Presented by: -
Shri Debasish Bandyopadhyay, President.
Complaint Case No. 224/2017
The complainant has instituted this complaint case against the OPs with the prayer for passing direction to the OPs to pay an amount of Rs. 19,00,000/- as compensation to the petitioner for harassment, financial loss and mental agony and also prayed for passing direction to the OPs to pay an amount of Rs. 90,000/- to the petitioner as litigation cost.
Complaint Case - The case of the complainant which is deciphered from the petition of complaint in bird’s eye view is that the complainant’s father namely Shiba Ram Goswami was an retired employee of Railway and during his life time he availed “Retired Railway Employees’ Liberalised Health Scheme” by paying an amount of Rs. 22,688/- for getting medical facilities and on 21.07.2015 the father of the complainant had fallen down in the bathroom at his house and his left neck femur was fractured and then the petitioner and his family members had taken said Shiba Ram Goswami to the Orthopaedic Hospital, Eastern Railway , Howrah for his treatment but unfortunately the OPs neglected to discharge their duties. It is stated that the said patient was admitted on 21.07.2015 and the complainant consulted with OP No. 1 who advised to fix traction and the OPs fixed traction to the patient for his fracture but the OPs did not comply proper procedure as well as without doing any necessary tests negligently fixed the traction to the said patient and the OP No. 1 assured that the fixation of traction had no life risk factor of the patient but unfortunately the said patient Shiba Ram Goswami died on 28.07.2015 on account of negligence of the OPs. It is alleged that the complainant after the death of the said patient for several times asked to supply the treatment papers of the deceased patient but the OPs deliberately ignored to supply the treatment papers to the complainant . It is further alleged that on 07.09.2015, 20.11.2015, 12.12.2015 & on 04.01.2016 the complainant had sent letters to the OPs u/s 6 (1) of R.T.I. Act, 2005 and ultimately the OPs on 19.01.2016 supplied the incomplete set / part of the treatment papers of the patient with ill intention and ill motive. It is submitted that the complainant consulted with one Orthopaedic namely Dr. Gairik Ghosh with the treatment papers supplied by the OPs and said Dr. told that risk of death may be prevented by giving anti clotting medicine to the said patient but it was not given to the said patient of high risk of Pulmonary Embolism. According to the case of the complainant the illegal activities of the OPs the complainant has suffered irreparable loss and injury and due to the negligence and gross deficiency of service of the OPs the complainant had to suffer mental pain, harassment and agony and also suffered financial loss.
For all these reasons the complainant has filed the above noted complaint case as prayer of the complaint petition.
Defence Case
On the other hand the OP Nos. 1, 2 & 3 after receiving summons / notice from this District Commission appeared in this case and contested this case by filing W/V where the OPs have categorically denied each and every allegations of the complainant which have been highlighted in the complaint petition. The specific case of the OPs that this case is not maintainable in its present form as well as in the eye of law and the complainant is not at all a consumer under the provision of Consumer Protection Act, 1986 and the complainant has no cause of action for filing this complaint case and the complainants have not prayed any expert views in this case and without the expert opinion this case is not maintainable. It is alleged that the complainant has instituted this complaint case to malign the reputation of the OPs. It is also pointed out that proceedings before the District Forum being summary trail in nature and the issues involved in this case being complicated particularly when allegations involved are of medical negligence and of highly technical nature, this District Commission/ Forum would be pleased not to exercise jurisdiction in the matter . It has also been pointed out that the complainant has not come before this District Commission in clean hand and so the complainant is not entitle to get any equitable relief in this case. For all these reasons the OPs have prayed before this District Commission for dismissing this case with heavy cost.
Points of consideration
On the basis of the pleadings of the parties this District Commission is going to frame the following points of consideration in this case for the interest of proper and complete adjudication of this case and as well as to arrive at just and proper decision in this complaint case :-
- Is this case maintainable in its present form and in the eye of law?
- Has the complainant any cause of action for filing this case against the OPs or not ?
- Is the complainant a consumer under the OPs or not ?
- Has this District Commission / Forum any jurisdiction to try this case or not ?
- Whether the complainant is entitled to get compensation to the tune of Rs. 19,00,000/- and to get litigation cost of Rs. 90,000/- from the OPs or not?
- To what other relief / reliefs are the complainant entitled to get in this case against the OPs?
Evidence on Record
The complainant in order to prove his case has filed his evidence on affidavit .OP Nos. 2 & 3 have filed questionnaireagainst the evidence on affidavit submitted by complainantand the complainant sidehas also given the reply against such questionnairefiled by OP Nos. 2 &3.
On the other hand in order to disprove the case of the complainant side the OP Nos. 2 & 3 have filed evidence on affidavitand against the said evidence on affidavitof OP Nos. 2 & 3, the complainant has submittedinterrogatories and the OP Nos. 2 & 3have given reply the said interrogatories.
Argument highlighted by the Ld. Advocatesof both sides
In course of argument Ld. Advocates of complainant side and OPs have filed Brief Notes on Argument and in addition to thatcomplainant side and OPsalso have highlightedtheir verbalarguments in this case.
Decision with reason
The first 4(four) points of consideration are taken up for discussion jointly as the questions involvedin these(four) points of considerationare interlinked and / or interconnected with one another.
