State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027



S.C. CASE NO. : 159/A/2007



DATE OF FILING : 18.05.2007 DATE OF FINAL ORDER: 26.05.2009


APPELLANTS

1. Premier Clinic and Nursing Home

through Dr. Saroj Sen

115/A, G.T.Road, Asansol,

P.O. & P.S. Asansol

Dist. Burdwan.

2. Dr. Saroj Sen

attached to Premier Clinic and Nursing Home

115/A, G.T.Road, Asansol,

P.O. & P.S. Asansol

Dist. Burdwan.



RESPONDENTS

1. Mr. Uma Shankar Gupta

2. Mr. Pradeep Kumar Gupta

Both sons of Late Ramesh Chandra Gupta,

Railway Market, Adra, P.O. Adra, P.S. Kashipur,

Dist. Purulia.
PROFORMA RESPONDENTS

3. Dr. Mrs. Savitri Sen

Naesthesialogist attached to Premier Nursing Home

115/A, G.T.Road, Asansol, P.O. & P.S. Asansol,

Dist. Burdwan.

4. Dwarkadas Jalan Memorial Hospital

through Dr. A.M.Roy

Chief of Medical Services

Managed by Jiban Rekha Trust

Bartand, Dhanbad, Jharkhand.

5. Dr. V.K.Agarwal

Orthopaedic Surgeon attached to Dwarka Das Jalan

Memorial Hospital, Dhanbad, P.O. & Dist. Dhanbad,

Jharkhand.



BEFORE : MEMBER : MR. P.K.CHATTOPADHYAY

MEMBER : MR. S.COARI



FOR THE APPELLANT : Mr. S.Nayak, Ld. Advocate (App. 1 & 2)

FOR THE RESPONDENT / O.P.S.: Mr. A.Mukhopadhyay (Res.3)





: O R D E R :


MR. S.COARI, LD. MEMBER

The present Appeal has been directed against the judgement dt. 30.4.07 passed by the Burdwan District Consumer Forum in D.F. Case No. 12/2005 wherein the Ld. District Forum allowed the case in part thereby awarding compensation to the tune of Rs. 50,000/- against the OP Nos. 1 & 2 (Appellants) along with cost of Rs. 500/-.

The complainants’ case before the Ld. District Forum, in brief, was that the complainant’s mother approached the Appellant No. 2, i.e. Dr. Saroj Sen, for necessary medical help in respect of the complainants’ mother, Smt. Tulsi Devi, who sustained fracture on the neck of her left femur. Dr. Sen duly entertained the patient by admitting her in his nursing home, i.e. OP No. 1, and operated the patient. Subsequently, the patient developed renal failure and Dr. Sen referred the case to Dhanbad for renal treatment. The patient got some relief in respect of renal treatment, but developed some troubles in respect of femur operation. The doctor, who treated the patient for renal treatment, requested Dr. Sen to take back the patient, but on Dr. Sen’s refusal the patient remained under the treatment of Dr. Agarwal, where ultimately she breathed her last. Being aggrieved and dissatisfied with the refusal of Dr. Sen to take back the patient, the petition of complaint was filed for redressal.

The Appellants-Ops contested the case by filing written objection thereby denying all the material averments of the petition of complaint contending inter alia that there was no negligence on the part of the Appellants as alleged by the Complainants. The patient was not in custodian supervision of the Appellant at the time of her death. The allegations are all false and fictitious and that the case should be dismissed with cost.

The Ld. District Forum while disposing of the petition of complaint has observed that refusal of Dr. Sen to re-admit the patient after her treatment for renal failure amounted to mischief coming under the medical negligence and accordingly allowed the complaint in part by granting compensation and cost in favour of the complainants against the Ops/Appellants in the manner as mentioned above.

The only moot question that revolves round the present Appeal is as to whether the Ld. District Forum was justified in disposing of the petition of complaint in the manner as discussed above.
DECISION WITH REASONS

At the time of hearing it has been submitted on behalf of the Appellants that the Appellants have not done any mischief that may come under the purview of medical negligence under any circumstances at all. It has been urged before us that the complainants utterly failed to substantiate their allegations so far as it relates to medical negligence on the part of the Appellants by adducing cogent and reliable evidence including any evidence that of medical negligence. According to the Ld. Advocate, in the absence of any medical expert’s opinion there was no point on the part of the Ld. District Forum to form an adverse opinion against the present Appellants. According to the Ld. Advocate, Ld. District Forum did not appreciate the actual state of affairs and as such has arrived at a wrong and improper decision which is not tenable under the law. While concluding his submissions it is submitted on behalf of the Ld. Advocate for the Appellants that in the absence of any cogent and reliable evidence that the Appellant No. 2 refused to re-admit the patient, question of forming any adverse view against the Appellants does not arise at all and in this connection, the Ld. District Forum has totally ignored the materials on record including the pleadings of the parties and as such, has arrived at an improper and unjust decision, which is liable to be set aside.

We have duly considered the submissions put forward by the Ld. Advocate on behalf of the Appellants and have gone through the materials on record including the pleadings of the parties and evidence on record and find that it is an admitted position that initially the patient was admitted under the care and supervision of the Appellants and that there was an operation in respect of the fracture of left femur bone of the patient. Thereafter the patient developed renal trouble, for which Dr. Sen, Appellant No. 2, referred the patient to Dr. Agarwal at Dhanbad where the patient was treated for renal trouble and the patient got relief there in respect of her renal trouble, but she developed some trouble in the place where the operation of her femur was conducted by the Appellant No. 2. The request of Dr. Agarwal to Appellant No. 2 to take back the patient was not at all paid heed by the Appellant No. 2 which resulted demise of the patient at last in the custody of Dr. Agarwal. If that be the actual state of affairs, we find much substance in the observation made by the Ld. District Forum to the effect that in spite of letter of request written by Dr. Agarwal to Dr. Sen, the patient was not taken back and re-admitted by Dr. Sen, Appellant No. 2. When admittedly the patient was operated upon for her left femur fracture by Dr. Sen, it was not ethical on the part of Dr. Sen not to re-admit the patient when the patient admittedly got some relief in spite of her renal trouble. Much has been agitated before us as regards non-receipt of any letter written by Dr. Agarwal to Dr. Sen for taking back the patient. But we are not in a position to accept such proposition. The letter in question is very much in the LCR and we are unable to form any contrary view in this regard as has been adopted by the Ld. District Forum. We have carefully gone through the impugned judgement and find that the Ld. District Forum has really considered the case of respective parties from all possible angles and has arrived at a just and proper decision with which we are not inclined to interfere. So far as it relates to quantum of compensation, we find that a meagre sum of Rs. 50,000/- has been awarded by the Ld. District Forum, which for the purpose of this case appears to be just and proper. Considering the present Appeal in the light of above observation we find no merit in the present Appeal which is liable to be dismissed. Therefore, the Appeal fails.

Hence, it is ORDERED that the Appeal stands dismissed on contest against Respondent No. 3 and ex parte against the rest without cost. The impugned order of the Forum below is affirmed. The Ops/Appellants are directed to comply with the order of the Forum below in toto within 30 (thirty) days from the date of communication of this order, failing which the decretal amounts will carry interest @ 10% (ten per cent) per annum for the period of default.





MEMBER MEMBER