This appeal is directed against the final order delivered by the Ld. DCDRF, Darjeeling dated 27/10/2016 in reference to cc no. 14 D of 2012. The fact of the case in nut shell is that one Dhendup Rai registered a consumer complaint to the effect that his wife Ramala Rai due to some medical problems consulted with Dr. P Baidya, the appellant no. 1 who examined R Rai on 13/3/2012 and advised her for some medical tests. After some medical tests it was digonized that Ramala Rai was suffering from gallbladder stone and the said doctor advised her to take admission under his care to DDMA hospital run by respondent no. 3 where the said gallbladder stone was operated on 27/3/2012 but no improvement was there and appellant no. 1 and 2 jointly examined the patient Ramala Debi again and after some blood tests they could be confirmed that Ramala Debi was suffering from Creatinine and uro. The patient was then sifted to Siliguri in Anadalok Nursing home under the care of nephrologist Dr. Chandan Das on 30/3/2012 and she was undergone dialysis thereon where it was further detected that the said patient Ramala was suffering from “acute renal failure post cholecystectomy sepsis hyper tension”. The patient was then shifted to CMC Velour at Tamil Nadu where she was under the medical care. In that place a surgery was conducted and patient was discharged from the CMC hospital on 14th April of 2012. The complainant Dhendub Rai considered the treatment of his wife was not done properly by the appellant no. 1 to 3 and for the medical negligence and deficiency of service he raised claim rupees 19,50,000 against the appellants. The appellants as Ops has contested the consumer dispute by filing the written version and contended that the allegations levelled against the medical practitioners was false and frivolous and no deficiency of service on their part was there and for that reason, they prayed for dismissal of the consumer complaint. The consumer complaint on the basis of evidence and affidavit of both sides, was adjudicated in favour of the complainant. Being aggrieved with the said order, the appellants preferred an appeal bearing FA 712 of 2014 before the Hon’ble State Commission, Calcutta bench, where the Hon’ble SCDRC, Calcutta Bench vide final order dated 20/5/2016 was pleased to set aside the order of ld. forum and remanded back the case for fresh adjudication by directing the Ld. Forum to give opportunities of both parties to adduce evidence followed by questionaries’ and reply along with documents. Accordingly the Ld. Forum again adjudicated the dispute after recording evidence of complainant side and questionnaires of the Op and reply of the complainant and thereafter adjudicated the dispute with a direction to the appellants to pay rupees 12,63,700 towards medical treatment, rupees 20000 for compensation for the mental pain and agony, rupees 70,000 for loss of income and rupees 60,000 for traveling and attendance charges and rupees 20,000 as litigation cost. The appellant was further directed to deposit a sum of rupees 10,000 towards state Consumer welfare fund. Being aggrieved with the said order, this appeal follows on the ground that the impugned order was erroneous, misconceived and contrary to law and liable to be set aside.
The further case of the appellant is that the appellants as Ops to that case could not avail any opportunity to laid evidence as per provisions of sect 13(4) of CP act, 1986 and also contended that the Ops was not allowed to put questionnaires or to cross-examine the medical expert, though the ld. Forum has relied upon the decision on the basis of medical opinion. The appeal was registered in due time and the notice was sent to the respondent/complainant who has contested the case through Ld. Advocate.
The appeal was heard in presence of both parties through their Ld. legal counsels.
Decision with reason,
Admitted position is that Ramala Rai was suffering in gallbladder stone and said stone was operated by the appellants no. 1 in the medical centre of appellant no. 3. In post operation, she was suffering from acute renal failure post cholecystectomy sepsis hyper tension and for that reason, the patient was shifted to CMC Vellore for better management of treatment. Now, the question is whether the observation of the Ld. Forum about the negligence and service deficiency on the part of the appellants was justified or not?
During the course of hearing Ld. Advocate of the appellant Mr. C Chakraborty submits that in this case, one Ramala Debi was patient and in her life time her husband Dhendub Rai has registered the consumer complaint without having any authorization from the patient herself. The patient was 49 years age and she had the legal right to register a consumer complaint or had opportunity to authorize her husband to register the consumer complaint on her behalf but the same opportunity could not be availed on the part of the patient and for that reason the consumer complaint lodged by her husband Dhendub Rai was not entertainable and liable to be rejected. But Ld. forum has ignored this averment. In support of his argument, he referred two judicial decisions. 1. Ii (2013) CPJ 296 NC and 2. Ii(2008) CPJ 118, Punjab.
Both the judicial decision has categorically mentioned that when patient is alive and no document could be provided on record to show authorisation by patient to file complaint then the complainant is not a consumer and such type of compliant is not maintainable. Ld. Advocate of the respondent countered this argument by saying that this point was not raised by the appellant/ Ops during the course of hearing before the Ld. forum rather the wife of the complainant has already passed away and as a legal heir he has the opportunity to conduct the hearing of the case on behalf of his deceased wife.
After going through the case record very carefully, the commission find that at the time of registering the consumer complaint the wife of the complainant namely Ramala Rai since deceased was alive and there was no authorisation on her part to make an application before the Ld. forum to allow her husband as complainant to conduct the case. However, during the course of hearing before Hon’ble State Commission, Calcutta bench, the wife of the complainant was passed away and the case was remanded back to the Ld. forum for fresh disposal and at that point of time there was no scope on the part of the deceased Ramala Rai to authorize her husband to conduct the case on her behalf.
So, at this juncture there is no scope to disallow the consumer complaint on the ground that the complainant was not legally authorized to conduct the case. We know very well that facts cannot be altered by hundred texts. The finding of the Ld. forum was based on the medical evidence tendered by the complainant side by affidavit in chief but no evidence was tendered on the part of the OP/appellants. The Ops submit before this Commission that the OP/ appellant was not given sufficient opportunity to adduce evidence before the Ld. Forum.
It is further argued on the part of the appellants that the entire judgment of the Ld. forum based on the opinion of medical expert attached to NRS medical college and hospital. But the OP appellants could not get the opportunity either to cross-examine the medical expert on doek or to put questionnaires upon the said medical experts. After going through the judgment of Hon’ble State Commission, Calcutta bench in FA no. 712 of 2014 where a clear direction was there upon the Ld. forum to give opportunity to the parties to adduce evidence follows by questionnaires and reply. But here in this case, the observation and direction of the state Commission was not strictly followed on the part of the Ld. forum. Rather the process of adjudication seems to be incomplete one as because no evidence of OP could be recorded and the medical expert was not cross-examined or the Ops were not given opportunity to put questionnaires upon the experts. So, the order of Ld. forum apparently suffers from gross irregularity and liable to be interfered for the purpose of fair justice.
Hence, it is,
Ordered,
That the appeal be and the same is hereby allowed on contest without any cost. The impugned order of Ld. DCDRF, Darjeeling dated 27/10/2016 in CC no. 14/D/2012 is set aside. The case is remanded back to the Ld. DCDRF, Darjeeling with a request to give an opportunity to the appellants/OP to adduce their evidence by affidavit in chief and the complainant to put questionnaires upon the said evidence in chief of the OP and also Ops/appellant should be allowed to put the interrogatories upon the medical experts and after collecting reply of expert and after completion of process of recording evidences the, Ld. forum shall hear the case afresh and write a fresh judgment.
Both parties are directed to appear before the Ld. forum on 26/2/2020 for further proceedings of the case.
Let the order be communicated to Ld. DCDRF, Darjeeling by e-mail and the copy of this final order be supplied to the parties free of cost.
