RBR/A/43/2018

This appeal has registered before this bench U/S 15 of CP Act, 1986 by one Dr. A.K. Gupta, attached to Hill Point clinic, Siliguri against the Final Order dated 23.02.2015 delivered by the Ld. DCDRC Siliguri, in CC. No 66/5/2009.

The Fact of the appeal case that in the year 2009, one Tilak Bahadur Tamang registered the instant consumer complaint against appellant (OP No.1 of consumer complaint) and respondents No.2 and 3(OP No. 2 & 3) U/S 12 of CP Act1986 with prayer of compensation on allegation of medical negligence reason behind the death of his wife Manjula Tamang who as a patient under the care of the appellant for treatment at Hill Point Clinic.

The fact of the case of the complainant in brief is that his wife with abdominal problem was admitted at Kurseong S.D. Hospital and the gall bladder operation of the patient was done on October, 2008 by Dr. Thondup Bhutia in Kurseong S.D. Hospital. After six months, from the operation date, the patient suffered severe pain due to trouble in her stomach. Dr. A. K. Baroi of Kurseong treated the patient on the first week of May. Under instructions of Dr. A. K. Baroi the patient was brought at Siliguri Ananda Loke Spiral CT Scan Clinic for CT scan of whole abdomen. From the report of the CT scan dated 04.05.2009 it was revealed that Kurseong S.D. Hospital the Gall Bladder was removed partially. Further, it was revealed in the CT scan that stomach appears normal.

           On 08.05.2009 the patient was examined by Dr. Arun Kumar Gupta and the patient was admitted in Hill Point Clinic for administering treatment. Then patient was suffering from jaundice with other complications i.e., vomiting, no-sleep, high colored urine and whole-body itching. Various pathological tests were done by OP No.2 under advice of OP No.1 Examination report dated 08.05.2009 was Creatinine level of the patient was 0.8 mg/dl. Blood Hemoglobin was 13.5 gm/dl. and total W.B.C count 5800 per cm. On 10.05.2009, the patient was again undergone of pathological tests which showed total bilirubin count was 2.12 which shows that patient did not recover from jaundice. The pathological report of the patient dated 11.05.2009 showed that hemoglobin level of the patient was 12.3 gm/dl, WBC count 4900 per cubic ml. and ESR 50 per mm square.

           The patient was operated on 11.05.2009 (lap cholecystectomy) when bilirubin count was 2.12 i.e., in spite of jaundice in the body of the patient, the operation was done. Oral feeding of the patient was started from the very next day of the operation. Within two days of operation the patient developed fever and was suffering from same. From 14.05.2009 the patient was complaining about severe pain in stomach with inflammation in the post operative drainage area and chest and right thigh. Some solid particles were found in the back which was connected through a tube inside the stomach. The OP No.1 did not get any information to the patient party regarding the condition, complication of the patient. Proposal to constituted medical board was not done by OP No.1. After operation the patient was unable to pass urine and stool on regular basis. She was under IV fluid and catheter for urine.

           It is also the complaint case that different tests were done as given herein under, but no successful result obtained by the OP No. 1.

           From 25.05.2009 the patient was partially unconscious and on 27.05.2009 the patient passed fistula black color which implied hemoglobin in GI tract. On 27.05.2009 in the evening OP No:1 prescribed that patient developed some serious complications. Hence, he referred the patient to CMC Hospital Vellore for better management.

             On 28.05.2009 in the morning OP No.1 issued a certificate that patient was fit to travel by air. In fact, overall health condition of the patient was very serious, entire body was swollen condition. The airport authority did not permit the patient to travel. In such helpless condition, the patient was admitted to Medica North Bengal Clinic, OP No.3. The patient party was told that condition of the patient was very serious and she was diagnosed from as suffering from post-cholecystectomy and septicemia in severe deviated condition in shock. On 05.06.2009 under general anesthesia pus blood other fluids, and huge amount intestinal contents were evacuated from the abdomen cavity. Dr. Nitish Das treated the patient by giving blood and other fluid under IV. The patient was eventually compelled to be kept in ventilator. It is further allegation that OP No.3 did not give any attempt to form medical board of specialist doctors for better treatment. Hence, it is stated in the complaint that the ingredients of negligence and carelessness are present in the above allegation and that the OP No.1 did not inform the deplorable conditions of the patient regarding preoperative and post operative complications and did not diagnosis. In a word, it is submitted that the doctors did not act with due care and attention.

