In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/133/2017.

Date of filing: 05/07/2017.                     Date of Final Order: 29/9/2023.

Rumeli Banerjee,

Wife of Sri Prodyut Banerjee,

residing at 7 (New 27) Rajendra Avenue,

Second Lane, Post Office-Uttarpara,  

District-Hooghly, Pin-712258.                               ……..…. Complainant

   Versus  

Shanti Scan Centre Pvt. Ltd.,

Having its office at 61/1/A,

Rajmohan Road (near Uttarpara Telephone Exchange),

Uttarpara, District-Hooghly, PIN-712258.                 ...... Opposite Party

Before:            President, Shri Debasish Bandyopadhyay.

                           Member,  Debasis Bhattacharya.

FINAL ORDER/JUDGMENT

Presented by:

Debasis Bhattacharya, Member

Brief facts of the case: This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that the complainant had been suffering from severe pain in abdomen at or about the second week of August, 2016 and the complainant thereafter had visited Dr. Ashok Dutta for medical treatment and thereafter had been advised by the aforesaid Doctor for an Ultra-sonography of her whole abdomen  and the complainant had approached the opposite party for an ;Ultra Sonography on 24^th August, 2016 and paid an amount of Rs. 750/- in this respect and the ultra-Sonography of the whole abdomen had been conducted by the opposite party on 24^th August, 2016 and the report had been provided to the complainant on 25^th August, 2016 and the aforesaid report nowhere had mentioned existence of any kind of cyst and / or tumor in the abdomen of the complainant and depending upon the aforesaid report the complainant did not go for any further investigation and/or hospitalization and the complainant started suffering tremendous abdominal pain on a continuous basis and thereafter was compelled to be admitted at Nilima Matri Sadan Nursing Home, Uttarpara at or about 11 p.m. with a severe pain in abdomen and on advice of concerned doctor of the Hospital Dr. J.P. Halder, another abdominal Ultra-sonography was conducted upon the complainant on 02.09.2016 at Suburban Sono Clinic at Uttarpara and the report of the aforesaid Ultra-sonography conducted by the Suburban Sono Clinic revealed the existence of an ovarian cyst with significant size and the complainant visited another specialist doctor Dr.Basab Mukherjee in this respect and as per his advice she underwent another abdominal ultra-sonography from Quadra Medical Services Pvt. Ltd., Kolkata on 17^th September,2016.

The report of the aforesaid ultra-sonography conducted by Quadra Medical Services Pvt. Ltd. also revealed existence of an ovarian cyst of  significant size and the complainant was admitted to Srijoni Healing Home (hospital), Kolkata on 25.09.2016 and underwent a surgery of ovarian cyst on 26.09.2016 and the aforesaid series of facts clearly shows that the ultra-sonography report of the opposite party was completely wrong and misleading and due to the aforesaid wrong report the complainant suffered tremendous physical pain and ;mental agony for a significant period of time and that her life was in danger due to the medical negligence and reckless act of the opposite party and thereby claimed a compensation of Rs.25,000/- beside return of the fees of Rs.750/- paid to the opposite party for conducting ultra-sonography and the complainant received a reply of the aforesaid legal notice vide a letter sent by the Advocate of the opposite party dated 12.04.2017 wherein the aforesaid advocate asked for various documents in this respect from the complainant.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 750/- as charges of ultra-sonography along with an interest @18% per annum till realization and to pay a sum of Rs. 25,000/- towards the physical strain, mental agony along with an interest @18% per annum till realization and to pay a sum of Rs. 10,000/- as litigation cost agony along with an interest @18% per annum till realization and to give any other order or orders as deem fit and proper.

Defense Case:- The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the patient/complainant Smt. Rumeli Banerjee came to this Diagnostic Centre on 24.08.2016 for an urgent U.S.G test of her whole abdomen as was prescribed by her Dr. Asok Dutta.  The test was done accordingly in a U.S.G Machine of approved standard manufactured by Philips having technical specification of HD7/3.1.  The U.S.G scan was conducted by Dr. Subrata Roy, an efficient and experienced Doctor having the Degree of M.B.B.S. (Cal) DIP Card (Cal) DMRD (Cal), Cardiologist & Radiologist.  Said Doctor has thereafter prepared the report as per the USG plate from which it is crystal clear that there was no cyst appeared at that point of time and accordingly the same was reported by Dr. Subrata Roy and it is the competent person to explain anything regarding the situation under which the cyst cannot be found at that point of time instead on 01.09.2016, as has been reported by Dr. Munmun Jana Suburban Sono Clinic.  Hence Dr. Subrata Roy ought to have been made a party to this case and the answering O.P can submit before that there might be several reasons for not finding any cyst at the U.S.G scan done on 24.08.2016 which the answering OP has come to know afterwards from the other eminent and experienced competent Radiologists and the subsequent USG scan was done by the complainant after 9 days (i.e 24/08/2016 to 02/09/2016) which may be occurred because these delay a major physiological change can to any person and it is well established in medical science that under severe infection there is adhesion surrounding the uterus and at that time the structure cannot be well delineated in the USG and when infection subsides after a few days, the structure in the lower abdomen can be better visualized and if USG is done at the time of severe infection, there is every possibility of difference in report and the ultrasound waves are disrupted by air or gas; therefore, ultrasound is not an ideal imaging technique for air-filled bowel or organs obscured by the bowel.  In most cases, barium exams, CT Scanning and MRI are the methods of choice in such a setting.  Large patients are more difficult to image by Ultrasound because greater amounts of tissue attenuate (weaken) the sound waves as they pass deeper into the body and in view of the above reasons, the anomaly in the concerned USG report dated 25.08.2016 issued by this OP Diagnostic Centre cannot be equated with any sort of deficiency in services on the part of the answering OP as have been complained of by the complainant and there is, however, no specific allegation towards this OP to the effect that either the Machine by which the USG scan was done was a sub-standard one or that the USG Plate is not clear enough or that the USG report differs from what is appearing in the USG plate itself or that finally there was any sort of misbehavior done by any of the men attached to this O.P Centre. So, this complaint case should be dismissed.

