HON’BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT

          This Appeal U/s 15 of the C.P.Act, 1986 has been directed against the judgement and order dated 11.8.2016 passed by ld. D.C.D.R.F., Kolkata Unit II in C.C. 55 of 2016 where ld. Forum concerned while disposing of the said Complaint Case allowed the same on contest against the Ops No. 1 to 4, held them liable jointly and severally and directed them to pay a sum of Rs.50,000/- (Rupees fifty thousand) as compensation to the Complainant as medical negligence and a sum of Rs.10,000/- (Rupees ten thousand) towards litigation cost , to be paid within thirty days from the date of the order with default clause.

          Being aggrieved by such order the Opposite Parties No. 1 to 4 preferred this Appeal.

          In the instant Complaint Case the complainant prayed for Rs. 4 lakh (Rupees four lakh) for the cost of treatment and future surgical treatment, Rs.25,000/- (Rupees twenty five thousand) for continuous Physiotherapy , Rs.4 lakh (Rupees four lakh) for damages for mental shock, pain and agony and other consequential reliefs including punitive damages and litigation cost.

          Briefly stated, the case of the Complainant was that on or about 16/11/2015 at about 4 p.m. he became the victim  of leech bite, a poisonous insect  resulting pain and finding no other alternative he rushed to Nilratan Sircar Medical College and Hospital, obtained a ticket from the Emergency Dept. for his treatment and he was diagnosed by the attending Doctor at about 4.35 p.m. and advised by the attending Doctor to apply an injection Phenergan and to apply Betadine ointment for his proper treatment. Immediately after applying the injection by the Nurse on duty, as per prescription issued by the attending Doctor, the  right hand of the complainant became inoperative and he was unable to move his hand. The complainant informed the nurse on duty about the reaction of the injection but he was treated by the said nurse with very harsh manner. Since then the right hand of the complainant became inoperative and unfit for any work. Problem continued till next day while he once again attended to the Emergency Dept. of the N.R.S. Medical College and Hospital  on 17.11.2015 and he was diagnosed by another Doctor where the other  doctor prescribed some other medicines but the problem did not disappear. On 21.11.2015 at about 1 p.m. the complainant once again went to the said Hospital and consulted one Neurologist of NRS Hospital who diagnosed that the complainant suffered from Radial Paralysis on his right hand due to the application of the injection for the first time and he suggested to undergo a plastic surgery and advised the complainant for conducting certain tests. As per advice of the Plastic Surgeon on 25.11.2015, the complainant rushed to Nightingale Hospital where the Doctor treating the complainant discontinued application of the medicines and advised to take Physiotherapy for recovery. But such physio-therapy did not give relief to the complainant. On 9.12.2015 when the complainant paid visit to Nightingale Hospital once again for further check up, he was advised to consult Dr.Sandip Gupta , a Consultant Neuro Surgeon /Plastic Surgeon for his advice and it was diagnosed that without such Plastic surgery the complainant would never be cured. The complainant got pathological tests as suggested on 10.12.2015 from the Nightingale Hospital and the report revealed that the Complainant suffered from severe axonal loss in right radial nerve but due to financial stringency the complainant was unable to conduct his surgery. It is his specific allegation  that due to wrong treatment of the Doctor at N.R.S. Hospital he suffered from such complications causing deterioration of the condition of his right hand resulting permanent disablement and the same being deficiency in service laid him to take recourse of the D.C.D.R.F. claiming reliefs in terms of his Petition of complaint, as quoted earlier.

          A joint Written version was filed on behalf of the Opposite parties No. 1 to 5 and all the Opposite parties in the said Written version contended that the claim case was not maintainable in law and it was bad for defect of parties etc. Admitting the factum of biting by poisonous insect these Opposite Parties in their Written version categorically admitted that the attending Doctor administered injection and applied ointment for his proper treatment and denying the responsibilities of the Opposite parties it was stated that the complainant  got his treatment in private hospital and these Opposite parties did not have responsibilities in treating the patient as he never came to the hospital for getting reliefs , he deserved. Denying and disputing all other material averments as stated in the Petition of Complaint, these Opposite Parties ultimately prayed for dismissal of the Complaint Case.

          The allegation of the complainant that he was treated by the Doctor at the NRS Hospital and injection as well as ointment were given to him as a course of treatment but he did not get desired result. Hon’ble Supreme Court in Kushum Sharma  & Ors –Vs- Batra Hospital and Medical Research Centre reported in 1(2010)CPJ 29 (SC) held that – “negligence is the breach of a duty exercised by an omission to do something which a  reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs could do or doing something which a prudent and reasonable man would not do.” Here the Complainant was treated by the Doctor, a professional man who applied medicine to cure the patient. Just because the administering of injection or application of medicine did not yield the desired result may not amount to negligence. Doctors being the medical practitioners would be liable only where his conduct falls below the standard of reasonable competent practitioner in his field, unless this allegation is approved by a body of experts, it is very difficult to ascertain the negligence on the part of a Doctor who treated the patient in exercise of a reasonable degree of care.

          In the premises, since no opinion of Expert has been obtained by the complainant in deciding his case we are unable to accept that the negligence on the part of the Doctor in treating the patient has been established beyond doubt.

          Accordingly we are of opinion that there is merit in the Appeal which is allowed exparte. The judgement and order passed by the ld. D.C.D.R.F. Kolkata, Unit-II in CC/55/2016 are hereby set aside. We do not pass any order as to costs.