     In fact, the complainant has further summarized their case as follows:-

1. The OP did not inform the patient party regarding pre and post operative condition of the patient.
2. Blood sugar was not tested on regular basis
3.  Serum creatinine was not kept normal.
4.  No Potassium was infused to increase potassium level.
5.  W.B.C. count on 25.05.2009 with 92% neutrophile count indicates about very serious infection
6.  Not a single unit of blood was infused in the body of the patient by OP No.1.
7.  OP No 1 did not make any arrange for medical board consisted by specialist doctors.
8. Peroration in the incisional area caused duodenal fistula at the time of fitting for ceiling the bleeding source
9. The patient in spite of having serious condition acute septicemia OP No. 1 issued certificate for travel which is another point of negligence.

             Accordingly, it is alleged that all the doctors and all the OPs are responsible for the cause of death by omissions and negligence.

              All the Op’s has contested the case by filing separate W.V.

              The appellant (OP No.1) in W.V. contended that since the patient was suffering from obstructive jaundice, there was no other alternative, but to operate her. In Gall stone disease, laparoscopic cholecystectomy in short chole is the gold standard and is preferred by all surgeons the world over. The patient was operated with due care and caution. The infection is very uncommon in lapcholey cases around drainage side. So, there was pain and fever to control the spreading of infection strong antibiotic was given. A drainage tube was given in abdominal cavity, to monitor the internal organs which septic measure used by all surgeons. No second operation was done. On 18.05.2009, Only cleaning was done around the infected portion.

The patient was kept in a cabin and always accompanied by her two relatives. The doctor attended the patient every null and then and they were informed every development. The patient was diet normally and was passing urine and stool normal. On his own accord, the OP No. 1 called for Dr. R. Saha, MD (Medicine), and Dr. (Mrs.) S. Halder. Dermatologist for examining the patient. The organism causing infection was a virulent one and was rapidly getting resistance to the antibiotic. As such medicines were changed regularly.

Sugar test was done regularly. Sugar was never normally. The creatinine level of which normal range is 0.5 to 1.2 mg/dl, and creatinine of the patient was always normal. Intravenous and oral potassium were regularly infused on 17/5/09, 18/5,21/5,22/5,25/5/2009, "WBC count on 25.05.2009 i.e., after 17 days of treatment with 92% neutrophil count indicates about very serious infection". The OP No.1 agreed with this allegation that there was serious infection and several strong antibiotics were given to control it. Further case of OP No.1 is that the patient developed a hematemesis and Millenia on 28.05.2009 and diagnosed to be suffering from Hypo heroism. As per desire of patient party, OP No.1 referred and released the patient for treatment in C.M.C. Vellore.

It is also further case of the OP No.1 is that patient party booked three sitting air tickets to travel to Chennai. They were boarding at Bagdogra Airport were disallowed. Again, ticket was booked on 30.05.2009, but after returning from Bagdogra Airport the patient was admitted to Nivedita Nursing Home Pvt. Ltd. at Pradhan Nagar on 29.05.2009 under Dr. B.K. Baidya. Later she was discharged and got her admitted in N.B. Clinic. In para no 20 OP No. 1 opined after eyeing case reports of North Bengal Clinic on 30.05.2009 that patient was not serious and patient was not suffering from septicemia. The summation of answers of paragraph 24 of complainant this doctor states that patient and her relatives were informed regarding the disease and complications of disease that all care and precautions were taken, sugar was normal, Potassium were given as per need, sensitive antibiotics were given as per culture and sensitivity test, blood was given on 28.05.2009. Dr. Saha and Dr. (Mrs.) S. Halder were called for by OP No.1 and they examined the patient. OP No.1 further states that there was no hit injury in the abdomen after operation on the date of operation, the patient was normal and lastly OP No.1 issued the certificate at the behest of patient party after due consideration of the patient's condition. Accordingly, the complaint is misconceived as there was no negligence and deficiency in service on his part. The complaint be dismissed with compensatory cost in his favour.

