This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that on 15.12.2013 the complainant was admitted in the Astha Nursing Home and gave birth of a female child and paid all the charges of the nursing home but on 18.12.2013 due to mis-management on the part of the opposite party the said child expired and the opposite party did not give proper services to the child and the opposite party admitted the mis-management of the nursing home authority by writing a declaration on the letter head of the nursing home on 18.12.2013 and in terms of talk of compromise held on 18.12.2013 the opposite party agreed to pay Rs. 2,50,000/- in total towards compensation and out of which the opposite party have paid Rs.1,00,000/- on 20.12.2013 to the complainant and the opposite party have also agreed to pay the balance amount i.e. Rs.1,50,000/- towards compensation to the complainant and on several occasions the complainant requested the opposite party to make payment but the opposite party turned a deaf ear to the request of the complainant and lastly on 27.2.2014 the opposite party refused to pay the balance compensation amount and harassed the complainant and finding no other alternative the complainant sent one Legal Notice to the opposite party through his Ld. Advocate on 27.2.2014 and after receiving the said letter the opposite party gave a vague reply through his Ld. Advocate and declined to pay the compensation amount and the cause of action of this case arose on 18.12.2013 and it continues every moment thereon.
Complainant filed the complaint petition praying directions upon the opposite party to pay sum of Rs.1,50,000/- as compensation and to pay sum of Rs. 50,000/- towards damages and harassment suffered by the complainant and to pay sum of Rs.30,000/- towards cost of litigation and to give any other relief/ reliefs which the complainant is entitled in law and equity.
The opposite party contested the case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party submits that the opposite party did not pay the amount of Rs.1,00,000/- to the complainant fairly and except to avoid the pandemonium and major damage of the nursing home also to save the life of the opposite party the said amount of Rs. 1,00,000/- was paid in favour of the complainant and the opposite party informed the matter to the Sabhapati Balagarh Panchayet Samity and local Balagarh P.S. and the opposite party had no capability for payment of Rs.1,50,000/- again in favour of the complainant and the amount of Rs. 1,00,000/- which was received by the complainant from the opposite party might have to be returned in favour of the opposite party and there is no cause of action for filing this case before the Ld. Forum and practically no fault of the part of the opposite party for payment of any compensation in favour of the complainant and on the other hand the complainant is duty bound to pay an amount of Rs.1,00,000/- which the complainant received on 18.12.2013 along with a rate of interest of 12% per annum.
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite party filed evidence on affidavit which transpires the averments of the written version so it is needless to discuss.
Complainant and opposite party filed written notes of argument. The evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite parties heard in full.
From the discussion herein above, we find the following issues/points for consideration.
Issues/points for consideration ISSUES / POINTS FOR CONSIDERATION
1). Whether the Complainant is ‘Consumer’ of the opposite party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the opposite party carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1). Whether the Complainant is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the opposite party, as the complainant being a patient took admission at the opposite party nursing home by paying appropriate fees for getting service in respect of her treatment, so she is entitled to get service from the opposite party as consumer.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite party are residents/having office address within the district of Hooghly. The complaint valued Rs.2,00,000/- for compensation, damages and harassment by the complainant ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The case of the complainant is that she took admission in the Astha nursing home situated at Jirat Hospital road, Ahammedpur, P.S.- Balagarh, Dist- Hooghly for delivery purpose and gave birth of a female child in the said Nursing home. That on 18.12.2013 the baby expired due to mismanagement on the part of the opposite party as the opposite party did not give proper service to the child of the petitioner. The complainant further averred that there is gross deficiency in service on the part of the opposite party for which she suffered mental pain and agony. The opposite party admitted the mismanagement of the Nursing Home authority by writing a declaration on the letter head of the opposite party. That in terms of talk of compromise the opposite party had agreed to pay a sum of Rs.2,50,000/- in total towards compensation to the petitioner. And a sum of Rs.1,00,000/- paid to the petitioner on 20/12/2013 and also agreed to pay balance of Rs.1,50,000/- towards compensation. According to the complainant the opposite party signed on the letter pad of the Astha Nursing Home and admitted that due to insufficiency of due care the child expired. It will reveal further from the said writing dt. 18.12.2013 that the rest amount of Rs.1,50,000/- would be paid by the opposite party on 20.1.2014 but days she began to pass but the opposite party did not pay the rest amount to the petitioner. The main consideration and boon of contention of this case is that whether the opposite party had any latches on the part of opposite party at the time of delivery and after the delivery when the petitioner was in the nursing home in the case of new born baby. It is the cardinal principal of Indian Evidence other alternative she filed the case when the opposite party refused to pay a sum of Rs.1,50,000/- within 20.01.2014. It is the case of the opposite party that out of pressure of the complainant & her family members that they paid a sum of Rs.100,000/- and also admitted that he did not pay a sum of Rs.150,000/- and no medical opinion was obtained or no P.M. was done over the body of the child. The petitioner further submitted that during the pregnancy period the physical condition of the petitioner was sound and there was no abnormality. After the delivery the condition of the baby was serious the Nursing Home authority on 18.12.2013 decided to call doctor on 19.12.2013. Then why the opposite party did not call the doctor on 18.12.2013 at the time of emergency condition of the baby which is clear deficiency and negligence on the part of the opposite party. Petitioner also stated that they did not lodge any general diary or complaint or FIR or court complaint case against the complainant and her family members. It is the cardinal principles of the Indian Evidence Act that when a document is prepared that is valid until or unless it is declared void by the court. After the institution of the complaint case the opposite party filed a money suit in the civil court but no stay order passed to restrain the complaint case. The complainant filed the complaint case before this Forum to get the remaining 150,000/- from the opposite party.
