HON’BLE MR. TARAPADA GANGOPADHYAY, MEMBER

This Appeal u/s 15 of the Consumer Protection Act, 1986 is directed by the Complainant assailing the judgment and order dated 19.06.2017 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas in C.C. Case No. 315 of 2014, dismissing the Complaint Case concerned on the ground of baselessness of the Complaint.

In respect of the same matter, an Appeal bearing No. A/1030/2015 was filed, which was disposed of by this Commission by Order dated 22.3.2017, remanding the matter to the Ld. District Forum concerned for passing a fresh order after due service of Notices to the parties concerned.  As per the said direction a fresh order was passed on 19.6.2017 against which the instant Appeal has been filed.

The brief facts of the case, as emerging from the materials on records, are that the Appellant/Complainant, being the patient concerned, got admitted to Respondent No. 1/OP No. 1-Hospital on 14.3.2014 with complaint of “severe pain in stomach”.  After admission, the Respondent No. 2/OP No. 2-Doctor, on perusal of the USG report dated 14.3.2014, diagnosed ‘Appendicitis’ and fixed 15.3.2014 for Appendectomy.  But Appendectomy could not be performed for failure of “Endotracheal Intubation” in course of anaesthesia.  After postponement of operation for failure of “Endotracheal Intubation” the patient suffered from acute throat pain for which the patient did not agree for operation in Respondent No. 1/OP No. 1-Hospital, and demanded release from the Respondent No. 1/OP No. –Hospital.  Accordingly, the patient was released from Respondent No. 1/OP No. –Hospital allegedly without handing over the “medical papers”.  It is alleged in the Petition of Complaint that the Appellant/Complainant had to suffer from “harassive as well as vindictive nature” of the Respondent No. 1/OP No. –Hospital and the Respondent No. 2/OP No. 2-Doctor.  With the aforesaid factual matrix the Complainant filed the Complaint Case concerned before the Ld. District Forum concerned which passed the order impugned dismissing the Complaint Case.  Aggrieved by such order the Complainant has preferred the instant Appeal.

The Ld. Advocate for the Appellant/Complainant submits that the diagnosis of “Acute Appendicitis” by the Respondent No. 2/OP No. 2-Doctor at Respondent No. 1/OP No. –Hospital appears to be incorrect as indicated by the “Impression” in the subsequent USG Report dated 6.5.2017, and that it indicates deficiency in service on behalf of the Respondent No. 2/OP No. 2-Doctor.

The Ld. Advocate further submits that the patient suffered from throat pain after postponement of operation, which also indicates deficiency in service on behalf of the Respondent No. 2/OP No. 2-Doctor.

The Ld. Advocate also submits that because of failure on the part of the Respondent No. 2/OP No. 2-Doctor, the Respondent No. 1/OP No. –Hospital is also vicariously liable.

The Ld. Advocate further submits that the aforesaid submission clearly indicates that the Ld. District Forum passed the order impugned without applying judicial mind.

The Ld. Advocate concludes that in view of the aforesaid submission the instant Appeal should be allowed, the order impugned be set aside and the Complaint Case concerned be restored.

On the other hand, the Ld. Advocate for the Respondent No. 2/OP No. 2-Doctor submits that the diagnosis of “Acute Appendicitis” was done on the basis of USG Report dated 14.3.2014 indicating “Acute Appendicitis”, and hence in the said diagnosis there was no deficiency in service on behalf of the Respondent No. 2/OP No. 2-Doctor.

The Ld. Advocate further submits that “throat pain” occurred due to failure of “Endotracheal Intubation” by the anaesthetist concerned and hence, in this issue also there was no deficiency in service on behalf of the Respondent No. 2/OP No. 2-Doctor.

The Ld. Advocate also submits that the Appellant/Complainant did not furnish all the necessary papers with malafide intention to keep the case in his favour and furnished the Complaint Case concerned for financial gain.

The Ld. Advocate adds that the Appellant/Complainant has not impleaded the anaesthetist concerned as a party, for failure of whom the Appellant/ Complainant suffered alleged throat pain.

The Ld. Advocate concludes that the Appellant/Complainant has not been able to establish deficiency in service and resultant medical negligence on behalf of the Respondent No. 2/OP No. 2-Doctor, and hence the instant Appeal should be dismissed and the order impugned be upheld.

Heard both the sides, considered their respective submission and perused the materials on records.

The ‘Impression’ in the USG Report dated 14.3.2014, on the basis of which the Respondent No. 2/OP No. 2-Doctor diagnosed Appendicitis, indicates “Acute Appendicitis”, and hence there was no deficiency in service on behalf of the Respondent No. 2/OP No. 2-Doctor.

The “throat pain” from which the Appellant/Complainant suffered, appears to have been caused by failure of “Endotracheal Intubation” in course of administration of anaesthesia by the anaesthetist concerned who was not made a party to the instant case, and in this issue also there was no deficiency in service on behalf of the Respondent No. 2/OP No. 2-Doctor.

The foregoing evidence clearly indicates that there was no deficiency in service and resultant medical negligence on behalf of the Respondent No. 2/OP No. 2-Doctor.

As there is no deficiency in service on behalf of the Respondent No. 2/OP No. 2-Doctor, so there was no vicarious liability on behalf of the Respondent No. 1/OP No. –Hospital.

The foregoing discussions and evidence on record clearly indicate that there is no irregularity or illegality in the order impugned and hence, the Appeal having no merit stands dismissed and the impugned order is upheld.