Ld. Advocate(s)
For Complainant: Subhasis Roy
For OP/OPs : None
Date of filing of the case :09.02.2016
Date of Disposal of the case : 16.02.2023
Final Order / Judgment dtd.16.02.2023
Complainant Abhijit Dalal files the present complaint against the aforesaid opposite parties under section 12 of the Consumer Protection Act, 1986 alleging deficiency in service and Medical negligence and praying for compensation amounting to Rs.19,00,000.00 and also prayed for Rs. 1,00,000.00 as cost of the case.
It is the allegation of the complainant that his wife Basona Dalal (now deceased) aged about 28 years and continued his treatment under OP No.3 and OP No.4. As complainant is a poor day labourer he could not continue the treatment of his wife under OP No.3 & 4 and for that reason he used to take her wife at the outdoor unit of District Sadar Hospital at Krishnagar from time to time. On 07.09.2015 he took his wife to the outdoor unit of District Sadar Hospital for routine check up of his wife but OP No.1 advised for admission in the Hospital. Accordingly complainant admitted her at District Sadar Hospital Krishnagar under OP No.1 in the female ward. Complainant’s sister in law Chinta Roy was all along with said Basona Dalal. Since after admission no doctor or nurse came to look after Basona Dalal. In the night of 07.09.2015 one attending nurse gave some medicines to Basona Dalal and thereafter she expired. Relating to the said incident Kotwali P.S. started case no.605 of 2015 dated 08.09.2015. Death of Basona Dalal took place due to latches of OP No.1 &2. Hence this case.
OP No.1 filed W/V and denied and entire allegation of the complaint and further stated that there was no deficiency of service and there was no negligence on his part. He further contended that Basona Dalal was admitted on 07.09.2015 at the emergency unit of District Sadar Hospital Krishnagar, Nadia. He also examined her at 6:00 P.M. He also further examined her at 11:00 P.M. and expected her vaginal delivery. In the said night OP No.1 was in night shift duty in the said Hospital from 12.00. At about 1.40 A.M. he further examined said Basana Dalal and told the on duty sister to call him positively if any urgent situation regarding the said patient arises. On the next morning at about 7.01 A.M. he got a call from
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the gate man and came to know that patient Basana Dalal was expired at Bathroom of the said Hospital. He has no negligence on his part. He gave best and available service and care to the said patient. He prayed for dismissal of the case.
Trial
During trial no affidavit in chief has been filed on behalf of the complainant. He files certain documents.OP No.1 also did not file any affidavit in chief or documents.
Documents
Complainant produced the following documents viz :
1)Prescription issued by Dr. Asima Talukdar Dtd. 30.01.2015.......(One sheet)......(Original).....(Annex-1)
2)Prescription issued by Dr. Amitabha Chowdhury Dtd. 08.12.2014.......(One sheet)......(Original).....(Annex-2)
3)OPD Patient Card issued by District Hospital, Nadia (Sadar Unit) dated 20.12.2014......(One sheet)......(Original).....(Annex-3)
4)OPD Patient Card issued by District Hospital, Nadia (Sadar Unit) dated 20.01.2015......(One sheet)......(Original).....(Annex-4)
5)Surathal Report dtd. 08.09.2015.......(One sheet).....(Xerox).......(Annex-5)
6)Post Mortem Report dated 08.09.2015.......(One sheet).......(Xerox)......(Annex-6)
7)Sending Report of Dead body for Examination dtd.08.09.2015........(One sheet).......(Original)..........(Annex-7)
8)Cremation/Burial Certificate issued by Nabadwip Municipality issuing dtd.29.09.2015.......(One sheet)........(Original).......(Annex-8)
9)Death Certificate issued by Krishnagar Municipality D.O.D 08.09.2015..........(One sheet)....(Original)......(Annex-9)
Decision with Reasons
It is the allegation of the complainant as mentioned in the petition of complaint that his wife Basana Dalal (now deceased) aged about 28 years and she was continuing her treatment under OP No.3 and OP No.4. As complainant is a poor day labourer he could not continue the treatment of his wife under OP No.3 & 4 and for that reason he used to take his wife at the outdoor unit of District Sadar Hospital at Krishnagar from time to time. On 07.09.2015 he took his wife to the outdoor unit of District Sadar Hospital for routine check up of his wife but OP No.1 advised for admission in the Hospital. Accordingly complainant admitted her at District Sadar Hospital Krishnagar under OP No.1 in the female ward. Complainant’s sister in law Chinta Roy was all along with said Basana Dalal.
