Tripura

StateCommission

A/23/2021

Sri Biswajit Deb Sarma - Complainant(s)

Versus

Sri Bijoy Das - Opp.Party(s)

Mr. S. Bhattacharjee, Mr. B. Datta, Mr. J. Jamatia

30 Dec 2021

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

Case No. A.23.2021

 

1. Sri Biswajit Deb Sarma,

S/o Sri Pyari Kishore Sarma,

Resident of Matabari, 

P.S. R.K. Pur, Udaipur,

District - Gomati, Tripura

Proprietor of ‘Perfect Pathology’, Udaipur.

 

2. Sri Surajit Shil,

S/o Sudhir Shil,

Resident of Matabari, P.S. R.K. Pur,

Udaipur, District - Gomati, Tripura,

Proprietor of ‘Perfect Pathology’, Udaipur.

… … … … Appellants/Opposite Parties.

Vs

 

 

1. Sri Bijoy Das,

S/o Sri Shanti Bhushan Das,

Resident of 1 No. Fulkumari,

P.O. R.K. Pur, P.S. R.K. Pur,

Udaipur, District - Gomati, Tripura.

           … … … … Respondent/Complainant

 

2. The Indemnity Medical Defence Consultancy India Limited,

DA-147, Salt Lake, Sector – 1,

Kolkata - 700064.

 

3. Reliance General Insurance Company Ltd.

Branch 1-Himalaya House, 5^th Floor, 38 B,

JL Nehru, Kolkata - 700071

Branch 2-Himalaya House, 8^th Floor, 38 B

JL Nehru, Kolkata - 700071.

      … … … …  Proforma Respondents/Opposite party No.3 and 4.

 

 

Present

 

Dr. Chhanda Bhattacharyya

Member

[Officiating President]

State Commission

 

Mr. Kamalendu Bikash Das

Member

State Commission

 

 

For the Appellants:                                          Mr. Sankar Bhattacharya, Adv.

For the Respondent/Complainant:                    Mr. Subhajit Paul, Adv.

For the Proforma Respondents:                       Absent.

Date of Hearing:                                               10.11.2021.

Date of Delivery of Judgment:                          30.12.2021.

J U D G M E N T

The instant appeal is filed by the appellants against the judgment dated 04.05.2021 passed by the learned District Consumer Disputes Redressal Commission, (hereinafter referred to as District Commission), Gomati, Udaipur in Case No.C.C.16 of 2016 whereby and whereunder the learned District Commission allowed the complaint petition filed by the complainant, the respondent no.1 herein, directing the opposite party no.1 and 2, the appellants herein, to pay Rs.5,00,000/- (Rupees five lacs) only as compensation and Rs.10,000/- (Rupees ten thousand) only towards costs of litigation to the complainant, Sri Bijoy Das within a period of two months from the date of judgment, failing which, the amount shall carry interest @6% per annum till realization.  

2. Heard Mr. Sankar Bhattacharya, Ld. Counsel appearing on behalf of the appellants i.e. the opposite party no.1 and 2 (hereinafter referred to as opposite parties) as well as Mr. Subhajit Paul, Ld. Counsel appearing on behalf of the respondent no.1 (hereinafter referred to as complainant). None appears for the proforma respondents (hereinafter referred to as opposite party no.3 and 4).
3. Facts of the case as narrated in the complaint petition are that, in the year 2014, for some physical discomfort complainant, Sri Bijoy Das visited Dr. Sujit Sutradhar, MD, Medicine, Udaipur and he was advised by the doctor to undergo the tests namely, HBS Ag (Australia Antigen), HCV and Malaria Parasite Widal Test. Accordingly, the complainant visited the 'Perfect Pathology' at Hospital Road, Udaipur of which the opposite parties were the owners and proprietors. The opposite parties agreed to conduct those tests and also assured to provide correct result. Thereafter, the complainant conducted those tests in the said Pathology by paying necessary charge. On 14.06.2014 the report was issued by the pathology with the following result

HBS Ag (Australia Antigen) - Negative (-ve),

HCV (test) - Positive (+ve),

Malaria Parasite - Negative (-ve).

