Both appeals bearing No. RBR/A/49/2018 and RBR/A/12/2019 was registered against the final order and judgment delivered by Ld. DCDRF, Uttar Dinajpur in CC No. 25 of 2015 dated 11.04.2018.

The Consumer complaint was filed by Gourango Das and others as heirs of deceased Sova Das against Dr. Sanjoy Seth on allegation of medical negligence and deficiency of service.

The complaint case as revealed from the pleadings are that the complainants are the legal heirs of the deceased Sova Da who died on 16.11.13 at about 9.50 a.m. at Sudha Nursing Home which is situated at Debinagar under the P.S. Raiganj, Dist. Uttar Dinajpur. The said deceased Sova Das was admitted to the said nursing home under the instruction and guidance of treating Dr. Sanjoy Seth who is the OP in this case. It is to be mentioned that Dr. Sanjoy Seth is a general laparoscopic surgeon and practicing at Ukilpara, P.O & P.S Raiganj and working as a Medical Officer at Raiganj District Hospital within the jurisdiction of this Forum. The O.P/Dr. Sanjoy Seth is a specialized Medical Officer. He runs his private medical clinic for running his professional medical advice at a different place including at Medicare, a medicine shop situated at Hospital more, Ukilpara, Raiganj and the said Dr. Seth is also working as full time M.O. at Raiganj District Hospital. From the petition and evidence, it is found that the O.P Dr. Sanjoy Seth used to send his patient whenever necessary to private nursing home under his direct treatment and his guidance including Sudha Nursing Home situated at Debinagar, Raiganj.

On 07.11.2013 the deceased Sova Das felt abdominal pain and went to private chamber of general physician namely Dr. Ashok Barmha, M.B.B.S for his medical advice. The said doctor advised her to undergo ultrasonography of the whole abdomen. As per advise of the said doctor, the said deceased came to  Bikshan Scan Centre Pvt. Ltd. situated at Ukilpara, Raiganj and conducted whole abdomen ultrasonography and the report was prepared by Dr.A.K.Ganguly, M.B.B.S, Kolkata, D.N.R.B, Kol., the consultant Radiologist. From the report of the ultrasonography, it is found that the deceased had Hepatomegaly with Fatty Liver. After perusal of the report, the said doctor advised medicines as mentioned in the petition of complaint.

Thereafter, all on a sudden on 15.11.2013 the deceased Sova Das again felt pain in her abdomen and as per suggestion of the family doctors and well-wishers, they decided to consult with respondent/ Dr.Sanjoy Seth being a specialized Doctor and went to his one of the chambers for taking his medical advice at Medicare, a medicinal shop. After physical verification of the patient with a medical history, the O.P Dr. Sanjoy Seth ordered to put her urgent and immediate admission at Sudha Nursing Home for suggestive Gall Bladder Stone operation and also asked to buy and carrying with all the prescribed medicine from the said medicine shop at once as per prescription upon his pad. At that time, the doctor opined that the previous ultrasonography report is not correct and all the treatment as she received earlier was wrong and everything will be alright after operating the Gall Bladder stone on the next day.

The deceased was admitted to the nursing home and as per prescription of Dr. Seth, medicines were purchased. At the time of purchasing medicine, injection "LB Cef" was provided instead of injection "L Cef. At that moment they again enter the room of the chamber of the doctor and informed the doctor about the mismatch of the name of the drug as per prescription. But at the time, the doctor replied them that the medicine namely "L Cef" and "LB Cef" is the same and identical drug and asked them to carry at the nursing home as the medicine supplied by the medicine shop is correct. At the same time the doctor told them that all other prescribed medicines/ drugs shall be provided by the nursing home and all cost shall be reflected in the final bill which has to be paid at the time of discharge. It is to be mentioned that except the above medicine, prescribed medicines which are 1) Injection Decolic (Im),2) Injection Ondem (Iv), West Bengal 3)Injection Calmpose (Im), 4)Injection Forturin (Im), 5)Injection Pentodoc (Iv) and 6) DNS: NS: RL Iv fluids.

