FINAL ORDER/JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This is an application U/s 12 of CP Act filed by the complainant.
The complainant stated that he is a resident of 5, Panchrokhi, PO- Sugandhya, PS-Polba, Dist.-Hooghly and the OP is residing within the jurisdiction of this commission.
The complainant further stated that he is a retired senior citizen and the OP is a doctor.
It is further stated by the complainant that he received injury in his left leg in a road accident on 25.04.2017. Initially, the complainant went to a local doctor for his treatment who adviced him to go to an orthopaedic surgeon. Thereafter, the complainant went to the OP No. 2 doctor Suhasish Roy for his better treatment in his injured left leg then the OP/Dr. Suhasish Roy adviced him for X-ray of his injured left leg from an X-ray clinic along with some blood test and other medical test. After perusing all the reports, the OP/ doctor adviced him for operation in his injured left leg. The complainant agreed and the OP/ doctor demanded of Rs. 30,000/- for operation. Thereafter as per advice of the doctor, the complainant took admission at Repose Clinic & Research Centre Pvt. Ltd. on 21.06.2017. The complainant was operated his left leg on 21.06.2017 by the OP-2/doctor and was released from the Nursing Home, Kolkata on 22.06.2017 and the doctor prescribed him some medicines and precautions. After operation the complainant due to some complications in his ailiing leg meet the doctor/OP on 18.07.2017. Again the doctor adviced him for X-ray and blood test. It is alleged by the complainant that after surgery in his left leg, he was not in good condition and he informed the doctor about his health condition but the doctor wilfully neglected.
It is further alleged by the complainant that even after operation in his left leg the complainant was facing some problems and time to time he informed to the OP-2/doctor but the doctor did not pay any heed to his words and he denied and ignored to give him further treatment which caused irreparable loss and injury to the complainant. Hence, instant application is filed before the commission with a prayer to give direction to the OPs to pay back the entire expense and cost incurred and spent by the complainant towards the treatment and operation of the complainant amounting to Rs. 50,000/- including other charges.
The complainant further prayed for giving direction to the OPs to pay compensation of a sum of Rs. 3,30,000/- to the complainant for his physical disability, harassment and pecuniary loss etc. along with litigation cost of Rs. 20,000/-.
The OPs 1 and 2 have contested the petition of complaint by filing separate WV denying all the material allegations levelled against them. It is stated by the OP-1 that present petition of complaint is not maintainable and there is no cause of action on the part of the complainant to file this case. It is further stated by the OP-1 that the complainant has included the OP-1 in this case only with the intention of harassment.
It is admitted by the OP-1 that complainant was admitted in the OP-1 Nursing Home/hospital dated 21.06.2017 and his operation was done on the same self date i.e. 21.06.2017 by the attending doctor in his left leg and he was discharged from the hospital/nursing home on 22.06.2017 in stable condition since then the complainant never visited the hospital/nursing home.
It is further stated by the OP-1 that the complainant has not alleged any short of deficiency in service on the part of the OP-1 hospital/nursing home and he did not claim anything from the OP-1. Under such circumstances, it has to be stated by the OP-1 that the service has rendered by the OP-1 hospital/ nursing home to the complainant as per instruction of the attending doctor (surgeon) during his (complainant) stay at the hospital and the OP-1 has no other connection with this matter. So, the name of the OP-1 should be expunged from the cause title of petition of complaint and petition of complaint is liable to be dismissed.
The OP-2/ Dr. Suhasish Roy, attending Orthopaedic Surgeon has contested the case by submitting inter alia in his WV that the petition of complaint is harassing, misconceive and is liable to be rejected in limini with cost. All the allegations made by the complainant against the OP-1 is false and concocted and the petition of complaint is barred by estopples, waiver and acquienescence.
It is further stated by the OP-2 that the complainant has failed to justify his allegation. He further alleged that the petition of complaint is barred by limitation and in eye of law. The complainant is not a consumer by any means.
It is further alleged by the OP-2 in his WV that the complainant has suppressed the material facts and he did not come before this commission with clean hand.
