The facts of the case in short is as follows :

1)  The complainant’s only son Dinanath Chowdhury, aged about 15 years old, was bitten by a street dog on 12.06.1996. The complainant took his son to Chandannagar Sub Divisional Hospital where the complainant’s son Dinanath Chowdhury was provided first aid by the attending doctors. The complainant as per advice of said hospital further took his son to the said hospital on 18.06.2016 when the complainant’s son was given anti-rabies vaccine  starting from 18.06.1996 till 27.06.1996.The complainant states that his son Dinanath Chowdhury became unwell at the night of 06.08.1996. Then the complainant as per doctor’s advice further admitted his son to I.D. Hospital, Beliaghata on 07.08.1996 where complainant’s son died of rabies on 09.08.1996.

2)  It is the case of the complainant that the said Chandanagar Sub Divisional Hospital did not administer proper effective anti-rabies vaccine to petitioner’s son Dinanath Chowdhury which had caused the death of complainant’s said 15 years old son namely Dinanath Chowdhury.

3)   It is further case of the complainant that the Government of West Bengal by issuing circular dated 07.03.1995 had fixed charges for various services rendered by Government Hospital and in light of such circular, the medical services rendered by the said Chandannagar Sub Divisional Hospital was not completely free.

4)     It is the case of the complainant that his only son Dinanath Chowdhury was hard working bright student of class VIII of Gondalpara Sastri Hindi Junior High School. The complainant states that Dinanath use to earn Rs. 2500/- to Rs. 4000/- per month by imparting private tuition and use to contribute his entire earning for day to day necessities of complainant’s family. The complainant’s family, prior to the death of Dinanath, consists of 1) Complainant, 2) Dinanath Chowdhury, 3) Dipu Chowdhury (yonger son) 4) Shanti Devi (wife).

5)  It is the case of the complainant that the complainant with the help of the Association of Protection of Democratic Rights (A.P.D.R.) had made several representations before different authorities including Hon’ble West Bengal Human Rights Commission in matter connected with the death of Dinanath Chowdhury, the only son of the complainant.

6)  The Hon’ble West Bengal Human Rights Commission took cognizance of the matter and investigated the unfortunate death of complainant’s son through enquiry committee consisting of Dr. B.P. Pradhan, Dr. D.K. Neogy and Dr. S.K. Maitra. The said enquiry committee, after taking all matters into consideration, had arrived at the following findings which had led to the death of complainant’s son Dinanath.

               i)  Inherent incompetence of the type of vaccine.

                    ii)  Failure to preserve the vaccine under ideal conditions.

               iii)  Probable inadequacy of dose administered.

7)  The complainant through Association of Protection of Democratic Rights (A.P.D.R.) was in receipt of order dated 15th December 1997 passed by the Hon’ble West Bengal Human Rights Commission whereby the Hon’ble Commission had recommended that the report and finding of the enquiry committee consisting of Dr. B.P. Pradhan, Dr. D.K. Neogy and Dr. S.K. Maitra should be taken note of and all appropriate remedial measured be taken by the government so as to avoid the recurrence of such unfortunate event.

               It is the case of the complainant that Dinanath would not had died at young age of 15 if the said hospital would have administered proper effective anti-rabies vaccine.

8)  It is the case of the complainant that the opposite parties are responsible for such fault, negligence and deficiency in service of the said hospital in not administering proper effective anti-rabies vaccine to complainant’s son Dinanath Chowdhury. The complainant is still suffering with immense emotional pain and injury.

9)   It is contended that the loss of young son owing to utter negligency, fault and deficiency in service on the part of the opposite parties by no means could be compensated by way of damages and/or compensation.

               The complainant however feels and believe that the soul of his 15 years old young son will get some relief if the opposite parties are compelled to pay a sum of Rs. 19,58,500/- (Rupees Nineteen Lakhs Fifty Eight Thousand Five Hundred Only) to the complainant.

10)  W/V has been filed on behalf of the OP No. 1 wherein all the allegations imparted in the complaint have been denied by the OP.