After admission the nursing staff administered the prescribed medicines at once along with Iv Fluids combination of DNS: NS: RL (2:1:1) as per instruction of the doctor. But no relief came out. Rather, the patient became more vulnerable and her pain became unbearable. In the meantime, the O.P/Doctor came to visit the nursing home and examined the patient. After finishing the visit, the patient party asked the doctor about the condition of the patient. At that time, the said doctor replied that nothing to be worried and the patient will be fully well and fine in the morning. In the next morning, the patient party came to the nursing home and found that the patients both feet were roped with bed and the patient was semi unconscious. At that time, the nursing authority disclosed that the doctor was already called and the doctor will come very soon and at about 7.30 to 8 am, the doctor came to nursing home and started one by one injection intravenously well as intramuscularly. But no pain was subsiding. At that time the patient suffered heavy breathing problems. At that time the staff of the said nursing home pushed away all her family members under the instruction of doctor. After  few minutes, the doctor called the complainant No.2 and asked him to make arrange an ambulance as the patient is to be shifted to North Bengal Medical College and Hospital. Siliguri. After hearing such matter, the family members became perplexed. Within 20 to 25 minutes, they came with ambulance and found that all the nursing home staff has been running here and there and the doctor were trying to push the pipes into the mouth and nose of the patient and heavy bleeding came out from the mouth and nose of the patient and ultimately the doctor declared that the patient has already expired. On being informed, Raiganj P. S started one U.D.Case bearing No.314/2013 dt.16.11.2013 and one SURATHAL report of the above U.D case was prepared at Sudha Nursing Home. Thereafter the dead body was sent to Raiganj Hospital for Post Mortem. After releasing the dead body, the dead body was taken to Bandar cremation ground for last recital as per Hindu Rites and Customs. The dead body was Post mortemed at Raiganj Hospital by three doctors, but they are not at all forensic medical experts. From the petition it is found that, the doctor treated the patient recklessly for which the patient expired. Doctor should have considered the history of the patient before sending the patient to the nursing home and should have considered that the said nursing home is not facilitated with C.C.U, blood test, Serum amylase, Lipase test etc. The O.P/Doctor should have understood the chemical composition of the medicines prescribed by him where those medicines have any adverse effect or not. There was deficiency of service by the doctor for not applying the standard of professional competence which ought to have been applied by the doctor. The said doctor negligently caused breach of his medical professional duty being a specialized Doctor which resulting the cause of life of the deceased patient. The claimant has claimed Rs.19,90,000/- as compensation, Rs.9.999/- as litigation cost and any other further order.

The petition has been contested by the O.P/ Dr. Sanjoy Seth by filing the written version denying all the material allegations leveled against him contending inter alia that the petition is not maintainable in law and the case is bad for non-joinder of necessary parties. The complainants have not right to file the complaint case against the O.P. The definite defense case is that the deceased patient Sova Das came to the chamber of Dr. Sanjoy Seth on 15.11.2013 with history of acute pain in abdomen at about 9.40 p.m., as she was feeling acute recurring pain in the abdomen, but the patient was treated under various local quack doctor who advice the various medicines which was administered by oral route and also by intramuscular injection. At that time the patient party as well as the patient had no prescription from the any qualified doctor or specialized doctor. So, the doctor was in dark what medicine was given to the patient. The patient all over the day on 15.11.2013 was neglected for his recurrent acute pain and in the last evening and the night of that day she was taken to Doctor Seth referred from the local, quack doctor as her pain was not relieved. The further defense case is that if a patient having excessive pain and not obtaining the proper medicine with 24 hours, her progress of disease will be serious. The further defence case is that as per knowledge of Dr. Seth being a clinician and General Surgeon, the actual diagnosis may be missing in the USG report due to excessive GAS and he suggested to have a fresh USG report. The further defense case is that doctor also advised various blood test to reach the proper diagnosis such as Amylase Lipase was advised which mainly reflects the severity of attack at Pancreas. The further defence case is that the doctor after clinical examination/diagnosis that it is acute Cholecystitis (Gallstone disease or acute Pancreatitis). Fresh USG report shows the remedy is to operation of Gallstone. The doctor prescribed the medicines for the actual relief of the patient. The further defence case is that in the case of acute Colitis and acute Pancreatitis, the treatment of both the cases are mostly similar except the surgical intervention. The use of RYLE TUBE is required. ECG was also advised and the result recorded and the same was found within normal limit. The further defence case is that regarding clinical presentation of acute Pancreatitis as per Surgical books of Baily Love Page 1140 25 Edition the patient will be cardinal symptom of pain. Regarding the possible cause of acute Pancreatitis box 64.5 (Baily Love Page-1139). Gallstone is the first cause. So, the doctor consulted and prescribed may be the patient having biliarycolic due to Gallstone or having Pancreatitis for which any Amylase Lipase test is to be done. Further defence case is that as per management of acute pancreatitis and use of antibiotics, broad spectrum of antibiotics should have used early in the course of necrotizing pancreatitis. NASOGASTRIC TUBE is not essential but may of value in patients with vomiting LB-1142 (25 Edition). Sometime it helps the patient to subside the pain. Dr. Seth being a specialized doctor all through attended the patient and treated her with utmost care and the doctor was not at all negligent and advised them to take the patient to higher centre as and when by administering several antispasmodics the pain was not subsided. Upon such consideration the prayer made by the complainants are to be rejected.

