This appeal is directed against the final order delivered by the Ld. D.C.D.R.F, Siliguri dated 19/08/2019 in reference to CC/26/S/2018. The fact of the case in nutshell is that an woman of 65 years Mrs. Suchitra Ghosh registered a consumer complaint before the Ld. Forum, Siliguri on 03/04/2018 to the score that being a diabetic patient at her old age she was under the treatment of Dr. Aniruddha Ghosh, a specialized of diabetology since 2016. While the health of the complainant/appellant was deteriorated, she was advised to have a serum creatinine test. Accordingly, the complainant visited the Thyrocare for test of Aerogram camp profile test on 25/09/2017 and in the test report by applying the technology photometric value of the creatinine serum was counted 4.3 mg while the normal range was 0.5 to 0.8 mg. Seeing this report the patient as well as the treating Doctor became very shocked and her breathing problem was started increasing and she was mis balanced. The Doctor to cross checkup of the said report asked the patient again to have a further test from a different institution. Accordingly, the complainant again on the same day on 25/09/2017 has under gone a test at SRL diagnostic for counting of urea, creatinine, sodium and potassium where her creatinine level was counted 0.9 that is much lower than the test report conducted by Thyrocare. So, she felt negligence and deficiency of service on the part of the Thyrocare and for that reason, the appellant/complainant registered the consumer complaint seeking some relief to the tune of Rs. 5,10,000/-. The consumer complaint was admitted in due time and the M/s. Thyrocare as opposite party of this case was served notice. In spite of receiving the notice the OP no. 1 did not contest the case and for that reason, the ld. Forum was compelled to hear the case ex parte. During the process of hearing the complainant submitted the examination-in-chief by swearing an affidavit and furnished all the relevant documents. Ld. Forum after hearing the argument of the complainant side came to the conclusion that the question of deficiency of service could not be resolved before the Ld. Forum as no further medical expert opinion could be obtained in this case and also dismissed the consumer complaint on the ground that while treating Doctor is guilty of medical negligence, the Director of the said company cannot be held so.

            Being aggrieved with this order this appeal follows on the ground that Ld. Forum has failed to understand the actual position of the case and also has failed to understand the mere conception of law and the order of Ld. Forum suffers from irregularity. The appeal was admitted in due time and the notice was sent to the respondent M/s. Thyrocare who has received the notice in due time but did not come to contest the appeal. Therefore, the Commission after allotting some consecutive dates to the respondents has settled the date today for hearing the appeal. Today also the respondent side does not take any steps. So, the appeal is heard in presence of the Ld. Advocate of the appellant.

Decision With Reasons

            After hearing the Ld. Advocate of the appellant and after going through the consumer complaint which was registered by the appellant before the Ld. Forum and after consulting all the necessary medical documents which were produced before the Ld. Forum, it appears to this Commission that the appellant was suffering in diabetic problem since 2016 and she was under the treatment of Dr. Aniruddha Ghosh. Under the direction of Dr. A. Ghosh, she was referred to Thyrocare Unit at Siliguri for having different tests viz. hemogram, UALB etc. where by applying the method of Photometric, value of the creatinine serum level was counted 4.3. The treating Dr. A. Ghosh became shocked seeing the high level creatinine serum count of the patient and suspected some errors on the part of the laboratory at the time of such tests and for that reasons, he advised the patient to go for another medical test to a different institution SRL Diagnostic where on 25/09/2017 the creatinine serum level of the patient was counted as 0.99 whereas the normal level range is 0.5 to 0.9. Therefore, the complainant has a reasonable ground to believe that there was some deficiency of service on the part of the pathologist attached to Thyrocare Laboratory and for that reason, she has come before the Ld. Forum with allegations of medical negligence and deficiency of service and unfair trade practice on the part of the Thyrocare. Ld. Forum has observed that without any third-party opinion there was no possibility to determine whether the test report of Thyrocare was right or genuine or wrong. Ld. Forum further opined the Doctors attached to Thyrocare committed the wrong and for such wrong test report, the proprietor or director of the said laboratory was not responsible for the wrong of the pathologist attached to the laboratory. Now, the question is whether the observations of ld. Forum suffers from any defects? We know very well that the Consumer Protection Act is based on justice, equity and a good conscience. The provisions of law of tort also have some influence over the legislation that is Consumer Protection Act, 1986 and for any wrong of servants or agents attached with a company directly makes liable to its proprietor or directors. So, without impleading the pathologist who has conducted the test of the appellant, the proprietor of Thyrocare also cannot be absolved from the liability for wrong medical report on the part of its institution. The Ld. Forum had the opportunity during the process of adjudication to send the two reports to any medical expert for obtaining the report to adjudicate whether there was any wrong on the part of the Thyrocare. Ld. Forum did not do so. So, the order of Ld. Forum also suffers from irregularity. On the other hand, the complainant/appellant had the opportunity to call Dr. A. Ghosh as witness to this case to bring light before the Forum about the factual observations over the said two laboratory test reports.

            During the course of hearing, the Ld. Advocate of the appellant traced upon the veracity of the two laboratory reports for proper adjudication of the instant consumer dispute. The Commission finds it necessity to remand back the case to the Ld. Forum for proper adjudication afresh after obtaining the evidence by citing witness Dr. A. Ghosh and to record his evidence and thereafter rewrite a judgment afresh without having any influence over the observations of this Commission in this appeal.

Thus, the appeal succeeds on merit.

Hence it is ordered: -

That the appeal be and the same is allowed ex-parte on merit. The final order of Ld. Forum dated 19/08/2019 in CC/26/S/2018 delivered by Ld. D.C.D.R.F, Siliguri is hereby set aside. Ld. Forum is requested to hear the case afresh by giving opportunity to the complainant to call Dr. Aniruddha Ghosh as witness and thereafter Ld. Forum will deliver the final order after hearing the argument afresh of the complainant/appellant side.

            Let the order be supplied to the parties free of cost and the same be communicated to the concerned Forum through e-mail.