11)  The OP No. 1 asserts that this new complaint regarding an incident of the year 1996 is not only barred by limitations but also by res judicata by Para 23 of W/V of OP No. 1. Accordingly, the complainant’s statement is not tenable in law. The OP No. 1 has strike to assert his case in Para 27 that complainant filed complaint being CDF Case No. 59/1996 on 03.09.1996 against Dr. Kalyani Seal of Chandannagar S.D. Hospital on ground of negligence. But that complaint has been dismissed on 30.09.1996 on ground that the alleged treatment was free of charge. So the complainant did not hire any service for consideration and did not become a consumer vide Para 28 of W/V.

12)  That thereafter the complainant filed an appeal against the dismissal order. Said case has been dismissed on 09.09.1998 being barred by principles of res judicata (Para 30). Thereafter the complainant filed appeal no. 568/ A of 1998 and the State Commission by order dated 24.05.2006 directed the Superintendent, S.D. Hospital to pay a compensation of Rs. 5,000/- and Director of Health Services to pay compensation of Rs. 2,00,000/- to the Appellant/Complainant (vide Para 31 of W/V).

13)  Thereafter revision petition was filed being no. 2522 of 2006 before National Consumer Disputes Redressal Commission. The Hon’ble National Commission by order dated 26.10.2010 was pleased to set aside the order passed by the State Commission and restored the order passed by the District Forum.

14)  It is further case of the OP that, the complainant, after lapse of 14 years and 141 days, filed F.A. No. 257 of 211 against order dated 30.09.1996 passed in the case 59/1996 of District Hooghly D.F. Chinsurah along with a petition u/s. 5 of the Limitation Act for condonation of delay.

15)  That the appeal was first filed against Smt. Kalyani Sil, Medical Officer of Chandannagar S.D. Hospital.

16)  Thereafter, the Appellant/ Complainant filed an amended petition by which the name of Kalyani Sil was deleted and name of Superintendent Chandannagar S.D. Hospital and Principal Secretary, Health Department, Government of West Bengal were added and the same appeal was admitted.

17)  Thereafter, it has been again written that the State Commission condoned the delay and admitted the appeal. Being aggrieved both the respondents preferred Revision Petition No. 1021 of 2013 against the said order before the National Consumer Disputes Redressal Commission.

18)  Again the national commission was pleased to uphold the order passed by the State Commission. Thereafter, the State Commission allowed the first appeal 257/2011 on 28.01.2016 and the case was sent back on remand to this Forum with a direction to give opportunities to the parties to adduce evidence and thereafter decided the case on merit according to law. (Vide Para 40 of W/V)

19)  Instead of adducing evidence has filed a completely new case mentioned in the old number against the respondent of F.A. 257/2011. The reliefs are also new and don’t enlist in the original case 59/1996 as such the OP takes the plea of estoppel.

20)  It is also further case of the complainant that nowhere in the complaint complainant has stated that his son Dinanath Chowdhury was bitten by a rabid dog on 12.06.1996. It is also contended that the outdoor ticket of Dinanath Chowdhury dated 13.06.1996 reveals that the doctor of the Hospital was informed only of dog bites and not that he was bitten by rabid dog. The doctor informed the complainant to watch the dog for 10 days. So, it is apparent that there was no deficiency in service on the part of the attendant doctor.

21)  The doctor first treated the patient on 12.06.1996 as Para 44 of W/V.

22)  It is also case of the OP that the complainant took his son to hospital not on the date of incident. There is no mention in the outdoor ticket the date of bite by rabid dog. So the actual date is still covered with darkness. Had he been so taken and had the doctor been so informed that immunization would have been given on the very first day? In Para 49, 47 & 48 the OP has repeated the same fact as before.

23)  The reason assigned by the Enquiry Committee and accepted by the West Bengal HRC has no basis. It is alleged that report is based on hypothesis “there could be either vaccine failure or toxic effect (Vide Para 52 of W/V)”. No Postmortem examination was held. It is contended absence of any scientific ingredients and method, conclusion drawn is in favour of vaccine failure is not scientific and unethical and also against the principles of medical science.

