Ld. Advocate for the Complainant: Golam Ashik.

 Ld. Advocate for the O.Ps:- Ex-parte.

 Date of Filing: - 05.04.2018                             Date of Disposal:-  04.03.2022

F  I  N  A  L       O  R  D  E  R

  Order Dated:- 04.03.2022

       An application has been filed by the Complainant U/S-12 of the C.P. Act, 1986 alleging medical negligence and deficiency in service against the O.Ps, i.e concerned doctor and medical officer of the Mira Primary Health Centre, as noted above and prays for compensation to the tune of Rs.7,00,000/( Seven lakhs only) for mental pain, sufferings, loss etc and further prays for cost of the proceeding  and other reliefs as per law and equity.

       The facts of the case of the complainant succinctly are that on 08.02.2012 the concerned doctor & medical officer was in charge of  Bilateral Tubectomy under L.A Ligation at Mira P.H.C Nadia and the complainant, in view of family planning, had gone there for ligation operation and ligation operation was done there on that day, being serial No: 337/M.                                                                                                            

       It is the allegation of the complainant that on 25.02.2016, due to her physical illness she visited one ultra sonography centre and one ultra-sonography was done on her at Modern Ultra-Sonography Centre at Debagram Katwa More, Nadia where she was detected pregnant for about 23 weeks 4 days.

      It is further stated by the Complainant that on 19.05.2016 she gave birth of a female child at Debagram Nursing Home, who was later christened as Siddika Khatun.

     Further, it is alleged by the Complainant that her husband is a poor man and belongs to a labour class family and the couple had already 3(three) children namely, 1. Shuli Khatun, aged about 13 years, 2. Obaidulla Sekh, aged about 8 years and 3. Urmila Khatun, aged about 5 years respectively and they had been facing great difficulty to feed and upbringing them properly and for that reason and specially for family planning the Complainant had decided to undergo the Ligation operation but by giving birth of the 4^th child subsequent to Ligation operation, brought them further in acute poverty and the family of the Complainant, including her four children have been passing days miserably in half-fed condition.

      The mentally frustrated Complainant further alleged that all that happened due to the negligent act of the concerned doctor and prays for awarding just and proper compensation to the Complainant so that no one would suffer likewise the complainant in future.

      The Complainant further stated that the higher authority of health department did not accept and acknowledge her complaint and therefore finding no other alternative she files this petition of complaint before this District Forum alleging negligence and deficiency of treating doctor with the  prayer as reproduced herein below:-

Reliefs Sought For:-

1. To pass an order directing the O.Ps to pay Rs. 7,00,000/ to the Complainant as compensation for mental pain, sufferings, loss etc.

2. To pass an order directing the O.Ps to pay the cost of the proceeding.
3. To pass other order or orders which the Complainant is entitled to get.
4. To pass necessary order or orders in favour of the Complainant which the Complainant is entitled to get as per law and equity.
5. To pass an order directing the O.Ps to produce relevant documents before the Forum.

The Complainant, with the Complaint petition, files the following documents ( Xerox documents)by making annexure:-

1. Xerox copy of prescription of Mira Primary Health Centre dated 08.02.2012.
2. Xerox discharge certificate of the Complainant issued by M/S Debagram Nursing Home, dated nil.
3. Xerox copy of ultra sonography report of the Complainant issued by Modern Ultra Sonography Centre, dated 25.02.2016.
4.  Xerox Copy of certificate of birth of Siddika Khatun, wherein the date of birth is recorded as on 19.05.2016.
5. Xerox copy of birth certificate of Shuli Khatun, wherein the date of birth is recorded as on 17.11.2003.
6. Xerox copy of birth certificate of Urmila Khatun, wherein the date of birth is recorded as on 22.08.2011.
7. Xerox copy of birth certificate of Obaidulla Sekh, wherein the date of birth is recorded as on 18.10.2008.
8.  Xerox copy of V.I card & Aadhar Card of the Complainant.

      Notices have been sent upon the O.Ps and it is reflected from the postal A/D cards that both the O.Ps received their respective notices. Despite receiving notices, the O.P No:1 did not turn up before the Forum.

      It is reflected from the case record and the order sheet, being order No: 03 dated 16.05.2018, that the O.P No: 2, namely Dr. Palash Biswas entered appearance on 16.05.2018 and made a time prayer. But subsequent to that the O.P No:2 did not turn up before the Forum in order to contest the case. No written Version has been filed by him.  Accordingly, the Forum passed an order, being Order No: 6 dated 18.07.2018, and decided to fix the case ex-parte against the O.Ps and gave a chance to the Complainant to file written affidavit –in- chief and the case has been proceeded ex-parte against both the O.Ps.

