State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027



S.C. CASE NO. RC/09/15

DATE OF FILING: 09.02.2009



DATE OF FINAL ORDER: 09.04.2009


REVISION PETITIONER


1) Dr. Sarbajit Singh

At S.M.R.I. of

263/3, G.T. Road

P.S. – Shibpur, Dist. – Howrah

2) Dinesh Singh

At S.M.R.I. of

263/3, G.T. Road

P.S. – Shibpur, Dist. - Howrah



OPPOSITE PARTY



Chandra Prakash Prasad

S/o Late Chandra Deo Prasad

288/283, G.T. Road (South)

P.S. – Shibpur, Dist. - Howrah



BEFORE : HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT

MEMBER : MR. A.K. RAY

FOR THE REVISION PETITIONER : Mr. S. Nayak, Advocate

FOR THE OPPOSITE PARTY : Mr. Kamal Kr. Sau, Advocate





: O R D E R :


HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT





This Revision Petition was filed against the order dated 20.01.09 allowing an application for addition of party.

The complaint was filed by the complainant against OP1 Doctor and OP2 owner of Nursing Home alleging medical negligence and claiming relief of compensation. Written version was filed separately by OP1 and OP2. When the matter was pending an application was filed by the complainant praying for addition of Dr. Swapan Kr. Majhi as OP3. The contention in the application was that the OP1 stated in course of cross examination that according to the advice of Dr. Swapan Kr. Majhi the OP1 pushed the three injections. Dr. Majhi had filed an affidavit stating the fact that on 04.01.07 at about 9:15 hrs. the OP1 rang him and stated about ailment of a female child who sustained head injury and was in precarious condition and on OP1 seeking advice, the said Dr. Majhi advised the OP1.

The application having been allowed the OP1 filed the present revision challenging the same. Mr. Nayak, the Ld. Advocate for the Revisionist contended that the said Dr. Majhi even if had advised the OP1, admittedly the patient never approached Dr. Majhi seeking any treatment nor any payment has been made on behalf of the patient to the said Dr. Majhi and, therefore, the patient is not a consumer in respect of Dr. Majhi and the said Dr. Majhi cannot be added as a party to the said proceeding nor any compensation can be asked from the said Dr. Majhi. Next contention of the Revisionist is that the impugned order is further bad as direction has been given to the complainant for making an application for amendment of the complaint though this is not the duty of the Forum to advise or direct such amendment and it is entirely for the complainant to decide whether any amendment is required or not.

Mr. Kamal Kr. Sau, the Ld. Advocate for the OP contended that in view of the statement of OP1 in cross examination and in view of the admission by Dr. Majhi in his affidavit, Dr. Majhi had extended treatment to the patient and, therefore, he is a necessary party and the application has been, therefore, rightly allowed.

We called for the records of the Forum below for ascertaining the pleadings including affidavit and evidence on record. We find that in the written version of OP1 the case made out is as follows:

“But Shri Prasad requested me to do something for treatment of her daughter. It is a fact that I could not refuse the request of Shri Prasad because he is my neighbour. It is also a fact that to cope with the situation of Anjali Prasad there was no other alternative but to treat the patient through allopathy. But I being a Doctor of Homeopathy cannot treat a patient through allopathy. Immediately I ranged Dr. S.K. Majhi, MBBS, a qualified doctor in allopathy to whom I was earlier acquainted with for my other treatment and narrated the situation of patient Anjali Prasad and Dr. S.K. Majhi suggested pushing Decadran injection to stabilize the cardio respiratory system medicine by campose for anti-convulsant and injection Monocef to prevent infection – Dr. S.K. Majhi also further instructed that if these injections were preferred a skin test should be done before the injections are pushed and also advised me to refer the patient to nearest hospital without too much delay. In pursuance to the suggestion of Dr. Majhi I noted down names of medicine in bit of paper and asked Amit Singh, an employee of my institute to push the injection after proper skin test.”

In his affidavit Dr. S.K. Majhi stated as follows:

“2) That on 04.01.07 at about 9:15 hrs. Dr. Sarbojit Singh rang me over phone and narrated to me that one female namely Anjali Prasad having a previous history of Epilepsy while returning from market suddenly fell on the ground and sustained head injury on the back and had been brought before him in a unconscious and precarious condition and Dr. Singh sought advice from me as regards medical treatment/first aid to patient Anjali Prasad.

3) That after discussion with Dr. Singh and taking into consideration the pros and cons of the patient Anjali Prasad as conveyed by Dr. Singh I advised him medicine Decadran to stabilise the cardio Respiratory system, medicine campose as ante convulsant and medicine monocef as antibiotic to prevent infection. I also advised Dr. Singh stating that if those medicines were preferred skin test of the patient should be done before injections were pushed. I further advised him the patient be referred to nearest Hospital without delay.”

Evidence to the extent adduced by the OP also reiterated the similar stand as in the pleading above referred.

Therefore, it appears that it requires a decision in the said proceeding as to whether the OP1 himself treated the patient or over telephone Dr. Majhi extended the treatment as admittedly OP1 is not a medical practitioner in allopathy and Dr. Majhi advised the treatment of the patient. The pleadings and evidence of the complainant even if are accepted as correct in toto, no case is made out that the service of Dr. S.K. Majhi was at all hired by the patient party nor payment of any fees or consideration of any nature has been even alleged.

Therefore, we are of the opinion that Dr. S.K. Majhi is neither a necessary nor proper party in the proceeding and accordingly the application for addition of party cannot be allowed. The impugned order is set aside. Revision is allowed. No order as to costs.







(A.K. Ray) (Justice A. Chakrabarti)

MEMBER PRESIDENT