The instant appeal is directed against the judgmental/order passed by Ld. DCDRF, Jalpailguri’s Circuit Bench at Alipurduar in C case no. 2 of 2013. The case in nutshell is that one Smt. Sibani Guha Niogi lodged a consumer complainant before the Ld. D.C.D.R.F., Jalpaiguri to the effect that in connection with various ailments, she came to the appellant Dr. Partha Pratim Das, for medical treatment on 19/10/2009. The appellant after receiving consultation fees provided medical treatment to the said patient and patient was continuing the said treatment under Dr. Partha pratim Das. The appellant since 2009 and the Dr. had prescribed medicines for the relief of the complainant time to time. Thereafter on the advice of the appellant/doctor the complainant undergone Eco Cardiographic test on 12/3/2011 and the report of such test revealed that she was suffering from Arotic Stenosis. After detection of the such cardiological disorder, the complainant was under the medical care of the appellant doctor till 24/6/2012 and the physical condition of the complainant was deteriorating gradually day by day and the appellant/doctor could not provide the proper medical care to the disorder of the complainant. Therefore, the complainant was compelled to visit at Apollo Geneagles Hospital at Calcutta where it was detected after some clinical test that she was suffering from very severe Arotic Stenosis and the patient that is the complainant was advised for coronary angiography for Arotic valve replacement. So the complainant was taken at Bangalure Cardiological hospital for valve replacement which was done under the well-known physician Dr Devi Prasad Shetty on 25/7/2012. The complainant further case was that due to wrong treatment of the appellant/Doctor she suffered a lot physically and mentally and the appellant doctor has misguided her about her treatment and due to wrong treatment on the part of the appellant/doctor her disorder of Arotic Stenosis was converted to in severe calcastif Arotic Stenosis and this negligent act on the part of the appellant caused serious harm not on the body of the complainant/respondent but also caused to her mental state of affairs and for that reason she had filed the consumer complaint for getting proper compensation from the appellant.

The appellant doctor Partha Pratim Das had contested the consumer complaint case and disputed the consumer complaint by furnishing the written version and contended that while the complainant was first reported to him for treatment on 19/10/2009 he prescribed good medicines and the patient became cure from such very harmful diseases in due course of time. Thereafter the complainant time to time had visited his chamber with complains of various ailments and she was advised to neurologist and thereafter on 12/3/2011 for cardiological test where it was detected that the patient was suffering from Arotic stenosis and since then  complainant was not attending his chamber and then appellant had no responsibility for any deterioration of health of the complainant as she was under the care of another doctors and another health institutions. The appellant further case is that there was no negligence, fault, shortcoming or inadequacy on his part at the time of rendering the medical treatment of complainant and as such the claims of complainant was false and frivolous and liable to be dismissed.

 After recording evidences and after hearing both sides, the ld. D.C.D.R.F., Jalpaiguri’s Alipurduar Circuit Bench, had to decide the case on merit and for deficiency of service and medical negligence on the part of the appellant, he was asked to pay rupees 2,00,000 for medical negligence, rupees 50,000 compensation for mental pain and agony and rupees 5000 for litigation cost.

Being aggrieved with the said order, this appeal follows on the ground that the Ld. Forum had misconceived the facts in this case and has committed errors at the time of determining the issues in this case and the finding of the Ld. Forum was baseless, arbitrary, inadequate and not vested with the law.

The memo of appeal was admitted on its own merit and notice was issued upon the respondent/complainant. The respondent/complainant recorded her appearance before the Hon’ble State Commission at Calcutta, where the appeal was registered. Thereafter the case was reassigned to this bench for disposal. After reassignment the respondent did not turn up and at last this Commission had directed the appellant to communicate the notice of appeal to the respondent at his own instance and the appellant has complied the order of this Commission and furnished the postal receipt which shows that the respondent became aware about the existence of this appeal and in spite of that the appellant/respondent did not turn up to contest the appeal.

Therefore, the argument of only appellant was heard.

D e c i s i o n  w i t h  r e a s o n s .

Here in this case, the Ld. D.C.D.R.F., Jalpaiguri had adjudicated the disputes by fixing three points and all the points were answered in favour of the complainant/respondent and the said adjudication has become challenged here by the appellant. At the time augment in the appeal, Ld. Advocate of the appellant mentions before this Commission that the patient was first attended the chamber of this appellant with a history of diarrhea and loose motion and she was properly diagnosed  by the appellant/ doctor and advised good medicines and the respondent recovered from the said ailment immediately. But she was a patient of hyper tension and started to attend the chamber of appellant time to time and she was advised for good medicines and proper treatments of the patient. Thereafter, the appellant advised her to have a cardiological test  for her hyper tension where Arotic Stenosis was detected and she was which was not severe one as the report of cardiological test was reflected as normal in most of the counts. The appellant being a medical expert, have a degree of MD Medicine had rendered proper treatment as a medical expert and as a prudent doctor. He advised good medicines for recovery of the shortcoming of the respondent and there was no negligence on his part but in spite of that the Ld. Forum has wrongfully hold, there was medical negligence on the part of the appellant and for that reason he was penalised for compensation of huge money which had to be provided to the respondent. It was further argument on the part of the appellant that the only shortcoming in this case was that this appellant Dr.  had the degree MD medicine and have not a degree of MD Cardiology. But in spite of this being a dr. of MD medicine, he had every capacity to provide treatment to the patient having any disorder in her. He has advised good medicines and when the patient was medically treated at Apolo Gleneagles Hospital there also the attending physicians admitted the fact that the appellant dr. had prescribed  proper medicines for the treatment of the respondents disorder while it was detected that she was suffering from Arotic Stenosis.

