State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027



S.C. CASE NO. : FA/08/415



DATE OF FILING : 27.10.2008 DATE OF FINAL ORDER:16.03.2009


APPELLANT



Janmejoy Bera

Owner – Tara ma Nursing Home

Bazarpara, Uluberja,

District Howrah.



RESPONDENT



Smt. Saswati Das

W/o Sri Narayan Chandra Das

Vill. & P.O. Gurapol, P.S. Shyampur,

Dist. Howrah.



BEFORE : MEMBER : MR. P.K.CHATTOPADHYAY

MEMBER : MR. S.COARI



FOR THE PETITIONER / APPELLANT : Mr. L.Poddar, Ld. Advocate

FOR THE RESPONDENT / O.P.S.: Ms. S.Ganguly, Ld. Advocate





: O R D E R :


MR. S.COARI, LD. MEMBER

The present Appeal has been directed against the order and judgement dt. 29.08.2008 passed by the Ld. District Forum, Howrah, in Complaint Case No. HDF 32 of 2007 wherein the Ld. District Forum allowed the petition of complaint on contest with cost of Rs. 1,000/- and also awarded a compensation to the tune of Rs. 5,00,000/- against the OP.

The complainant’s case before the Ld. District Forum, in brief, was that the complainant got herself admitted in the nursing home of the OP for the purpose of delivery of her child, where the OP exposed himself as a medical practitioner. In due course of time the complainant gave birth to a male child on 25.6.06 and as the complainant after giving birth to her child experienced shivering. On the advice of OP, hot-water-bag was placed under her legs for relief. According to the complainant’s case, she remained in such condition unattended and in the next morning the complainant found that both of her legs were badly burnt due to application of hot-water-bag. It is the further case of the complainant that her stay in the nursing home of the OP was prolong due to the treatment of her burnt legs and even after getting discharged from the nursing home the complainant had to incur huge expenses for recovery from her burn injuries. As the complainant has suffer much due to mental trauma and wrong treatment due to the negligence of the OP, she filed the petition of complaint thereby seeking relief in the form of monetary compensation to the tune of Rs. 14,50,000/-.

The OP contested the case by filing a written objection thereby denying all the material averments of the complaint case contending inter alia that the OP took due care and precaution for the purpose of delivery and subsequent treatment of the complainant. It was not within the knowledge of the OP as to who put hot-water-bag under the legs of the complainant. There was no negligence at the instance of the OP in the matter of treatment of the complainant in the nursing home of the OP and as such, the complaint petition was liable to be dismissed with cost.

The Ld. District Forum after considering respective parties case has observed that there was existence of deliberate and direct nexus on the part of the OP in respect of putting the hot-water-bag under the legs of the complainant, due to which the complainant sustained severe burn injuries on her legs which ultimately caused her unlimited sufferings and some physical disablement and accordingly allowed the petition of complaint 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 enough in disposing of the matter in the manner as discussed above.
DECISION WITH REASONS

At the time of hearing it has been submitted on behalf of the Appellant that the Appellant is not responsible for whatever sufferings have been alleged by the complainant while she was admitted in the nursing home of the OP. According to the Appellant, the complaint was filed in order to harass, defame and extort money from the OP by abusive process and provisions of the Consumer Protection Act. The Appellant denied the allegation levelled against him by the complainant that he was never a doctor or medical practitioner. The Appellant never advised hot compression to the complainant as alleged by the complainant. In the present case, no medical expert was examined on behalf of the complainant. In spite of that the Ld. District Forum has taken an arbitrary and whimsical view against the OP. According to the Ld. Advocate, when there was no positive material against the OP/Appellant as regards alleged medical negligence, etc., there was no point on the part of the Ld. District Forum to form any adverse view against the OP thereby allowing the petition of complaint and unnecessarily burdening the OP/Appellant with pecuniary liabilities. While concluding his submission it has been alleged before us that in the absence of any positive and reliable evidence in respect of the complainant’s case, the Ld. District Forum ought to have dismissed the petition of complainant and under no circumstances the impugned judgement is sustainable under the law and the same is liable to be set aside.

We have duly considered the submissions put forward by the Ld. Advocate for the Appellant and have gone through the materials on record and pleadings of the parties including the impugned judgement and find that it is an admitted position that the complainant got herself admitted in the nursing home of the OP for delivery of her child and that there is also no denial of the fact that during her stay in the nursing home of the OP the complainant/Respondent suffered burn injuries on her legs. It is also evident from the materials on record that there was prolong stay in the nursing home of the OP by the complainant and ultimately she was discharged with some burn injuries. From the complainant’s case we find that the complainant has put her finger of accusation towards the OP and that according to the complainant, it is the OP who was responsible for the burn injuries on the person of the complainant. We also find that the OP/Appellant has denied this sort of allegation and has expressed his ignorance in this aspect. We also notice that the Appellant has tried to brush aside or avoid this allegation by putting up a case to the effect that if any hot-water compression was applied to the complainant it was done by her attendant for which neither the Appellant nor the employees of the nursing home are responsible. We have duly considered this aspect of the case and are unable to accept such proposition inasmuch as when the patient is admitted to the nursing home and if the patient sustains injuries like that of the burn injury in the present case, it is the nursing home authority or the owner of the nursing home who is to explain the reason for that burn injury and no one else. In this aspect we find that the Ld. District Forum has considered the case to a good extent and has arrived at a just and reasonable conclusion. However, after perusal of the impugned judgement we find that the Ld. District Forum was satisfied that though the OP was not a medical practitioner, he posed himself to be a medical practitioner before the complainant which, according to us, is also not proper on the part of the Appellant/OP. Though the Appellant has tried to avoid this aspect of the case, but from the LCR we find that in the medical document, which is Annexure-F, it has been clearly mentioned that the operating doctor, S.K.Kole was helped by the Anaesthetist, Dr. Debjit Das and assisted by Dr. Janmejoy Bera. If that be the position we are of opinion that it was extremely improper on the part of the Appellant to designate himself to be a medical practitioner to common public like that of Respondent/Complainant. However, as regards awarding of compensation we are of opinion that ends of justice would be met if the compensation amount is reduced from Rs. 5,00,000/- to Rs. 3,00,000/- only. Other aspects remain unaltered. In this regard, we are also of opinion that in order to keep the members of the society safe and protected it has become extremely necessary to inform the misrepresentation of the Appellant to Indian Medical Association and West Bengal Medical Council. In the result, the Appeal succeeds so far as it relates to compensation money only. Other portion of the judgement stands confirmed. In the result, the Appeal succeeds in part.

Hence, ORDERED that the Appeal stands allowed in part on contest. The compensation amount is reduced from Rs. 5,00,000/- (Rupees five lacs only) to Rs. 3,00,000/- (Rupees three lacs only). Other portion of the impugned judgement remains intact. Let copies of this order be sent to West Bengal Medical Council and Indian Medical Association for information and necessary action. Let the LCR be sent to the Forum below along with a copy of this order.