DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _307_ OF ___2015
DATE OF FILING : 13.7.2015 DATE OF PASSING JUDGEMENT: 23.10.2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Sri Gopal Halder alias Gopal Chandra Halder ,son of late Bhola Nath Halder residing at 155A, Panchanantala Lane, Kolkata- 34, P.S Parnasree.
-VERSUS -
O.P/O.Ps : Life Line Nurses Bureau, represented by its In-Charge Smt. Usha Ghosh(Halder) ,having its office at 79, Daspara Road, Thakurpukur, Kolkata – 63, P.S Thakurpukur.
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J U D G E M E N T
Sri Udayan Mukhopadhyay, President
This is an application under section 12 of the C.P Act 1986 filed by the complainant on the ground that complainant is a legal practitioner and O.P is representing itself as a Bureau offering services of trained nurses, senior nurses, junior diploma nurses , male attendants, Ayahs and security guards day and night.
It has claimed thqat complainant in the mo nth of September, 2014 contacted Smt. Usha Ghosh (Halder), Incharge of the O.P in order to hire the service of a trained Ayah from the O.P for the care and welfare of his father-in-law Sri Chandidas Banerjee aged about 76 years who has been suffering from various old age diseases and ailments like COPD and is currently bed ridden and requires constant supervision. It has claimed that O.P sent an Ayah Smt. Susoma Paul to look after the complainant’s father-in-law sometime in September, 2014. It has claimed that after few weeks it was noticed by the wife of the complainant that the said Ayah was negligent while discharging her duties and repeatedly failed to stay by the bedside of the complainant’s old and ailing father-in-law which was required in view of the serious condition of the patient. It has further claimed that complainant and his wife and other family members requested the said Ayah to be more diligent while performing her duty, but all their requests went in vain and the said Ayahy continued to act negligently in conducting her duties . Complainant immediately contacted Smt. Usha Ghosh (Halder) Incharge of the O.P and apprised her of the aforesaid inhuman conduct of the said Ayah to which she initially assured that she would look into the matter and make the Ahay cautious . But despite several assurance made by the O.P, the Ayah failed to act diligently ,rather her conduct became worse thereby causing utter prejudice and hardship to the complainant, his father-in-law and other family members. It has claimed that the suffering of his father-in-law at the hands of the said Ayah reached its zenith on 26.11.2014 towards the afternoon at about 4 p.m when he started breathing problems whereby his illness aggravated and at that juncture the patient tried feebly to reach for the oxygen mask alone as he was left completely unattended by the said Ayah and there was no one in the room to look after him and while making such attempt ,unfortunately he fell down on the floor from his bed and suffered severe injuries on his head and at the lower back side of his body. The patient although started groaning and cried for help from the said Ayah but she did not care to attend him even after hearing his cries as she was sleeping in the adjacent corridor. After sometime the wife of the complainant arrived there and seeking the emergent condition of her father got shocked and immediately contacted the doctor who came thereafter and his father-in-law got medically treated. The matter was informed to Smt. Usha Ghosh, Incharge of the O.P but she did not show any interest in rectifying the conduct of the said Ayah and abused the petitioner’s wife which is not at all desirable. It has claimed that complainant already paid all amounts to the O.P and no amount was due to them. But due to such careless, negligent and neglectful act of the said Ayah appointed by the O.P, the health condition of the patient det3erkiorated a lot and complainant had to incur a substantial amount towards the medical treatment of his father-in-law. Moreover, as a result of such lackadaisical acts and activities of the O.P including its said Ayah , the physical condition of the patient has worsened considerably.
Due to this negligent act which amounts to deficiency of service ,the complainant filed this application claiming RFs.1,50,000/- compensation towards mental agony, physical suffering and irreparable loss, injury suffered by the complainant and for cost .
The O.P contested the case by filing written version and denied all the allegations and it has been admitted by the O.P that on 26th November 2014 at about 4 p.m Susoma Paul was called by nature and when to the latrin/bath cum privy to response her natures call and at that time said patient namely Chandi Das Banerjee tried to hook up and wanted to go to the latrin but as Susoma was not there the patient himself tried to go to the bathroom and subsequently he fell down on the bed court to floor. It has claimed that O.P deputed the Ayah on and from 24.10.2013 and they were providing Ayah during 24 hours to look after the said Chandidas Banerjee and according to the service provider up to the best effort which will be crystal clear on the documents itself. It has further claimed that after the natures call when
Susoma cam back she found that patient had fallen down on the floor. This is happened at about 4 p.m. She sought for help of others in mess and only some portion has been small injury ,for which physical was called for . The said doctor noted some suffering as per report of the complainant. It has been claimed by the O.P that Susoma Paul was in duty to look after Chandidas Banerjee and without impleading her this instant case has been filed. It has further stated that CT scan and other test was done but not a single scrap of paper has been annexed to scrutinize th4e same. It has further claimed that the common phenomena is that the feeble person aged about 76 years is fallen down from bed to the floor pain may occurred at any parts or portion of the body but for that reason the aya is or the O.P is not responsible. The incident took place on 26.11.2014 but complainant did not paid the charge of aya’s from 12.11.2014 to 27.11.2014. the O.P has denied all the allegations leveled against it touching the negligent act of the Ayah and prays for dismissal of the case.
Points for decision in this case is whether there is any deficiency in service on the part of the O.P or not.