The positive case of OP No.2 is as follows:

 Regarding increase of creatinine level, decrease of potassium level, and neutrophil count, all shows that there was serious infection, and to control the infection several strong antibiotics were given. The blood sugar was normal. Potassium level was kept normal. Now and then, the patient party had been informed regarding condition of the patient and her treatment Blood was infused on 28.05.2009. Though, strong antibiotics were given. but the patient did not respond to the same. On the relevant date OP No.1 made discharge certificate at the request of the patient party and after due consideration of the patient condition. There was no negligence and deficiency of service on the part of the OP No.2 in the petition deserve to be dismissed.

The positive case of the OP No.3 is that the patient was admitted in North Bengal Clinic with very serious condition. She was diagnosed as suffering from post-cholecystectomy septicemia in severe condition. The patient was unable to check up to Chennai.

The claim of complainant against OIP No.3 is not sustainable in fact as the patient was admitted with severe condition when the airport authority refused to carry the patient to C.M.C. Vellore.

Ld. Forum after recording the evidences and after obtaining the medical expert report, completed the process of hearing as per provision of Sec.13 of CP Act, 1986 and delivered the impugned order which has challenged in the appeal on the grounds incorporated in Memo of appeal.

The appeal was registered before the Kolkata Bench, where it was admitted on merit after condoning the delays. The notice was sent to the respondents while only respondent No.1 (complainant) has contested the appeal.

The appeal case was re-assigned here for hearing and disposal.

Ld. Legal counsels of appellant and respondent No.1 has conducted the hearing of the appeal on merit before this bench.

During the hearing stage of this appeal, the appellant filed a petition U/O 41 R, 27 of CPC, for additional evidences to be brought by calling Dr. Bitan Chattopadhyay as witness who happened to be the chairperson of the medical board constituted by the NBM & H when Ld. Forum has sought for expert opinion.

During the trial before the Ld. Forum, the appellant (Op No.1) furnished questionaries for reply form said Dr. B. Chattopadhyay, but instead of dr. Chattopadhyay one Dr. N. Mukherjee, answered the questionaries who was not the member of medical board.

After hearing both sides of that intercountry petition, this bench decided that the prayer of the appellant U/O 41 R-27 CPC to be considered at the time of Final hearing of the appeal.

So, along with the hearing of appeal on merit, the petition U/O 41 R -27 is also considered.

                                                           Decision with reasons: -  

     During the course of hearing, Ld. advocate Mr. U. Mitra and Mr. B. Saha on behalf of appellant canvassed the valuable arguments on merit of the appeal along with the legal aspects with citations of judicial decisions of Hon’ble Upper Legal Forums.

Ld. Advocate Mr. A. Chakraborty countered the arguments of the appellant on behalf of respondent No.1 Respondent No. 2 and 3 has not participated in the hearing.

Having heard the Ld. Counsels of both sides the Factual aspects of the dispute has come into the with light that one Manjula with severe abdominal pain and was admitted at S. D. Hospital Kurseong where Dr. T. Bhutia operated the gall bladder stone in Oct, 2008 of Manjula, partially.

On May, 2009 the patient Manjula again started to suffer from stomach pain and one Dr. A. K. Barui of Kurseong, medically treated the patient for couple of days and there after Dr. Barui advised the patients had to have a C.T. Scan on 04.05.2009 and it was detected that at Kurseong hospital the Gall Bladder was removed partially. The patient was brought to Hill Point Clinic on 08.05.2009 where after examination by Dr. A. K. Gupta(appellant), Manjula was admitted in that nursing home for treatment to remove the complications of Vomiting, high colored urine, whole body inching, underage abdominal Pain. From Jaundice. Some pathological tests and treatment were continuing in that nursing home.

After conservative treatment the symptoms of Jaundice subdued and bilirubin level come down.

