The case of the complainant is that he had taken his ailing mother, Smt. Swarnalata Pal, aged about 76, to a local medicine shop on 22.11.2014 where   Dr. Himanshu Das has been practicing since a long period and booked his mother’s name for medical treatment to Dr. Das on 26.11.2014 at night and after consultation with the doctor the prescription was tactfully handled by them because the fees of the doctor was collected by them with prescription. This practice has been continued since a long time. The complainant wanted to say that some unholy alliances in between Dr. Das and Shilpasamabay to create pressure on patient party to purchase the medicine from that shop. Unfortunately one medicine Sylkam 0.5 was not readily available to the shop and told the complainant that the said medicine might be available on 26.11.2014. But the said medicine has also not found in any medicine shop nearby. He immediately informed the Shilpasamabay in their shop’s landline through his mobile to inform Sri Indrajit Neogi regarding non-availability to the said medicine Sylkam and earnestly requested him to consult the doctor who was also present at this medicine shop at 9 p.m. for an alternative medicine instead of Sylkam 0.5. He was really shocked and astonished when Mr. Indrajit Neogi totally ignored and rejected his request by saying that Dr. Das was preparing to leave his chamber and not possible to consult with him. He was stunned and shocked from his cruel behavior with non-human attitude towards his beloved ailing mother. In the way of intentional trickery OP No. 1 tried to compel him to take the said medicine from his shop. On the other hand, after applying another tablet Tibofem 2.5 his mother became seriously ill on 24.11.2014 and spent sleepless night and on the next day in the early morning told him her uneasiness and drowsy feelings. While he was in train his wife told him that the medicine Tibofem 2.5 which was applied on his mother on 24.11.2014 at night was not reconciled with doctor’s prescription where it was specifically prescribed Tibofem 0.25. I was speechless to say anything and just advise her to stop Tibofem 2.5 at night and assured his wife that he will consult with Mr. Indrajit Neogi and Dr. Himanshu Das on 26.11.2014. Again he went to OP No.1 on 27.11.2014 and took the medicine Sylkam 0.50 and assistant of OP No. 1 provided him cash memo dated 26.11.2014 for all the medicines viz. i) Sorbasid Syrup, ii) Tibofem (2.50) and iii) Sylkam (0.5). He challenged Mr. Indrajit Neogi in respect of discrepancy for the medicine Tibofem for its doses when it was clearly stated by the physician Dr. Das as 0.25 and he supplied him Tibofem 2.50 whimsically without any prior consultation with physician. He also tried to pursue him that the doses of 2.5 and 0.25 are same. When he enquired about the incident Mr. Neogi uttered unethical and slang language to him in front of other people present there. He thought that Indrajit Neogi had done gross negligence, unethical advices and ugly utterances. Above all he had crossed all the limits of humanity and service rendering attitude. He sought written clarification for his unethical deeds and misbehavior within 7 days from the date of receipt of his letter and in non-compliance of the same the matter be referred to appropriate authority. But he responded nothing. He wrote two letters separately; i) Dr. Himanshu Das, ii) Sri Indrajit Neogi of Shilpasamabay. Dr. Das replied in his letter to cooperate with OP No. 1 and he also confessed his inadvertence regarding the dose of 0.25 of Tibofem and accepted the dose of 2.5 is correct. At this he became stunned and amazed to the situation.

 So, he prayed before this Forum that both of them may restrain from doing so to other innocent patients in future and also punishment of the both. He prayed for a direction upon OP No. 1, a compensation of Rs. 50,000/- for any charitable trust/society in the field of proper treatment of the patient at their own discretion and also a direction to pay compensation amounting to Rs. 45,000/- for his gross negligence, criminal type of attitude and unethical stand and to pay to any charitable trust/society looking after the health condition of the poor people.

OP No.1 filed written version denying the allegations leveled against him and averred that the statement of the plaint are false and vague story and denied the same and the word ‘rascal’ which is used by the petitioner or complainant is sheer defamatory statement which publicly assimilated and the respondent reserved the right to file the suit for defamation against him in proper Forum of law. The fact of the case of the petitioner is that the petitioner filed this petition is not entertainable as because the definition of complaint is defined in section 2© of the said Act “complaint means any allegation in writing made by a complainant that-(i) an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider, (ii) the goods brought by him or agreed to be brought by him suffer from one or more defects…..(iv) a trader or service provider as the case may be has charged for the goods or for services mentioned in the complaint a price excess of the price and ………..” which are defined not comes corroborating to the facts as the respondent is the owner of medicine shop and did not exercise any unfair trade practice or restrictive trade practice and other sub clauses are not also lie upon the respondent so this complaint is vitiated from the provision of law.