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The O.P.  have filed a joint evidence on affidavit which reiterates  the averments of the written version.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite parties have filed separate written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides shall have to be taken into consideration for disposal of the instant proceeding.

            Heard argument of both sides at length. In course of argument ld. Lawyers of both sides have given emphasis on evidence and documents produced by the parties.

From the discussion hereinabove, we find the following issues/points for consideration.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of uttarpara, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 11 of the Consumer Protection Act, 1986 this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act, 1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act, 1986. Complainant is a consumer in the eye of law.

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that the complainant was ill and had been suffering from severe pain in the abdomen in the second week of August 2016.
2. It is also admitted fact that the complainant thereafter visited Dr. Ashoke Dutta for medical treatment.
3. There is no controversy over the issue that the Dr. Ashok Dutta advised the complainant to undergo USG of whole abdomen.
4. There is no controversy over the issue that   the complainant thereafter approached to the OP for an USG on 24^th August, 2016.
5. It is admitted fact that the complainant had paid Rs.750/- in respect of said USG of whole abdomen.
6. It is also admitted fact that the OP conducted the said USG test on 24^th August 2016.
7. There is no controversy over the issue that the OP authority submitted the report to the complainant on 25^th August 2016 and in the said report nowhere it has been mentioned about the existence of any kind of cyst.
8. There is no dispute over the issue that the complainant had been suffering from abdominal pain and so she was admitted at Nilima Matri Sadan Nurshing home Uttarpara with a history of severe pain in the abdomen.
9. It is admitted fact that Dr. J.P.Halder again advised USG to the complainant and the said test was conducted on 2.9.2016 at Suburban Sono Clunic at Uttarpara.
10. It is also admitted fact that as per report of USG by Suburban Sono Clunic revealed the existence of an ovarian cyst with significant size.
11. There is no controversy over the issue that thereafter the complainant visited another specialist Dr. Basab Mukherjee and she underwent another abdominal USG from Quadra Medical Services PVt. Ltd. on 17.9.2016 and from the said report of USG conducted by Quadra Medical Services PVt. Ltd. also revealed existence of ovarian cyst and significant size.
12. There is no dispute over the issue that thereafter complainant was admitted to Srijoni Healing Home (Hospital), Kolkata on 25.9.2016      and underwent surgery of Ovarian cyst on 26.9.2016.

              Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

               On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant has taken the plea that the report submitted by OP was outrightly wrong report and for that reason the complainant had to suffer physical and mental pain  and also harassment which amounts to deficiency of service.  But on the other hand, it is the defence alibi that the OP has no fault as because the USG machine of OP is of approved standard manufactured by Philips and the said USG was conducted by Dr. Subrata Roy an efficient and experienced doctor and so there is no deficiency of service on the part of the OP.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that OP adopted the plea that the USG machine of OP is of approved standard manufactured by Philips and the said test was conducted by Dr. Subrata Roy an efficient and experienced doctor and due to infection there was probability of not showing any ovarian cyst of the complainant and for that reason there was no fault or deficiency of service on the part of OP.  At the time of argument it is pointed out that Dr. Subrata Roy who conducted the USG has not been impleaded as party in this case and so this case is defective for non-joinder of parties.  In this regard it important to note that the OP had not taken any steps for adding Dr. Subrata Roy as a party in this case and also have not filed any application in this respect and so this point of argument is not at all acceptable.  Moreover in support for defence alibi the OP also had not prayed before this District Commission for appointment of expert for passing expert opinion and so the above noted point of contention and defence alibi adopted by the OP is also not found acceptable.  In this regard it important to note that the subsequent USG made by the complainant at Suburban Sono Clinic Uttarpara and of Qudra Medical services Pvt. Ltd. are clearly reflecting that there was error in the USG report of OP and it indicates deficiency of service and negligence on the part of the OP.

            A cumulative consideration of the above noted discussion goes to show that the complainant has proved her case in respect of all the points of consideration adopted in this case and for that reason the complainant is entitled to get relief in this case in respect of all the points of consideration.

In the result it is accordingly

ordered

that the complaint case being no. 133 of 2017 be and the same is allowed on contest but in part against OP.

Opposite party nos. 1 is directed to pay the  amount of Rs. 25,750/- within 60 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 is also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

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 and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.