Presented by: -

                  Shri Debasish Bandyopadhyay, President.

This case has been filed by the complainant against the O.p. for getting compensation to the tune of Rs.2,00,000/- against the O.p. for creating severe Health condition, Rs.1,00,000/- for causing mental pain and agony etc. and also for additional medical expenses to the tune of Rs.2,000/-  and also for any other relief/reliefs which are available according to the provisions of Consumer Protection Act, 1986.

Fact of this case

Case of the complainant :

        The case of the complainant which is deciphered from the petition of complaint in bird’s eye view is that the complainant is a regular customer of the O.p. and he is aggrieved by the deficiency in service of the O.p. in the matter of conducting E.C.G. by the complainant and the E.C.G. conducted by the O.p. was erroneous and without any signature. The complainant has also alleged that he was verbally abused and humiliated by Dr. Abhra Mukherjee and the O.p. cannot deny his liability in the matter of erroneous E.C.G. According to the case of the complainant he on 11^th March 2017 visited the O.p. and sought for E.C.G. on priority on the pretext that he has to attend one legal matter. It is submitted that the O.p. has also offered for another E.C.G. at free of cost alongwith free check up as a token good gesture by the letter dated 18^th April 2017 which was not accepted by the complainant and it troves beyond doubt that the complainant’s case and claim is genuine and O.p. is liable to pay the said compensation.

Defence Case :-

        The O.p. after receiving the notice/summons of this District Forum appeared before this Forum and contested this case by filing W/V and denied each and every allegations of the complainant which has been leveled in the complaint petition. The specific case of the O.p. is that the complainant on 11^th March 2017 visited the O.p./Hospital and sought for conducting E.C.G. on priority basis on the pretext that the complainant has to attend one legal matter and the O.p./Hospital has obliged his request and processed his E.C.G. at the earliest and at the time of conducting E.C.G. the complainant due to his urgency became restless which may have caused abnormalities in the E.C.G. report. In view of the complainant’s undue hest resulted the E.C.G. report defective and therefore it was stated to be “unconfirmed” and due to such abnormality the report was not immediately signed and handed over to the complainant and the complainant was requested to consult a cardiologist to confirm his condition and said reports but the complainant did not comply the advice of the O.p. and as such the O.p. cannot be held liable and the O.p. is not responsible for making payment of any compensation. For all these reasons the O.p. has prayed before this District Commission for dismissing this complaint case with heavy cost.

Points of consideration :-

        On the basis of the pleadings of the parties adopted by the complainant and O.p. in this case, this District Forum/Commission for the purpose of arriving at just and proper decision and also for deciding the  fate of this complaint case , is going to adopt the  following points of consideration :-

1. Has this District Commission any jurisdiction to try this case ?
2. Whether the complainant is the consumer under the O.p. or not?
3. Whether this case is maintainable in its present form and in the eye of law or not ?
4. Is there any cause of action for filing this case by the complainant in this case or not?

 (v)   Is there any negligence, fault and deficiency of service on the part of the O.p. or not ?

(vi)  Whether the complainant is entitled to get the order passing direction to the OP for making payment  of compensation to tune of Rs.2,00,000/- against the O.p. for creating severe Health condition, Rs.1,00,000/- for causing mental pain and agony etc. and also for additional medical expenses to the tune of Rs.2,000/- .

 (vii) To what other relief / reliefs the complainant is entitled to get in this case?

Evidence on  record

        The complainant in order to prove his case has submitted evidence on affidavit and against the said evidence on affidavit the O.p. has submitted interrogatories and complainant has given reply against the said interrogatories.

        On the other hand, the O.p. in order to disprove the case of the complainant has filed evidence on affidavit and against the said evidence on affidavit the complainant has filed interrogatories and against such interrogatories the O.p. has given reply. Both parties also have filed documents in support of their respective cases.

Argument  highlighted  by Ld. Advocates of both parties

        The complainant side and O.p. have filed their separate BNA in this case.  Besides filing of the B.N.A., Ld. Advocates for the complainant and O.p. also have highlighted verbal argument and referred series of case laws such as III(2018)CPJ488(NC), III(2018)CPJ204(Utta), IV(2019)CPJ565(NC), II(2019)CPJ417(NC), II(2019)CPJ548(NC), II(2019)CPJ70(Har).

Decision with reasons

        The first four points of consideration which have been framed on the ground of jurisdiction, whether the complainant is the consumer under the O.p. or not, whether this case is maintainable  in its present form and in the eye of law and whether  the complainant has any cause of action for filing in this case or not are very vital issues for determination of the fate of this case  and so these points of consideration are taken up for discussion jointly  at first.