 On 11.05.2009 Dr. A. K. Gupta operated Laparoscopically. After post operation clinical investigations, it was found though Bilirubin level came down to 1.38.mg on 12.05.09 and 1.45mg on 13.05.09 the neutrophil count attained 89% on 12.05.09, 76% on 17.05.09 with a Total Leukocyte count more than 12000 on 12.05.09 and more than 10000 on 17.05.09 suggestive of Septicemia. The ultra Sono Graphy on 18.05.09 suggested evidence of Cellulits of abdomen with collection at right parietis which the Surgeon drained and debrided on 18.05.09 under General Anesthesia but again patient continues to have the features of Septicemia as evident by WBC count of more than 15000/cm m and Neutrophil count of 92% on 25.05.09 and appearance of Hemetemesis and Malena on 28.05.09 suggestive of probable Coagulopathy following that Septicemia inspite of giving expensive and broad spectrum Antibiotics.

The condition of the patients become serious and an attempt was taken to shift her to C.M.C., Vellore at Tamil Nādu to save her life and Airport authority did not allow to travel in air with the patient as her condition was so serious on 29.05.2009 as her post operative Septicemia in severe debited condition in shock.

Return from Airport the patient was shifted to N.B. Clinic (OP No.3)   where as last attempt Dr. N. Das under general Anesthesia on 05.06.2009, pus, blood, other fluids and other fluids with huge quantity of intestinal contents were evacuated from the abdominal cavity. But, ultimately the patients Maujula passed away on 13.06.2009 for post Cholecystectomy severe septicemia shock.

Ld. Advocate of the appellant mentioned during the treatment of the patient by Dr. Gupta (appellant) at Hill point clinic from 08.05.2009 to 29.05.2009, Patient and her relatives were informed that complications like infection can arise, which may not be under the control of treating doctors. Diagnosis was very evident and conveyed regularly to the patient party.

All care and precautions which were necessary were taken. If any collection happens in abdominal cavity it has to come out through the drainage tube. It is stated that there were no food particles, which is borne out by document nos. 49 A and 49 B, filed by the Complainant."

Though the patient had no history of Diabetes, after the Appellant Nos. 1 and 2 did blood sugar testing several times (CBG) but sugar was never beyond normal value (CBG on 08.05.09, 11.05.2009, 22.05.2009; blood sugar on 08.05.2009, 10/5/09) even in Medica North Bengal Clinic the patient's blood sugar was normal. It is stated that a non-diabetic patient is not required to be tested for sugar every day.

The normal range of creatinine is 0.5 to 1.2 mg/dl, and her creatinine level was always within normal range. This is quite evident from document nos. 5 & 14 A filed by the Complainant."

Both venal, and oral potassium were given as per requirement of the patient. Intravenous and oral potassium were regularly infused, on 17.5.09, 18.5.09, 21.5.09, 22.5.09 and 25.5.09.

It is accepted in medical science that it was a serious infection and several very strong antibiotics were given (i.e., antibiotics which were sensitive were given, as per culture and sensitivity tests) to control it, but the patient did not respond properly.

Dr. R. Saha (MD) and Dr. S. Halder (Dermatologist) were called, both of whom examined the patient. The Appellant no.1, has done MBBS, MS and he has a Certificate in Laparoscopic Surgery. In between 1993 to 2009, the APPELLANT no.1 has done several hundred conventional (open) operations. And in between 1998 to 2009, the APPELLANT no.1 has performed more than 15,000 (fifteen thousand) Laparoscopic surgeries. Hence, it is emphatically denied that he was not sufficiently skilled. USG done on 12.05.2009(Document nos. 8A and 8B) and on 18.05.2009 (Document nos.13A and 13B) clearly mentions that there were no food particles or intestinal contents in the abdominal cavity.

That the Complainant had submitted a complaint to the SP, Darjeeling, who asked the CMOH, Darjeeling, to enquire about the matter. The CMOH, Darjeeling, constituted an Enquiry Committee of a team of doctors to enquire about the matter.

Thereafter by his Memo, bearing no.1611/CMOH, Darjeeling. dated 28.10.10, asked the APPELLANT no.1 to submit a reply. The Enquiry Committee also visited the APPELLANT no.2, Nursing Home, seized the BHT and other documents and after thorough enquiry found that there had been no negligence or deficiency in service on the part of the APPELLANT nos. 1 and 2.

