of the complaint.

          The complainant has filed evidence on affidavit which has been challenged by filing questionnaire and reply filed by the complainant accordingly. Similarly, against the evidence of the op complainant has filed questionnaire and the op has replied the said questions on affidavit. The complainant has filed entire medical treatment sheet of him along with other related papers and documents. The complainant has also filed written notes of argument in support of his contention. The op has filed some medical literatures relating to the drugs prescribed by the op and several Rulings of the upper courts in support of his contention.

          We have perused the record and the medical documents, treatment related papers and other papers and documents filed by the contesting parties and the Rulings filed by the op carefully. In our view the following points to be decided:-

-:Points for determination:-

1. Whether the complainant is a consumer or not?
2. Whether this complaint is maintainable within this ld. Forum or not?
3. Whether there was any negligence in providing treatment to the complainant by the op or not?
4. Whether the complainant is entitled to get relief as sought for?

-:Decision with reasons:-

Point No. A:-

At the very outset we are to adjudicate as to whether the complainant is consumer within the purview of the definition of ‘consumer’ as enumerate in the Section 2 (1) (d) (ii) of the C.P. Act, 1986. It is seen by us that in this respect the op did not raise any argument as to whether the complainant can be termed a consumer or not, rather the ld. Counsel  for the op has argued that admittedly the complainant is a consumer. Therefore, we can safely said that the complainant can be termed as ‘consumer’. In this respect the complainant has relied on the judgment of Savita Garg (supra), but as the complainant admittedly is a consumer of the op, we are not inclined to discuss about the said judgment and the said judgment is applicable in the case in hand.

Point No. B:-

This complaint is maintainable before this ld. Forum from the point of pecuniary jurisdiction as the complainant has prayed for relief to the tune of Rs. 19, 00,000=00. As it does not cross the pecuniary jurisdiction of this ld. Forum hence, this complaint is well maintainable from the point of pecuniary jurisdiction. In respect of territorial jurisdiction it is very clear from the cause title of the complaint that the complainant was treated by the op within the territorial jurisdiction of this ld. Forum. So this complaint is maintainable.

Point No. C:-

For adjudication of this point it is seen by us that admittedly the complainant is an old patient of this op since 2005 and on several occasions he visited the chamber of the op due to ailment and every time he was prescribed with medicines and some time he was also advised for chest X-ray as he was suffering from mostly cough, cold and fever. Not only that he is a known patient of diabetes mellitus and he was also treated for hypertension and Xanthelasma. The medical documents i.e. prescriptions and several reports denote that the complainant was advised to test the blood sugar level in every month and to show the same to the op for evaluation but the latter prescriptions reveal that the complainant was not so diligent in his attendance before the op and did not approach timely before the op and not only that on several occasions he did not bother to show the reports of blood sugar and chest X-ray. The complainant approached before the op on 05.4.2013 with the complaint of cough, cold and occasional fever and the op advised some medicines and along with the medicines he added one inhaler and further advice was given not to stop the said medicine. It is seen by us that the complainant was advised on that date two types of inhaler (i) Twice daily and (ii) Once daily. The complainant was also advised for AFB test for sputum. On 12.4.2013 sputum for AFB test was done and report shows no AFB detected on micro scopical examination. According to the complainant as no development was made and his pain became unbearable he again visited the op on 19.4.2013 when after perusing the AFB test report, the op prescribed five medicines and according to the complainant those medicines are related to brochoahthma and tuberculosis. In this respect the complainant has stated that without any specific diagnosis through pathological, Radiological, Sonological tests and/or broncho- scopy, lungoscopy and chest X-ray, the op has prescribed the medicines for tuberculosis. It is further stated by the complainant that prior to coming to conclusion through test that the patient is suffering from tuberculosis or not, the said medicines cannot be prescribed and the op did the same without ruling out the proper disease or ailment. Thereafter he visited the op’s chamber on 26.4.2013 and the op prescribed seven medicines along with advice for review after 7 days along with repeat chest X-ray. Chest X-ray was done on 01.5.2013 which revealed evidence of cyst of involving in left paracardiac region. With the said test report he consulted with the op on 03.5.2013 and on that date several medicines were also prescribed by the op and the patient was told to come further after one month along with a report of fasting plasma glucose estimation. In this respect the allegation of the complainant is that thought the op has miserably failed to diagnose the actual ailment of the complainant and accordingly failed to provide proper treatment to him, but he did not refer him to any higher centre for proper management and treatment. The further case of the complainant is that though he used to take the medicines as per the prescription of the op but his condition was deteriorating and pain did not subside rather it was aggravated and went beyond his tolerance and for this reason he had to rush before the Apollo Gleneagles Hospital, Kolkata where he was clinically evaluated by Dr. Sengupta and as per his advice he got admission therein for better treatment and got discharge on 02.6.2013. During stay in that hospital a series of pathological, radiological, sonological, biochemical tests and CT Scan were done. And it was finally diagnosed that the complainant was suffering from left lower lobe multiple lung abscess and poorly controlled diabetes mellitus type-II. During discharge from Apollo Hospital he was told by Dr. Sengupta that surgical intervention may be required and in that respect the cost of the operation would be Rs. 3 lacs. Keeping in view of his financial stringency and to avoid surgical intervention he went to the Post Graduate Institute of Medical Education and Research, Chandigarh for further and future treatment and got admission therein with chronic complaint of fever with cough for last 15 years. He was thoroughly checked up, investigations and evaluations were done and it was diagnosed as left lower lobe sequestration with bronchiectatic changes with uncontrolled type-2 DM. On 04.7.2013 operation of left lower lobectomy plus ICM Flap reinforcement of the bronchial stump through left posterolate ral THORACROMY was done at Nehru Hospital. According to the complainant he had to incur expenditure to the tune of Rs. 2, 24,000=00 for his medical treatment and as he had to go different hospitals and to stay therein for a quite considerable period, he had to incur some extra expenses towards travelling, food and lodging charge. According to the complainant due to negligent treatment of the op he had to incur such hefty amount and not only that he had to suffer physically for a prolonged period and faced mental harassment, agony and financial problem. For redressal of his grievance this complaint has been initiated by the complainant.

