This complaint U/S 35 of C.P. Act, 2019 was initially filed against the Opposite Party 1 (O.P. 1) – Mr. Samir Sarkar, In Charge of DTDC Courier Service, Having its office at Natun Bazar, P.O. & P.S. - Maynaguri, Dist. - Jalpaiguri – 735224, Proforma O.P. 1) The Director, Eco Hospital & Diagnostic, (Unit of Econo Medical Pvt. Ltd.), 111/1 Jessore Road,barasat, P.S & P.O. - Barasat, Dist.- Kolkata, Pin Code – 700124, Proforma O.P. 2) Dr. Kankan Chattopadhaya, MBBS- Cal., DGO- Cal, MS- Cal, (General Surgeon) Gold Medalist, Regd. No. 54857 (WBMC at Eco Hospital & Diagnostic, (Unit of Econo Medical Pvt. Ltd.), 111/1 Jessore Road, barasat, P.S & P.O. - Barasat, Dist. - Kolkata, Pin Code – 700124, Proforma O.P. 3) Mr. Madan Mohon Saha, P.O.- Noapara Madhabpur, P.S.- Kadambagachi Dist.- Kolkata, Pin Code – 700125, Proforma O.P. 4) The Manager (Regional Office), DTDC Courier, 404/405 Kazi Nazrul islam Sarani, VIP Road, Raghunathpur, P.S. - Raghunathpur, P.O. - Deshbandhunagar, Dist. - Kolkata, Pin Code - 700059. The O.P.-1 did not file W.V. and as per Order No. 15, dated 12/05/2023 the O.P. No.1 declared ex- parte. The name of Profroma O.P. No.3 had expunged vide Order No. 13, dated 28/03/2023. The Proforma O.P. No. 1, 2 and 4 contested the case by filing their W.V. separately.  

The case of the complainant as per his complaint is as follows-

The complainant argued in his plaint that his wife was suffering for some physical illness and on 07/11/2021 he and his wife went, namely Smt. Tanushree Saha Dutta, to the hospital of Proforma O.P. No.1, i.e., Eco Hospital & Diagnostic, (Unit of Econo Medical Pvt. Ltd.) for his wife’s medical treatment and met with the doctor, Dr. Kankan Chattopadhaya, i.e., Proforma O.P. No.2  and after physical examination and clinical observation the Proforma O.P. No.2 suggested FNAC and USG of the patient and on 12/11/2021, after going through the medical documents and reports the Proforma O.P. No.2 advised the wife of the complainant to be admitted to the hospital of Proforma O.P. No.1. on 16/11/2021 and according to that the complainant’s wife admitted to the said hospital and on the same date, i.e., on 16/11/2021 the urgent operation termed as Hemithyroidectomy was done at the said hospital of O.P. No.1. The complainant also added that the hospital of Proforma O.P. No.1 is accredited to Swasthya Sathi Card used of the Government of West Bengal and the said card is acceptable at the hospital of O.P. No.2 for major operations also but unfortunately by mistake the complainant left her wife’s Swasthya Sathi card at their home which was urgently required and the complainant informed his father, namely Sri Sukumar Saha, to sent the said card before the date of operation as it was required by the said hospital management.

The complainant also argued that on 05/11/2021 his father sent the consignment that is the booked article from Maynaguri to the consignee’s name of Proforma O.P. NO.3, i.e, Madan Mohon Saha of Kolkata, carrying the said Swasthya Sathi card of the patient being no. 19070227028439564 which was supposed to reach to Proforma O.P. No3 by DTDC courier vide receipt no. K52582917 which was not delivered to the consignee address and the complainant failed to avail the facility of Swasthya Sathi card for the patient because of that the complainant had to pay a sum of Rs. 63, 000/- (Rupees Sixty Three Thousand) only as the bill of the said operational expenses to the Proforma O.P. No.1 and 2 for non producing of the said Swasthya Sathi card to the hospital management. The complainant also added that there was no trace of the said Swasthya Sathi card and the shipment summery also revealed that some mismatch was found in receipt no. K525892916 and K52582917 at the instance of the O.P. The complainant also argued that several times he made contact with the O.P. did not get any result and he also submitted a complaint at ADCA and FBP, Jalpaiguri regional office by complaint no. 1006/6/PC/21-22 but same got frustrated on the instance of the O.P., order dated 24/02/2022 and finding no other alternative the complainant filed this case in this Commission.      

