Date of Filing: 29-11-2016                                                      Date of Final Order: 03-07-2017

Sri Gurupada Mondal, President.

       This is an application u/s 12 of CP Act, 1986 filed by Ajijur  Rahaman against Dr. Mihir Pal, owner of Global Diagnostics praying for Rs.4,45,000/-as compensation, litigation cost, mental pain and agony, deficiency of service and other reliefs.

      The case of the Complainant in short is that he had taken his daughter to Dr. Tapas Maitra on 05.08.16 for her treatment and Dr. Maitra prescribed medicines and asked the Complainant for Ultra-sonography of his minor daughter namely Mistu Parvin.  Then, the Complainant took his daughter to the OP No.2 and OP No.2 did an ultra-sonography on 04.09.16 and then he met with Dr. Tapas Maitra, who informed him that there was stone measuring 3 mm in the kidney of Mistu Parvin.  Being frightened and mental anxiety, the Complainant took his daughter to Mitra Nursing Home at Siliguri and an USG was done on 07.09.16 on the person of Mistu Parvin, who disclosed that there was no stone in the kidney of Mistu Parvin.

       It is further alleged that the Complainant, his wife and two other neighbourers took Mistu Parvin on 15.10.16 at Asian Institute of Gastroenterology at Hyderabad and after thorough examination, the Doctors of Asian Institute of Gastroenterology, Hyderabad did not find any stone in the kidney of Mistu Parvin.  According to the Complainant, Dr. Mihir Pal, owner of Global Diagnostics did not prepare the report correctly and as a result, the Complainant suffered mentally and financially.

    The OP has filed written version denying all material allegations contending inter-alia that the case is not maintainable, the Complainant has no cause of action to file this case and the Complainant is not a consumer.

     Specific case of the OP is that the OP is a Radiologist and Ultrasonologist having Master Degree in the same field and has wide experience in his field and the patient Mistu Parvin, aged about 3 years was taken to Global Diagnostics for USG of whole abdomen as referred by Dr. Tapas Maitra, he conducted the USG of whole abdomen and prepared a report.  During examination of the kidney in the process of USG, one tiny calculus (3.0 mm) was seen in the left renal middle calyx and gave an impression “Tiny left  “nephrolithiasis” and he gave the entire findings in his USG report of whole abdomen.

        Further case of the OP is that the patient was under medication and a calculus measuring 3 mm can be expelled  through urinary tract in natural way at any point of time.  For that reason, the calculus may not be seen  on the subsequent USG reports.  It is further alleged that two USG reports do not suggest any calculus, that was not a ground to suggest that the USG report furnished by him was wrong.  On the basis of the aforesaid facts, the OP prays for dismissal of the case with costs.

         Considering the complaint and its written version, the following points are taken into consideration to come to a conclusion.

                POINTS  FOR  CONSIDERATION

1. Is the Complainant Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
2. Has this Forum jurisdiction to entertain the instant complaint?
3. Have the O.Ps any deficiency in service as alleged by the Complainant?
4. Whether the Complainant is entitled to get relief/reliefs as prayed for?

                    DECISION WITH REASONS

         We have gone through the record very carefully. Heard the argument at a length as advanced by the Ld. Agents For the Complainant and the O.P. No.1. Perused the documents along with evidence on affidavit of the parties.

Point No.1

        It is evident from the evidence on record that the Complainant went to Dr. Mihir Pal for USG of his daughter Mistu Parvin and Complainant paid the OP for USG.  The Complainant obtained the service from the OP in lieu of payment.  He, who hires or avails any service for consideration and (ii) includes any beneficiary of services other than the hirers or users, provided that such services are availed of with the approval of the hirer.  The Complainant obtained the service of OP in lieu of consideration.  As such, the Complainant is a consumer.

Point No.2.

          The Complainant is the resident of Chilakhana, P.S. Tufanganj in the district of Cooch Behar and the Global Diagnostics of the OP is situated in the district of Cooch Behar.  The claim of the Complainant is much lower than its prescribed limit, that this Florum can try.  Hence, we hold that this Forum has territorial as well as pecuniary jurisdiction to try this case.

Point No.3 & 4.

          Both the points are taken up together for consideration of discussions as well as  both the points are related with each other.

          It is evident from the evidence on record that the Complainant took his daughter Mistu Parvin to Dr. Tapas Maitra for treatment and Dr. Tapas Maitra prescribed medicines and USG of the daughter of the Complainant.  It is the admitted fact that the OP  did the USG of the whole abdomen of Mistu Parvin and found one tiny calculus (3.0 mm) was seen in left renal middle calyx and impression was tiny left  “nephrolithiasis”.  It is further evident to us that USG of Mistu Parvin was done on the whole abdomen at Echo-Scan at Hakimpara, Siliguri and Asian Institute of Gastroenterology.  We have perused both the USG reports prepared by Echo-Scan, Siliguri and Asian Institute of Gastroenterology, Hyderabad.  In both reports, the kidney of Mistu Parvin was normal and no evidence of calculus.

         Let us see as to whether the USG report prepared by OP was wrong or not. “Nephrolithiasis” means the process of forming a kidney stone, a stone in the kidney.  Kidney stones are common cause of blood in the urine and pain in the abdomen.  According to Medical Literature (Medicine Net.com) that the majority of stones passes spontaneously within 48 hours.  If a symptomatic stone does not pass, a procedure by the urologist may be needed.  It is also discussed in the said medical journals that all kidney stones (0.2 inches or less than 5 mm) can pass through the urinary tract and out of the body with little or no pain  Some kids just need to drink a lot of water and take medicines to pass the kidney stone.  It is further discussed that stones smaller than 5 mm (0.2 inches) often pass on their own without treatment.

        Therefore, from the above discussions, we hold that size of the alleged kidney stone was 3 mm of Mistu Parvin as per USG report of OP.  The 1^st USG was done on 04.09.16, the 2^nd USG was done on 07.09.16 and the third was done on 15.10.16.  No stone in the kidney of Mistu Parvin was found on 07.09.16.  As such, the 2^nd USG was done long after 48 hrs. of the 1^st USG.  As per Medical journal (Medical net) the majority of stones passes spontaneously within 48 hours through the urinary tract out of the body with little or no pain.  No stone was found in the kidney of Mistu Parvin in the 2^nd and 3^rd USG reports.  Therefore, we can presume strongly that the kidney stone of Mistu Parvin measuring 3 mm was passed during the interval of 1^st USG (04.09.16) and 2^nd USG (07.09.16).  As per medical literature, we cannot say that the USG report prepared by the OP is wrong.  In such circumstances, Dr. Mihir Pal cannot be made liable that his USG report is wrong.  We do not find any negligence on the part of the OP while he prepared the USG report of Mistu Parvin on 04.09.16.  As such, the Complainant is not entitled to get any award/decree as prayed for.

Hence,

          Ordered,

                      That the case be and the same is rejected on contest against the OP.  There is no order as to cost.

        Let a copy of the final order be made available and be supplied free of cost to the concerned party/Ld. Advocate by hand/Registered Post with A/D forthwith for information and necessary action as per Rules.

Dictated and corrected by me.