For the purpose of arriving at just and proper decision in respect of above noted 4 (four) points of considerationand also for reachingat just and proper decisionrelating to the above noted 4 (four) points of consideration, there is urgent necessity of making scrutinyof the material of thiscase record aswell as for scanning the evidence given by both sidesof this case.
After going through the material of this case record and also after making scrutinyof the evidence on record this District Commissionfinds that the father of the complainant was under the coverage of“Retired Railway Employees’ Liberalised Health Scheme” and for that reasonthe father of the complainant also had paid Rs. 22,688/- , to the Railway Authority.It is also revealed from the case record that the deceased Shiba Ram Goswami father of the complainant was admitted in the hospital of the OPs under the said health scheme and so the OPs are service provider and the deceased Shiba Ram Goswami was a consumer under the OPs.In view of such position and as per decision of the Hon’ble State Consumer Disputes Redressal Commission, Delhi passed in the case of Narender Kr.Sengar Vs. Railway Hospital & Other.It is crystal clear that the complainant is a consumer under the OPs and so it can easily be ascertained this complaint case is maintainable in its present form and in the eye of law.It has been alleged in this complaint case by the OPs that the complainant has no cause of action for filing this case.In this regard, this District Commission on close scrutiny of the complaint petition finds that at Paragraph No. 13 of the complaint petition the complainant has distinctly and categorically described as to when cause of action for filing this complaint case arose but this matter has not been controverted in any way in the W/V filed by the OPs.Under this position it can also be determined that the complainant has cause of action for filing this complaint case.Now, the question is whether this District Commission has jurisdiction to try this complaint case or not.Over this issue this District Commission after making scrutiny of the material of this case record finds that the complainant is a resident ofMalipanch Ghora area and the OPs are running their hospital in the district of Howrah.These two factors are clearly reflecting that this District Commission has territorial jurisdiction to try this case.Regardingthe pecuniary jurisdiction this District Commissionon close examination of the material of this case record finds that the claim of the complainant is Rs. 19,90,000/- which is far below than Rs. 20,00,000/- which was the highest limit of pecuniary jurisdiction of a District Forum under the Consumer Protection Act, 1986.These two aspects are clearly reflecting that this District Commission has its pecuniary jurisdiction to try this case.
A cumulative consideration of the above noted discussion goes to show that the complainant has successfullyproved that this case is maintainable, there is cause of action for filing this case, this District Commission has territorial and pecuniary jurisdiction to try this case and the complainant is a consumer in the eye of law under the OPs.So, all the above noted 4 (four) points of consideration are decided in favour of the complainant side.
Points of consideration No. 5 has been framed over the issue whether the complainant has entitled to get compensation and litigation cost of Rs. 19,90,000/- from the OPs or not and the points of consideration No. 6 has been framedon the pointwhether the complainant is entitled to get any other relief / reliefs in this complaint case from the OPs or not.
In connection with the above noted 2 (two) points of considerationthe complainant side has taken the plea that due to negligence, deficiency of service and lack of care of the OPs the father of the complainant Shiba Ram Goswami expired on 28.07.2015 but on the other handit is the defence alibi that the claim of the complainant is not maintainable.
For the purpose of arriving at just and proper decision in connection with the above noted points of consideration and question of lawit is important to note that the complainant must have to prove the negligence of the OP No. 1, 2 & 3 by way of placing expert evidence.In this instant case the complainant side before this District Forum / Commission has not prayed for appointmentof any expertand for passing opinion.The complainant side over this issuehas adopted the plea that the complainant consulted the said matterwith Dr. Gairick Ghosh but in this regard it is very important to note that said Dr. Gairick Ghosh has neither been claimed as a witness nor the said Dr. produced any evidenceon affidavit in this case in support of the claim of the complainant.Under the above noted circumstances the claim of the complainantis found not maintainable.In this regard it is the settle principle of law that for provingmedical negligenceevidence of some expert is necessary.This legal principlehas been observed by Hon’ble Apex Courtand it is reported in 2018 (4) CPR 738 (SC).In this regard it is also very important to note that the claim of the complainant that there was negligence on the part of the OPs has also not been proved by the complainantas becauseit is the settle principleof lawthat it should be borne in mind that “No cure” does not necessarilyimply negligence.This legal principle has been observed by the Hon’bleNational Commissionand it is reported in 2018 (1) CPR 534 (NC).Similar views has also been observedby Hon’ble National Commission in the reported judgment 2018 (1) CPR 507 (NC), II (2014) CPJ 261 (NC), II (2014) CPJ 601 (NC).It is the settle principle of law that
- medical practitioneris not liable to be held negligent simply becausethingswent wrong from mischance or misadventure or through an error of judgment in choosing reasonable course of treatment in preference to another.
It is reported in 2018 (1) CPR 1 (AIL) .Similar view has also been observed by Hon’ble National Commissionand it is reported in 2018 (1) CPR 104 (NC).
All the above noted factorsand the legal principle are clearly depicting that the complainant has failedto establishhis claimregarding medicalnegligenceagainst the OPs.So, this District Commission has no other alternativebut to dismiss this case.
In the result, it is accordingly,
Ordered
That this Complaint Case being No. 224/2017 be and the sameis dismissed on contest.No order is passed as to cost.
The parties are entitled to get a free copy of this judgmentas early as possible.
Let this Judgment / Final Orderbe uploadedin the official website of this District Commission.
Dictated & corrected by me
President