According to the section 2(f) of the Consumer Protection Act the “defect” means any fault, imperfection, shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force……..” so this definition also not attracted because the prescribe medicine TABOFEM has got the ingredients of TIBOLONE and out of only three companies the renowned international company’s product is TABOFEM and it only carry the quantum of medicine 2.5 mg. and nothing more so this petition is merely vague and out of grudge in revenge manner this petition has been filed for showing guilty of the respondent but in pragmatic view the required quantum of the medicine is not available in the whole world and this matter is not realized by the complainant and in present situation only the expert of medicine can hold the wrong not by the unskilled complainant or any person. That the respondent has been carrying out the medicine shop since long time and the said shop is running with great reputation in the locality of Laxmigaunj Bazar at Chandannagar and since the time the service of the respondent has not come across in question and in present situation the respondent is running this medicine shop and in the said shop there is other spaces which was vacant and since the inception after retirement Respondent No. 2 Himanshu Das who is by profession Doctor, this respondent used the room for his private practice as such the respondent no. 2 has been using and utilizing the one room for his practice and this respondent nor any interference had been caused by this respondent so the allegation of the complainant that there is a collusion with the respondent no. 2 with this respondent is totally false and fabricated..

It is stated in the complain that the respondent no. 2 prescribed one medicine “Syilkam (0.5)” which was not available but the fact stated when the said medicine was not available then this complainant rang back to him and requested to consult with respondent no. 2 for alternative medicine and the further allegation of ignoring by the respondent and stated that there was no chance of consulting with the Doctor and therefore the complaint become stunned and shocked which are baseless and concocted story as there is no proof of any conversation with anyone on the said mentioned day.

The respondent no. 2 for seeking him the alternative medicine and the shocking condition arose when this defendant rejected the request of the complainant in respect of consultation with Doctor and the anticipation of the complainant of intentional tricky and compel to take medicine from this respondent are all vague and baseless story as the respondent no. 2 has been practicing as Doctor in the allotted portion of the property of this respondent and the respondent no. 2 by profession is an renowned Doctor having the good physician of medicine of the area.

The consultation with Doctor as this respondent has no qualification of practicing as Doctor moreover the best the complainant could try to contact with Doctor but he did not do so but only make the allegation upon this respondent and the said medicine “Syilkam (0.5)” which is the product of the renowned company and the said medicine is available in every medicine store but this complainant out of grudge make this frivolous allegation against this respondent no. 1.

            Another allegation in respect of the tablet TABOFEM (2.5) which is made by the complainant and the allegation of uneasiness and drowsy feeling of the wife of the complainant is also contradictory statement and there is no basis of that allegation because it is fact the prescription defines that Tabofem (0.25) has been prescribed by the respondent no. 2 but the tragedy is that only three medicine company commenced the said product in the market by one Cipla Pharmaceuticals Ltd. And the ingredient of the medicine only 2.5 mg. and also other companies are Serau International and Infar who has the product of same medicine in quantum of 0.25mg. as it may be the handwriting error by which the respondent no. 2 has prescribed the said 0.25 mg Tibofem tablet and it is nothing more only to prescribe the exact quantum of prescribed drug and where there is no existence of the said 0.25 mg tablet and only prescribed limit is 2.5 mg. tablet it is the suspicious mind of the complainant and impelled from the nature this complainant filed this petition stating the allegation with imagination and importantly the complainant did not state condition of his mother who has been administered the said drug and also there is no possibility of causing harm as the prescribed drug is right and proper.  

OP No. 2 filed Written Version denying the allegations leveled against him and averred that he is a renowned doctor and professor of medicine in the department and after retirement he initiated his medical practice for keeping his profession and the room which was since the inception of the practice used the same on the request of the patients who got their benefit from the answering OP No. 2. The complainant came to the OOP No. 2 as patient and after examining the patient Op No. 2 issued the prescription in which one tablet has been prescribed Tibofem 0.25 mg. and taking this issue The complainant filed this case.