            The complainants pray as follows: -

1.        Admit the petition.
2.        To pass an order directing the O.P. to hand over the said Swasthya Sathi card belongs to Smt. Tanusree Saha Dutta, wife of the complainant, vide no. 19070227028439564, intact and untonned condition being in original as it was handed over to the O.P. at his office at Natun Bazar, P.O. & P.S., Maynaguri, Dist. – Jalpaiguri on 05/11/2021.
3.        To pass an order directing the O.P. to pay Rs. 63, 000/- (Rupees Sixty Three Thousand) only which the complainant had expended in regard to the operational treatment as bills of medical expenses towards his wife Tanusree Saha Dutta at the facility of Proforma O.P. No.2 along with present banking interest thereof.
4.        To pass an order directing the O.P. to pay Rs 1, 00, 000/- (Rupees One Lakh) only to the complainant for harassment, mental agony, pain and loss suffered by the complainant by the acts of the O.P.                                          
5.        To pass an order directing the O.P. to pay Rs 20,000/- (Rupees Twenty Thousand) only as litigation cost.
6.        Any other relief/ reliefs which complainant entitled to.

            List of Documents filed by the complainant:

1. Photocopy of prescription of Dr. Kankan Chattopadhaya, dated 07/11/2021.
2. Photocopies of Discharge Certificate of Tanushree Saha Dutta, dated 19/11/2021.
3. Photocopies of Swasthya Sathi card of Tanusree Dutta, being no. 19070227028439564. 
4. Photocopies of DTDC receipt, being AWB No. K52582917.
5. Photocopy of Shipment Summary.
6. Photocopy/ printout of E-mail, dated 07/12/2021.
7. Photocopy of DTDC document, mention no. #1388866 IssueK52582916.
8. Photocopy of Complaint No. 1006/30/PC/21-22. 
9. Photocopy of Requisition Slip of Eco Hospital & Diagnostics, dated 19/11/2021.

Regarding this instant case, the Opposite Party 1 (O.P. 1) – Mr. Samir Sarkar, In Charge of DTDC Courier Service, Having its office at Natun Bazar, P.O. & P.S. - Maynaguri, Dist. - Jalpaiguri – 735224, Proforma O.P. 1) The Director, Eco Hospital & Diagnostic, (Unit of Econo Medical Pvt. Ltd.), 111/1 Jessore Road,barasat, P.S & P.O. - Barasat, Dist.- Kolkata, Pin Code – 700124, Proforma O.P. 2) Dr. Kankan Chattopadhaya, MBBS- Cal., DGO- Cal, MS- Cal, (General Surgeon) Gold Medalist, Regd. No. 54857 (WBMC at Eco Hospital & Diagnostic, (Unit of Econo Medical Pvt. Ltd.), 111/1 Jessore Road, barasat, P.S & P.O. - Barasat, Dist. - Kolkata, Pin Code – 700124, Proforma O.P. 3) Mr. Madan Mohon Saha, P.O.- Noapara Madhabpur, P.S.- Kadambagachi Dist.- Kolkata, Pin Code – 700125, Proforma O.P. 4) The Manager (Regional Office), DTDC Courier, 404/405 Kazi Nazrul islam Sarani, VIP Road, Raghunathpur, P.S. - Raghunathpur, P.O. - Deshbandhunagar, Dist. - Kolkata, Pin Code - 700059. The O.P.-1 did not file W.V. and as per Order No. 15, dated 12/05/2023 the O.P. No.1 declared ex- parte. The name of Profroma O.P. No.3 had expunged vide Order No. 13, dated 28/03/2023. The Proforma O.P. No. 1, 2 and 4 contested the case by filing their W.V. separately.

The Proforma O.P. No.1, The Director, Eco Hospital & Diagnostic, (Unit of Econo Medical Pvt. Ltd.), contested the case by filing W.V. and in the W.V the Proforma O.P. No.1 argued that the patient Tanusree Saha Dutta, aged about 33 years, admitted at Hospital of Proforma O.P. No1 on 16/11/2021 under Proforma O.P. No.2, namely Dr. Kankan Chattopadhaya, MBBS- Cal., DGO- Cal, MS- Cal, (General Surgeon), with prior presence of her husband who signed the admission and consent as well as signed the declaration to take cash treatment facility for his wife’s treatment at the Eco Hospital & Diagnostic and after admission she had treated by the consult doctor as per medical protocol and on 19/11/2021 as per the advised of the treating doctor the patient was discharged from the hospital with hemodynamically stable condition but after discharge the patient did not come for follow up at this hospital. The Proforma O.P. No.1 also argued that the complainant admitted the fact that due to unavailability of Swasthya Sathi card in due time he could not avail the benefit of the scheme of Govt. of West Bengal under the Department of Health and Family Welfare because of that the complainant had paid Rs. 63, 000/- (Rupees Sixty Three Thousand) only as the bill of the operational expenses and the hospital management runs by rules and regulations which have to comply by the patient party to get all the benefits. The Proforma O.P. No.1 also argued that the complainant made all allegations against the O.P. who was the service provider and there was no deficiency in service from the Proforma O.P. No1.

