The case of the complainant, in brief, is that the complainant is a poor man who felt severe pain of his abdomen and accordingly he went to Dr. A. Debnath of Subrata Medical Stores, Hasimara who examine him and advised for test like U.S.G. of whole abdomen, blood test, sugar test etc. and prescribed medicine on 10/03/2014 and refer to hospital. The complainant followed the advised of doctor and went to “KOSTURI IMAGING CENTRE”, Green Land Nursing Home who took Ultra Sonography of his whole abdomen on 13/03/2014 and reported  Gall Bladder – GB is contracted. Wall is thickened. A single Calculus of Size (19 mm) seen inside the GB amongst other test report. Impression : Chronic Cholecystitis with Cholelithiasis report of Kosturi Imaging Centre.

                Thereafter, the complainant rushed to the O.P No. 1 which is abdominal pain and deposited Health Card No. 19020703 1830 07743 and paid cash of Rs. 9,000/- and he admitted in the Nursing Home i.e. O.P No. 1. The O.P Nos. 4 & 5 assured higher standard of treatment and asked to admit the patient on 14/07/2014 being Registration No. 19020703813077 and on his consent for operation was taken by staff of O.P. No additional abdominal test made by them only based on the report of the Kosturi Imaging Centre operated the patient by Dr. Ahmed Ali without the help of any other skilled doctor an even no Anesthetist was there and he removed his Gall Bladder instead of removing the single calculus. The complainant remains admitted in the O.P Nursing Home from 14/07/2014 to 21/09/2014. Thereafter, a vague discharge certificate was issued without disclosing the name and qualification of any doctor. The patient was discharged with his abdominal pain and followed the prescription of Dr. Ahmed Ali but no improvement noticed. The complainant consulted with Dr. Ahmed Ali on 23/01/2014, 12/02/2014, 02/08/2014 and 23/08/2014 nor he referred to any other doctor.

                The further case of the complainant is that the complainant’s USG of whole abdomen was done by O.P No. 2 subsequently on 03/11/2014 and position of Gall Bladder shown – GB not seen in position (operated) CBD is normal in diameter measuring 0.35 C, reported by O.P No. 6 who failed to detect GB remnant for which the patient has been suffering and so USG of the whole abdomen was wrongly underwent. No proper treatment was given by O.P No. 1.

                The patient of the complainant in his abdomen was not cure and he went to O.P No. 1 Nursing Home wherein Dr. Ahmed Ali O.P No. 5 attended him on 09/11/2014, 10/12/2014 and prescribed some medicines but no result was coming on after taking the said medicine and the complainant suffering from pain in his abdomen on 24/03/2015. The condition of the patient was deteriorated and critical. O.P No. 5 assured the complainant that he will be cure within three months of operation and discharge him on 21/07/2014 but till 25/05/2015 the complainant was not cure. The O.P No. 1 took the fees on several dates when this complainant attended the Dr. Ahmed Ali on 25/03/2015 and ultimately he went to North Bengal Medical College & Hospital on 31/03/2015 as an outdoor patient. The attendant doctor of that hospital suggested him to removal the patient of GB when thereafter the complainant went to Malda where he was admitted in Dishary Health Point Private Limited under Dr. M. Pramanik on 09/04/2015. According to the advice of doctor the complainant again USG and MRI of the patient was done and it was detected that the GB was partially removed but the cholescystectomy was not removed although the complainant was admitted in the hospital of O.P No. 1 for removal of the above Calculus of Size (19 mm) it was seen inside the GB Gall Bladder. Thereafter, Dr. Pramanik done the Leparoscopic and removal the said foreign object from the GB and patient was discharged on 13/04/2015 and then the patient was completely cured after the said leparascopic operation done. The complain of the complainant is that the O.P Nos. 1 to 5 made a wrong treatment and removed the portion of Gall Bladder when removing the foreign object for which the complainant was suffering. O.P No. 1 took Rs. 9,000/- with the Health Card of the complainant for the purpose of that treatment but due to the wrong treatment and operation the patient was suffering for about six months and his condition was critical ultimately his life was suffer by Dr. M. Pramanik. There is no negligence from the part of O.P Nos. 2, 3 and 5 there is suffering of the complainant both physical and mental that a part he spent his money for his further treatment which was done due to wrong treatment of the O.Ps. The complainant has claimed the compensation of Rs. 6,00,000/- including the expenses incurred by him for his medical treatment along with his sufferings. He has also claimed Rs. 1,00,000/- for his mental agony. The O.P Nos. 1, 2 and 3 have contested this case, filing written version. The other O.Ps including O.P No. 5 did not turn up in respect of service of notice and paper publication so the case heard ex-parte against O.P Nos. 4 to 6.

