HON’BLE MR.JUSTICE ISHAN CHANDRA DAS,PRESIDENT

          This Appeal has been directed against the judgement and order dated 24.5.2016 passed by ld.D.C.D.R.F. 24 Parganas North at Barasat in C.C. 220 of 2015 where the ld. D.C.D.R.F. while disposing of the said Complaint Case allowed it in part on contest against the Opposite Parties directed them to pay a sum of Rs.5 lakh (Rupees five lakh) to the complainant within one month from the date of the order i.d. to pay interest @ 12% per annum till recovery of the same, further directed the OPs to pay a sum of Rs.25,000/- (Rupees twenty five thousand) towards litigation cost within the said stipulated period , failing which the OPs shall be liable to pay a sum of Rs.100/- (Rupees one hundred) per day as punitive damage to be deposited in the State Consumer Welfare Fund.

          Being aggrieved by such judgement and order dated 24.5.2016 the appellants being the Opposite Parties of C.C. 220 of 2015, preferred this Appeal.

        Briefly stated, the case of the Complainant/Respondent (hereinafter referred to as the complainant) was that her husband Arnab Roychowdhury since deceased suddenly became ill on 18.2.2015 and he was taken to the OP NO.1/Appellant No.1 Nursing Home (hereinafter referred to as the OP NO.1) with the help of some members of his family and the patient was admitted to that Nursing Home on payment of a sum of Rs.1,000/- as advance. After such admission of the patient in the said Nursing Home, his treatment was started by the Doctors and at that time the members of the patient’s family wanted to stay at the Nursing Home but the Nursing Home Authority did not permit them to stay there but collected the telephone number for further communication. On that very date i.e. on 18.2.2015 at about 11 p.m. owing to the anxiety , the patient party contacted the Nursing Home to know about the health condition of the patient and it was informed by the Nursing Home Authority that the patient was in good condition and he was supposed to be discharged on the next date i.e. on  19.2.2015. In the next morning at about 6.30 a.m. the complainant made a contact with the Nursing Home Authority over telephone and came to know that the condition of the patient was good. But immediately after such opinion the complainant was informed that the health condition of the patient deteriorated and the complainant wanted to know the cause of such health deterioration but she was informed that her husband already expired. Thereafter, the brother of  the complainant asked Dr. Tarun Kumar Adhikary , the OP NO.2 herein as well as  the Nursing Home Authority   why they suppressed the news of death of his brother and did not inform the patient party in time. Dr.Tarun Kumar Adhikary , the OP No.2 informed the patient party that suddenly there was fall of sugar and cardiac arrest caused the death of the patient. The complainant alleged that as there was no such expert Doctor and proper infrastructure in the said Nursing Home at the relevant point of time to meet the emergent situation which amounted to negligence and deficiency of service of the Doctor and the Nursing Home Authority and the complainant lost her husband as he could not get proper medical treatment in the said Nursing Home. Dr. Tarun Kumar Adhikary categorically admitted that there was negligence and deficiency in service in the treatment of the patient and on 19.2.2015 at about 9.30 a.m. the complainant’s brother Asim Dey went to Naihati P.S. to lodge a Complaint against  Dr.Tarun Adhikary and Others and requested the Police Authority to take necessary action against the Doctor and the Nursing Home. At that time Dr. Adhikary admitted his fault in the matter of treatment of the patient Arnab Roychowdhury and proposed to give monetary help for the immature death of the patient on humanitarian ground. Considering the future of her minor son, the complainant agreed to the proposal of Dr.Adhikary and restrained themselves from getting the post mortem examination over the body of the deceased and the Nursing Home Authority including the Doctor agreed to pay a sum of Rs.25,00,000/- (Rupees twenty five lakh) to the complainant in presence of the people assembled around the Nursing Home at the relevant point of time. The complainant agreed to accept Rs.25 lakh (Rupees twenty five lakh) and Dr. T.K.Adhikary and his wife Ruma Adhikary took all necessary steps for payment of Rs.10 lakh (Rupees ten lakh) from their account with a further declaration that they would pay the further sum of Rs.15 lakh (Rupees fifteen lakh) within three months from the date of declaration dated 19.2.2015. But when they contacted later on the OPs No.2 and 3 refused to pay the rest of the amount. The complainant alleged that there was medical negligence and deficiency in service on the part of the OPs which prompted the complainant to file the instant Complaint Case for realization of the amount of compensation, litigation cost etc.

          The Opposite parties filed a joint Written Version to contest the Complaint case, denied all the material allegations including the cause of action  for filing the Complaint case and ultimately prayed for dismissal of the same on the ground that there was no such allegations of medical negligence or deficiency in service . It is admitted that the patient was taken to the Nursing Home on 18.2.2015 for his admission and one Debasish Debnath who accompanied the patient suppressed certain material facts regarding the condition of the patient and that the patient was under the treatment of one Dr. Debdas Chakraborty who treated him since 28.9.2014. The Opposite Party further claimed that the patient was admitted to the Hospital/Nursing Home with some ulterior motive for gain and the past history of his treatment was not properly explained and those were willfully suppressed by the patient party which  ultimately caused the death of the patient. Denying and disputing the material allegations of medical negligence or deficiency in service the Opposite Party alleged that they were forced to pay a sum of Rs.10 lakh (Rupees ten lakh) under the threat to life and they gave a declaration that they would pay another sum of Rs.15 lakh out of which Rs.5 lakh (Rupees five lakh) would be paid on or before 23.2.2016. The Opposite parties further claimed that the Police Authority did not give protection to the Nursing Home Authority nor any legal step was taken at their instance  for which they had been to ld. A.C.J.M. , Barrackpur for seeking legal protection. Denying and disputing all other material averments the OPs ultimately prayed for dismissal of the Complaint case with costs.

