Ld. Advocate(s)
For Complainant: Subhasis Roy
For OP/OPs : Kajal Ghosh
Date of filing of the case :21.12.2015
Date of Disposal of the case :28/11/2022
Final Order / Judgment dtd.
Complainant above named filed this complaint u/s 12 of the CP Act, 1986 against the aforesaid OP alleging deficiency in service and prayed for decree amounting to Rs. 3,10,762 and compensation amounting to Rs. 5,00,000 and other relief. Her main allegation as I find from the petition of complainant that she was treated under the OP No. 1 on 05/05/2015, 11/05/2015 and 21/05/2015. As per advice the OP No. 1 an operation was done on her abdomen by the OP No. 1 at Kaya-Kalpa Sadan Nursing Home ie. OP No. 2. After the said operation, operated portion was sent for Histopathological examination before OP No. 3 as per advice of OP No. 1. On 08/06/2015. Complainant was admitted before the OP No. 2 for the said operation and she continued her treatment there for the period from 06/06/2015 to 17/06/2015. After receipt of the Histopathological report, OP No. 1 issued one Referral Certificate on 24/06/2015. After digonising that complainant is suffering with adenocarcinoma of G.B. and referred her to higher center for urgent admission viz Tata Memorial center. Thereafter complainant was treated at Tata Memorial center Mumbai ie. OP No. 4 and spent Rs. 2,72,822. It was finally disnosed there that complainant is not the patient of Adenocarcinoma. Due to wrong report of OP No. 3 he sustained loss of 2,72,822 as cost of treatment before OP No. 4.
OP No. 1 in his w/v denied the entire allegation of the complainant and simply stated that there was no deficiency in service. OP No. 2 in his W/V denied the entire allegation and also stated that there was no deficiency in service on his part.
OP No. 3 in his W/V also denied the entire allegation and also stated that there was no negligence in his part.
OP No. 4 has not contested the case after receipt of the notice. Case is running ex-parte against him vide order dt. 25/01/2016.
Hence, this trial.
During trial following evidence have recorded:-
- Complainant filed affidavit-in-chief of himself (P.W.1) Interrogatories has been filed by OP No. 1-3 and answer was given by the complainant.
- OP No. 1 filed affidavit-in-chief of himself (OPW 1). Complainant filed interrogatories and answer was given by the OP No. 1.
- OP No. 2, 3 did not adduce any affidavit-in-chief.
Complainant in support of his case produced the following documents viz.
- Pathological report of Dr. Arindam Jana dt. 05/05/2015, 21/05/2015, 01/06/2015. - 2 Sheets (Original).
- Pathological report of Central pathology. - 3 Sheets (Original).
- Report of Hrik Diagnostic - 1 Sheet (Original).
- Discharge Certificate of Kaya-Kalpa Sadan - 1 Sheet (Original).
- Receipt of Medipath - 1 Sheets (Original).
- Referral Certificate issued by Kaya Kalpa Sadan dt. 24/06/2015 - 1 Sheet (Original).
- Final Histopathology report issued by Tata Memorial Center 09/07/2015 - 1 Sheet Computer copy.
- USG Report issued by report issued by Tata Memorial Center 09/07/2015 – 1 Sheet Computer copy.
- Report of CT Scan of the abdomen and pelvis dt. 04/07/2015. - 1 Sheet Computer copy.
- Discharge report of Tata Memorial Center - 1 Sheet (Original).
- Final report of USG abdomen and pelvis dt. 07/08/2015. -1 Sheet Computer copy.
- Bill for Patient Rs. 2,72,822- 1 Sheet Computer copy.
- Report of Histopathology examination - 1 Sheet Xerox.
During hearing no evidence has been adduced by the contesting OP No. 1-3 challenging the genuineness of aforesaid documents. Accordingly aforesaid documents be treated as genuine documents and these documents will be considerd subsequently.
Decision with Reasons
On careful perusal of record we find that there is no plea on behalf of OP No. 1 to 4 they did not take any money from the complainant in respect of their service. Moreover complainant produced document in respect of her treatment before the OP No. 1-4. So there is no doubt from the conduct of the parties that complainant is the consumer as per provision of sec 2(d) of the C.P. Act, 1986 and OP No. 1 – 4 are the service provider under the CP Act. 1986.
We also find that the grievance which been raised will definitely come U/s 12 of the CP Act and present case is maintainable in its present form.
It is admitted position that OP No. 1 examined the complainant on 05/05/2015 11/05/2015 and 21/05/2015 and also advised her for some investigation and after considering the aforesaid investigation report, he took the decision of operation of Gall Blader and on 01/6/2015 advised the complainant to take admission at OP No. 2.