The set of questionnaires framed for the expert/s, who had given opinion, i.e., Dr. Bitan Chattopadhyay were replied by a different doctor, i.e., Dr. Narendra Nath Mukhopadhyay. It is therefore stated and submitted that the person who had given evidence (Dr. Bitan Chattopadhyay) has not replied to the questionnaires and as such the entire judgment of the lower forum, which is based on evidence of Dr. Bitan Chattopadhyay is vitiated.

The Committee constituted by Dr. Bitan Chattopadhyay was not only of arbitrary nature but also did not consist of any specialized doctors having a post graduate degree of Medicine or any other relevant department, rather the Committee included Dr. Bitan Chattopadhyay himself, a Doctor from the Forensic Department and another Associate Professor from the Department of Surgery. It is pertinent to mention here that there was no requirement of any expert from the Department of Forensics, since the body of the deceased was not sent for post-mortem examination.

The above-mentioned doctors who formed the Committee could not be called for any Cross-Examination, which is why it is not clear as to what papers were made available to them and on what basis did, they give their expert opinion.

In support of their submissions, Ld. Advocate of the appellant relies the following Judicial decisions: -

1. 2005 CC.L.J. 3710(S.C) Jacob Mathew case.
2.  AIR 2002 S.C.2931. J.J. Marchant case.
3. 2009(11) CPS 48(S.C)
4. AIR 2019 S.C. 1143.

Ld. Advocate of the respondent No.1 at the time of his turn mentioned that the patient was operated (Lap Cholecystectomy) on 11.05.2009 having the symptom of jaundice (Bilirubin count was 2.12) and high ESR. It is very pertinent to submit here that the O.P. No. 01 was very keen for the operation and therefore the patient was hurriedly operated without giving proper care and time to her physical condition.

That the patient was not given proper post operative care even after suffering from different critical complications. That oral feeding of the patient was started from very next day of operation. Within two days of operation the patient developed fever and was suffering from same. On 14.05.2009 the patient was complaining about severe pain in stomach with inflammation in the post operative drainage area, chest and right thigh. On inspection the family members of the patient found some solid particles in the bag which was connected through a tube inside the stomach. The matter was immediately informed to OP. No. 01 but he did not give any importance about the matter. On 18.05.2009 i.e., after 07 (seven) days of the first operation the patient was again operated under GA but did not show any improvement.

That the patient party kept on asking O.P. No.1 to inform them about the actual position of the patient but the O.P. No. 01 never apprised them about the actual complication of the patient. The patient party requested O.P. No. 01 to arrange for medical board with specialist doctors but no such arrangement was done.

That after the second operation the inflammation subsided but after two days again inflammation was seen and this time it was very significant and was present almost in the whole body. During this period several pathological and other investigations of the patient was done by O.P. No. 01 but surprisingly inspite of deteriorating situation of the patient no specialist was consulted.

The following irregularities or negligence is very much evident from the above analysis:

1. Blood Sugar was not tested on regular basis.   
2.  Serum Creatinine level kept on increasing but no appropriate action to arrest such increase was done by the O.P.S.
3.  It is also clear that inspite of decreasing Potassium level no Potassium (LV) was infused (given) to the patient. 
4. WBC count on 25.05.2009 (i.e., after 17 days of treatment) with 92% d Neutrophil count indicates about very serious infection/Septicemia.
5. No specialist was ever consulted.

That from 25.05.2009 the patient was partially unconscious and on 27.05.2009 passed stool of black color which implies hemorrhage in G.L (Gastro-Intestinal) Track. On 27.05.2009 evening OP. No. 01 suddenly informed the complainant that the patient developed some serious complication hence needs to be transferred to C.M.C. Vellore immediately for better management.

That on 28.05.2009 morning the O.P. No. 01 issued a certificate certifying that the patient is fit to travel by Air and also admitted therein that the patient developed some complications after operation done by him. It is very pertinent and necessary to submit here that on 29.05.2009 the patient was almost unconscious suffering from breathing trouble, her overall health condition was very serious, her entire body was in swollen condition, and she was not allowed by the airport authority to travel therefore having no other alternative in a helpless condition she was admitted to Medica North Bengal Clinic (O.P. no. 03).

