This appeal is directed against the final order delivered by Ld. DCDRF, Coochbehar dated 25/3/2018 in reference to consumer complainant case no. 80 of 2013. The fact of the case in nutshell is that is that the consumer complainant Jhuma Goswami for the treatment of her right eye problem went to Dr. D Bhattacharya i.e. the appellant of this case on 1/3/2012. Dr. Bhattacharya examined her on that day. After examining her Dr. Bhattacharya advised her to consult with Dr. S. Banerjee an eye surgeon and Dr. AK Singh for Endro DCR of her right eye. Accordingly, the complainant went there and got admitted under Dr. S Banerjee and Dr. A.K. Singh at Ananda Loke Hospital, Siliguri where the clinical treatment and operation Endro DCR on the right eye of the complainant was organized and she was discharged on 29/9/2012 with advice to consult Dr. D Bhattacharya for syringing. The complainant in spite of Endro DCR, her eye problem could not be settled and there was swelling in the inside corner of the right eye along with watery and excessive tearing. Some medicines were provided to her for that problems by Dr. S. Banerjee and Dr. A.K Singh but her condition could not be improved.

Thereafter she again visited Dr. Bhattacharya for syringing on several occasions but despite of syringing the nasolacrimal passage of the right eye of the patient was remain blocked. According to the case of the complainant due to negligence and carelessness of the treating Doctors that is Dr. S. Banerjee and Dr. AK Singh during the course of treatment of Endro DCR they did not take proper care at the time of such treatment  and for that reason she could not be cured from such problem of excessive tearing and watery eyes and for that reason she claimed Rs. 50,000 as compensation on account of medical negligence and harassment towards her on the part of Dr. S. Banerjee and Dr. AK Singh.

The complainant has prayed for granting relief by filing the consumer complaint against Dr. S. Banerjee and Dr. AK Singh, Dr. Bhattacharya as Op no. 1 to 3. The OP no. 1 and 2 that is Dr. S. Banerjee and Dr. AK Singh has contested the consumer complaint by written version and denied all the material allegations lavelled against them. The Op no. 3 who happens to be the appellant in this case, in spite of receiving notice did not contest the case and the consumer dispute was adjudicated against him ex-parte. LD. DCDRF after recording evidences and after hearing the arguments has adjudicated the dispute by delivery of impugned order and found that Dr. S. Banerjee, Dr. AK Singh and Dr. Bhattacharya  were jointly and severally liable to compensate the complainant for their acts and omissions in rendering services to her, in respect of her treatments and all the Ops were directed to pay Rs. 6,000 as litigation costs, Rs. 15,000 towards medical expenses and Rs. 15,000 for mental, physical pain and agony to the complainant.

Being aggrieved with this order this appeal has been filed on the ground that the Ld. Forum has failed to appreciate the facts and circumstances of the case and the findings deficiency of the service on the part of the appellant is mis-conceived one as because this doctor was not responsible towards the treatment of the patient who only recommended the patient to go  to Dr. S Banarjee for the treatment of Endro DCR. After post operation period the patient was advised to have syringing of her right eye through the appellant but the patient was uncared to come regularly for syringing and there was no deficiency of service on his part and the complainant/patient in her consumer complaint under section 12 of the CP Act did not make liable Dr. Bhattacharya for any medical negligence or deficiency service on his part and she has only sought relief against Op no. 1 and 2 that is Dr. S. Banerjee and Dr. A.K Singh. But the Ld. Forum has failed to understand the actual liability rests upon whom. The appeal was registered in due time. Principal respondent J. Goswami and the proforma respondents Dr. S. Banerjee and Dr. A.K Singh were issued notice of appeal. Dr. Banerjee and Dr. A.K Singh did not contest the appeal and J. Goswami has contested the appeal through the Ld. Advocate. The appeal was heard in presence of Ld. Advocate of contesting parties.

Decision with reasons

 Admitted position is that J. Goswami was suffering in her right eye ailment like watery eyes and excessive tears. At first instance the patient went to the chamber of Dr. Bhattacharya who after examining her. Advised the patient to go to eye surgeon Dr. S. Banerjee and Dr. A.K Singh to undergo Endro DCR operation who are the specialist in that field. The Endro DCR operation was performed in the Ananda Loke Hospital, Siliguri under the care of Dr. S. Banerjee and Dr. A.K Singh. In spite of that operation the ailment of right eye of the patient could not be cured and her suffering was continued which were brought into the notice of Dr. S. Banerjee and Dr. A.K Singh who advised her to go to Dr. D. Bhattacharya the appellant for syringing.

Accordingly, the patient visited to the chamber of Dr. Bhattacharya who in spite of syringing the problem of the patient could not be solved and again she was referred to Dr. S. Banerjee and Dr. A.K Singh for better management of treatment. But the problem of the patient remained the same. Accordingly, the complainant/patient approached the Ld. Forum for redressal of her grievances against Dr. S. Banerjee and Dr. A.K Singh. Dr. D. Bhattacharya did not the contest the consumer case. Ld. Forum has decided the case on merit and found Dr. Bhattacharya as the king pin who has referred the patient to Dr. S. Banerjee and Dr. A.K Singh for Endro DCR treatment without referring her to any government hospital and for that reasons Ld. Forum has made liable Dr. Bhattacharya the appellant for negligence and fault. During the course of hearing argument of both sides, it is brought to the notice of this commission that Dr. S. Banerjee and Dr. A.K Singh has already paid their part of compensation amount and they did not challenge the legality of the order of the Ld. Forum. Dr. Bhattacharya at the time of argument mentions through his legal counsel that no whispering is there in the consumer complaint that Dr. D Bhattacharya was committed the wrong of medical negligence at the time of treatment of the complainant. Here the Ld. Forum has committed an error with the decision that Dr. Bhattacharya was a king pin as because he did not refer the patient to go any government hospitals.

After going through the entire pleadings of both parties and after consulting the evidences tendered before the Ld. Forum there is no whispering that there was any medical negligence on the part of the appellant Dr. D. Bhattacharya. Rather the complainant in her consumer complaint also did not make any prayer for any relief against the appellant Dr. D Bhattacharya. The Ld. Forum through misconception of facts and circumstances has casted the liability upon Dr. Bhattacharya to pay the compensation to the complainant along with the other doctors. So, the finding of Ld. forum particularly in point no. 5 and 6 of the final order which are found to be the most in convincing and mis-judge one towards the liability inferred upon the appellant Dr. D Bhattacharya who happens to be the Op no. 3 of the consumer complaint case.

 Therefore, the commission finds that the final order of Ld. Forum invites an interference in the appellate stage.

Hence, it is,

Ordered

 That the appeal is partly allowed on contest against J. Goswami the respondent no. 1 and ex parte against respondent no. 2 and 3. The final order of Ld. forum is to be modified to the extent that only Dr. S. Banerjee and Dr. A.K Singh are to be liable upon the payment of compensation awarded in favour of the complainant/respondent no. 1 J. Goswami and appellant Dr. D. Bhattacharya would have no liability to make any payment of compensation on his part toward the consumer complainant.  

Let the order be supplied to parties free of cost and also to be sent to Ld. DCDRF, Coochbehar