Circuit Bench Siliguri

StateCommission

RBR/A/94/2019

Dr. Bijan Kumar Dutta - Complainant(s)

Versus

Sri Debasish Banerjee - Opp.Party(s)

Mr. Abhik Das Mrs. Koyeli Mukhopadhyay

17 Apr 2023

ORDER

SILIGURI CIRCUIT BENCH
of
WEST BENGAL STATE CONSUMER DISPUTES REDRESSAL COMMISSION
2nd MILE, SEVOKE ROAD, SILIGURI
JALPAIGURI - 734001
 
First Appeal No. RBR/A/94/2019
( Date of Filing : 28 Jan 2014 )
(Arisen out of Order Dated 30/12/2013 in Case No. CC/22/2013 of District Cooch Behar)
 
1. Dr. Bijan Kumar Dutta
Consultant Gynecologist, Sujala Bhavan, Hospital Road, Coochbehar Town, P.O. & Dist. - Coochbehar, P.S. - Kotwali.
...........Appellant(s)
Versus
1. Sri Debasish Banerjee
S/o Late Parimal Banerjee, New Town, P.S. - Kotwali, P.O. & Dist. - Coochbehar, Pin-736 101.
...........Respondent(s)
 
BEFORE: 
 HON'BLE MR. KUNDAN KUMAR KUMAI PRESIDING MEMBER
 HON'BLE MR. SWAPAN KUMAR DAS MEMBER
 
PRESENT:
 
Dated : 17 Apr 2023
Final Order / Judgement

KUNDAN KUMAR KUMAI

This is an appeal preferred under section 15 of the Consumer Protection act 1986, against the order passed by the Ld. DCDRF, Coochbehar in CC No. 22/2013 on 30/12/2013. It also needs to be mentioned that initially, the appeal had been filed before the State Consumer Disputes Redressal Commission, West Bengal, on 30/01/204 and was numbered as FA/121/2014. Thereafter, the appeal was transferred to this Commission vide order no. dated 29/08/2019 and the appeal was renumbered as RBR/A/94/2019.

Brief facts of the appellant case are that, the wife of the respondent had conceived, which was confirmed through Urine Pregnancy Test conducted on 25/06/ 2011 from Panacea Diagnostic Center. Thereafter, she had been examined by the appellant on 13/07/2011 at Sujala Bhavan, who then described some medicine and other tests and was under constant treatment of the appellant and the EDD had been fixed on 14/02/2012. On 17/08/2011, the appellant examined the wife of the respondent and advised for a UCG and the appellant again prescribed medicine and assured her regarding her wellbeing. She visited the chamber of the appellant on 17/10/2011 and 16/12/2011 for routine checkup. On 16/12/2011 the appellant advised her for further USG of Feto Placental Profile from Spandan Medical Diagnostic Clinic, Coochbehar, and to appear with the report on her next visit. The USG was done from the Spandan Medical Diagnostic Clinic, on 14/01/2012   and the report of Dr. Basudev Halder MD (Radio Diagnosis), Consultant Radiologist and Sonologist and reported ‘a single live intrauterine fetus in Cephalic presentation with normal Cardio and Somatic activity, having no obvious gross abnormality’. When she reported before the appellant on 16/01/2012, he went through the report and again assured, that the fetus was fine and again  prescribed some medicines.

On 01/02/2012 in the morning, the wife of the respondent felt severe labour pain in her abdomen and again she was produced before the appellant, at around 10:30am. The appellant examined her clinically and again assured her that, everything was perfect and there was no indication of fetal distress and advised her to continue the medicine after adding one more medicine. The respondent and his wife repeatedly asked the appellant regarding her admission to the hospital or nursing home, but the appellant did not pay any heed and assured that such types of pains, occurred when the EDD came forward, but on the very date, at around 3:30 pm when the labour pain became unbearable and the appellant was informed, who advised that the wife of the respondent be brought to Jeevan Deep Nursing Home. The wife of the respondent was immediately brought to the said nursing home, but the appellant did not appear till 5:15 pm. On examining the wife of the respondent, he advised for USG for fetal Scan, which was done at Spandan Medical Diagnostic Clinic, at 5:50 pm. On going through the report, the appellant said that he was sorry, that the baby had expired, as the report stated intrauterine death of the fetus impression (1) IUFD having fetal maturity of 28-29 weeks (2) grossly reduced liquor volume.

