SAMIKSHA BHATTACHARYA, MEMBER
This is to consider the Interlocutory Application being No. IA/333/2022 filed by OP No. 2 praying for dismissal of the complaint with exemplary cost upon the complainant.
Ld. Advocate for the OP No. 2 has submitted that OP No. 2 has received the notice along with the copy of the said complaint on 24.10.2019 and came to know that the matter is returnable on 07.02.2020 before this Commission for filing the written version. The OP No. 2 has gone through the content and purport of the said complaint and advised to file an application under the provision of Section 26 of the CP Act, 1986 inter alia challenging the ground of maintainability. The entire allegations made in the complaint is frivolous, concocted and misrepresentation of facts. The complainant visited the clinic of OP No. 2 on 10.08.2016 for the treatment of injury and accordingly, he was attended by a qualified Orthopaedic Surgeon being OP No. 1 and it was written in the prescription that the complainant suffered injury prior to one month from the date of first visit before OP No. 2 and the OP No. 1 applied the treatment for the injury which was happened during the 1st week of July, 2016. The allegation made in the complaint is that due to wrong treatment of OPs No. 1 & 2, the complainant forced to admit himself in a Bangaluru Hospital (Manipal) travelling from Kolkata and as per prescription of the Manipal Hospital dated 07.09.2016, the complainant informed that he got the trauma one month back which falls during the period of August, 2016 and the said period is after the visit of OPs .
The complaint has alleged the deficiency in service while the treatment applied on the basis of X-ray report and the physical examination which was required at that point of time and therefore, the matter of deficiency of service cannot arise. The allegation of wrong treatment, if any, is within the domain of medical jurisprudence and the matter is exclusively within the knowledge of the Orthopaedic doctors to ascertain the deficiency. The content of the complaint application and terminology used in the annexure can only be analyzed by professional Orthopaedic doctors to define the medical terminology and to ascertain the course of treatment by OP No. 1. This Commission have the jurisdiction to adjudicate the matter which involves the deficiency of service and unfair trade practice but the instant complaint deals with such a matter which cannot be adjudicated by the Commission. The applicant may approach efficacious statutory Forum which is competent to deal with the instant case of alleged wrong diagnosis by the OPs. The OPs No. 1 & 2 rendered best possible medical assistance to the complainant. The service rendered by OP No. 2 does not come within the four corner of deficiency in service as defined in C.P Act, 1986. The case is barred by limitation since the cause of action arose on 25.04.2017 and from that date the statutory period of two years from the date on which the cause of action arose has already been expired as per provision of Section 24A of the C.P. Act, 1986. The complainant is not supported by any application for condonation of delay. The complaint has been filed with ulterior motive only to harass the OPs for unlawful gain from the OPs. The earlier treatment was not proper before the first visit on 25.04.2017. Therefore, the OP No. 1 has prayed for dismissal of the petition of complaint.
Ld. Advocate for the complainant has submitted that all the statements made in the Interlocutory Application is baseless with prayer being devoid of any merit. This Commission is the most efficacious statutory Forum to deal with the instant case. The OPs No. 1 & 2 wrongly diagnosed the case and the X-ray report was also incorrect. Moreover, the Ld. Advocate for the complainant has stated that the case is proceeding ex parte against the OP No. 2 who has no right or authority to file the said petition. All the allegations against the complainant stated in the Interlocutory Application denied by the complainant.
The Ld. Advocate for the complainant has further stated that the documents annexed with the petition of complaint are correct and true state of affairs supported by medical documents. The case is not at all barred by limitation. Therefore, he has prayed for dismissal of the present application.
Upon hearing the parties and on perusal of the Interlocutory Application and its objection thereto, it appears to us that the OP No. 2 has primarily prayed for rejection of the complaint case since there is no deficiency in service on the part of the OPs. But it is astonishing that in the four corners of the petition, the OP No. 2 has not stated specifically that there is no deficiency in service on their part. Whether there is any deficiency in service on their part or not that would be adjudicated at the time of final hearing. Moreover, the OP No. 2 has alleged that prior to first visit by the complainant before their clinic, there was wrong diagnosis but that is also without any concrete evidence and/or cogent document filed by OP No. 2.
The OP No. 2 has stated in the petition that this Commission is not competent Forum to adjudicate the medical matter. However, Section 2(1)(o) of the C.P. Act, 1986 provides the scope to deal with the matter relates to medical service.
Therefore, the statement made in the petition that this Commission cannot adjudicate the medical negligence case is not tenable in the eye of law. It is the option of the complainant, where he would approach for alleged medical negligence.
Apart from this, the other allegation of OP No. 2 that the case is ‘barred by limitation’. This plea of OP No. 2 also cannot be entertained since the OP No. 2 has stated in Para-15 of the Interlocutory Application that the cause of action arose on 25.04.2017 and it appears from the record that the instant case has been filed on 16.04.2019 by the complainant. Therefore, the case is filed within the statutory period of limitation. Moreover, the cause of action is bundle of facts.
The case is proceeding ex parte against OP No. 2. Therefore, the OP No. 2 has no locus standi to challenge the maintainability of the case.
In view of the above discussion, the Interlocutory Application being No. IA/333/2022 is dismissed on contest with CP cost of Rs.5000/- (Rupees five thousand) only out of which Rs.2,500/- (Rupees two thousand five hundred) only shall be paid in favour of the complainant and Rs.2500/- shall be paid in favour of SCWF within next date so fixed.
Fix 05.02.2024 for filing evidence on affidavit by the complainant.
To date for filing money receipt towards CP Cost of Rs.5,000/- as aforesaid by the OP No. 2.
The case is proceeding ex parte against OPs No. 2 & 3.