The Forum after completion the hearing of the case in due process, come to an observation that the OP Dr. Sanjay Seth hand latches on his part in providing or rendering appropriate Medical treatment to patient Sova Das and due to negligent act of Dr. S. Seth, the patient breathed her last at Nursing home. So, an award for compensation was passed in favour of the complainants.

The OP Dr. S. Seth was not agreed with the findings and observation of Ld. forum and for that reason he registered the appeal bearing No. RBR/A/49/2018.

 The complainants were not satisfied with the quantum of compensation assessed assessed as per the ratio of the judgement of Hon’ble apex court in Kunal Saha case decided on 24.10.2013, both the appeals were registered at Kolkata Bench of State commission, W.B. Subsequently the appeals were reassigned here for disposal.

The two appeals as preferred against a Single Judgement and for those reasons both sides were agreed to hear the two appeals analogously.

The two appeals were contested by the counter sides of the case. The hearing was conducted through Ld. Advocates.

During the course of hearing the two appellants, the appellant of RBR/A/49 of 2018 filed a petition for additional evidences to be obtained through appointment of a medical expert which was strongly opposed by the counter side.

 The said petition was heard and it was considered that the contents and submissions of the Petition U/S 41 Rule 27 of CPC to be considered at the time of final hearing of the two appeals and the said petition also was heard during course in hearing of the two appeals.

Decision with reason

At the time of hearing Ld. Advocate of the appellant in RBR/A/49 to 2018 mentioned that the entire Final order of Id. Forum was based on surmise and conjecture where no solid evidence was there to hold that the appellant Dr S. Seth had any latches, fault or negligence at the time of rendering medical treatment of the deceased Sova Das.

 Ld. Advocate in support of his argument mentioned that before the start of treatment by Dr. Seth, the Patient wondered for treatment by quak (unskilled) doctor and Patient Party could not inform What Medicines was applied.

He further argued that Dr T.R. Bhuia (PW-3) has stated in his evidence that to treatment given to the Patient by Dr. Seth was right and appropriate and he further stated that Ryles tube faction was the Prime treatment in abdominal pains when admitted in hospital.

He further argued that all the evidences tendered in the trial of this case, it was nowhere established that the Medicines applied for the treatment by Dr. Seth was contra indicated.

It is further argued that the patient was treated by Pvt. Physician Dr. A Bramha Simen 07.11.2013 and when the patient was brought to Dr Seth at last stage on 15-11 9013 who had nothing to do.

He further mentioned that in this case, the expert opinion was not sought for and for that in appeal U/S 41 Rule 27 of CP Code to rebar the matter to any higher medical authority or board with ay relevant treatment documents and B.H.T. of the patient Sova Das to obtain an expert opinion, In reference to his argument he started that the Hon'ble Supreme Court, in a case viz. Ramesh Chandra Agarwal v. Regency Hospital Ltd. & Ors, reported in AIR 2010 SC 806, has held as follows:

"Since medical science is complicated, expert opinion provides deep insight the test is that the matter is outside the knowledge and experience of a lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court's knowledge. Thus, cases where the science is specialized and perhaps even esoteric, the central rule of expert cannot be disputed.

The Hon'ble Supreme Court in SK Jhunjhunwala-v-Dhanwanti Kaur, reported in AIR 2018 SC 4625, at paragraph 44, has held as follows: " To prove the case of negligence of a doctor, the medical evidence of experts in field to prove the latter is required."

The Ld. District Forum, Uttar Dinajpur however passed the Judgment/ Final Order on the basis of the allegations and evidences of P.W. 5 who admittedly is a layman having no knowledge of medical science.

It is stated and submitted that the original BHT (Bed Head Ticket) of Sudh Nursing Home, where the patient was admitted had been seized by the Raiganj Police, and the same was not be shown to any expert witness. The said BHT (Bed Head Ticket) is required to be shown to an expert to seek his opinion regarding the mode of treatment which was followed by the Appellant in treating the patient.