It is the case of the op that he provided treatment to the Complainant properly and as per medical science, so he did not violate the standard medical practice in the treatment. He also prescribed medicines on different occasions considering his state of health as per medical books and guidelines, so the question of deficiency in service and medical negligence in giving treatment do not arise at all. Further case of the op is that the patient was very much irregular in his attendance because he did not turn up before the op as per his advise and also not follow the each and every directions made by him. The complainant was prescribed not to stop the medicine for diabetes, but he stopped the same as per his own choice, he did not turn up before the op for more than three years and half months, though he was directed to appear before the op in every month along with the blood sugar report, as he approached on 05.04.2013 due to cough, cold and fever he was prescribed for chest X-ray (PA) on several occasions, but on few occasions he did not follow the advice and moreover after 03.05.2013 he did not come to the op any more. According to the op as there is no iota of evidence of negligence on his behalf, the Complainant is not at all entitled to get any relief as prayed for.

Upon careful perusal of the prescriptions as filed by the complainant since 2006 to 2009, it is seen by us that the complainant was very much irregular in his attendance before the op as per his medical advice. During this period he used to attend before the op after lapse of twenty days to five months. Not only that as the complainant was suffering from Xanthelasma and diabetes, he was advised some medicines and further advice was given by the op not to stop some medicines which is evident from the prescriptions. But the complainant has stated that he stopped the said medicines out of his own choice and without taking any permission from the op. Such attitude of the complainant proves that he is very much whimsical and did not follow the advice of the op relating to his treatment meticulously and for this reason his ailment may be aggravated later. After lapse of more than three years on 05.04.2013 he appeared and visited the op with the complaint of cough, cold and fever. Immediately X-ray was done, which showed Bronchitis, X-ray dated 19.04.2013 showed a small infected zone in the lower part of left lung, antibiotics, inhaler prescribed. On that date Combunex 800 was prescribed and directed to take the same ½ x 2 after food for 30 days. Be it mentioned that on 12.04.2013 Sputum for AFB Test was done as per advice of the op and the test report shows no AFB detected on Microscopical Examination and perusing this report Combunex was prescribed and advised for repeat chest X-ray. In respect of Combunex the Ld. Counsel for the complainant has argued that this medicine can be prescribed only when the patient is suffering from tuberculosis, but though the test report of the AFB sputum was negative, inspite of this the op prescribed the said medicine violating the accepted and standard medical practice, which is a glaring example of medical negligence on his part. It is further submitted that Combunex 800 cannot be taken twice daily, as per medical literature it can be taken only one time, but the op prescribed twice daily. In this respect both parties have adduced medical literature about the said medicine. We have gone through the same carefully and we have noticed that Combunex 800 works to harm bacteria and fight the infection, it can be taken without food or with food as the patient is told and without any miss. It is further evident from the literature that two doses cannot be taken. The prescription dated 19.04.2013 reveals that that the op-doctor had prescribed Combunex 800 ½ x 2 after food, which indicates that the complainant was directed to take only one medicine in a day on two times I.e. ½ & ½. Therefore the argument of the complainant does not stand at all and in our view the op prescribed the medicines as per the standard medical practice and literature and hence no violation had been made by the op. From the literature it is also evident that there will be some bad reaction to the said drug due to its overdose viz. wheezing, chest tightness, fever, itching, bad cough, blue or