                According to the written version O.P Nos. 1, 2 and 3 the complainant is not the consumer according to law. The O.P is admitted some portion of Para No. 3 in the written complain and stated that on 14/07/2014 the complainant was admitted in the Nursing Home but the mandatory requirement of review by expert panel of doctor. Issuance of notice has not been complied with for which the case is back. The O.P No. 5 admitted that the complainant was treated from 14/07/2014 to 21/07/2014 and also admitted that there were taken of Rs. 9,000/- from the complainant. They further stated that Dr. Ahmed Ali advised for several test including USG of abdomen and Rs. 9,000/- was taken for Nursing Home to charge medical treatment and operation and the complainant singed and accepts all but on 21/07/2014 the complainant disclose to the doctor as well as Nursing Home that he was not willing to operate and the O.Ps discharge the complainant after proper treatment but doctor did not operate the Gall Bladder as the complainant is not willing. The O.Ps has stated that the complainant is not entitled to get any compensation from this Forum. After filing the written version both the parties adduced evidence from their part. The complainant also filed some Xerox copy of documents regarding his treatment etc.

                In this context, the following issues are necessarily come up for consideration to reach just decision of the case.

                                                POINTS FOR CONSIDERATION

           Is the complainant a consumer u/s.2 (1)(d)(i)(ii) of Consumer Protection Act ?

           Has this Forum jurisdiction to try the instant case?

           Is there any deficiency in service on the part of the O.P?

           To what other relief/reliefs the complainant is entitled?

     DECISION WITH REASONS

           In this case the complainant was admitted under the treatment of O.Ps since 14/07/2014 and he deposited an amount of Rs. 9,000/- to the O.P No. 1 for his treatment. Thereafter, the O.P No. 1 referred the complainant to O.P No. 5 for treatment but the doctor that is O.P No. 5 attached to the O.P No. 1 made a wrong treatment and the complainant was not cure due to the said wrong treatment so this complain is made in the present case. So, according to u/s.2 (1)(d)(i)(ii) of Consumer Protection Act this complainant is a consumer and according to the complain there is a negligence in service render by O.Ps to the complainant.

           The main point raised by this O.P is that before issuing notice this Forum has required the expert report from the doctor and the Forum first referred the matter to the competent doctor or committee and sort for report there from and on the basis of that report if the negligence is detected within the Forum and issue the notice in the written argument filed by this O.P Nos. 1, 2 and 3 has made. This point very clear that without referring this matter for special report of specialist doctor the Forum can not issued notice or initiative of this case. Against this argument Ld. Advocate of the complainant stated that there is a case laws report in (2009)3 SCC 1 Martin F. D’Souza Vs Mohd. Ishfaq wherein the Hon’ble Apex Court opined  “We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee or doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case [(2005)6 SCC 1: III(2005) CPJ 9 (SC)], otherwise the policemen will themselves have to face legal action.” But subsequently in case laws V. Kishan Rao Vs Nikil Super Specialty Hospital [(2010)5 SCC 513: III (2010) CPJ 1 (SC)] wherein the Hon’ble Apex Court opined “ With great respect to the Bench which decided D’Souza (2009)3 SCC 1 are contrary to (a) the law laid down in the paragraph 37 of Indian Medical Association Vs V.P. Shantha [(1995)6 SCC 651], (b) and paragraph 19 in Dr. J.J. Merchant [IV(2002) SLT 714: III(2002) CPJ 8 (SC): (2002)6 SCC 635], (c) those direction in paragraph 106 of D’Souza(2009)3 SCC 1] equate medical negligence in criminal trial and negligence fastening civil liability whereas the earlier Larger Bench in Mathew [(2005)6 SCC 1] elaborately differentiated between the two concepts, (d) Those directions in D’Souza [(2009)3 SCC 1] are contrary to the said Act which is the governing statute, (e) those directions are also contrary to the avowed purpose of the Act, which is to provide a speedy and efficacious remedy to the consumer. If those general directions are followed then in many cases the remedy under the said Act will become illusory, (f) those directions run contrary to principle of ‘res ipsa loquitur’ which has matured into a rule of law in some cases of medical negligence where negligence is evident and obvious.” So, the expert opinion is not required before issuance of notice. After carefully scrutiny of both the case we find that the direction given by in Martin D’Souza case has been overruled by the Hon’ble Court in V. Kishan Rao Vs Nikil Super Specialty Hospital case. According to the Hon’ble Court it appears that one petition is filed and the claimant successfully discharge initially burden that the hospital was negligent. As a result the patient suffer within the burden lies upon the hospital and the doctor concern who treated the patient to show that there was no negligence involve in the treatment. Wherein the consumer Forum would sign for assistance it will be depended upon the fact and nature of the case although in case were medical negligence is alleged the Forum / Court. Having no medical background or experts generally like to have the assistant of medical experts but the Hon’ble Court in V. Kishan Rao case made a general guideline in this regard “before forming an opinion that expert evidence is necessary, the Commission under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the For a without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by this Commission. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory.” In the present case prima facie negligence from the part of O.Ps have been established by the complainant regarding negligence of service by the hospital and the doctors from the documents filed by the parties. Clearly indicates the evidence of that negligent part of the treatment of O.P. So, in this case according to the observation of the Hon’ble Apex Court there is no need for medical expert report for the purpose of just a decision of this case and it also appears that the documents filed by the complainant at the time filing of this case sufficiently proved prima facie that there was a medical negligence from the part of the O.Ps for that reasons. The case was not referred for medical expert reports before issuance notice upon the O.Ps. The argument adduced by the O.Ps on this point has failed this court is not jurisdiction according to law to proceed this case.