          The factual aspects of the matter i.e. the illness of the husband of the Complainant, his treatment at the OP/Nursing Home , death of the patient etc. are not disputed.

          Now the point for consideration is whether ld. DCDRF was justified by directing the OPs to pay a sum of Rs.5 lakh (Rupees five lakh) to the complainant within one month from the date of the order i.d. to pay 12% interest , compensation of a sum of Rs.25,000/- (Rupees twenty five thousand) and litigation cost of Rs.10,000/- (Rupees ten thousand) and other consequential reliefs, as noted in the earlier part of this judgment.

          The complainant shall be entitled to compensation and other reliefs as prayed for if it is established that her husband Arnab Roy Chowdhury was the victim of medical negligence and deficiency in service which claimed his life on the fateful date.

          Ld. Counsel appearing for the Appellant in course of hearing drew our attention to a declaration given by the OPs No.2 and 3 , the owners of Green View Clinic and Nursing Home (OP NO.1) where it has been noted that the  OPs NO.2 and 3 voluntarily agreed to give a sum of Rs.15 lakh (Rupees fifteen lakh) out of which Rs.5 lakh (Rupees five lakh) would be paid on or before 23.2.2015 and the rest amount i.e. Rs.10 lakh (Rupees ten lakh) would be paid after a lapse of three months from the date i.e. on or before 20.5.2015 to the wife of the victim for the loss of life of her husband Arnab Roy Chowdhury , aged about 41 years. It is also noted in the said declaration that out of humanitarian ground they were paying such amount to the Complainant .

          Ld. Counsel appearing for the Complainant/Respondent in course of hearing submitted with all fairness that a sum of Rs.10 lakh (Rupees ten lakh) were paid to the Complainant but the rest amount of Rs.5 lakh (Rupees five lakh) were not paid for which his client Smt. Annapurna Roy Chowdhury had to take recourse of the D.C.D.R.F., as she deserved such relief due to the undertaking given by the Appellants /OPs no. 2 and 3.

          Ld. Counsel for the Appellants in course of hearing expressed the situation what prompted his clients to give such declaration to the Complainant/Respondent . He pointed out that his clients were forced to give such declaration and a sum of Rs.10 lakh (Rupees ten lakh) were paid to the complainant instantly at the threat of their life and  to save the Nursing Home from damage as an irate mob assembled  at the Nursing Home and hackled  the Doctors at the Hospital on the date of such unfortunate incident.

          We have already observed that the Complainant shall be entitled to an amount as compensation if the Doctor or the Nursing Home are at fault and the Complainant can claim such relief through a legal process. Payment of a sum of Rs.10 lakh (Rupees ten lakh) putting the Nursing Home Authority or the Doctors under threat of their life cannot be approved by a civilized society. In the Petition of complaint the complainant tried to describe the factual aspects of the treatment but never alleged categorically what prompted her to claim such relief on the ground of medical negligence or deficiency in service. Ld. D.C.D.R.F. instead of seeking for any opinion of Experts in the matter simply relied on the so called declaration, which is at page 31 of the file, and decided the merit of the case and directed the Appellants to pay the amount, they undertook to pay without considering the fact that they were compelled to do so under a threat to their life. In this context the observation of the ld.D.C.D.R.F. is quoted below for our consideration –

“Various allegations have been made in the petition and written version of the oPs but we do not want to go into the details of the said allegations and counter allegations. When the OPs declared that they will pay Rs.15,00,000/- to the complainant they should pay that amount to the complainant due to loss of her husband in the Green View Clinic and Nursing Home. Admittedly, Rs.10,00,000/- (Rupees ten lakh) has already been paid and Rs.5,00,000/- (Rupees five lakh) is due from the oPs to the complainant and OPs are liable to pay that amount to the complainant according to the declaration given by the OPs.

In view of the discussion, we are of the view that OPs should pay Rs.5,00,000/- (Rupees five lakh) and compensation to the complainant for loss of her husband as per declaration dated 19.02.2015”

          The materials of record also reveal that the Appellants rushed to the local Police Station  for seeking their help but they were not provided, for which they had to take shelter of the Court and filed an Application U/s 156(3) of the Code of Criminal Procedure and taking into consideration the entire situation prevailed at the spot at the material point of time and the fact admitted by ld. Counsel for the Appellant that a sum of Rs.10 lakh (Rupees ten lakh) were realized from the Appellants we are of firm opinion that the Complainant/Respondent does not deserve any further relief since no medical negligence or deficiency in service was  neither pleaded nor proved and on the basis of a wild allegation, no relief can be granted to the Complainant. The Consumer Court has no legal obligation to direct realization of any amount where there is an undertaking to pay such amount under a threat to life, as pointed out earlier. Accordingly, in the back ground we find merit in the Appeal which stands  allowed, the judgement and Order passed by ld. D.C.D.R.F. in C.C. 220 of 2015 dated 24.5.2016 stands set aside, resulting that the C.C.220 of 2015 is dismissed.  Parties do bear their respective costs of Appeal.