At 7:15 pm, the appellant arranged for the normal delivery of the dead baby and the appellant could not give any explanation. On the other hand, the appellant issued a death certificate, wherein the cause of the death had been mentioned as, ‘due to cord round neck three times…..’.

Since, there was no complication of the wife of the respondent and she had been under constant treatment of the appellant, but due to the careless attitude of the appellant, as inspite having severe labour pain , the appellant had not taken any initiative for delivery of the said baby, which resulted in the death of the baby in the womb. Moreover, the USG report dated 01/02/2012, had no remarks or finding about the said ‘due to cord round neck three times…..’ as mentioned in the death certificate. Had there been any such abnormality the same would have been reflected in the                 USG report of 01/02/2012, or the USG report dated 14/01/2012. Therefore, the appellant was most negligent and careless in examining the wife of the respondent and the baby could have been saved, had the appellant been more vigilant and careful and the reason given in the death certificate was merely to save his skin. Moreover, there had been no such cord on the neck of the baby, but was the creation of the appellant, as the baby was a matured one and had no congenital abnormalities. This attitude of the appellant was indicative of deficiency of service and unfair trade practice for which reason, the respondent filed the case on behalf of his wife. Hence this case.

The appellant contested the claim of the respondent/complainant, by filing written version, wherein he denied, the major portion of the respondent’s case and also stated, that on 01/02/2012 morning, when he had examined the wife of the respondent, he had been misled by the sound of uterine shuffle, as ‘fetal heart sound which often happens’. He had further mentioned, that the report of the USG dated 01/02/2012, confirmed intrauterine fetal death, which had happened a few days back as was evident by the Spalding sign and presence of gas shadow, which indicated the death of the baby in utero a few days back and as such, the fetal death had occurred prior to examination of the patient on 01/02/2012 morning. Moreover, such death was accidental in nature and not due to negligence. Furthermore, he had been assaulted by the patient party, after the delivery for which he had been treated at MJN Hospital and CT had been done on his skull and he had also lodged a complaint. That apart, no expert opinion had been obtained to prove the medical negligence and the instant case had been filed merely to harass him and prays for dismissal of the appeal. 

Both the appellant and respondent had been examined on oath and after hearing both the sides, the Ld. DCDRF, Coochbehar had allowed the case with a cost of Rs. 5,000/- (Five thousand) only and the appellant had been directed to pay Rs. 2,50,000/- (Two lakh fifty thousand) only, as compensation for medical negligence and mental pain and agony. The Ld. DCDRF, Coochbehar further directed, the appellant to pay the above amount within 45 days failing which a further amount of Rs. 100/- (One hundred) only per day for each day’s delay and the amount accumulated would be deposited in the State Consumer Welfare Fund.   

Being aggrieved by the above order, the appellant preferred this instant appeal on the ground that the impugned judgment passed by the Ld. DCDRF, Coochbehar, was erroneous in fact and law. The Ld. DCDRF, Coochbehar, held the appellant liable for the death of the baby in the womb of the wife of the respondent, even though the appellant was not responsible for such death on grounds of negligence.

Decision with reason

Ld. Advocate for the appellant at the time of the final hearing submitted that, the USG report dated 01/02/2012 had mentioned that the “ FEATURES ARE SUGGESTIVE OF INTRAUTERINE DEATH OF FETUS” and after normal delivery the baby was found with cord around the neck which caused death of the baby and for such death the appellant had no control and has relied in the corroboration found in Williams Manual Of Pregnancy & Complication, Clinical Obstetrics & Gynecology by Brain  Magowan, Phillip Owen James Drife, Ians Donald’s Practical Obstetrics Problems, Williams Obstetrics. He has further argued, that the patient had not been admitted but even if the admission taken place, the fetus could not have been saved as it had expired two three days prior to 01/02/2012. He has relied in the judgment passed by the Hon’ble NCDRC, New Delhi in a common judgment between Shakil Mohd Vakil Khan Vs. Dr. CK Dave and Dr. CK Dave Vs. Shakil Mohd Vakil Khan, on 30/11/2011 in first appeal no. 182/1999 & 238/2002, in first appeal no. 426/2006 between Tagore Heart Care and Research Center Pvt. Ltd. & Dr. Raman Chawla Vs. Mrs. Kanta by the Hon’ble NCDRC on 27/05/2011, in Harpreet Kaur & Others Vs. Fortis Escorts Hospital Majitha & Others passed by the Hon’ble Punjab State Consumer Dispute Redressal Commission, Chandigarh, reported in II(2018) CPJ 118(Punj) and in Ram Niwas Soni  Vs. Vaish Model Sr. Sec. School & Others passed by the Hon’ble NCDRC, reported in II(2013) CPJ 396 (NC).