On the basis of the said report, the complainant had to be admitted in the Tripura Sundari District Hospital, Udaipur and since his HCV test was reported as positive, he was given treatment For Hepatitis C and he was asked to take 41 vaccines in 41 weeks and he was also administered one vaccine. After three days, he was referred to AGMC & GBP Hospital, Agartata and from GBP Hospital, Agartata he was shifted to Apollo Hospital, Chennai. As a stretcher patient he went to Chennai by air accompanied by doctor and escorts. At the Apollo Hospital he was treated as an indoor patient w.e.f. 19.06.2014 to 24.06.2014. It was diagnosed in the Apollo hospital that the complainant was suffering from Acute Kidney Injury – Recovering and Mixed Malarial Infection (Falciparum and Vivax). In the discharge summary of the complainant, the Apollo Hospital made the following findings: -

“……..Hepatitis B and C serology were negative. Malaria parasites were positive with both plasmodium falciparum and plasmodium vivax being present.....”

It is alleged in the complaint petition that the report dated 14.0.6.2014 issued by the 'Perfect Pathology' was totally inaccurate and such report misdirected his treatment. With the history of fever he attended Dr. Sujit Sutradhar and relying on the faulty report of the Perfect Pathology treatment for Hepatitis C was given to him. Had there been proper and correct report by the Pathology, the kidney of the complainant would have not been affected and he would have been cured by giving treatment of Malaria. The complainant would not be required to rush to Chennai for treatment. His kidney got affected due to treatment for Hepatitis C though he was not having such disease. As a result of gross inadequate and imperfect service rendered by the Pathology, the complainant had suffered physically and mentally. The opposite parties being the owners and Proprietors of the 'Perfect Pathology' are liable to pay adequate compensation to the complainant for the loss and damage and physical, mental and financial sufferings to the complainant due to inadequate and deficient service rendered by them. Finally, the complainant claimed compensation to the tune of Rs.5,00,000/- and Rs.20,000/- as cost of litigation.

4. The opposite parties (opposite party no.1 and 2), the appellants herein, contested the case by filing written statement denying the allegations made by the complainant in his claim petition. According to the opposite parties they are running the pathological laboratory having registration under Tripura Clinical Establishment Act, 1976 in the name and style M/s Perfect Pathological Laboratory. The pathology is covered by Professional Certificate under the Indemnity policy issued by the Indemnity Medical Defence Consultancy India Pvt. Ltd. According to the terms of the policy, the Indemnity Medical Defence Consultancy India Pvt. Ltd. is liable to pay the compensation, if awarded, in favour of the complainant.
5. Opposite party no.3, Medical Defence Consultancy India Pvt. Ltd. in their written statement stated that they are not the insurer of M/s Perfect Pathology, but the Reliance General Insurance Co. Ltd. is the insurer of the said Pathology under the coverage of Professional Indemnity Insurance (Doctors and Practitioners Policy Schedule) covering the period from 09.07.2013 to 08.07.2014 issued by the Reliance General insurance Co. Ltd. and the opposite party no.3 only liaised between them having no liability of its own whatsoever. The Reliance General Insurance Co. Ltd. has got the liability to indemnify the M/s Perfect Pathology against their legal liability to pay compensation.
6. Opposite party no.4 in their written statement denied the averments made by the complainant in the claim petition. According to them, the complainant never took any policy from them and they have been wrongly impleaded in this case. The grievance of the complainant is against the other opposite parties, not against them and as such, if any, compensation is awarded that should be borne by the other opposite parties.
7. Complainant examined himself as P.W.1 and also examined two others namely, Bhushan Das as PW.2 and Dr. Sujit Sutradhar as PW.3. The complainant produced 18 (eighteen) documents which are as follows:-