After hearing the valuable argument, canvassed by the appellant side and after perusing the judgment and final order passed by the Ld. Forum, it appears to this Commission that in case of medical negligence, this Commission thinks it fit that to detect the actual medical negligence on the part of the attending dr. the adjudicating authority should be confirmed that there was a negligence on the part of the dr. either in diagnosis or in treatment and whether the dr. to be proved guilty or not if acting with reasonable care like a prudent man, the doctor cannot be held negligent immediately because an alternative course of treatment was possible or to be advisable. The test is whether the doctor acted in good faith and with reasonable care and whether his diagnosis or course of treatment is palpably wrong or not. Only palpable mistake or utter negligence amounts to deficiency in service and it is also to be noted that to form opinion upon a point of science. The opinions upon that point of persons specially skilled are relevant. The opinion of medical expert are admissible upon question within their own province, though the adjudicating authority may differ with the opinion of expert medical person on the basis of the entire evidences placed before the adjudicating authority.

Here in this case, no medical expert has been examined or no comment of medical expert was obtained before adjudicating the dispute on the part of the Ld. Forum. It is suddenly a drawback in this adjudication under appeal. On the other hand the patient was first diagnosed, suffering Arotic stenosis after eco cardiograph test on 12/3/2011 and appellant became confirmed about the test report. He continued treatment of the patient of Arotic Stenosis by prescribing medicines. He never advised patient to go to cardiologist surgeon  as there was requirement of surgery very much there. We know very well the Arotic Stenosis is severe harmful decease and in spite of that the appellant dr continued treatment of the patient and prescribed medicines one after another but no improvement of the patient happened. The medical jurisprudence and the medical literature clearly speaks that the best treatment of patient of Arotic Stenosis is the replacement of Arotic Valve. The medical science clearly speaks that once symptoms of Arotic Stenosis appears the recommended treatment is for valve replacement. The Ld. Forum has clearly pointed out that on 12/3/2011 while the appellant came to know that the respondent was suffering from Arotic Stenosis he noted down it in his prescription dated 1/4/2011 and in spite of that in his prescription he did not refer to any cardiologist for proper treatment. The Ld. Forum has inferred the opinion to the point that the appellant dr. Being an expert medical man had the opportunity to refer the patient to a cardiologist for proper treatment and betterment of the patient and he ought to have not to take the risk of continuing medical treatment of the respondent while  immediate replacement Arotic Valve was required for the patient to this core. Ld. Forum has found that there was gross negligence and deficiency of service on the part of the appellant. 

Fact remains in this case that while in spite of continuing treatment of one year after detection of Arotic Stenosis disorder, the appellant had continued the treatment and at last when the condition of the patient gradually deteriorated she was compelled to come in Calcutta at Apolo Gleneagles Hospital where she  was advised to have Arotic valve replacement immediately and then the patient was taken at Bengaluru and under the good care of DS, the valve replacement was held in the year 2012. The patient/respondent to endure   suffering for more than one year when due to medical negligence on the part of the appellant dr and for that reason Ld. Forum has rightly adjudicated the dispute in a proper manner and judiciously and this Commission found no requirement for interference with the determination of points by the LD. DCDRF, Jalpaiguri’s Alipurduar Circuit Bench. On the other hand this appellant is a competent dr.. Having a degree of MD medicine. He has authority to provide treatment for any patients and there was no bad intention on his part to deteriorate the health of the respondent. So the compensation amount  awarded against him seems to be excessive and more than adequate one and such amount of compensation for medical negligence and mental pain and  agony should be reduced to some extent in proportionate of the wrong committed by the appellant. Thus, the instant appeal is hereby disposed of on merit in the following manner.

        Hence it is,

O r d e r e d,

               That the appeal be and the same is allowed in part on merit without any cost.

The order of Ld. Forum in respect of amount of medical negligence awarded in favour of complainant respondent to be reduced to rupees 75,000 instead of rupees 2,00,000 and the amount of compensation for mental pain and agony awarded in favour of the respondent to be reduced to rupees 25,000 and the litigation cost awarded in favour of the respondent rupees 5000 remains the same. The remaining portion of the final order of Ld. Forum remains intact.

 Let a copy of this order be supplied to the parties free of cost and a copy be communicated to the Ld. D.C.D.R.F.,  Jalpaiguri through E-mail.