24)  The complainant filed Xerox copy of i) Prescription of Medicine (Not legible),    ii) Visiting Card (Not legible), iii) Death Certificate, iv) Human Rights Report (Not legible), v) Character Certificate of Dinanath Chowdhury (Not legible). Complainant did not file any certified copy of any Enquiry Committee. No Affidavit has been filed by the present complainant regarding filing of documents.

OP did not file any document except the written version.

25)  This case has a checkered history in past since 1996 till 28.01.2016. The Hon’ble Justice Mr. Kalidas Mukherjee passed order on 28.01.2016. I am putting the Judgement of Hon’ble President, State Consumer Disputes Redressal Commission.

“ The case of the Complainant/Appellant, in short, is that on 12.06.1996 the son of the Complainant was bitten by a street dog. The complainant took his son to Chandannagar S/.D Hospital on 13.6.1996 in the afternoon and the doctor on duty Smt. Kalyani Sil advised 10 anti-rabies injections. From 18.06.1996 to 27.06.1996 the said injections were administered and the said doctor told that there was nothing to fair from the dog bite as the full course of said injection was given. Subsequently, the son of the complainant was attacked on rabies and he was taken to Beliaghata I.D. Hospital. The complainant suspected that the 10 injections which were administered in the hospital were fake and as such his son expired. Under the circumstances the complainant filed the complaint before the Ld. District Forum. The Ld. District Forum dismissed the complaint holding that :

The injections were administered by doctor of Chandannagar hospital free of charges as such complainant could not be said to a consumer. The Ld. District Forum relied on the decision of Hon’ble Supreme Court reported in AIR 96 Supreme Court 550 (Indian Medical Association vs. V.P. Santha & others).

26)  In the body of the judgement the Hon’ble Justice has also been mentioned the submissions of the Ld. Counsel of the Appellant which runs as follows.

“The Ld. Counsel of the Appellant/Complainant has submitted that after the dismissal of the complainant being no. CC 59 of 1996 on the ground that complainant was not a consumer another complaint was filed by the complainant being CC 29 of 1998 which was dismissed being barred by res judicata. The complainant preferred appeal bearing no. SC 568/A of 1998 which was allowed and the Chandannagar Sub divisional Hospital was directed to pay compensation of    Rs. 5,000/- to the appellant and the Director of the Health Service, Govt. of West Bengal were directed to pay Rs. 2,00,000/- to the appellant for his failure to supply proper quality serum and also for maintaining necessary infrastructure art the sub divisional hospital. The Hon’ble National Commission in RP No. 2522 of 2006 held that second complaint was barred by res judicata and therefore, second complaint was not maintainable and the revision petition was allowed setting aside the judgement passed by the State Commission. It is submitted that thereafter the present F.A. bearing no. 257 of 2011 was filed against the judgement and order of Ld. District Forum whereby the first complaint bearing no. CC 59 of 1996 was dismissed. It is submitted that this appeal was preferred with condonation of delay of 14 years which was condoned by this commission and affirmed by the Hon’ble National Commission in R.P 1021 of 2013. It was also submitted that the present appeal relates the first complaint which was dismissed. It is contended that the complainant approached the Human Rights Commission. It is submitted that inspite of administering the anti-rabies injections the son of the complainant was attacked with rabies and ultimately expired. It is contended that the services at the Hospital were not absolutely free of charges and the complainant had to pay charges on some counts. It is contended that the complainant is a consumer and the complaint was maintainable”.

Thereafter considering the submissions of OP’s Ld. Counsel and principles of law laid down in 2014(1) CPR 247 (SC) the Hon’ble State Commission opined that complainant is a consumer under 2(1)(d) of CP Act, 1986 and the complaint is maintainable. Thereafter, his lordship was pleased to hold that complainant’s complaint was dismissed by the Ld. District Forum at the threshold of the preliminary issue. There was scope for either side to adduce any evidence. In absence of any fact finding on the basis of evidence we find it expedient in the interest of Justice to send back the case on remand to the Ld. District Forum for decision on merits according to law. There lordship also pass order that the case is sent back on remand to the Ld. District Forum with a direction to give opportunity to the parties to adduce evidence and thereafter decide the case on merit according to law”.