grey skin color, swelling of face, lips, tongue and throat, stomach upset, change in eyesight, eye pain, irritation etc. But in the case in hand there is no evidence adduced by the complainant that due to the prescribed dose said bad reactions or side effects occurred. We have further noticed from the literature of the said medicine given by the Ld. Counsel for the op that Combunex 800 can be prescribed due to anti-tuberculosis treatment in patients with sputum smear-negative presumptive pulmonary tuberculosis. The Ld. Counsel for the complainant cannot show us any medical literature that without detecting tuberculosis prescription for Combunex 800 cannot be made. Therefore we cannot take the argument of the complainant that the op prescribed the said medicine wrongly going beyond the standard and approved medical practice. If we take up the averment of the complainant as true for the sake of argument that there was error of judgment on behalf of the op, in this respect the Ld. Counsel for the op has relied on the Jacob’s case (supra). Upon perusal of the relevant paragraph it is seen by us that error of judgment cannot be regarded as negligence in view of the landmark judgment of the Hon’ble Supreme Court in the case of Jacob Mathew vs. State of Punjub, reported in 2005-Crimes (SC) 3-63, wherein in the paragraph 49 (2) it is mentioned which runs as follows:

…….. 49 (2) negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of the professional negligence. A simple lack of care, an error of judgment or/and 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………………..                  

It is stated by the complainant that due to the said medicine his ailment aggravated and he was finally diagnosed as Left Lower Lobe Multiple Abscess and Poorly Controlled Diabetes Mellitus Type-2, but in this respect the complainant did not pray for appointment of any expert for expert opinion to prove such allegation. It is true and the Ld. Counsel for the complainant has argued that in view of the judgment passed by the Hon’ble Supreme Court in the case of Kisan Rao vs. Nikhil Super Speciality Hospital & Another, reported in (2010) 5 SCC 513, wherein it has been held that the expert opinion is not mandatory to prove the medical negligence of any doctor. But where it is required and without the same medical negligence cannot be properly adjudicated, in that respect the expert opinion is necessary. In the case in hand in our view the expert opinion was necessary for coming to a conclusion that due to the said medicine the ailment of the complainant was aggravated and there was medical negligence on the part of the op. In this respect the Ld. Counsel for the op has place his reliance on the judgment passed by the Hon’ble National Commission in the case of Sri Ajit Kumar Roy vs. Dr. Amitabh Mishra, reported in (2012) 3 CPR (NC) 502 wherein it has been held that it is for petitioner to carry ball in proving medical negligence on the part of doctors. The op has relied on another judgment passed by the Hon’ble National Commission, reported in (2011) 4 CPR (NC) 157, wherein it has been held that without support of any expert’s opinion, complainant’s case of alleged medical negligence cannot be accepted only on the basis of his affidavit or some entries in medical record. Though it has been earlier mentioned that error of judgment cannot regarded as medical negligence, but the op has also relied on the judgment of the Hon’ble NCDRC, reported in (2014) 2 CPR (NC) 670, wherein it has been held that error of judgment in reaching correct conclusion about proper diagnosis cannot be termed as medical negligence.

We have noticed though the complainant was advised by the op on 03.05.2013 to come after 30 days along with the blood sugar report, but since then the Complainant did not turn up and went to the Apollo Gleneagles Hospitals and Nehru Hospital, Chandigarh. The Complainant has filed entire medical documents and treatment papers of those Hospitals, but the same do not reveal that the op had treated the patient wrongly going beyond the standard medical practice. In every hospital the complainant was primarily managed with antibiotics and bronchitis was diagnosed at the very outset and at last he was operated upon at the Apollo Gleneagles Hospital, Kolkata due to lung abscess.