It is also admitted position that as per advice of OP No.1 complainant got admission at OP No. 2 and gall bladder operation was done there and complainant paid bill of Rs. 27,940/- in favour of OP No. 2.
OP No. 2 for the aforesaid service took money amounting to Rs.27,340/- from the complainant and issued receipt.
Up to this stage there is no grievance on the part of the complainant.
At the time of aforesaid operation, complainant continued her treatment before the OP No. 2 under the care and supervision of OP No. 1 till 17/06/2015 and during the said period OP No. 1 and 2 arranged the histopathology examination under OP NO. 3 and took service charge amounting to Rs.600/- and one receipt has been issued to that effect.
OP No. 1 after perusing the Histopathology report (Document No. 13) opined that complainant No. 1 is suffering with Adenocersinoma and advised her to go before OP No. 4 and accordingly complainant went before OP NO. 4 for specific treatment of alleged adenocersinoma.
But after thorough investigation OP No. 4 came to the conclusion that complainant is not the patient of adenocersinoma.
But during the prolonged treatment before OP NO. 4 complainant paid Rs.2,72,822/- to the OP No. 4.
Crux of the whole dispute moves around the histopathological report issued by OP No. 3 (Document No. 13). It is the argument of the complainant that due to the wrong report of the OP No. 3 complainant got fear and compelled to go before the OP No. 4 as per advice of OP No. 1 and after thorough investigation there it was established that complainant is not the patient of adenocersinoma. It should not say that investigation report regarding histopathological test done by OP No. 4 may be wrong because OP No. 4 is the Superspecialty Hospital and famous institution in India as well as World.
Let us see the histopathological report issued by OP no. 3 dt. 08.06.2015 which reads as under.
Let us see the final Histopathology report dt. 07.07.2015 issued by OP no. 4 which reads as under.
On careful consideration of aforesaid 2 reports it is clear before us that report done by OP no. 3 dt. 08.06.2015 is appears to be false.
On careful perusal of the decision reported in 2008(1) CPJ 205 we find that in the said decision it has discussed that due to wrong report appropriate medicine cured not be given and the pregnancy aborted. Hon’ble National Commission held that the pathologist to be negligent in his duly and directed him to pay a compensation of Rs. 25,000/-
Hon’ble National Commission in a decision reported in 2004(3) CPJ 553 held that Laboratory to be negligent for wrong report and asked to pay compensation amounting to Rs. 25,000/-.
Hon’ble National Commission also awarded compensation for wrong laboratory report in the case reported in 2008(4) CPJ 230 (NC) and 2009 (1) CPJ 243 (NC).
So, we have no hesitation to hold that histopathological report done by OP No. 3 i.e document no. 13. Dt. 08.06.2015 is no doubt wrong analysis.
We have no hesitation to hold further that due to such type of analysis report by OP No. 3 complainant compelled to go before OP No. 4 and compelled to spent Rs. 2,72,822/- and OP No. 3 is fully responsible for such expenditure. So OP No. 3 should be asked by an order of this commission to pay the same and complainant is legally entitled to recover the same amount from the OP NO. 3.
Beside the aforesaid amount complainant is further entitled to Rs. 50,000/- as compensation for her harassment, mental pain, agony and other miscellaneous expenditure such as journey, fooding, lodging charge etc at Mumbai during her treatment at Tata Memorial Center. i.e before OP no. 4.
Complainant is also entitled to Rs. 20,000/- as cost of the suit.
In the result complainant succeeds.
Hence, it is
Ordered
That the present case Vide No. CC/137/2015 be and the same is allowed on contest against the OP No.3 with cost of Rs. 20,000/- (Rupees. Twenty Thousand only) to be paid by the OP No. 3 in favour of the complainant within a month from this date and present case be and the same is dismissed on contest against OP No. 1 and 2 and dismissed ex-parte against OP No. 4 but without any order as to costs.
OP No. 3 is directed to pay Rs. 2,72,822/- (Rupees. Two Lakh Seventy Two Thousand Eight Hundred Twenty Two only) with interest @ 9% per annum from the date of filing of this case i.e from 21.12.2015 to till the actual date of payment.
OP No. 3 is further directed to pay Rs. 50,000/- (Rupees Fifty Thousand only) as compensation to the complainant for her harassment, mental pain, agony and other miscellaneous expenditure such as journey, fooding, lodging charge etc for her treatment at Tata Memorial Center at Mumbai.
OP No. 3 is directed to pay aforesaid sum within a month from this date failing which, complainant shall have the right to file execution proceedings against her.
Let a copy of this Final Order be supplied to the complainant as free of cost.
Let a copy of this Final Order be supplied to the OP No. 3 by post at the cost of the Commission for compliance.