27)  In this way the Hon’ble State Commission has narrated and reproduced the complainant’s case with a beautified manner and sent the case back on remand to adduce evidence by both parties.

28)  The above order was passed in F.A 257 of 2011 on 28.01.2016 and certified copy was issued on 19.02.2016. The Hon’ble President Kalidas Mukherjee was present. But in this case record in our hand shows that order-sheet does reflect the order of the State Commission passed on 28.01.2016. Rather on 11.05.2016 one complaint was received by this Forum and vide order dated 11.05.2016 record was reconstructed by certified copies of old record. When the case has in finally heard in appeal by the Hon’ble State Commission and the case was also went before the Hon’ble National Commission as per judgement shown of the Hon’ble State Commission dated 28.01.2016 how this case was again filed on 11.05.2016 and reconstruction of record was done on 11.05.2016. Record shows again appeal was filed in the State Commission when the case which was started here on 11.05.16 was taken for trial and order sheet dated 10.04.17 OP went to the Hon’ble State Commission. The Hon’ble State Commission has allowed the revision and that has been reflected in order no. 14 dated 15.01.18.

POINTS FOR DECISIONS

1) Whether Dinanath Chowdhury was dog bite on 12.06.1996?

2) Whether he was brought before the OP’s Hospital?

3) Whether he died by rabies?

4.     

These four points are taken together for discussion.

29.   

30.   

31.   

32.   

33.   

34.   

35.   

So, the case succeeds.

Now, we have determined the quantum of compensation

36)  In this case in our hand the son of the present complainant’s wife of Badri Chowdhuri, Dinanath Chowdhuri at the age of 15 years. The death of the son causes immense sufferings of the family. That son after having maturity might have do some work and earn some money for the help of the family. But death of unfortunate boy has immerged the family in the world of uncertainty.

37)  Complainant stated at Para 4 that her son used to earn Rs. 2500-4000 per month and used to contribute his entire earning for day to day necessities of the complainant’s family. In this point OPs have no saying. At present, in an unfortunate death of anyone, or by accident, the average income is Rs. 72,000/-. At present the average life expectancy is 70 years. So, the working period stands as   70 – 16 = 54 years. The boy is now dead. So, his earning stands Rs. 72,000 – 24,000 = Rs. 48,000/- as one third presumed to be used by the deceased for his own and       Rs. 48,000/- would have been used for the family. So, the total loss is                      Rs. 48,000 * 54 years = Rs. 25,92,000/-. But this Forum has power to award maximum award of Rs. 20,00,000/-.

38)  Leaving apart the above income the mother and brother of the deceased are being deprived of loving touch of deceased. The loss of a child to a mother cannot be compensated by money. Son or daughter whatsoever may be is a very essential place of peace of a woman or a man. In no way the sufferings and vacuum created by the death of Dinanath Chowdhury can be filled up including the empty heart of the mother.

39)  So, after deep contemplation over the principle of law and reason explained in different cases decided by the Hon’ble National Commission and Hon’ble Supreme Court we are of opinion that Rs. 19,20,000/- if given as compensation for the death of Dinanath Chowdhury to the family of Dinanath Chowdhury then complainant’s loss will be satiated, at least, financial side and the soul of deceased shall be in peace who died for want of proper treatment. 

IT IS ORDAINED

That the CC Case No. 59 of 1996 be and the same is allowed on contest against the Opposite Party with a litigation cost of Rs. 10,000/-.

The OP No. 1 & 2 are directed to pay jointly and/or severally a sum of                     Rs. 19,20,000/- within 30 days to the present complainants. They are directed to issue an account payee cheque in the name of the complainants within 30 days from the date of this order. They are also directed to issue a cheque of Rs. 10,000/- as cost in the name of the complainants as cost of litigation.

Let a copy of this order be supplied free of cost to the parties at once.