HON’BLE MR. TARAPADA GANGOPADHYAY, MEMBER
This Appeal u/s 15 of the Consumer Protection Act, 1986 has been filed by the OP assailing the judgment and order dated 30.7.2015 passed ex parte by the Ld. District Consumer Disputes Redressal Forum, Paschim Medinipur, in Complaint Case No. 25/2014, directing the OP to pay to the Complainant Rs. 2,50,000/- as compensation and Rs. 10,000/- as litigation cost within one month from the date of the order.
The facts of the case, as emerging from the materials on records, are that the minor daughter of the Respondent/Complainant met an accident on 11.10.2013 by a two-wheeler which resulted in an injury in the ‘left little toe’ of the daughter concerned. After such accident, the daughter of the Respondent/Complainant was taken to Midnapore Medical College & Hospital where an operation by means of ‘pricking a needle in the left little toe’ was done by Dr. A.Latif allegedly without x-ray and other tests. Thereafter the patient concerned was taken to Dr. Latif’s chamber on 14.10.2013 when Dr. Latif, examining no improvement in the toe, referred the patient concerned to CMRI where the left toe of the patient was amputated on 15.10.2013 on the ground of ‘gangrene’. With this factual background, the Complainant moved the Complaint concerned before the Ld. District Forum which passed the order in the aforesaid manner. Aggrieved by such order the OP has preferred the instant Appeal.
The Ld. Advocate for the Appellant/OP submits that no time for required treatment was allowed by the Complainant as it is evident from the fact that the patient party took away, against ‘DORB’ being the Risk Bond, the patient concerned on 11.10.2013 at 9.30 A.M. after operation at 9.00 A.M.
The Ld. Advocate continues that despite such half-an-hour stay for treatment in the hospital the Ld. District Forum erroneously observed in awarding compensation that the patient concerned stayed at the hospital concerned for three days.
The Ld. Advocate also submits that the case suffers from non-joinder of necessary party as the operating doctor was not made a party to the Complaint Case concerned.
The Ld. Advocate finally submits that CMRI, where the patient was subsequently referred to, did not mention any medical negligence in their treatment records.
The Ld. Advocate further submits that as the treatment in question was free of cost, so the complaint concerned does not fall within the definition of ‘Consumer’ and the ‘Complaint’ as well under the Consumer Protection Act, 1986. In this context, the Ld. Advocate refers to the following decisions:
- Indian Medical Association Vs. V.P.Shantha & Ors., reported in AIR 1996 Supreme Court 550, and
- Major Singh Vs. State of Punjab & Ors., decided by the Hon’ble National Commission in Revision Petition No. 4734 of 2012.
The Ld. Advocate concludes that in view of the aforesaid submission, the instant Appeal should be allowed.
On the other hand, the Ld. Advocate for the Respondent/Complainant submits that in the Memo of Appeal there is no prayer for relief, in absence of which this Commission cannot pass any order as is well-settled.
The Ld. Advocate also submits that amputation of ‘left little toe’ at CMRI has not been disputed by the Appellant/OP.
The Ld. Advocate concludes that in view of the aforesaid submission, the instant Appeal should be dismissed and the order impugned be affirmed.
Heard both the sides appearing, considered their respective submission and perused the materials on records.
The Memo of Appeal, as available on records, do not appear to contain any prayer of relief, in absence of which this Commission cannot suo motu pass any order without prayer.
It is well-settled by the Hon’ble Supreme Court in Fertilizer Corporation of India Vs. Sharat Chandra Rath & Ors., reported in AIR 1996 SC 2744, “…HC ought not to have granted reliefs to the respondents which they had not even prayed for…”.
Similar view was also taken by the Hon’ble Supreme Court in Krishna Priya Ganguly Etc. Vs. University of Lucknow & Ors. Etc., reported in AIR 1984 SC 186.
Another decision of the Hon’ble Supreme Court in Om Prakash & Ors. Vs. Ram Kumar & Ors., reported in AIR 1991 SC 409, is also relevant in this context.
The foregoing facts, observations and the decisions lead to the conclusion that the instant Appeal deserves dismissal and is dismissed accordingly and the impugned order is affirmed. No order as to costs.
