DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _85_ OF ___2017
DATE OF FILING : 5.7.2017 DATE OF PASSING JUDGEMENT: _15.5.2018_
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Rita Mukherjee, wife of Satyajit Mukherjee of 327/1, Bansdroni New Govt. Colony, Kolkata – 70, P.S Regent Park.
O.P/O.Ps : Hindustan Health Point (P) Ltd. 2406, Garia Main Road, Hindustan More, P.S Sonarpur, Kolkata – 84.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Briefly stated , the complainant’s case is that he was admitted on 22.9.2016 to the Nursing Home at O.P for Harnia operation under care of Dr. Dipankar Sarkar and she was discharged there from on 25.3.2016 from the said Nursing Home. The allegation against the O.P is that O.P did not supply the medicines as per prescription of the O.P doctor. He supplied “Cetapine XR 1000”which was a medicine of diabetes and polycystic ovary syndrome (PCOS) instead of “Clavam XR 1000” which is used for treatment of bacterial infection. Conditions of the complainant gradually deteriorated due to use of Cetapin tablets ; her wound of operation did not heal up rapidly. He has filed the instant case alleging negligence on the part of the O.Ps and has been praying for refund of the money paid by her to the O.P for medicines and compensation etc. Hence, this case.
The O.P Nursing Home has been contesting the case by filing written statement ,wherein it is contended inter alia that the medicine i.e “Cetapin” was sold to the complainant by the advice of the Doctor and the complainant gladly accepted it. According to the Nursing Home, the complainant should have consulted the doctor before taking medicine and as she did not consult the doctor, she herself is guilty of negligence. It is further averred in the written statement that the said medicine was not at all harmful and it has no side effect and the complainant cannot suffer in any way due to use of that medicine. There is no negligence in selling the said medicine and, therefore, no deficiency in service has been caused on the part of the O.P.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Has the complainant been able to prove deficiency in service on the part of the O.P?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Both the parties have led their Evidences on affidavit which are kept in the record for consideration.
DECISION WITH REASONS
Point no.1 & 2 :-
In the instant case, the allegation against the O.P is that the O.P has negligently sold out one medicine to the complainant. The name of the medicine is “Cetapin”. Negligence in the eye of a layman can never be regarded as negligence in the eye of Law. In the eye of Law negligence has three ingredients- duty, breach of duty and resulting damage. If we assume for a moment that the O.P has caused breach of duty by selling the said medicine to the complainant, having disregarded the prescription of the O.P doctor, this very act of the O.P will not constitute negligence unless it is proved by the complainant that she suffered damage due to breach of duty on the part of the O.P.
Coming to the facts and circumstances of the case it is found that the complainant has not been able to produce any evidence to prove that she suffered damage due to use of that particular medicine. No expert evidence is also brought by her on record to prove that the medicine used by her has side effect and has many harmful effect and due to use of this harmful medicine the wound of her did not heal up rapidly. One Xerox copy of the opinion of the doctor i.e Dr. Dipankar Sarkar has been filed by the complainant before us. But by this document it is not proved that the complainant suffered damage due to use of the said medicine. That apart, this document cannot be regarded as evidence of the Doctor. Regards being had to all these, we are of the opinion that the complainant has miserably failed to establish that she has suffered any damage due to use of that medicine. The process of healing up of the wound of the complainant may be delayed due to various factors. It is found established on record that the complainant underwent Hysterectomy in 2008 and thereafter she underwent Cholecystectory (removal of gallbladder) in 2014. She also suffered from intestinal obstruction in the month of September, 2015and incessional hernia in 2016. All these are available from the prescription of Doctor S Goswami dated 20.10.2016 , a copy of which is filed herein on behalf of the complainant. All the allegations as referred to above indicate and indicate only one thing that the complainant has a weak constitution and that her vital force is awefully weak. This weak vital force of the complainant may also contribute to delay in the healing up process of the wound of the complainant. There is no direct medical evidence on record to prove that the use of the medicine namely “Cetapin” caused delay in the healing process of the wound of the complainant.
In the result the case fails.
Hence,
ORDERED
That the complaint case be and the same is dismissed on contest against the O.P but without cost.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
