KUNDAN KUMAR KUMAI

This is an appeal preferred by the appellant against the order and judgment passed by the Ld. DCDRF, Coochbehar on 13/01/2012.

Brief fact of the appellant case is that, the appellant had suffered from abdominal pain since 10/11/2010, and had gone to Dr. Debashish Halder, who after examination had advised USG of upper abdomen. He had gone for USG to Respondent No. 1 at Coochbehar, on 16/11/2010 and USG had been done on the date, of the upper abdomen. Dr. Ayan Das MBBS, DMRD, consultant Radiologist and Sonologist, had issued a report showing, a single mobile echogenic calculas (0.6 cm), in the gall bladder and the impression was shown as cholelithiasis.

On receipt of the report, he had again gone to Dr. Debashish Halder for consultation, the said doctor after consulting the USG report, prescribed the complainant some medicines and advised the need for a surgery. The appellant along with his family members, then visited Dr. Arijit Das, MBBS (Cal), MD, Surgeon for consultation on 18/11/2010 and the doctor, after examining the appellant and consulting the USG report, opined the surgery of gall bladder and as per his advise, the appellant was admitted in Tufanganj Nursing home, for cholecystomy, on 24/11/2010, and after surgery had been discharged on 29/11/2010. But after the removal of the gall bladder, the surgeon did not find any sort of calculas, inside the gall bladder, thereby proving that the said USG report was completely erroneous and had been done in a negligent manner. The respondent no. 1 and the Dr. A. Das, had supplied an incorrect report following which the appellant had been subjected to unnecessary harassment and had also spent huge amount for surgery at the nursing home and had also incurred miscellaneous expenditure and suffered physical and mental pain and agony. The appellant had then, filed a consumer complaint praying for relief from the respondent No. 1.

The respondent no. 1 had contested the claim made by the appellant by filing written version, wherein they had admitted the detection of single mobile echogenic calculas (0.6 cm) in the lumen of the gall bladder, but as the surgeon had operated after the passage of more than a week, the calculas being mobile might have moved from one place to another place within the human body. They also mentioned that the surgeon had been careless and had not ascertained the actual place and position of the calculas, prior to be surgery for which reason the calculas, could not be found after the surgery. Moreover, they have also stated that, had the gall bladder been normal and without stone, there would have been no reason for advising Histopathological examination. They therefore prayed for dismissal of the case.

After hearing both the sides and on perusal of the evidence on record, the Ld. DCDRF, had dismissed the appellant’s case.

Being aggrieved by the impugned order, the appellant has filed this appeal on the ground, that the Ld. Forum below had erred in law and facts, while passing the impugned order. He has further stated that the Ld. Forum below had failed to take into contention, the certificate issued by Dr. Arijit Das, the surgeon, that no calculas had been found, inside the specimen, when it had been cut open infront of the appellant. He has also stated that the internal diameter of the cystic duct was normally 2 to 3 mm, so it was not possible for a calculas measuring (0.6 cm) to move through that duct. He therefore, prays for setting aside the impugned order. 

Decision with reason

At the time of final hearing Ld. Advocate for the appellant had submitted, that the Ld. Commission below had failed to take into contention, the certificate issued by Dr. Abhijit Das, wherein, it had been certified that no calculas, had been found inside the specimen, when it had been cut open in presence of the parties and that the single mobile echogenic calculas, measuring 0.6 cm had been found, in the lumen of the gall bladder and it could not have moved from the gall bladder through the bile duct whose measurement was 2-3 mm. He therefore prays for setting aside the impugned order.

Ld. Advocate for the respondent, on the other hand has supported the impugned  order, on the ground that the operating doctor did not advise that the surgery was not necessary nor did the absence of the single mobile echogenic calculas, prevented him from advising Histopathological examination. Moreover, the impugned order had not suffered from any infirmities.

After hearing and on perusal of the materials on record, it transpires that the main grievance of the appellant is that the Ld. Commission below had not considered the certificate issued by Dr. Abhijit Das, on 28/11/2010 and also the aspect of the absence of the single echogenic calculas in the gall bladder, after the same had been removed.

The Ld. Commission below while dealing with the certificate issued by Dr. Abhijit Das on 28/11/2010, had opined that the surgery had been done on 24/11/2010 and the appellant had been discharged on 29/11/2010 whereas the USG had been done on 16/11/2010. It is the argument by the Ld. Lower commission that the Dr. Abhijit Das, had performed the surgery after being satisfied that the appellant had been suffering from cholelithiasis and after considering the USG report, in order to provide proper relief to the appellant from the pain suffered by the appellant. On finding inflammation of the gall bladder, indicating chronic cholecystitis, he had also advised for histopathological examination of the said and the said report had also vindicated that the gall bladder had been cholecystitis. That apart the certificate issued by the Dr. Abhijit Das, had been done in his chamber instead of the nursing home where the patient had been admitted, there by casting serious doubts regarding the authenticity of the opinion rendered.

In view of such findings by the Ld. Commission below there appears no reason to interfere with the same. Therefore, on this count the appellant’s contention fails.

However, with regard to the missing of the single echogenic calculas there is no direct observation with regard to the same, following which the judgment and order of the Ld. Commission below, needs to be set aside.

In this regard the Ld. Commission below had failed to obtain any expert opinion from the medical authorities, by going through the reports as to whether the presence of a single echogenic claculas in a gall bladder would necessitate the removal of gall bladder and the opinion with regard to the alleged absence of the single mobile echogenic calculas, after the removal of the gall bladder. Following, the mandate of the Hon’ble Supreme Court, the Ld. Commission below ought to have obtained a medical expert report, while dealing with the above medical opinion. It is also not lost upon this Commission, that more than twenty-two years have elapsed, since the date of operation, but in such cases,   where medical expertise is required and to provide equity and justice to the Consumer who lost his gall bladder, at a young age, the case needs to be remanded back to the Ld. Commission for obtaining an expert opinion with regard to the above points mentioned herein.

As a result, the instant appeal succeeds in part.

It, is therefore,

ORDERED

That the instant appeal succeeds in part.

 The copy of the judgment be sent to the Ld. Commission below for writing a fresh judgment after obtaining the medical expert opinion, as mentioned in the body of the judgment. The appellant is also directed to hand over all the medical documents including the histopathological report for sending the same for expert examination and report, within four weeks from the date of this order.   

Copy of this order be delivered free of cost to both the sides.

Copy of this order be also sent to the Ld. Commission for necessary compliance.