The moot of this case and allegation that the quantum of the ingredient of the said tablet Tibofem was prescribed 0.25mg. and thereafter the respondent accepted the dose of the said medicine is 2.5mg. and the complainant has issued letter to the respondent no. 2 in which the language and intention is very much clear that the complainant is suit monger and always tried to harass the person even the respondent no. 2 who is Doctor and from the Medical Negligence Act it is clear that the complainant did not define any physical harm or there is no ground by which the negligence of the respondent could be proved. That only conversation cannot prove the negligence of any Doctor rather according to law the relationship with the Doctor and patient is very much fiduciary in nature and the patient depends upon a Doctor but at the same time it should be remembered that any professional Doctor should not be manhandled or prosecuted if the complainant has not proved the negligence on his part.

He also stated that the prescribed medicine TABOFEM has got the ingredients of Tibolon and out of only three companies the renowned international company’s product is Tabofem and it only carry the quantum of medicine 2.50 mg. and nothing more. So, this petition is merely vague and out of grudge in revenge manner. But in pragmatic view the required quantum of medicine is not available in the whole world and also there is no question of overdose by prescribed said medicine. The allegation in respect of tablet Tabofem 2.50 which is made by the complainant and the allegation of uneasiness and drowsy feeling of the mother of the complainant is also contradictory statement.

OP No. 2 further stated that only three medicine companies commenced the said product in the market by one Cipla Pharmaceutical Ltd., the ingredient of medicine only 2.50 mg. and other companies are Serum International and Infa who has the product of same medicine in brand name Sibolon and Livial respectively. And the quantum of medicine is 2.50 mg. and there is no similar type of medicine came to the market of 0.25 mg. of the medicine Tobolon. So there was no scope of respondent no. 1 to give the same medicine in quantum of 0.25 mg. as it may be the handwriting error by which the respondent no. 2 has prescribed the said 0.25 mg. Tibofem tablet and it is nothing more only to prescribe the exact quantum of prescribed drug and where there is no existence of the said 0.25 mg. tablet and only prescribe limit is 2.50 mg. tablet. And there is no possibility of causing harm as the prescribed drug is right and proper. The complainant did not consult with the respondent no. 2 for getting knowledge of the same and without getting the knowledge of the drug and without feeling the circumstances and where there is no harm of the mother of the complainant. OP No. 2 claimed the rejection of the plaint as it is the vague petition and the complainant is not entitled to get any compensation from the respondent no. 2.

 Complainant filed evidence on affidavit which supports the complaint petition and nothing new except the complaint petition.

OP No. 1&2 filed evidence on affidavit which is replica of written version. So it is needless to discuss.

Both sides filed brief notes of argument which are taken into consideration while passing final order.

                                    ISSUES/POINTS   FOR   CONSIDERATION

 1). Whether the Complainant    Sri Bimal Pal    is a ‘Consumer’ of the Opposite Party?

 2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the OPs carried on negligence /rendered any deficiency in service towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

 In the light of discussions hereinabove we find that the issues/points should be decided based on the above perspectives.

1. Whether the Complainant Sri Bimal Pal is a ‘Consumer’ of the Opposite Party?

     From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant being a customer of the OP No.1 and treated his mother before the OP No.2 doctor so they are responsible to provide service to this complainant.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

 Both the complainant and opposite party are residents and/or carrying on business within the district of Hooghly. The complaint valued within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.           

(3).Whether the Opposite Parties carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