None appeared on behalf of the respondent and as such the appeal was heard ex-parte against the respondent.

At the threshold, it needs to be pointed out that, the only point of the dispute is with regard to the finding of the USG report dated 01/02/2012. The Ld. DCDRF, Coochbehar, had mentioned in the impugned order regarding the findings as

“Single fetus in Cephalic presentation without any Cardia and Somatic activity”.

“Gas shadows present in cardiac Chambers”.

“Increased gas shadows present in fetal abdomen”.

“Features are suggestive of intrauterine death of the fetus”.

“Liquor Volume is grossly reduced; no liquor pocket is present”.

Impression:

  1. IUFD having fetal maturity of 28-29 weeks.
  2. Grossly reduced liquor volume.

The impugned judgment had opined, that the report dated 01/02/2012, did not suggest that, there was three loops of cord round the neck of the baby, whereas, death certificate showed three loops of cord round the neck of the baby. But the Ld. DCDRF, Coochbehar, had refused to believe, that the baby had died due to three loops of cord round the neck, as the basis of such finding was merely the appellant’s statement and not backed by any other evidence like video footage etc. At this stage also, the appellant has not provided any evidence to show that the finding of the impugned judgment was erroneous, it had been argued mainly on the point, that the appellant was not responsible for the death occurring due to such loops of cord round the neck of the baby, which is caused accidentally. No piece of evidence is forthcoming from the appellant side to show, that the USG report dated 01/02/2012, was based on the three loops of cord round the neck of the baby, resulting in the death of the baby. In fact, the finding of the USG report dated 01/02/2012 clearly suggest, that the gas shadows present in the Cardiac Chambers, that the death had already occurred. There is nothing to suggest, from the USG report dated 01/02/2012 that the death of the baby, occurred due the cord round the neck of the baby, resulting in death to the baby. Moreover, there is no plausible explanation forthcoming from the appellant, as to why the appellant had not taken steps to cause the birth of the baby in the morning of 01/02/2012 itself, instead of simply trying to justify his inaction of causing the birth, by pleading that he had been misled by the sound of uterine shuffle, as fetal heart sound. The rulings cited of behalf of the appellant also have no application, as the facts of this instant case are totally different from that of the cited cases.

Now the question, as to the locus standii of the respondent in filing the case before the Ld. DCDRF, Coochbehar, on behalf of his wife is concerned, it can be stated, that even though the wife under goes the treatment and the ultimate surgery but the husband is equally affected by the pain and tribulations under gone by the wife, as the happiness and pain is equally suffered by the husband.. The anxiety and stress suffered by the husband also cannot be undermined in any manner, more so when the husband is involved with the pregnancy of the wife since the very beginning. Furthermore, the joy and despair, felt by the husband with the birth is equally infectious as the sadness that surrounds the death of the baby. In other words, this is the ultimate in joint venture and as in joint ventures all the parties are affected with the failure and success, likewise, both the husband and wife are affected. Therefore, it would not be proper to state that only the wife should be declared a consumer, especially when she would be in a traumatized state, by the loss of the baby.  Under the circumstance the judgment cited and relied in this regard on behalf of the appellant do not obliterate the respondent’s locus standii in filing the instant case below the Ld. Forum. Under the circumstance, the instant appeal fails.

It is therefore

Ordered

That the instant appeal be and the same is dismissed ex-parte, but without costs.

The impugned order is hereby affirmed.

Appellant is directed to comply with the directions passed by the Ld. DCDRF, Coochbehar on 30/12/2013, within 30 days from the date of this order.

Copy of the order be sent to the parties free of costs.

Copy of the order be also sent to the Ld. DCDRF, Coochbehar, for necessary compliance.     

 
 
[HON'BLE MR. KUNDAN KUMAR KUMAI]
PRESIDING MEMBER
 
 
[HON'BLE MR. SWAPAN KUMAR DAS]
MEMBER
 

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