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Since after admission no doctor or nurse came to look after Basana Dalal. In the night of 07.09.2015 one attending nurse gave some medicines to Basana Dalal and thereafter she expired. Relating to the said incident Kotwali P.S. started case no.605 of 2015 dated 08.09.2015. Death of Basana Dalal took place due to latches of OP No.1 &2. Hence this case.
On careful perusal of petition of complaint we find from the description of OP No.1 that he is medical officer of District Sadar Hospital Krishnagar and OP No.2 is the Superintendent of District Sadar Hospital Krishnagar. As per allegation of the complainant patient Basana Dalal was admitted at District Sadar Hospital Krishnagar on 07.09.2015 and she expired in the said night. In the petition of complaint there is no description regarding payment of any amount in favour of the Krishnagar Sadar Hospital or in favour of OP NO.1 & 2. So, we have no hesitation to hold that no amount was paid in favour of OP No.1 & 2 or in favour of District Sadar Hospital Krishnagar.
Now the question comes before us that in such a situation present case is maintainable or not.
In this context we have carefully gone through the decision of Hon’ble Supreme Court in Indian Medical Association v. V.P. Shanta reported in AIR 1996 SC 550 [1995 (3) CPJ 1 (SC) , 1995 (3) CTJ 969 (SC) (CP)].
We find that Hon’ble Justice Kuldip Singh, Hon’ble Justice S.C. Agrawal and Hon’ble Justice B.L. Hansaria passed the said judgement on 13.11.1995.
Hon’ble Supreme Court in this common judgment decided a writ petition and two appeals by special leave. A common question that has arisen is whether and , if so, in what circumstances a medical practitioner can be regarded as rendering service under section 2(1) (o) of Consumer Protection Act 1986. Connected with this question was the question whether the service rendered at a hospital/nursing home could be regarded as service.
Hon’ble Supreme Court after examining number of foreign Judgments, medical literature, and Indian decisions in civil suits, consumer complaints and writ petitions dealing with medical negligence held :-
- Service rendered free of charge by a Medical Practitioner attached to a Hospital/nursing home, all medical officers employed in a hospital/nursing home where such services are rendered free of charge to all, is not a “service” under the Act.
- Service rendered in a non-government hospital/nursing home where no charge is collected from all patients is not covered by the Act.
- But, service rendered at non-governmental hospital/nursing home where charges are collected from some and non collected from some others, falls under 2(1) (o) of the Act, irrespective of the fact that the service
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rendered free of charge to some poor persons. The patient obtaining free service is also a consumer under the Act.
- Service rendered at Government hospital/health centre/dispensary where no charge is levied on any patient is outside the purview of the Act.
- But, service rendered at a Government Hospital/health centre/dispensary where services are rendered on payment of charge to some and rendered free of charge to other persons, falls under Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to some poor persons. The patient obtaining free service in such case also is a consumer under the Act.
- Where as a part of consideration of service the employer bears the expenses of medical treatment of an employee and his family members, the service to such an employee and his dependents by a Medical Practitioner or a hospital/nursing home would not be free of charge and would constitute “service” under the Act.
- In most government hospitals there are separate paying wards where affluent patients seek admission and the general ward where poor patients are treated free of charge. Both the types of patients are entitled to protection under the Act”.
From the aforesaid discussion it is clear before us that the present case is not maintainable because complainant lodged this case against doctor of District Sadar Hospital Krishnagar and Superintendent District Sadar Hospital Krishnagar relating to treatment of his wife without paying any amount as charge relating to treatment of his wife.
In the result present complaint fails.
Hence,
it is
Ordered
that the present case vide No. CC/16/2016 be and the same is dismissed on contest against the OP No.1 and dismissed ex-parte against OP No.2-4 but without any order as to costs as not maintainable.
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Let a copy of this Final Order be supplied to the complainant and OPs as free of cost.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