1. Prescription of Dr. Sujit Sutradhar - Ext.t.
2. Pathology report - Ext.2 series,
3. Ultrasonography report - Ext. 3,
4. Discharge summary of Apollo Hospital - Ext.4 series,
5. Prescription of Dr Sujit Sutradhar - Ext.5 series,
6. Prescriptions - Ext. 6 series,
7. Cash memos - Ext. 7 series,
8. Letter of Bijoy Das addressed to DHS - Ext. 8 series,
9. Letter of Dr. S.R. Debbarma - Ext. 9,
10. RTI Form and reply of C.M.O. Gomati, Udaipur - Ext. 10 series,
11. Letter of State Public Information Officer - Ext 11 series,
12. Statement of Bijoy Das and Biswajit Ghosh - Ext.12 series,
13. Declaration of Bijoy Das - Ext. 13 series,
14. Air Tickets - Ext. 14 series,
15. Boarding passes - Ext. 1 5 series,
16. Prescription of Dr. Pradip Bhowmik - Ext. 16,
17. Cash memo and pathological report of Apollo Hospital - Ext. 17 series,
18. Letter of getting inquiry report - Ext, 18,

 

8. On the other hand, the opposite party no.1, Sri Biswajit Deb Sarma examined himself as OPW.1 and submitted 5 (five) documents which are as follows: -

1. Money receipt of Rs.2,854/- - Ext.B,
2. Letter dated 28.08.2013 addressed to Perfect Pathology - Ext.C,
3. Money receipt of RS.2,854/- - Ext. D,
4. Professional Indemnity Certificate - Ext.E,
5. Original Insurance policy document bearing policy No.2404332716020435 of Reliance General Insurance Co. Ltd. Ext-F.

9. The learned District Commission after hearing the pleadings of the parties as well as evidence on record passed the impugned judgment.
10. Being aggrieved by and dissatisfied with the impugned judgment, the appellants-opposite parties have preferred the instant appeal.
11. Mr. Bhattacharya, Ld. Counsel for the appellants-opposite parties has stated in his argument that the impugned judgment suffers from misappreciation of evidences on record as none of the focal points of the complainant was properly examined by the learned District Commission during hearing of the complaint case. He has further clarified that the learned District Commission has made a serious error in delivering the impugned judgment and therefore, prayed for interference by this Commission for the interest of justice. He has strongly pleaded for setting aside the impugned judgment for the reasons as stated above. The vital points of lacking, according to him, lies in the fact that there was no evidence at all that the medicines for Hepatitis C were administered to the complainant on the basis of a wrong pathological report of the opposite parties and that the condition of the complainant was deteriorated for intake of such medicines. On the other hand, Dr. Sujit Sutradhar (P.W.3) who is the attending doctor at Tripura Sundari Hospital, Udaipur has stated in his examination-in-chief as well as in reply to cross-examination that no medicines for Hepatitis C was consumed by the complainant on the basis of the questioned pathological report of the opposite parties. There was no examination of records of District Hospital Udiapur, AGMC & GBP Hospital, Agartala and Apollo Hospital, Chennai which could be helpful in determining the facts in regard to the claim of the complainant. There was no expert opinion to substantiate the main point of the complainant that his conditions was deteriorated due to intake of wrong medicines meant for Hepatitis C on the basis of the pathological report of the opposite parties. Mr. Bhattacharya in support of his contention has relied upon the judgment of Hon’ble National Consumer Disputes Redressal Commission in Prabha Shankar Ojha Vs Dr. Neelmani Rai, 2009 STPL 17476 NC [Revision Petition No.2436 of 2005 Decided on 04-11-2009] which reads as follows:

“………………….This has further been elaborated in subsequent Judgments that mere statement of party is not enough. Allegation of negligence has to be proved with the help of expert medical opinion…………………”

He has further contended that evidences adduced has clarified in the examination-in-chief of Dr. Sujit Sutradhar (P.W.3) that there was need to go for pathological examination twice for confirmation as to the infection of Hepatitis C which was not done. He has quoted from the reply of cross-examination of P.W.3 which is as follows:-

“I prescribed no medicine for Hepatitis - C vide the Ext.1 and Ext.5 Cost of medicine for Hepatitis C is very high. In case of test for Hepatitis - C there is possibility of false result. For that reason there is a standard protocol for reconfirmation and typing by further tests.”

