Judgment : Dt.31.7.2017
This is a complaint made by Swapna Mitra and Arpita Mitra against – (1) The Superintendent of Ruby General Hospital Ltd., Kasba Golpark, EM Byepass, P.S.-Tiljala, Kolkata-700 107, OP No.1, (2) Dr. Bijan Bhattacharjee, son of Late A.R.Bhattacharjee, 336 CIT Road, P.s.-Phoolbagan, Kolkata-700 054, OP No.2, (3) The Superintendent, Dafodil Nursing Home, 276, Canal Street, P.S.-Lake Town, Kolkata-700 008, OP No.3 and (4) United India Insurance Co. Ltd., Mediclaim Policy, Medicare T.P.A. Services (I) Pvt. Ltd., Flat No.10, Paul Mansions, 6B, Bishop Lefroy Road, Kolkata-700 020, Proforma OP, praying for compensation amounting to Rs.15,00,000/-, Rs.3,00,000/- for unnecessary harassment and Rs.2,00,000/- as litigation cost and any other relief.
Facts in brief are that Complainant No.1 & 2 reside within the jurisdiction of this Court. Complainant No.1 is the elder sister of deceased Jayanta Kumar Mitra and Complainant No.2 is the widow of Jayanta Kumar Mitra. Deceased Jayanta Kumar Mitra during his life time was an employee of a multinational company and only male member to support the family consisting of two sisters, wife ad minor son. He was 47 years of age at the time of death. The entire family members remained in dark due to uncertain death of Jayanta Kumar Mitra. The Complainants constituted a case in the month of March, 2015 against the OP under DCF case No.147/15 on 10.9.2015. The case was disposed of on the ground of pecuniary jurisdiction in order to re-file the case afresh within one month from the date of order. Complainant No.1 is conducting the case on behalf of Complainant No.2. Complainant No.1 has stated that deceased was under the treatment of OP No.2, in his lifetime and he was a patient of diabetic. But he was able to move and to attend office and used to undertake official duties. The deceased was admitted to the Dafodil Nursing Home for rest and as per advice of OP No.2 in the month of May, 2012, returned to home. Complainant No.1 along with her younger sister went to the chamber of OP No.2 t 336, CIT Rd., Kolkata-700 054 and had discussion regarding development of the health of the deceased. OP No.2 advised them re-admission of the patient. Patient was unwilling for further admission to the said nursing home, due to negligence in treatment. The Complainant was re-admitted in the nursing home on 13.6.2012 in general bed. On 23.6.2012 the Complainant and other family members were ready to leave the ward of the patient, they found that the patient started blood vomiting and he was sent to ITU Cabin. Complainant No.1 made telephonic contact with OP No.2 and intimated the condition of the patient. OP No.2 did not came and directed ‘Bhoier kichhu nei’. OP the other hand, OP No.2 directed the OP No.3 for transfer of the patient to the hospital of OP No.1. Thereafter, OP No.2 being totally responsible for treatment and made a plan for treatment of the deceased. On 23.6.2016 at about 11 p.m. OP No.3 disclosed the fact that due to taking medicine of diabetic, ulcer formed in the neck inside of the patient and blood entered in the heart of the patient, causing blood vomiting and transplantation of blood was urgent. OP No.3 also disclosed the advice of OP No.2 for transfer of the patient to the Ruby General Hospital against payment of Rs.57,000/-. So, Complainant No.1 made request to consider the amount of payment and to release the patient against small amount of payment. Complainant’s younger sister collected Rs.15,000/- from her personal ATM of Bank. But, fare of emergency ambulance from Lake Town to Ruby Hospital was urgent for that purpose. Thereafter, with a hope went to Mr. Sujit Bose of TMC party, at present Govt. of West Bengal and asked help to release the patient considering his critical condition and requested for making payment on the next day after opening of the Bank. But, Mr. Bose refused. Thereafter, Complainant made telephone to her friend Baisyanor Chatterjee and disclosed her problems. Mr. Chatterjee gave her a mobile number. But she failed to make talk in spite of several calls. The younger sister of the Complainant was a school teacher made telephone to her cousin brother who is holding respectable post of the Reserve Bank of India and disclosed over telephone and it was 2.30a.m. the brother came and paid the money and the patient was released and took him to Ruby Hospital General Hospital on 24.6.2012. Complainant along with her other family members went to the hospital and found patient was talking with him. Complainant No.1 and her sister reached