HON’BLE MR. TARAPADA GANGOPADHYAY, MEMBER

This Appeal u/s 15 of the Consumer Protection Act, 1986 has been filed by the OP No. 2 against the judgment and order dated 24.12.2012 passed by the Ld. DCDRF, Cooch Behar in Case No. DF 24/2012, directing the OP No. 2 to pay to the Complainant within 45 days from the date of the order Rs. 50,000/- as compensation for medical negligence, Rs. 25,000/-  for cost of medical treatment incurred and Rs. 15,000/- as compensation for suffering, harassment and mental agony, failing which the entire amount shall attract interest @ ‘8%’ payable to the Complainant and Rs. 300/- as penalty for each day’s delay shall have to be deposited by the OP No. 2 with the State Consumer Welfare Fund.

The brief facts of the case are that the Respondent/Complainant visited the Appellant/OP No. 2-Doctor for CT Scan with complaint of abdominal pain, who conducted the CT Scan on 20.9.2011 and FNAC, but the FNAC was signed by one Dr. Subhendu Roy, Pathologist, being the OP No. 3/Respondent No. 2, but not by the Appellant/OP No. 2-Doctor who, although conducted FNAC,  allegedly did not take care of the Complaint of pain at the site of FNAC at the time of FNAC.  Then the Complainant visited one Oncologist, but getting no relief following the advice of the Oncologist the patient visited another doctor at Belur Sramajibi Swasthya Prakalpa Samity where a ‘large parietal abscess’ at the site of FNAC was detected.  After such detection, the Complainant had to undergo surgery for relief.  With this factual background, the Complainant filed the Complaint Case concerned before the Ld. District Forum which passed the order impugned in the aforesaid manner.  Aggrieved by such order the Appellant/OP No. 2-Doctor has preferred the instant Appeal.

The Ld. Advocate for the Appellant/OP No. 2-Doctor, filing BNA, submits that as the abscess occurred two months after FNAC and there was no abnormal pain at the time of FNAC, so the FNAC cannot be faulted with for abscess which might occur for bacterial infection otherwise after FNAC.

The Ld. Advocate further submits that the Appellant/OP No. 2-Doctor, being a Radiologist and having done FNAC regularly in hospital,  is competent enough to conduct the FNAC and hence, the allegation that the Appellant/OP No. 2-Doctor lacks competence to conduct FNAC does not stand to reason.

The Ld. Advocate also submits that there is no support of expert-opinion and cogent evidence to justify the alleged negligence on the part of the Appellant/OP No. 2-Doctor in the Complaint Case concerned and hence, the order impugned appears to be contrary to the settled principles of law in this respect.  In this context, the Ld. Advocate refers to the decisions of the Hon’ble National Commission in (1) Tagore Heart Care and Research Centre Pvt. Ltd. & Anr. Vs. Mrs. Kanta, decided on 27.5.2011 in First Appeal No. 426 of 2006 and (2) Sri Ajit Kumar Roy Vs. Dr. Amitabh Mishra & Ors., decided on 14.8.2012 in Revision Petition No. 3068 of 2010. 

The Ld. Advocate concludes that in view of the aforesaid submission, the instant Appeal should be allowed and the order impugned be set aside and the Complaint be dismissed.

On the contrary, the Ld. Advocate for the Respondent No. 3/Complainant submits that the complaint by the Complainant of acute pain at the site of aspiration for FNAC by the Appellant/OP No. 2-Doctor indicates the defect in the process of aspiration by the Appellant/OP No. 2-Doctor who being a Radiologist lacks required skill in FNAC concerned. 

The Ld. Advocate adds that the signature of Dr. Subhendu Roy, being the Pathologist, instead of the Appellant/OP No. 2-Radiologist, in the FNAC Report concerned undisputedly indicates the lack of eligibility of the Appellant/OP No. 2-Radiologist for conducting the FNAC concerned, or else the Appellant/OP No. 2-Radiologist would have signed the FNAC Report concerned.

The Ld. Advocate adds that as per standard protocol the FNAC is generally conducted by the Cytopathologist as is not the Appellant/OP No. 2-Radiologist.

The Ld. Advocate also submits that as a ‘large Parietal Abscess’ was detected at the site of FNAC, so the infection, if any, was caused by faulty process of aspiration at the time of FNAC by the Appellant/OP No. 2-Radiologist.

The Ld. Advocate adds that lack of competence in FNAC by the Appellant/OP No. 2-Radiologist having been ex facie established from the evidence of absence of signature of the Appellant/OP No. 2-Radiologist in the FNAC Report concerned, despite the FNAC was conducted by the Appellant/OP No. 2-Radiologist, there is no necessity of expert-opinion as is well-settled.

The Ld. Advocate continues that the facts of the decisions referred to by the Ld. Advocate for the Appellant/OP No. 2-Radiologist having been different from the fact of the case on hand, the referred decisions are of  no help to the Appellant/OP No. 2-Radiologist.

The Ld. Advocate concludes that in view of the aforesaid evidence and submission, the instant Appeal should be dismissed and the order impugned be upheld.

Heard both the sides appearing, considered their respective submission and perused the materials on records, particularly the report of FNAC.

The report dated 20.9.2011 of FNAC, as available on records (Annexure-D) indicates absence of signature of the Appellant/OP No. 2-Radiologist therein, which clearly indicates the lack of proper competence of the Appellant/OP No. 2-Radiologist for conducting FNAC which, as per standard protocol, is usually done by Cytopathologist as is indicated from the signature in the FNAC Report of the Pathologist instead of the Radiologist.

As the ‘Parietal Abscess’ was detected at the site of FNAC, so on the principle of equity the preponderance of probability of defect in the process of FNAC cannot be ruled out.

The foregoing discussion and the well-reasoned observation of the Ld. District Forum in the order impugned lead us to conclude that the order impugned does not necessitate our interference. 

Consequently, the instant Appeal is dismissed and the order impugned is upheld.  No order as to costs.