During hearing the Ld. Counsel for the complainant has argued that the op has violated the Code of Medical Ethics as in the prescriptions he has printed his own photograph, which is an unethical act of a doctor in view of injunction of the Medical Council of India. In this respect he has attracted our notice to the Regulation no-6.1 of the Code of Ethics Regulations, 2002. We have carefully perused the same and it is seen by us that in 6.1.2 it is enumerated that-

6.1.2 ‘Printing of self-photograph or any such material of publicity in the letter head or on sign board of the consulting room or any such clinical establishment shall be regarded as acts of self-advertisement and unethical conduct on the part of the physician. However, printing of sketches, diagrams, picture of human system shall not be treated as unethical.’

In respect of such unethical acts the Ld. Counsel for the complainant has relied on the judgment passed by the Hon’ble National Commission passed in the case of Ajay Gautam vs. Amritsar Eye Clinic and Another on 26.02.2010, wherein it has been held by Their Lordships that as the doctor violated the abovementioned Regulation which by itself was unethical conduct and constitute deficiency in service.

Regarding such argument of the Ld. Counsel for the complainant it is argued by the Ld. Counsel for the op that such averment and allegation has not been mentioned in the petition of complaint and hence the Complainant has no authority to argue anything beyond his pleadings. It is further mentioned by the op that if such printing of self-photography of the op can be termed as unethical, but the Consumer Forum has no power to adjudicate the same and the same can be adjudicated before the appropriate Court. In this respect the Ld. Counsel for the op has relied on some Rulings i.e. the case of Kalyan Singh Chouhan vs. C.P. Joshi, passed by the Hon’ble Supreme Court, reported in (2011) 0 Supreme (SC) 89, wherein in the paragraph no-24 it has been held that-

24. ‘Therefore, in view of the above, it is evident that the party to the election petition must plead the material fact and substantiate its averment by adducing sufficient evidence. The court cannot travel beyond the pleadings and the issue cannot be framed unless there are pleadings to raise the controversy on a particular fact or law. It is, therefore, not permissible for the court to allow the party to lead evidence which is not in the line of the pleadings. Even if the evidence is led that is just to be ignored as the same cannot be taken into consideration.’

In another judgment passed by the Hon’ble Supreme Court, reported in (2014) 0 Supreme (SC) 731, as relied on by the op, wherein it has been held that no relief can be granted without pleading or averment. In the paragraph no-20 of the said judgment Their Lordships have discussed the law in detail.

It is seen by us that admittedly the allegation of unethical act of the op had not been mentioned by the complainant in the petition of complaint and not only that the complainant did not utter any single sentence in this respect in his pleadings. Therefore having regard to the abovementioned dictum of the Hon’ble Supreme Court we are of the view that the argument advanced by the Ld. Counsel for the complainant in respect of unethical act of the op, cannot be taken for consideration as the complainant did not whisper any allegation in that context in the complaint.

The Ld. Counsel for the complainant has relied on several judgments i.e.,

1. (2009) 7 SCC 330, (ii) (2010) 1 c Cr LR (SC) 42, (iii) Nizam Institute of Medical Sciences vs. Prasanth S. Dhananka & Ors., (iv) 2013 (4) CPR 284 (SC), (v) 2015 (2) CPR 425 (NC), (vi) Revision Petition no- 4684/2012 of the Hon’ble NCDRC etc. We have perused the abovementioned judgments and in our view as the Complainant have failed to substantiate medical negligence as well as deficiency in service on the part of the OP by adducing cogent evidence, hence we are not inclined to discuss on those rulings.

Point No. D:

In the above premises we are constrain to hold that there was deficiency in service on behalf of the op in providing medical treatment to the complainant as per standard and established medical practice.

As the complainant has failed to prove the allegation as alleged by him in the petition of complaint by producing document, hence the complainant is not at all entitled to get any relief from this Ld. Forum as for sought for.

Going by the foregoing discussion hence, it is

O r d e r e d

that the complaint is dismissed on contest without any cost. 

          Let plain copies of this final order/judgment be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.

                                (Asoke Kumar Mandal)        

             Dictated and corrected by me.                                                                   President       

                                                                                                                                    DCDRF, Burdwan

                      (Silpi Majumder)                                                                     

                                     Member                                                                                        

                      DCDRF, Burdwan

                                                                                                       (Silpi Majumder)

                                                                                                                       Member    

                                                                                                        DCDRF, Burdwan