to the Ruby Hospital at 11 p.m. and hospital authority informed regarding patient was going to critical condition. Complainant No.1 wanted to see the patient. But the hospital authority did not permit. Complainant No.1 disclosed her identity being an Advocate in profession and thereafter he was permitted to go to ITU where the patient was and saw the patient. Complainant No.1 reached on 25.6.2012 and found her brother was shifted and one minor girl was there and the bed of the minor girl was barred by curtain. Complainant found her brother was senseless and in injured condition on neck, eye and forehead were covered by bandage and lip portion and eyes were covered with leucoplast. Complainant touched her brother for sensation and asked the nurses regarding changes of bed. But they did not pay any head to that stating doctor will reply. Complainant made telephone to OP No.2, but no reply was received. The patient expired on 26.6.2012 at about 5.30 a.m. At about 11.50a.m. death certificate was handed over to the relatives by OP No.1. After that last rites of the body were performed. Further, Complainants have stated that due to negligence of the hospital i.e. OP and Doctors the patient died. So, they filed this case.
OP No.1 filed written version and denied the allegations of the complaint. Further, OP No.1 has stated that the story made by the Complainant is concocted and manufactured. It is stated that the patient was admitted at ITU but with the history of blood vomiting which is a case of chronic kidney disease under the influence of diabetes with electrolyte imbalance. The patient was properly treated and did not respond and so he died. The allegations made by Complainants are baseless and false. So, this OP has prayed for dismissal of the complaint petition.
OP No.2 & 3 also filed written version and denied allegations of the complaint. Further, OP No.2 & 3 have stated that for proving the allegations expert is required. OP No.2 & 3 have also referred certain judgment for establishing that Complainants are not entitled to the reliefs which they have prayed. Taking together all these, OP No.2 & 3 have prayed for dismissal of the complaint.
Decision with reasons
Complainant filed affidavit-in-chief wherein Complainants have reiterated the facts mentioned in the complaint petition.
Main point for determination is whether Complainants are entitled to the reliefs as prayed for.
On perusal of the prayer portion of the complaint petition, it appears that Complainants have prayed for compensation of Rs.15,00,000/- for medical negligence and Rs.3,00,000/- for harassment and mental agony and Rs.2,00,000/- as litigation cost.
On perusal of the allegation of the complaint petition as well as affidavit-in-chief filed, there does not appear any material to hold OPs liable for medical negligence. It is because, Complainants did not make any attempt for taking any opinion by the medical expert for the case of the death and also not filing any petition to that effect. In order to substantiate the allegations of the medical negligence, it is the mandate of the Hon’ble Courts that a specific negligence has to be proved which means; it is the bounden duty to the Complainant to establish that there was either any act which was unwarranted in the circumstances or omission by the OPs which they were not required to do, as per their duty. Accordingly, we are of the view that Complainants failed to establish the medical negligence, though the allegations remained un-rebutted and unchallenged by the OPs.
However, the allegations occurred due to conduct and act of OPs, there was unnecessary harassment and mental agony of Complainants.
As such, we are of the view that OPs viz. Superintendent of Ruby General Hospital, Dr. Bijan Bhattacharjee and the Superintendent, Dafodil Nursing Home are equally liable for causing mental agony, harassment to the Complainants and in such circumstance, we are of the view that if compensation of Rs.50,000/- each is awarded against each of the OPs the object of justice would be served.
Complainants have also prayed for litigation cost of Rs.2,00,000/- which appears to be excessive. Considering the circumstances, we feel that if litigation cost of Rs.20,000/- is awarded against all the three OPs it would suffice.
Hence ordered
RBT/CC/458/22016 and the same is allowed in part on contest. OPs are directed to pay to the Complainants Rs.1,70,000/- within two months of this order, in default, the amount shall carry interest @ 10%p.a. The liabilities of OPs are joint and several except OP No.4.