The prayer of Proforma O.P. No.1 is as follows-

1. To expunge the name of Proforma O.P. No.1, The Director, Eco Hospital & Diagnostic, from this case. 

The Proforma O.P. No.2, Dr. Kankan Chattopadhaya, MBBS- Cal., DGO- Cal, MS- Cal, (General Surgeon) contested the case by filing W.V. and in the W.V the Proforma O.P. No.2 argued that the facility of Swasthya Sathi card of Govt. of West Bengal and other general insurances are acceptable in the said hospital. The Proforma O.P. No.1 also argued that the requisition slip dated 19/11/2021 of the bill of Rs. 63, 000/- (Rupees Sixty Three Thousand) only and the name of the patient as well as the name of the referred doctor, i.e., the name of Proforma O.P. No.2 was not denied on the basis of the documentation so far and there was no unfair trade practice done by him or there was any deficiency of service on the part of him.

The prayer of Proforma O.P. No.2 is as follows-

1. To dismiss the present case with cost upon complainant.

The Proforma O.P. No.4, The Manager (Regional Office), DTDC Courier, contested the case by filing W.V. and in the W.V the Proforma O.P. No.4 denied all the statements made by the complainant in his complaint and also argued that the complainant had not made a claim within time as per the clause 19 of the terms and conditions where it is clearly mentioned that “all claims in respect of loss or damage of consignment shall be made within a period of 30 days from the date of tendering a shipment to DTDC and any claim after this period will not be entertained”. The Proforma O.P. No.4 also argued that as per the agreed terms and conditions of the subject consignment note through which complainant booked their consignment, the liability of the Proforma O.P. No.4 was limited to the extent Rs. 100/- (Rupees One Hundred) only and not more that because complainant not filled the legible copy of the consignment note. The Proforma O.P. No.4 also argued in his W.V. that the declared value of the consignments was Rs. 3, 000/- (Rupees Three Thousand) only. The Proforma O.P. No.4 also added in his W.V. that the said consignment was delivered on 11^th of November, 2021 and he never issued any consignment, being No. K525892916 to the complainant. The Proforma O.P. No.4 also argued that the complainant failed to establish that the consignment carried the Swasthya Sathi card and the said consignment was booked by the complainant with no risk coverage. The Proforma O.P. No.4 also argued that the invoice value of the said consignment was Rs. 1, 000/- (Rupees One Thousand) only and hence if any inconsistency occurred, the company might be paid not more than Rs. 1, 000/- (Rupees One Thousand) only and no other claimed amount of the complainant would be paid by the Proforma O.P. No.4.     

The prayer of Proforma O.P. No.4 is as follows-

1. To dismiss the complaint be dismissed with exemplary cost to the complainant.

Points for consideration

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case? 

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant entitled to get any award and relief as prayed for? If so, what extent?

All the points are taken up together for consideration and decision.

Seen and perused the complaint petition and Written Version filed by the parties which are supported by the affidavit, documents filed by both parties. We are also heard arguments advanced by both the complainant and Proforma O.P. No.1,2 and 4 in full length.

It is very much clear from the evidences that the O.P. is running his business at Mr. Samir Sarkar, In Charge of DTDC Courier Service, Having its office at Natun Bazar, P.O. & P.S. - Maynaguri, Dist. - Jalpaiguri – 735224. Thus, there is no doubt that this Commission has its jurisdiction to decide this case.

Seen and perused the complaint filed by the complainant and W.V. filed by the Proforma O.P. No.4 as well as documents filed by the complainant and Proforma O.P. No.4 it is also clear that the complainant is no longer a consumer as per Section 2 (7) (i) and (ii) of Consumer Protection Act, 2019 because as per the consignment receipt filed by the complainant, the complainant is neither the consignee nor the consignor. The name of the father of the complainant, namely Sri Sukumar Saha, is written in the consignment receipt as consignor’s name and the name of the consignee, namely Modan Mohan Saha, is written in the said in the consignment receipt. Even, the complainant did not file any Authorization or any Power of Attorney in this regard to justify himself as a consumer. Hence, as per Section 2 (7) (i) and (ii) of Consumer Protection Act, 2019 the complainant is no longer a consumer.  

 In this instant case, this Commission holds that the evidence produced by the complainant is not sufficient to prove him as a consumer as per Section 2 (7) (i) and (ii) of Consumer Protection Act, 2019 and thus the instant case is dismissed without cost.

Hence, it is

ORDERED

That the Consumer Case No. 37/2022 is dismissed on merit against the O.P.s without cost.Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.