        For the purpose of deciding the fate of the above noted four points of consideration this District Commission finds that there is necessity of making scrutiny of the material of this case record and there is also urgency for scanning the evidence on record.

        In this regard, it is important to note that the jurisdiction issue is a vital issue and to decide this fate of issue this District Commission after going through the materials of the case record finds that the complainant has been residing at Botanical Garden area under P.S. Shibpur which is within the District of Howrah and lying within the jurisdiction of this District Commission. On the other hand, the O.p. is carry on their medical research center and hospital at Andul Road which is also lying within the District of Howrah and falls under the jurisdiction of this District Commission/Forum. This factor is clearly reflecting that this District Commission has its territorial jurisdiction to try this case. In this connection this District Commission after making scrutiny of the materials of this case record finds that the total claim of the complainant is far below than that of Rs.20,00,000/- which is the highest limit of pecuniary jurisdiction of a District Forum under the Consumer Protection Act, 1986. So, it is crystal clear that this District Commission has its territorial and pecuniary jurisdiction to try this case. In view of such position, the jurisdiction issue is decided in favour of the complainant side.

        Now the question is whether the complainant is a consumer under the O.p. or not? Relating this issue this District Commission after going through the materials of the case record finds that the complainant has undergone the E.C.G. at the O.p./Hospital after making payment of fees and O.p. also has accepted the fees. This factor is clearly reflecting that the O.p./Hospital has provided service to the complainant in lieu of consideration money. This aspect is clearly depicting that the complainant is a consumer under the O.p./Hospital. So, this point of consideration is also decided in favour of the complainant side.

        Now the question is whether this case is maintainable in its present form, fact and in the eye of law or not?

In order to decide this issue this District Commission after going through the pleadings of the parties finds that the complainant has placed the erroneous/abnormal E.C.G. to Dr. M.L. Mukhapadhyay, M.D. who in his prescription dated 16/03/2017 in writing clearly mentioned that “E.C.G. dated 11/03/2017 misplaced lids”. But fact remains that the complainant surprisingly has not made said Dr. M.L. Mukhapadhyay as a party of this case. Moreover, the complainant has also not examined the said Dr. M.L. Mukhapadhyay as an expert witness in order to prove his case. Moreso, the complainant in his complaint petition has raised severe allegations against Dr. Abhra Mukherjee and pointed out that said Doctor misbehave and humiliated the complainant. In this regard it is important to note that the complainant has not impleaded said Dr. Abhra Mukherjee as a party of this case although he is a necessary party as per law. All these factors are clearly reflecting that the case of the complainant is out rightly bad for defect of parties.

        After going through the materials of the case record this District Commission/Forum finds that it is not the case of the complainant that he has suffered, loss and damage on the basis of the said E.C.G. report provided by the O.p. and it is also not the case of the complainant that the complainant had major cardiac ailment which the said E.C.G. report failed to detect. The complainant side has time and again pointed out that the E.C.G. report provided by O.p./Hospital Authority is erroneous and defective but in this regard it is very important to note that not expert opinion or evidence has been provided by the complainant. In this connection, it is important to note that the complainant in course of trial of this complaint case has neither prayed for any expert opinion nor the complainant has placed any expert evidence in support of his case. In this connection it is the settled principle of law that when there is no expert opinion or medical evidence in the cases of the medical negligence, the District Commission/Forum has no other alternative but to dismiss this case. This legal principle has been observed that Hon’ble Apex Court and it is reported in AIR2018S.C. 4625.  Similar view has been adopted by the Hon’ble Apex Court and it is reported in (2021SCC Online SC1149) and (2009)7SCC130. Hon’ble Apex Court has also been pleased to observe same view in the case of M.A. Bivji vs Sunita and Others which is report in [(2024)2 SCC 242].

        A cumulative consideration of the above noted discussion goes to show that this complaint case is not maintainable as it is bad for defect of parties and also on the reason that no medical evidence has been produced and proved by the complainant in this case. So, the issue framed on the point of maintainability is decided against the complainant.

        As this case is found not-maintainable in its present form and in the eye of law, this District Commission finds that the complainant has also not any cause of action for filing this case.

        When this complaint case is found not-maintainable and when it is crystal clear that the complainant has no cause of action for filing this case, this District Commission finds that the complainant is not entitled to get any compensation from the O.p. and also not entitled to get any relief from the O.p./Hospital.

In the result,

                  it is accordingly,

O R D E R E D

        That this Complaint Case being No.172/2017 be and the same is dismissed on contest. No order is passed as to cost.

        The parties of this case are entitled to get a free copy of this judgment as early as possible.

        Let this judgment/final order be uploaded in the official website of this District Commission immediately.

The word file is drafted and corrected by me.

(Debasish Bandyopadhyay)

          President

D.C.D.R.C., Howrah