The opposite party in his written notes of argument averred that he is not the doctor and nowhere in the complaint petition it is stated that the baby died due to bad atmosphere of the nursing home or the doctor appointed by the opposite party. The cause of death of the new born baby had not ascertained by the doctor medically or no post mortem or any reason of death was opined by the doctor medically. The cause of death was imaginary without supported by any medical document or the amount which was received by the petitioner by organized mob stated ransacking the nursing home and on the point of threat of life and to save the nursing home from fire, instantly the opposite party paid Rs.100000/-. The said amount was received without ascertaining the liability of the opposite party relating to the death of the child of the petitioner. The opposite party also assailed that the common experience of the society as well as the medical science Neonats may die without any valid reason even in the developed nations. Sometimes it is obvious some medico physical shock of delivery the child may die without any obvious reason. Lastly the opposite party asserted that there is no deficiency of service or negligence on the part of opposite party and no definite act has been ascertained to fix the responsibility.
After perusing the complaint petition, written version, evidence on affidavit, written argument and the documents in the case record it appears that the complainant filed the case before this Forum against the opposite party for getting the due amount assured by the opposite party. It is not a case of medical negligence on the part opposite party nursing home. There is a specific allegation against the opposite party in respect of lack of treatment provided by the opposite party nursing home but no document has been produced by the complainant to substantiate that the opposite party failed to provide treatment for which the new born baby of the complainant died. From the face of the case record and documents it is transparent that the opposite party nursing home paid a sum of Rs.100,000/- to the complainant and agreed to pay Rs.150,000/- more for the compensation of death of the new born baby. From the version of the opposite party it is clear that the opposite party compelled to pay Rs.100,000/- immediately and also assured to pay Rs.150,000/- more under the pressure of the complainant and her family members and also to avoid the pandemonium and major damage of the nursing home and to save the life of the opposite party. But it is transparent from the case record that the incident of death of the new born baby took place on 18.12.2013 and the opposite party paid Rs.1,00,000/- on 20.12.2013 and assured to pay remaining Rs.150,000/- in the letter head of the opposite party. If the opposite party compelled to write in the letter head of paying Rs.150,000/- under the pressure of the family members and to avoid the ransacking of nursing home then why he failed to took the shelter of law before the appropriate court/ administration. The case record speaks that no complaint has been filed against the complainant before the concerned police station for investigation for the charge of coercion and undue influence. Rather the opposite party to avoid the court of law admitted his guilt in respect of negligence coupled with deficiency of service provided to the complainant. The opposite party after getting free oxygen for a prolonged period filed a money suit before the civil court. It appears from the Xerox copy of letter dated 18.12.2013 of the opposite party that the opposite party being the owner of the nursing home admitted that the impugned baby died due to lack of proper service of the opposite party and after discussion with the patient party he agreed to pay Rs.250,000/- towards compensation in presence of a few witnesses of both sides and he also agreed to pay the amount of Rs.100,000/- on 20.12.2013 and the balance amount of Rs.150,000/- will be paid on 20.01.2014. As a result the complainant after getting Rs.100,000/- as compensation did not file any complain before proper forum alleging the deficiency of service as the dispute has been settled amicably. The complainant approached several times to the opposite party for getting the balance amount but her effort comes into all in vain. Complainant served legal notice by her Ld Advocate. Lastly the complainant filed the instant complaint case before this forum for getting compensation and others as incorporated in the prayer portion of the complaint petition. After a careful consideration this Forum is in the opinion that the opposite party admitted his guilt and agreed to pay a sum of Rs.250,000/- in total to the complainant as compensation for the death of her child. The said opposite party paid a sum of Rs.100,000/- on 20.12.2013 but he declined to pay the balance amount of Rs.150,000/- for which the complainant getting no alternative preferred the recourse of this Forum. It is crystal clear from the case record and documents that the opposite party agreed to pay the compensation but subsequently declined to pay the balance amount and also filed a title suit against the complainant alleging that the document executed by the opposite party under the threat and using force so the document ought to be declared as void. It is a glare example of avoiding the payment of agreed amount by the opposite party. The opposite party cannot go beyond his assurance of paying the compensation as he admitted his guilt. The letter executed on 18.12.2013 is not declared void till date so this forum is in the opinion that complaint petition has sufficient force and deserved to be allowed with cost and compensation.
4).Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove her case and thus, opposite Party is liable to pay compensation & other reliefs as prayed for.
ORDER
Hence, ordered that the complaint case being No.82/2014 be and the same is allowed on contest against the opposite party, with a litigation cost of Rs.10,000/-. The whole gamut of the facts and circumstances leans in favour of the complainant. We, therefore, allow the complaint petition and Opposite Party is directed to pay agreed money of Rs.150,000/- to this complainant within 45 days from the date of order.
The opposite party is also directed to pay compensation amounting to Rs.20,000/- to the complainant for harassment and mental agony.
At the event of failure to comply with the order the Opposite Party shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.