It is the case of the OP-2 that the complainant has come to the OP-2 on 11.06.2017 at his (OP-2) orthopaedic centre situated at Vill & Post- Jalaghata, PS-Singur, Dist. – Hooghly. with primary complaint of injury to his left knee sustained by him about two and half month before the date of visit to the OP-2. The complainant never divulged the history of injury sustained by the OP-2 which is urgently required for a physician to ascertain the presumptive diagnosis. Subsequently, the complainant stated that he sustained an injury in a road accident which was noted down by RMO of Repose Nursing home/hospital.
It is further stated by the OP-2 that when complainant visited his chamber, there was swelling on his left supra – patelar region which is about left knee patelar bone.
It is alleged by the OP-2 in his WV on repeated questioning by the OP-2. The complainant did not state any previous history of infection or other causes pertaining to swelling of the knee, in fact the complainant denied to produce any document in respect of his previous treatment with a malafide intention. The complainant lodged his weight 55 Kg to 49 kg in a year which had no reason except for some long disease which is denied by the complainant.
It is further stated by the OP-2 that all the test like X-ray and blood test and fluid test had been done by the OP-2 to maintain the protocol of treatment and to give a diagnosis of TB, Injury , Infection and Cancer etc. Thereafter, on 18.06.2017 the complainant visited the OP-2 at his chamber without the culture, sensitivity report and cytology report.
It is alleged by the OP-2 that the complainant did not inform him that he received injury in a street accident on 25.04.2017 and he disclosed the same only after admission at nursing home.
It is further case of the OP-2 that after operation he was discharged from the hospital because at that time, he was in stable condition.
It is further case of the OP-2 that he never demanded Rs. 30,000/- rather. The total cost of the operation towards fees of attending doctor, surgical operation room, anesthetise, assistance and nursing home charges and different test charges was received against proper money receipt. It is alleged by the OP-2 that complainant did not take proper care in the post operative stages and he himself responsible for his physical sufferings. There was no negligence or deficiency in service on the part of the OP-2. Thus, the prayer of the complainant is liable to be dismissed with cost.
In view of above fact and circumstances, it has to be decided by this commission:-
- Is case maintainable in eye of law?
- As the complainant any cause of action to file the case?
- Is the complainant a consumer in eye of law?
- Is there any deficiency in service on the part of OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainant entitled to get?
Decision with Reasons
All the points are taken up together for convenience of discussion and to avoid unnecessary repetitions.
On a close scrutiny of the materials on records, it appears that this commission has got the jurisdiction to try this case both pecuniary and territorial.
From the material on record, it appears that admittedly the complainant met a road accident on 25.04.2017 and received injury in his left leg. Thereafter, he went to a local doctor who adviced him to meet an orthopaedic surgeon. Then the complainant went to the OPs 2/ Dr. Suhasish Roy orthopaedic surgeon and who adviced the complainant for surgery. it is also admitted fact that the complainant agreed to go for surgery in his left knee and admitted at OP-1/Repose Clinic & Research Centre Pvt. Ltd. situated at 20/C, Broad Street, Ballygunge, Park, Kolkata-700019, PS-Karaya. The complainant stated that the doctor /OP-2 the left leg of the complainant and on 22.06.2017 the complaint was released from the hospital in stable condition.
From the annexure B, it is found that the complainant paid Rs. 15,000/- to the doctor for his operation and doctor issued a money receipt to him to that effect.
From the annexure C, it is found that complainant got admission at Repose Clinic & Research Centre Pvt. Ltd on 21.06.2017 as per advice of OP-2/Dr. Suhasish Roy. From the petition of complaint, it is found that the complainant admitted that after operation, he (complainant ) was discharged from the hospital on 22.06.2017 in stable condition.
