HON’BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT

       This appeal has been directed against the judgment and order dated 31-12-2015 passed by Ld. DCDRF, North 24-Parganas at Barasat in CC/40/2011, where Ld. DCDRF while disposing of the said complaint case dismissed it on merit and being aggrieved by such order of dismissal the present appeal has been preferred.

   Briefly stated, the case of the appellant/complainant (hereinafter referred to as the complainant), the wife of a poor milkman, fell sick with disease of uterus sometime in 2008, consulted her house physician Dr. A. K. Ghosh, and according to his advice she went to the OP/Swasti Diagnostic Centre on 22/12/2008 for examination of “Paritomeal Fluid for Cytology”. The collection of fluid took place on 22/12/2008, the report was prepared on 24/12/2008 and as per said test report the impression was raised as “Metastatic adeno-carcinomatous deposit in peritones exudates”. Thereafter the doctors advised for another test at the OP/Swasti Diagnostic Centre dated 30-12-2018 and the Histopathology test was completed and the Diagnostic Centre delivered another report and in the said report it was suggested that the complainant had been attacked by cancer. After getting such report, her husband took the complainant to Vivekananda Hospital and Research Institute on 03/01/2009 for treatment of the patient in the outdoor where after consultation of all the reports and relying upon those reports one Dr. Suman Gharai oncologist prescribed certain treatment and got the complainant admitted there on 07/01/2009 for chemo therapy. The complainant got herself admitted twice for application of chemo therapy and she had to purchase medicines of Rs. 10,909.12/- on 07/01/2009 and Rs. 10,907/- and Rs. 1175/- on 28/01/2009. After application of chemotherapy, as the complainant was not coming round, rather it was deteriorating day to day, the husband of the complainant finding no other alternative took the complainant to the Bombay Hospital and Medical Research Centre, Mumbai where the complainant/patient on further medical examination on receiving specimen, the Hospital authority informed the patient party by its report dated 06/02/2009 that “there was no evidence of malignancy”. On receipt of such report, the complainant got herself examined once again on 03/03/2009 by the Calcutta based Diagnostic Laboratory Drs. Trivedi & Roy which affirmed the report of Bombay Hospital and Medical Research Centre. Such reports of both the above noted Diagnostic Laboratories were also confirmed by Quadra Medical Services Pvt. Ltd. by a report dated 04/03/2009.      The complainant claimed that due to the reports of Swasti Diagnostic Centre dated 24/12/2008 and 30/12/2008 revealing by its report dated 22/12/2008, she had to suffer much for undertaking treatment of cancer at Vivekananda Hospital and Research Institute which amounted to deficiency in service causing physical pain and mental agony for which the complainant had to take recourse of the DCDRF concerned seeking compensation and other consequential reliefs.

       The OP/Swasti Diagnostic Centre appeared to contest the complaint case took adjournments for filing written version but ultimately it did not do so. The OP obtained liberty to argue at the concluding stage of trial but this privilege was not taken care of and the matter was heard exparte before Ld. DCDRF.

       Now the point for consideration is – whether Ld. DCDRF was justified in dismissing the complaint case.

       The complainant in support her claim produced documents with regard to the reports of Diagnostic Centre/OP no. 1 dated 24/12/2008 and 30/12/2008. It is alleged by the complainant at the behest of Dr. A. K. Ghosh, her family physician, the complainant took initiative for getting her test at the Diagnostic Centre of the OP and impliedly the OP promised to exercise proper care to test as per requirement but from the report of such test by the OP/Diagnostic Centre the complainant was diagnosed as “Metastatic adenocarcinomatus depsit  in peritoneal exuadates” which simply meant that the patient was suffering from a type of cancer at her uterus for which she had to take treatment of cancer at Vivekananda Hospital and Research Institute under one Dr. Suman Ghorai, oncologist where she was advised ‘chemotherapy’ and to administer medicines related to cancer. It is further case of the complainant that as she did not get proper result from the treatment under the oncologist she got further test at Bombay Hospital and Medical Research Centre, Mumbai where it was detected that the patient never suffered from cancer and it was reported that “there was no evidence of malignancy”. Such report of Bombay Hospital and Medical Research Centre, Mumbai was confirmed by two other Diagnostic Centres of Kolkata namely Drs. Trivedi & Roy and Quadra Medical Services Pvt. Ltd.

       The complainant claimed that due to wrong report of the OP/Swasti Diagnostic Centre, she had to suffer much physically, mentally and financially. Ld. Counsel for the appellant in course of hearing pointed out that OP/Diagnostic Centre though claimed itself to be the Super Speciality Referral Laboratory but due its fault his client had to suffer much as discussed earlier. He also urged that the OP never challenged the pleading of the complainant by filing any version nor it challenged the proof, as the complainant produced before Ld. DCDRF as documentary evidence. Since it is established that the wrong report given by the OP, which is claiming itself to be super speciality referral clinic, caused suffering of the patient, the DCDRF was not justified in declining her claim on certain untenable grounds. Regard being had to the facts of the case and considering the unchallenged testimony produced in favour of the complainant, we are of firm opinion that the complainant deserves reliefs in terms of her claim and the decisions as cited in the judgment impugned are not squarely applicable when the case of ‘deficiency of service’ is otherwise established.

        So far as the quantum of compensation is concerned the complainant claimed a sum of Rs. 1,70,000/- towards compensation and costs. It appears to us that the complainant produced receipt showing purchase of medicines of a sum of Rs. 10,909/- + Rs. 10,907/- + Rs. 1,175/- + Rs. 600/- for test by Drs. Trivedi & Roy and railway tickets showing to and from journey to Bombay etc. and upon consideration of the factual aspects and the costs incurred by the complainant, as indicated hereinabove, we are of the view that the compensation of a sum of Rs. 1,50,000/- would be sufficient to meet the ends of justice.

       Hence, we allow the appeal, set aside the judgment and order dated 31-12-2015 passed by Ld. DCDRF, Barasat in CC/40/2011 and direct the OP to pay a consolidated sum of Rs. 1,50,000/- to the complainant to be paid within 60 days from the date of the order. In default, the complainant shall be at liberty to recover such amount with interest @ 10% per annum from the date of this order till its realization in full. We do not like to impose any separate cost.