 That during admission in Medica North Bengal Clinic (O.P. no. 03) under Dr. Nitish Das it was told to the patient party that the condition of the patient was very serious and she was diagnosed as suffering from post-cholecystectomy Septicemia in severe debellated condition in shock.

 That after necessary investigation they found that the abdominal cavity is highly filled up with foreign particles therefore on 05.06.2009 under General Anesthesia (G.A.) pus, blood, other fluids and huge quantity of intestinal contents were evacuated from the abdominal cavity.

The patient Manjula Tamang died on 13.06.2009. Death certificate of the patient also states that the patient was suffering from post-Cholecystectomy severe septicemia shock.

The opinion of the expert doctor Dr. Narendranath Mukhopadhyay Professor and Head of the Department General surgery of North Bengal Medical College and Hospital in his opinion clearly mentioned that there was a small perforation in duodenum during the operation. - "Duodenal injury/fistula in this case may be due to injury to duodenal during dissection of gallbladder". It is also mentioned that source of intestinal content in the abdominal cavity is from duodenal fistula in this patient. The fistula was not controlled and that is the reason for huge intestinal content."

Expert Dr. Narendranath Mukhopadhyay in his report mentioned that Gall bladder adherent to Duodenum. During the course of operation dissection of Gall bladder from the duodenum, in presence of dense adhesion, was done carelessly and in negligent manner which resulted perforation in the intestinal area causing duodenal fistula. Due to such perforation intestinal contents came out of intestine and got deposited in the abdominal cavity which resulted into acute infection resulting to septicemia to the patient for which the patient ultimately expired but the O.P. No. 01 did not take any serious step to control the same it is very pertinent to submit here that it was mentioned in the Scan report dated 04.05.2009 that 'STOMACH APPEARS NORMAL".

That the O.P.s are guilty of professional negligence having shown gross lack of competency, gross inattention to the patient and selection and application of the medical treatment and remedies. The O.P.s have thus undoubtedly acted in a rash and negligent manner. It is submitted that the O.P.s owed the patient and the complainant a duty to confirm to a particular standard of conduct in rendering proper and specialized treatment and the O.P.s have derelict and breached that duty as a consequence whereof the respondent/ complainant has suffered and lost the patient. It is further submitted that the conduct of the O.Ps as aforesaid was the direct and proximate cause of agony/pain suffered by the respondent/complainant.

After hearing both sides it is revealed that after post operation of the patient by the appellant, the Ultra Sono Graphy done on 12.05.2009 as also on 18.05.2009 does not reveal any obvious abdominal collection, but Dr. A. K. Gupta himself suspected of Duodenal Fistula.

Total leukocyte counts more than 12000 on 12.05.2009 and more than 10000 on 17.05.2009 suggestive of Septicemia. The ultrasonography on 18.05.2009 suggested evidence of cellulits of abdomen which was drained under General Anaesthesia but again patient continues to have the features of Septicemia as evident by WBC count of more 15000/cmm and neutrophile count of 92% on 25.05.2009 and appearance of hematemesis and malena on 28.05.2009 suggestive of probable Coagulopathy".

"At that stage Dr. A.K. Gupta unfortunately referred the patient to faraway C.M.C., Vellore than to consult the locally available competent specialists to opine about the patient’s management". So, Dr. A.K. Gupta and OP No.2 failed to take appropriate steps to regulate the infections on the body of the patient. OP Nos. 1 & 2 have unfortunately done great mishap by referring the patient to faraway C.M.C., Vellore. Not only that Dr. A.K. Gupta has done serious damage to himself by certifying that the patient was fit to travel by air. Later on, the patient was admitted to Medica North Bengal Clinic, when the patient was counting her last days. The doctor made operation only to save the life of the patient, and patient died ultimately.

The expert committee was of opinion that "in any case the attending clinician must interact and share the information regarding the patient’s clinical condition as thoroughly and honestly as possible on a regular basis, which the committee feels, Dr. A.K. Gupta possibly did not carry out.

 Ld. Forum had the observations that the appellant and OP No. 2 had absolute fault of negligent acts on the world forever, this observation was based upon the facts and circumstance as well as the report of medical experts which has corroborated the allegations of the complainant (respondent no. 1) about such medical negligence.

