The record is placed before us for passing final order.

                   This is a complaint u/s 12(a) of the C.P.Act 1986.

                   Complainant’s case in short is that he got himself admitted in the surgical ward of Sadar Hospital Jalpaiguri on 24/07/13 due to pain in his stomach. His attending doctor Rahul Bhowmik  advised for USG of his whole abdomen. On 25/07/13 the complainant went to the diagnostic centre of O.P.1 where he was examined by O.P.2 and he paid Rs.900 to O.P.1 for USG of his whole abdomen. The USG report o-f the  whole abdomen of the complainant is marked as annexure 2. It is alleged by the complainant  that the USG report(Annexture2) never disclosed that the complainant was suffering from any ailment of Appendix. On the following day, the pain of the complainant was increased and ,he was treated by surgeon Dr. D. Das and the said doctor diagnosed that the Appendix of the complainant had got burst and his immediate operation of appendix was required and as such he operated the appendix of the complainant and saved his life. It is further alleged by the complainant that O.P.2 performed his duty negligently as his USG report didn’t disclose that the complainant was suffering from any problem of appendix.

                 Hence this case.

       Both the O.Ps. have contested the case by filing separate Written Version denying and disputing inter-alia the claim and contention of the complaint with prayer for dismissal of the case with cost.

                 The specific stand of the O.P.1 is that the report of the Suraksha Diagnostic Centre is 100% accurate and there is/was no fault, no deficiency of service and no medical negligence in the finding of the report of USG and that it was not suggested by the concerned doctor viz Dr.Rahul Bhowmik to find out and problem regarding appendix of the complainant and that if there was any problem of appendix that can’t be determined properly through USG.

                  The specific stand of O.P.2 is that in the ultrasound report of the complainant it has been specifically mentioned “free fluid present” which is a medical term and it is an evidence of “appendicular pathology” which is a clinical diagnosis. USG only supports the clinical diagnosis. Now a days CT scan is the most appropriate mode for investigation and/or diagnosis of “appendicular pathology”.  In the USG Report presented by O.P.2 in the (Adv.) i.e. Advice Portion/ Column, the O.P.2 advised the patient(complainant)for “C.T. Abdomen” i.e. CT scan of abdomen and that if the complainant followed the aforesaid recommendation of O.P.2 his ailments would have been easily diagnosed and that the complainant had acted negligently by willfully violating and neglecting the advises given by O.P.2.

POINTS FOR CONSIDERATION

1. Is the case/ application maintainable?
2. Is the complainant a consumer as per provision of Sec.2(d) of Consumer Protection Act.1986?
3. Had the complainant any cause of action to file this case?
4. Are the O.Ps guilty for deficiency in service and for medical negligence as alleged?
5. Is the complainant entitled to get the reliefs as prayed for?

DECISION WITH REASONS

                  All points are taken up together for consideration and decision for the sake of convenience.

                 Seen and perused the pleadings of the parties and the documents annexed. We have heard arguments of Ld. Lawyers of the O.Ps. at length in full and the Ld. Lawyer for the complainant neither argued the case nor file written argument despite getting ample opportunities from this Forum.

                     Now after due consideration of the arguments advanced by the Ld. Lawyers of O.P.1 & O.P.2, the pleadings of both the parties and the documents annexed by the complainant we find that the complainant got himself admitted in the male surgical ward, Sadar Hospital, Jalpaiguri on 24/07/13 due to his stomach pain and that his attending Medical Officer in the hospital namely Dr. Rahul Bhowmik advised him for USG of his whole abdomen. On 25/07/13 the complainant went to Suraksha Diagnostics Molecular Pathology Jalpaiguri(O.P.1) for USG of whole abdomen which was done by O.P.1 on the self same date i.e. on 25/07/13 and the report prepared after USG of the complainant(Annexture 2) examined and signed by O.P.2, Dr. S.Pal who is the consultant radiologist of O.P.1. It is coming out from the avertment of the petition of complaint that complainant’s attending Medical Officer, Dr. Rahul Bhowmik advised him for USG of his whole abdomen as he was admitted in the hospital for his stomach pain. There is no whisper in the petition of complaint to the effect that either Dr. Rahul Bhowmik or any other doctor gave any advice to the complainant to find out and problem of his appendix. So USG of the whole abdomen of the complainant only was done at Suraksha Diagnostics Molecular Pathology Jalpaiguri(O.P.1) and the report (Annexure 2) was examined and signed by O.P.2 Dr. S. Pal as consultant radiologist of O.P.1. It is clear from Annexure 2 as well as complainant’s statement in his petition of complainant that he went to the Diagnostic Pathology(O.P.1) on 25/07/13 for USG of his whole abdomen which was done on that very date I.E on 25/07/13 and the report was prepared on 25/07/13. Therefore it is clear that there was no negligence on the part on O.P.1 or O.P.2 as alleged by the complainant. Therefore question of deficiency in service on the part of O.P.1 and O.P.2 doesn’t and cannot arise. It will not be out of place to mention here that in the USG report (Annexure 2) O.P.2 has made a mark of interrogation on point no.2 under the head of impression and he gave advice X-Ray P.A. Abdomen(Erect C.T. Abdomen but this suggestion of O.P.2 was not followed rather violated by the complainant. No expert was examined and made party in this case by the complainant to justify his allegation of medical negligence against the O.Ps. In this view of the matter we find sufficient reason to hold that the complainant had no cause of action to file this case although he became a consumer of O.P.1 after payment of Rs.900/- for USG of his whole abdomen.

           In view of our discussions made herein before we find sufficient reason to hold that the complainant had no cause of action to file this case against the O.Ps. and that there was no deficiency in service and medical negligence on the part of O.P.1 and 2 as alleged by the complainant and as such the allegation as made by the complainant against the O.Ps. in his petition of complaint is found to be baseless and vexatious and accordingly this case is not maintainable and it deserves dismissal.

           All points are disposed of.      

           Hence, it is

O R D E R E D

            that the case/ application is dismissed on contest with cost of Rs.4000/-(Four Thousand) to be paid by the complainant to both the O.Ps. to the tune of Rs 2000/- each within 30 days from this day failing which the complainant shall have to bear interest @ 9% p.a. till realization of the same and the O.P. shall be at liberty to realize the same in accordance with law.

           Let copy of this final order be supplied to the parties free of cost forthwith in terms of Sec.5(10) of West Bengal Consumer Protection Rules 1987.