Regarding unauthorized signature in the pathological report, Mr. Bhattacharya has quoted from the notification of Government of Tripura, Health & Family Welfare Department vide No.F.1 (244)-HS/74 dated 20.08.1984 which reads as follows:-

“……………examination or its equivalent and a certificate or diploma from a recognised Institution in respect of particular branch of knowledge covering the works carried on in the Laboratory should be engaged to assist in laboratory works.”

In summing up, he has prayed for setting aside the impugned judgment for the ends of justice.    

12. Mr. Paul, Ld. Counsel for the respondent no.1-complainant has argued that there was no wrong in the impugned judgment as the learned District Commission has rightly pronounced the compensation in favour of the complainant based on the evidences adduced. He has claimed that the root cause of the suffering of the complainant was emanated from the point of issue of a wrong pathological report by the opposite parties. Mr. Paul has clarified the magnitude of the wrong pathological report to the effect that “had there been no intake of medicine there could have been an adverse affect too on the body of the complainant as the said report also wrongly indicated a malaria parasite negative of the complainant, but the fact remains that the complainant was suffering from malaria parasite positive as detected in the Apollo Hospital, Chennai subsequently”. Therefore, the main cause of sufferings of the complainant is centered around the wrong pathological report of the opposite parties and the compensation awarded by the learned District Commission is based on the evidences on record and no interference is needed by this Commission thereon.
13. We have gone through the impugned judgment, heard the arguments of Ld. Counsels, examined the documents and the evidences on record. It appears that there is no dispute that the pathological report of the opposite parties is wrong. It is also seen that the pathological report is not signed by the authorized medical officer. There is no evidential base as to the intake of medicines by the complainant on the basis of disputed pathological report of opposite parties. Moreover, no expert opinion is available to determine that the condition of the complainant was deteriorated due to intake of medicines of Hepatitis C. Records of Apollo Hospital, Chennai, AGMC & GBP Hospital, Agartala and Tripura Sundari District Hospital, Udaipur which could give a light to some vital issues in regard to the complaint petition, were not came up for examination during hearing of the case in the learned District Commission. The learned District Commission in the impugned judgment has abruptly jumped upon the decision from the issue of a wrong pathological report without having significant evidential value that the suffering of the complainant was due to intake of medicines for Hepatitis C. The case needs to be more holistically examined as this is a very sensitive case, but the learned District Commission while conducting hearing of the case, has lapsed these important issues related to the case.
14. Of course, we are in solidarity with the learned District Commission about the impact of issue of a wrong pathological report by the opposite parties and its overall ramifications. But since intake of medicines of Hepatitis C was not confirmed either through solid evidences or by taking any expert’s opinion, the fact of complainant’s sufferings for the consumption of medicine in question should not have been considered for awarding compensation.

In view of the above, we feel it constraints to tone down the impugned judgment as per available evidences. Therefore, the impugned judgment is partly modified to the extent that the opposite party no.1 and 2, the appellants herein, are directed to pay Rs.3,00,000/- (Rupees Three lacs) only to the complainant Sri Bijoy Das as compensation and Rs.10,000/- (Rupees Ten thousand) only as cost of litigation within a period of 2 (two) months from today, failing which, it will carry interest @6% per annum till the payment is made in full.

In the result, the appeal is partly allowed and thereby disposed of with the modifications of the impugned judgment as indicated above.

Send down the records to the learned District Commission, Gomati, Udaipur.