The law, like medicine, is an inexact science. One cannot predict with certainty an outcome of many cases. It depends on the particular facts and circumstances of the case, and also the personal notions of the Judge concerned who is hearing the case. However, the broad and general legal principles relating to medical negligence need to be understood,

"A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect."

"The subject of negligence in the context of medical profession necessarily calls for the treatment with a difference. There is a marked tendency to look for a human factor to blame for an untoward event, a tendency that is closely linked with a desire to punish. Things have gone wrong and therefore somebody must be found to answer for it. An empirical study reveals that background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equity it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor's contribution is either relatively or completely blameless. The human body and its working are nothing less than a highly machine. Coupled with the complexities of medical science, the scope of misimpressions, misgivings and misplaced allegations against which are different from the reality of how medical practice is carried on or how the doctor functions in real life. The factors of pressing need and limited resources cannot be on how the doctor functions in real life. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with the case medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make3 life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and the errors committed by chance, which do not necessarily involve the element of culpability.

Ld. Advocate of the Respondent in RBP/A/49/2018 and RBR/A/12/2019 as appellant countered the   Argument by mentioning that since very beginning, while treating patient, treating doctor ignored the case history of the patient.

 While this appellant (General and Laparoscopic Surgeon Raiganj District Government Hospital) examined the patient at his private chamber on 15/11/2013 at about 9 pm situated within one Medicine shop, not a policlinic, and while prescribed, "Exhibit 4", did not write history of complaints, did not write vital parameters as observed like Blood pressure, body weight etc, did not write his preliminary diagnosis, did not follow any medical ethics, and without any clinical diagnosis or blood tests related therewith, and most importantly without specific knowledge or clue of infection, prescribed veritable cocktail of high potency allopathic drugs, includes series of broad-spectrum wide ranging antibiotics used through intravenous with Iv fluids (DNS: NS: RL) as well as intramuscular without keeping in mind of serious fatal drug to drug interactions.

While writing drug names, without specific knowledge, in his first prescription "Exhibit 4", Injection LB Cef are not known to Medicine shop. neither found in market nor found in any web-based search engine Rather Tab LB Cef are found and composition founds as Cefixime (200 mg) + Lactobacillus (60 million spores). Whereas Injection L Cef which are provided by his medicine shop and subsequent affirmed by the doctor, composed as Ceftriaxone I.P. 1gm + Sulbactum Sodium U.S.P 0.05 gm.

 Soon after admission and starting all medicine as prescribed, pain increased, rather did not subside, but treating doctor continued with his earlier prescribed medicine. Patient suffered breathing problem. No oxygen or supportive breathing aids were given.

At the time of inserting Ryles Tube, massive injuries occurred and huge blood emerges from mouth and nose of the victim patient, which facts are corroborated in the Surathal report and dead body challan as made out by the Raiganj Police station vide Unnatural Death Case number 314/13 dated 16/11/2013 in West Bengal Form 5371 u/s 174 of the Cr.P.C, which is marked as "exhibit 11"

In support of his argument, he relies upon the Judicial decisions as follows: -

(1) WEBRE, Departed 2009 (2) CPJ 49

(2) Judge or Hon’ble S.C. dated 09.01.2013 in the case of A. SRIMANNA RAYANA Vs Dr. Santa kumari &others and Judges dated 08.03.2010 in V. Kisan Rao Vs Nikhil Super Specialty Hospital.

Id Adv. of the appellant in PBR/4/19/2019 mentioned that the Ld. Forum below, rightly, found gross negligence and latches of the treating Doctor cum Respondent, while treating the victim which causes death. And also rightly observed that when the Forum / Court finds the latches on the part of the doctor, there is no necessary to refer doctor or board of doctors per decision of Hon'ble Supreme Court.

But, while considering the amount of compensation, the Forum below, calculated the compensation amount as per Motor Vehicle Act, where in the respective portion of Final Order/ Judgment (pages 18, annexure A of the appeal petition) Ld. Forum below remarks/ noted as "According to Kunal Saha case, best method of calculation of compensation is on the basis of the schedule as prescribe in the Motor Vehicle Act.".

 The Kunal Saha case is a land mark Judgment as observed in the Dr. Balaram Prasad vs. Dr. Kunal Saha and others; [Hon'ble Supreme Court of India] before the Hon'ble Justice Chandramauli Kr. Prasad and Hon’ble Justice V. Gopala Gowda, decided on 24/10/2013) reported in 2014 (1) SCC 384, 2013 (4) CPJ 1, 2014 (4) WbLR 39, 2013 LawSuit (SC) 969.

