1. This application was filed under Section 12 of the Consumer Protection Act on 16.07.2019 by Mr. Manindra Nath Chowdhury against OPTM Health Care Pvt. Ltd. and its Dr. Apurba Ganguli, seeking compensation of Rs. 4,66,000/- and other reliefs on the ground that the opposite parties who provided treatment to the complainant during the period from 17.02.2018 to 25.05.2018 were guilty of medical negligence.

2. The case of the complainant is that on being driven by the advertisement of OPTM Health Care Pvt. Ltd. as to the availability of treatment facility for attaining full recovery from pain at knee, waist and spinal cord the complainant visited the said medical institute on 17.02.2018 and after examining him Dr. Apurba Ganguli advised him to go for fresh blood test and x-ray examination and also prescribed medicines for him. On 17.03.2018 he again met the doctor who again advised him to go on using medicine for 90 days to all the four limbs with assurance that he will be fully curedafter the expiry of the period of 90 days. But nothing of this sort happened, for which he again visited the OPTM Institute on 28.04.2018 and thereafter 25.05.2018. Every time he got such an assurance from the doctor and he continued to use the prescribed medicines. But immediately after 16.06.2018 he could realize that he was not gaining any improvement and that he was being treated improperly. This is why filed this case against both the opposite parties alleging medical negligence and also seeking reliefs as stated above.

3. The Ops have entered appearance and contested the case by filing WV, evidence in chief, brief notes of argument. It has been claimed by them that the complainant is not entitled to get compensation and that proper treatment was given to the patient. It is specific case of the opposite parties that the condition of the patient was improved significantly due to use of medicines prescribed by Opposite party No. 2.

4. Now, the only point that has to be decided in this case is whether the complainant is entitled to reliefs sought for from the Ops or not.

5. In support of his case, the complainant has filed evidence on affidavit, prescriptions issued by the Ops on 17.02.2018, 28.04.2018 and 25.05.2018 together with other medical documents including money receipts granted by OPTM Health Care Pvt. Ltd and also BNA,

6. It is obvious from the evidence on record that the complainant who was aged about 75 years was suffering from different ailments including pain at knee and limbs. For getting recovery from those ailments, he subjected himself to treatment at OPTM Health Care Pvt. Ltd. for nearly 100 days starting from 17.02.2018. It is his claim that the treatment he received from the opposite parties was ineffective.

7. Not that any other Doctor has opined, after perusing the papers isued by the opposite parties and also after examining the patient, that erroneous treatment was given to him or that the complainant was treated negligently or that the prescribed medicines were harmful to the patients. As a matter of fact the complainant was not examined by any independent Doctor after June 2018. There is no document to lend suppot to the  claim of the complainant about medical negligence.  It is not also in the evidence on record that the doctor treating him ought to have treated him otherwise or ought to have prescribed medicines other than those which were actually prescribed.

8. We don’t find any reliable evidence against the opposite parties as to medical negligence. In the absence of evidence it can not be given out that the mode or extent of treatment as provided by the Ops are not generally recommended for a patient like complainant.

9. The complainant who was under obligation to procure expert’s opinion to strengthened his case. But he has not discharged such legal obligation. Expert's opinion on the point of medical negligence has also not been produced. In the absence of evidence the complainant's assertion that the treatment provided by the opposite parties did not or could not work can not be accepted.

10. But interestingly it has come out during the course of argument that OPTM Pvt. Ltd. did not have the necessary license during the relevant period for treating such type of patients. The Ld Advocate of the Opposite parties has conceded to the contention of the his counterpart that license could be obtained only on 13.09.2019 from the competent authority.

11. Therefore at the time of treating the complainant the medical institute did not have any authority to extent such type of treatment. Obviously the Health Institute and the Doctor were in league with each other. They conjointly indulged in unlawful trade practice.

12. Since the complainant has failed to produce sufficient evidence to prove medical negligence. we are unable to award any compensation or any other reliefs to the complainant on this ground. But at the same time we are constrained to say that the Ops which resorted to extension the treatment of this sort to the complainant in 2018 without having legal authority should surely be penalized. They should pay a consolidated sum of Rs. 100000/- as compensation.

13. The propose of Justice would be sub-served in out humble view if we put the Ops to pay 1,00,000/- as compensation on the whole payable to the complainant. The Ops therefore pay Rs. 1,00,000/- to the complainant as a consolidated amount of compensation with interest @9% per annum w.e.f. the date of filing of this case within a period of three months.

14. Hence it is ordered that the case be and the same is allowed on contest with cost of Rs. 25,000/-.  The Op will pay Rs. 1,00,000/- with interest @9% per annum w.e.f. the date of filing of this case within a period of 3 months hence, failing which the amount will carry interest @ 12% pa. He will also pay litigation cost of Rs. 25,000/- within 3 months, failing which the amount will carry interest @ 12%pa.

Let plain copy be given to the parties free of cost, as per CPR.

Dictated and corrected by

[HON'BLE MR. Lakshmi Kanta Das]
PRESIDENT