Decision with reasons
Admittedly the O.P provided one Aiah for the service of the father in law of the complainant Chandidas Banerjee who is a very senior citizen aged about 76 years old.
It is also interesting to point out that O.P has admitted that on 26th November___ 2014 at about 4 p.m one Susama Paul was called by nature and when she went to the latrin cum privy to response her nature’s call , at that time the patient namely Chandi Babu tried to hook up and wanted to go to the bathroom and subsequently he fell down on the floor. So, it is an admitted position that Susama Paul was not present at that time. Although, complainant claims to some extent different i.e Susama Paul was sleeping in the adjacent corridor. So, when the O.P has claimed the same denying the sleeping of the Aiah Susama Paul, she has to prove the same at least by filing affidavit by the said Susama Paul , but no such evidence was filed by the O.P and complainant ‘s claim of falling down on the floor has remained unchallenged and it is accepted that Susama Paul was sleeping that is why, she never heard out the crying of the patient who also needs nature’s call. We are aware that aged persons’ natures call is very much urgent, as because due to old age he cannot control his nature’s call ,that is why inspite of not attending the said Aiah he tried to response the nature’s call and that is why fell down on the floor. So, incident was admitted by the O.P by filing written version in para 7 as well as in the maintainability petition.
We are aware that deficiency of service will be held by the persons or authority from whom the service was hired. Herein, the complainant has hired the services from the O.P ,nor the persons, for which Susama Paul is not a necessary party , as because her all responsibility casted upon the O.P from whom the service was hired. Thus, the argument of the O.P that Susama Paul was not made party has no leg to stand upon . It is not unknown to us the conduct of the Aiah nowadays, specially in the day time who used to sleep in the early afternoon ,that is why there is nothing to disbelieve the case of the complainant. So, negligence of the O.P has already been proved since they are collecting money and not giving services properly. It is not the fact that the fees are due. It is a continuous process. So, that argument of the O.P has no leg to stand upon. Once service has been hired, it is known to us that the part payment or advance payment is also for hiring services which is happened in the case in hand.
So, the totality of the circumstances clearly suggests that complainant is a beneficiary of his father in law ,since there is no evidence that Chandi Das Banerjee is a competent male. So, naturally it is the duty of the son in law to look after his father in law ,for which complainant is a beneficiary and in view of the procedure complainant is a consumer. So, we hold that complainant Gopal Halder is a consumer in view of the C.P Act, 1986 as a beneficiary.
It is interesting to point out that in the written version at page 5 the O.P has claimed in para7(iv) that Ït is the common phenomena the feeble person aged about 76 years old has fallen down from the bed to floor , pain may occur at any parts or portion of the body but for that reason the Aiah is or the O.P is no responsible”.
This averment clearly struck the last nail in the coffin of the O.P of deficiency of service and unfair trade practice ,because it is the contention of the O.P that 76 years old being a feeble person has fallen down from bed to floor and pain may occur, but service which has been hired for looking after the old man is not a deficiency of service. Can it be accepted? The answer is no, never, rather it is the admitted fact that Chandi Das Banerjee has fallen down from the bed to floor and sustained pain due to the negligence of the Aiah. It has been contend43ed by the O.P in para 7(iv) that incident was taken place on 26.11.2014 but the complainant did not pay the charges of Aiah from 12.11.2014 to 27.11.2014.
We have already stated that payment of Aiah charges is a continuous process ,may be weekly or monthly. It is depending upon the Aiah Center to Centre. So, when payment was made, service was provided and payment was due ,definitely O.P would not have provided the Aiah for the services of the complainant’s father in law . Thus this argument has no leg to stand upon.
Accordingly the totality of the circumstances clearly suggest from the admission of the O.P in his written objection as stated above that Aiah which was provided by the O.P was negligent and that is why Chandi Das Banerjee , the father in law of the complainant ,who is a most senior ,old and aged person having respiratory breathing trouble, fell down from the bed due to floor due to unattended by the Aiah provided by the O.P and the patient sustained pain in his body ,that is why, complainant has been able to prove his case against the O.P.
Hence,
Ordered
That the application under section 12 of the C.P Act,1986 is allowed on contest against the O.P with cost of Rs.10,000/- which will be paid by the O.P to the complainant within 30 days from the date of this order.
The O.P is also directed to pay compensation to the tune of Rs.1 lac to the complainant for his suffering mental agony and harassment and for physical suffering of the old ailing person in his very evening days of life which amounts to unfair trade practice because this type of Aiah should not be provided ,not only to the complainant but to other family also for which it is further ordered to the O.P to make blacklist the said Aiah Susama Paul from their list of services.
The O.P is also directed to pay cost and compensation to the complainant within 30 days from the date of this order, failing which, complainant is at liberty to execute the order through this Bench.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member Member President
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the application under section 12 of the C.P Act,1986 is allowed on contest against the O.P with cost of Rs.10,000/- which will be paid by the O.P to the complainant within 30 days from the date of this order.
The O.P is also directed to pay compensation to the tune of Rs.1 lac to the complainant for his suffering mental agony and harassment and for physical suffering of the old ailing person in his very evening days of life which amounts to unfair trade practice because this type of Aiah should not be provided ,not only to the complainant but to other family also for which it is further ordered to the O.P to make blacklist the said Aiah Susama Paul from their list of services.
The O.P is also directed to pay cost and compensation to the complainant within 30 days from the date of this order, failing which, complainant is at liberty to execute the order through this Bench.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member Member President