           In this case the allegation is that the complainant was admitted in the Nursing Home of O.P no. 1 for removal of stone in his Gall Bladder. He has deposited of Rs. 9,000/-, the operation was done by Dr. Ahmed Ali O.P No. 5 but after the said operation the patient was not cured and he was suffering from several abdominal pain. It appears that he went to the doctor, O.P No. 5, on several occasions and the doctor prescribed some medicines but no result was found ultimately, again USG was done and from which it appears that some portion of Gall Bladder has been removed but stone is still there. Thereafter, the complainant went to medical college at Siliguri where again USG was done and it was detected some portion of his Gall Bladder is removed. Actually, stone was not removed and then the patient went to Malda where he was admitted in Dishari Nursing Home under Dr. M. Pramanik where city scan was done and it was detected that some portion of his Gall Bladder was removed but the stone was still there. It was not removed then the patient was operated again by Dr. M. Pramanik and the stone was removed. It was detected from another city scan report after operation that the patient was completely cure for this purpose the patient deposited of Rs. 25,000/- for the said operation. The document was filed. From all the documents as well as oral evidence it appears that before operation by the O.P No. 2 the Gall Bladder of the patient was intact and after operation it was removed partly but actually disease was not cured as because the stone was not removed. From the evidence it is very much clear that there was negligence from the part of O.P No. 5 who was attached with the O.P No. 1. At this time patient was not cure after the treatment and ultimately he was admitted at Malda where he was cured. The sufferings of the patient should be compensated by the O.Ps as because the laches and negligence of deficiency in service of this Nursing Home as well as O.P No. 5, the doctor who attached with this Nursing Home is very much there. They took the amount of Rs. 9,000/- but did not render actual service to the patient. Wrong treatment was done and due to that reason the patient was suffered physically and financially. There is no specific denial from the part of the O.Ps rather they are admitted in their written version that the operation was done by the doctor but from the document i.e. USG report it is clearly shows that before operation his Gall Bladder was intact and after operation by the O.P No. 5 it was partly removed but the stone was intact. From all these points we find that the patient should be compensated for his physical and mental agony and after considering these facts and circumstances we find that this patient is entitled to get Rs. 9,000/- which he deposited to O.P No. 1 for his treatment and also entitled to get another Rs. 25,000/- which he has paid for his further treatment due to the laches of O.P No. 1 and 5. The patient is also entitled to get Rs. 3,00,000/- for his mental agony, pain and sufferings. He is also entitled to get Rs. 10,000/- as his litigation costs. After considering all the above facts and circumstances, we are of the view that O.P Nos. 1 and 5 should pay the above compensation and other costs to the complainant. The case is in favour of the complainant.

           Hence, for ends of justice, it is,

                                                                       ORDERED

            that the instant case be and same is allowed on contest against the O.P Nos. 1, 2 and 3 and ex-parte against the rest. The complainant do get a award amounting to Rs. 9,000/- + Rs. 25,000/- and Rs. 3,00,000/- as compensation for his mental agony and sufferings and also Rs. 10,000/- as his litigation costs; total decreetal amount of Rs. 3,44,000/-. The O.P No. 1 is hereby directed to pay the decreetal amount to the complainant within 30 days from this day, failing which legal action will be taken against him.

           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.           

Dictated & Corrected by me