It is questioned on the part of the appellant that the Medical Board constituted by Dr. Bitan Chattopadhyay, for giving his report dated was constituted arbitrarily as because the said Board consisted of Dr. Bitan Chattopadhyay himself, a Doctor from the Forensic Department, and another Associate Professor of the Dept. Of Surgery. But no doctor having post graduate degree of Medicine and skin or other relevant department was included in the said committee. It is stated that since the body of the wife was not sent for post mortem the inclusion of HOD, of Forensic Medicine, was uncalled for. Moreover, as the said doctors were not called for cross-examination it is not clear as to what papers were made available to them, and on what basis they gave their opinion.

It is further contended that Dr. Bitan Chattopadhyay, the head of expert committee has tendered his evidence while the appellant (OP No. 1) during trial rather, when interrogatories to the evidences of Dr. Chattopadhyaya was sent for reply, instead of him one Dr. N. Mukherjee replied the same while Dr. Mukherjee was not connected in the board of giving expert opinion.

So, the process of adjudication of the Ld. Forum was erroneous defective unwarranted and the appellant should be given fresh opportunity to reopen the case and to bring additional evidence.

It is further contended that in reference to a criminal case of medical negligence U/S 304 A IPC, CMOH, Darjeeling has constituted an enquiry committee who found no medical negligence on the part of OP No. 1 & 2. So, the said report of CMOH Committee is vital to unearth the truth.

After considering all aspects it is observed that Ld. Forum has rightly adjudicated the dispute as in apparent, there was gross negligence on the part of appellant and respondent No. 2 as the principle of RES IPSA loquitur which has matured into a rule of laws in some cases of medical negligence where negligence is evident and obvious. The development of post operational septicemia of patient Manjula since 13.05.2009 due to carelessness of attending physicians.

The finding of CMOH Committee in a criminal case is not relevant to a summery procedure in Consumer court. The expert committee was constituted with competent medical experts. The OP (appellant) never approached before the Ld. Forum to call the said experts a dock to challenge their observations.

So, the overall view of this bench is that the Ld. Forum has rightly adjudicated the dispute in prudent manner and no gross irregularity could be discovered during the course of hearing the appeal.

Now the next question to be answered weather the quantum of award fixed by the Ld. Forum was justified or not.

Ld. Forum has asked the appellant (OP No.1) to make payment Rs. 16,000,00/- (sixteen lakhs) to the complainant for his professional and medical negligence.

Ld. Forum further directed the appellant (OP No.1) to make jointly payment with OP No. 2 Rs. 1,50,000/- for compention on account of agony, loss of consortium.

The Ld. Forum has imposed this severe and excessive liability upon appellant on the ground that for his medical and professional negligence a woman of 38years in age has passed away leaving husband and children who has deprived in getting companions of the deceased.

The complainant claimed the amount of compensation taking the plea that his wife since deceased Manjula was a working lady. But no documents /evidence is there to hold that she had any separate and independent earnings.

Such huge amount Rs. 16,000,00/- as imposed upon the appellant appears to be excessive having no rationality, that amount should be reduced to Rs. 7 lakhs only.

The appellant has also a joint liability to pay Rs. 1,50,000/- to the complainant as compensation for mental pain and agony. So, the contribution of the appellant in that amount confines to Rs. 75,000/- which is appreciable. Ld. Forum did not pass any order of litigation cost, though the complainant has fought an uneven long legal battle since, 2009.

Other wise there is no necessity to go on any interference in the order of Ld. Forum but requires some modifications.

                                                           Hence, it is ordered

That the instant appeal be and the same is partly allowed with contest without cost subject to modification of the order of Ld. Forum dated 23.02.2015.

The final order of Ld. DCDRF, Siliguri dated 23.02.2015 in CC No 66/5/2009 is hereby modified to the effect that the appellant (OP NO.1) is here by directed to make payment Rs. 700,000/- instead of RS. 16,00,000/- for medical and professional negligence, Rs. 75,000/- as compensation for mental pain and agony and Rs.25000/- as litigation cost to the complainant within 45 days, if the appellant makes the said payment in due time no interest will be carried on. The other ordering portion of the final order of Ld. DCDRF, remains intact.

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