The case of the complainant is that he went to OP No.1 on 24.11.2014 to treat her ailing mother before the OP No.2 doctor who used to attend chamber attached to the medicine shop of OP No.1. The OP No.2 doctor treated his mother and prescribed a few medicine out of which it was Tab Tibofem 0.25mg and Tab.Sylkam(0.5mg). It appears from the prescription of the OP no.2 doctor dated 24.11.2014 that the prescribed tablet was Tibofem.0.25mg and Tab.Sylkam (0.5mg) but the cash memo/prescription register dated 26.11.2014 speaks that the OP No.1 supplied Tab. Tibofem-2.5mg & Sylcam-0.5. Now the dispute cropped up when the complainant assailed that by consuming the medicine Tab.Tibofem-2.5mg the condition of his mother deteriorated and he assumed that due to application of wrong dose his mother became ill. Then the complainant approached the OP No.1 to consult the matter with the treating doctor but he did not allow the complainant to discuss with the doctor. As a result the complainant became angry with the OP No.1 and alleged that the OP No.1 misbehaved with him. The complainant wrote letter to OP No.1 dated 14.12.2014 stating that they have supplied Tibofem-2.5mg instead of Tibofem-0.25mg so his ailing mother became seriously ill as the OP No.1 without consulting the OP No.2 supplied the disputed medicine which this complainant thinks to be gross negligence, unethical utterances and above all crossed the limit of humanity.This complainant also wrote letter to OP No.2 to get clarification regarding the supply of medicine Tibofem-2.5mg instead of Tibofem- 0.25mg by the OP No.1 as a result the health condition of her mother deteriorated and when he enquired regarding the difference of dose of that medicine supplied by the OP No.1 then he got no satisfactory explanation. According to the complainant it is a case of attempting to murder of his aged mother and also gross negligence either by OP No.2 or by Op No.1. In response to this letter the OP No.2 replied to this complainant vide letter dated 23.12.2014 in which he admitted that he prescribed Tibofem( Composition- Tibolene) for Swarnalata Pal for her treatment and the said medicine was supplied by M/S- Silpa Samabay for strength (2.5) which appears to be prime reason of discontent of this complainant. He also stated that the medicine Tibofem is manufactured by Cipla only for the strength of 2.5mg and there is no such medicine produced for strength 0.25. The medicine Tibofem (0.25) has been prescribed by him inadvertently. And also expected that the complainant being a learned person would understand the actual matter & cooperate with him & M/S Shilpa Samabay. So from the letter dated 23.12.2014 of the OP No.2 it is crystal clear that he admitted that he has written inadvertently the medicine Tibofem(0.25). He assailed in his version that the medicine namely Tibofem is manufactured by Cipla only for the strength of 2.5 and there is no such medicine produced for strength 0.25. The law of Torts in which the medical negligence of the doctor is envisaged discussed regarding the ingredients i.e. i).Duty ii).Breach iii) causation & iv). Consequential Damages. From the face of the case record that there is no breach of duty on the part of doctor as the doctor prescribed the medicine Tibofem(0.25) instead of Tibofem(2.5) inadvertently but the OP No.1 who is habituated to supply the said medicine as the prescription of the treating doctor who has chamber in the precincts of the Pharmasy supplied the right medicine which the doctor used to prescribe. So the deficiency of service on the part of OP No.1 is not established. It is pertinent to mention that the OP-2 doctor replied the complainant and admitted that inadvertently it was written Tibofem(0.25) instead of Tibofem (2.5) and he also stated and produced the medical literature from which it is transparent that there is no dose of 0.25 of Tibofem. The mother of the complainant out of misconception or misrepresentation may be ill as she consumed the medicine 10 times than the prescribed medicine. But the facts remains that complainant consumed the specific medicine which the OP No. 2 desired to administer upon his patient. The medicine causes no fatal to the patient. So, there is no consequential damages for which the act of the OP No. 2 comes within the purview of medical negligence in accordance with the Consumer Protection Act, 1986. The Complainant hopelessly failed to establish his case that due to application of wrong dose his mother became ill. The doctor treated the patient properly to cure the disease of the mother of the complainant.

            Apex Court observed that courts/consumer fora should keep the factors in mind when deciding the cases related to medical negligence and to take a view which would be in fact a dis service to the public. The decision of this Court in Indian Medical Association vs. B.P. Santha should not be understood to mean that doctor should be harassed merely because their treatment was unsuccessful and cause some mishap which was not necessarily due to negligence.     

From the above discussion we are in the opinion that the complainant failed to prove his case by producing sufficient documents and argued on the point whether the OP is deficient in providing service and negligent while treating his patient and they are under liability to pay compensation alongwith other reliefs prayed in the prayer portion of the complaint.

4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite parties are liable for compensation to him?   

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant has failed to prove his case and the Opposite Party is not liable to pay any compensation for mental pain and agony of the complainant.

ORDER

               Hence, it is ordered that the complaint case being No.07 of 2015 be and the same is dismissed on contest against the Opposite Party.      

                Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action