The complainant alleged in his petition of complaint as well as evidence that he paid Rs. 30,000/- as package for his operation to that effect he gives advance of Rs. 15,000/- to the doctor on 19.06.2017. The OP-2/Dr. Suhasish Roy issued the money receipt to the complainant to that effect which has been brought into evidence as exhibit 2. Though the complainant alleged that he spent a sum of Rs. 50,000/- for his medical treatment but except of money receipt of Rs. 15,000/- not even on a scrap of paper has been brought into the evidence to prove the rest portion of his medical expenditure. It is also alleged by the complainant in his evidence and petition of complaint that after operation he was not in good condition and again went to the Dr. Suhaish Roy on 03.04.2017. After examination the doctor prescribed a medicine to him and stated that he will be cured very soon. Again on 24.09.2017 went to doctor and alleged that he cannot walk properly after the operation and his condition become more worst than before. The complainant stated that due to negligence on the part of the doctor, he suffered a lot and could not walk properly. He also alleged that doctor with held all his previous prescription and treatment sheets but the complainant failed to prove the same by giving material evidence to that effect. On the contrary, he filed the documents which have been brought as evidence an exhibit 5 where from it is found that he attacked the doctor and his family members with his (complainant) men. As a result, a criminal case has been lodged against him at PS-Singur being FIR No. 386/2017 dated 25.09.2017 U/s 341, 323, 354(a), 506 IPC .
In view of evidence on record, it is crystal clear that the complainant could not be able to establish the case as medical negligence either against the OP-1 or OP-2 by giving cogent evidence. It was the OPs case that after met road a accident on 25.04.2017, the complainant was treated by a local doctor and after lapse of a considerable period, he went to the OP-2 /Dr. Suhasish Roy who is a orthopaedic surgeon. The Xerox copy of the doctor’s prescription i.e. exhibit-1 shows that the complainant went to OP-2 on 11.06.2017 and the OP-2 stated that prior to admission at the hospital (OP-1) for operation the complainant never disclosed the cause of injury or about previous treatment to the OP-2. It is the complainant, onus lies upon whom to prove the case but the complainant except to make allegation that the hospital and attending doctor neglected him at the time of treatment failed to prove his allegation by supporting evidence. No document has come from the end of the complainant that he paid a sum of Rs. 30,000/- to the doctor and hospital or spend a sum of Rs. 15,000/- for the purpose of his operation and medical investigation. Rather from his own documents i.e. exhibits it is proved that he attacked the attending doctor on 24.09.2017 and a criminal case was started against him to that effect and criminal case being No. 286/2017 dated 25.06.2017 was started against him.
From the evidence on record, it is established that the complainant paid Rs. 15,000/- to the doctor for his treatment and got the receipt to that effect. The doctor operated him and he was discharged from the hospital on very next day after operation in stable condition but the complainant did not file the discharge certificate for the reason best known to him. However, from the evidence it is established that operation was made by the doctor and after releasing from the hospital he returned home. Thereafter due to complication, he again visited the doctor at his chamber and attacked him.
So, considering the entire evidence on record, it is crystal clear that the complainant himself neglected his injury received by him in a road accident on 25.04.2017 and after laps of considerable period he went to orthopaedic surgeon i.e. OP-2 who adviced him for surgery of his left knee. The complainant agreed with the doctor and admitted at OP-1 hospital on 21.06.2017. The Operation was done by doctor successfully. The complainant was discharged from the hospital on 22.06.2017 after getting advice of taking post operative care and medicines from attending doctor and it is presumed that the complainant being satisfied was released from the hospital. From the entire scenario, this commission cannot find any sort of negligence on the part of the OPs 1 and 2 rather it is the view of the commission that the complainant is miserably failure to prove his case beyond all reasonable doubt and he wanted to get back the money paid for the operation forcibly by applying muscle power. He paid Rs. 15,000/- for operation purpose and the operation was done. So, the complainant cannot claim the money which paid for his operation because as per money receipt (exhibit 2) of Rs. 15,000/- dated 19.06.2017. The OPs 1 and 2 have discharged their duties and responsibilities. So, the complainant cannot claim to get back the said amount. No document is there on the part of the complainant to prove that he paid Rs. 30,000/- to the doctor and spent Rs. 50,000/- for his medical expenses.
So, this commission cannot believe the complaint’s case without any cogent evidence.
Hence,
In view of discussion made above.
This commission is of view that the complainant failed to prove the medical negligence and deficiency in service on the part of the OPs 1 and 2 and is not entitled to get relief as prayed for.
All the points are thus, decided accordingly.
The case is properly stamped.
Hence,
Ordered
That the case be and the same is dismissed on contest against the OPs without any cost.
Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act. The Judgement be uploaded forthwith on the website of the commission for perusal of the party.