 That the Ld. Forum below, while passing the order for determining the quantum of compensation, made error in law in considering the rules as followed in the M.V. Act (as noted in the pages 18, annexure A of the appeal petition) and did not consider the Ratio of the Judgment and/or misinterpreted the view as passed by the Hon'ble Apex Court in Kunal Saha's Case, land mark Judgment passed till this date in the medical negligence case.

That, the Ld. Forum below, while calculating the basis of compensation, where gross negligence by the treating doctor being proved which causes death to the victim, comparing with "compensation under no fault liability under Motor Vehicle Act" where it only stands for the loss of income of the victim only, but denial for Compensation towards mental agony and physical pain, is amounts to grave injustice and miscarriage of Justice in favour of the complaint/ appellant by the Ld. Forum below.

 That, the Ld. Forum below, while calculating the compensation, ought to have calculated the interest from the date of filling of this complainant, but the Ld. Forum below effected the order from the date of passing order, which is caused serious prejudice to your appellant.

At the end of argument in two appeals, Id. Advocate of the appellant in RBR/A/49/2018 vehemently and sincerely urged to refer the related documents along with B.H.T. to NBMCSH for obtain expert opinion through the provisions of under order 41 Rule 27 CP code and in support to his argument he referred the decision of Hon’ble Supreme Court in the case its Sanjay Singha vs the State of Jharkhand reported in (2022) AIR (S.C.) 1372.

After hearing the valuable argument canvassed by the Id Advocates of both end and on going through the PM. report, and Proscriptions and all Medical documents, it is established that if the Cyst has eroded into the stomach, there may be hematemesis, Malena, and bleeding in the Nasogastric aspirate and if the bleeding is not stopped Uttar Dinajpur District Fourier may be a shock. So, when there was bleeding the doctor should have taken care and should take necessary step to stop the hemorrhage but nothing was done on the part of doctor. So, definitely it was the latches on the part of the doctor.

The purpose of R.Tube/ Nasogastric Tube is to bring out the fluid so that the patient can get relief but from the P.M. report it is found that there was plenty of fluid, as such the R.Tube which was introduced did not work at all. If the R. Tube worked fully, then the fluid will come out through the R.Tube. From this act it is found that the R. Tube did not work due to latches of doctor.

From the prescription it is found that in the left side of the prescription there was no note regarding preliminary diagnosis by the doctor. It indicates that the doctor was in doubt about the preliminary diagnosis of the deceased!

The doctor was also in confusion whether it was colitis or Pancreatitis. The doctor should advise the patient for USG to ascertain whether it was of colitis or not. When the doctor on perusal the USG report was not sanguine as to the nature of disease whether it was colitis or Pancreatitis, he should advise the patient for undergoing USG. But the doctor without doing so, first treated the patient as Pancreatitis. In order to treat Pancreatitis, the test like amylase lipase is required.

 So, after consideration of every aspect of this case it has now established beyond any doubt that the Process of treatment, lack of care and Medicine prescribed to the treatment of the patient, Dr. Seth had latches and negligence attributed to the untimely death of Sova.

It is also established that method adopted by the Ld. Forum to assess the quantum of compensation was appropriate and justified one.

It is also established that though no formed expert opinion was obtained, yet sufficient medical evidence is there to hold the overall negligence on the part of Dr. Seth and for that reason no additional evidence U/O 41.R.27 are required.

Therefore, in our opinion no gross irregularity or error are detected in the Final Order of Ld. Forum.

Thus, the two appeals have got no merit.

                                                       Hence it is ordered,

 that the two appeals bearing No. RBR/A/49 of 2018 and RBR/A/12 of 2019 are hereby dismissed on Contest without any cost. The Final order of Ld. DCDRF, Uttar Dinajpur at Raiganj dated 11.04.2018 in CC No. 15 of 2015 is hereby confirmed.

If the Appellant (RBR/A/49 of 2018) who happens to be the Op. No. I of CC 25 of 2015 makes payment the quantum of award passed by Ld. Forum within 45 days from this day, he will be absolved from paying any interest over the awarded money as imposed by the Ld. Forum for his failure to comply the order in due time.

Let a copy of this order be supplied to the parties free of cost and the same to be communicated to the Ld. DCDRF, Uttar Dinajpur.