       During hearing, the Complainant filed written affidavit- in- chief, written in Bengali, and adduced evidence by submitting the original documents as noted below:-

1. Prescription of Mira Primary Health Centre, being No: 1295, dated 08.02.2012,wherein it is reflected that the Complainant Anowara Bibi has undergone Bilateral Tubectomy under L.A Ligation at Mira P.H.C, Nadia, yearly serial No: 337/M.
2. Discharge certificate of Anowara Bibi, issued by M/S Debagram

Nursing Home, being log No: 35/May-2016.

3. Ultra Sonography Report of Anowara Bibi, dated 22.04.2016,

by which intra uterine single live pregnancy of 33 weeks 0 days maturity was detected.

4. Birth Certificate of Siddika Khatun, wherein date of birth is recorded

as on 19.05.2016.

5. A residential certificate issued in favour of Siddika Khatun by

the Prodhan, Panighata G.P, of Kaliganj Block , dated 10.05.2018,

in which the monthly income of the family of the complainant is mentioned as Rs.4,000/ as on that day, month& year as mentioned above.

It is to be reiterated that the instant Consumer Complaint was filed on 05.04.2018 as per the provision of Sec-12 of the Consumer Protection Act, 1986(now repealed by replacing a new Act, i.e The C.P. Act, 2019 w.e.f 20.07.2020) and it was proceeded under the said old law.

The argument of the case was heard on 25.02.2022 and the Complainant filed Written Argument (B.N.A). Ld. Advocate for the Complainant advanced his oral submission during argument and apprised the Forum that the O.P/s hospital is a Government run Primary Health Centre and it provides free treatment to the patients. The doctors are also attached with the hospital, who gives free treatment to the patients.

       From the complaint petition, evidence of the complainant and other materials on record, the following points have been framed:-

POINTS TO BE DETERMINED:-

1. Is the complainant a consumer?

       2. Is the complaint maintainable?

       3. Is the complaint filed within the limitation period of time?

       3. Was there any deficiency in service on the part of the O.P/ OPs?

       4. Were the treating Doctor and the hospital negligent while performing

            the Ligation operation?

       5. Is the complainant entitled to get any relief as prayed for?

D E C I S I O N   W I T H    R E A S O N S

All the points have been taken up together for convenience of discussion, for the sake of brevity and for avoidance of repetition of facts.

 From the written affidavit -in- chief and the evidence adduced by the Complainant it is evident that on 08.02.2012 the concerned doctor &    medical officer was in charge of Bilateral Tubectomy under L.A Ligation at Mira P.H.C Nadia and the complainant, in view of family planning, had gone there for ligation operation and ligation was done there on that day, being serial No: 337/M. 

      The Annexure No:1 being No: 1295 dated 08.02.2012 shows that the Complainant had undergone Bilateral Tubectomy under L.A. Ligation at Mira P.H.C, Nadia being serial No: 337/M on 08.02.2012. and the concerned Medical Officer prescribed some medicine.                                                                                                            

      It is stated by the complainant in her evidence that on 25.02.2016, due to her physical illness one ultra-sonography was done on her at Modern Ultra- Sonography Centre at Debagram Katwa More, Nadia where she was detected pregnant for about 23 weeks 4 days.

      The Annexure No: 3 i.e the Ultra Sonography report shows that the

complainant was pregnant for about 23 weeks 4 days on the date of test and the sonologist reported that “ a single live fetus in uterine cavity with normal cardiac activity and body movements and the gestational age by USG is 23 weeks 4 days( +/- 2 weeks 2 days).”

      It is further stated by the Complainant in her evidence that on 19.05.2016 she gave birth of a female child at Debagram Nursing Home, who was later christened as ‘Siddika Khatun’.

       The Annexure No: 2 is the discharge certificate of Debagram Nursing Home and Annexure No: 4 is the birth certificate, both show that the Complainant gave birth of a female child on 19.05.2016 at Debagram Nursing Home.

      Further, it is stated by the Complainant in her evidence that her husband is a poor man and belongs to a labour class family and the couple had already 3(three) children namely, 1. Shuli Khatun, aged about 13 years, 2. Obaidulla Sekh, aged about 8 years and 3. Urmila Khatun, aged about 5 years respectively and the Annexure No: 5, 6 & 7 proves the fact that couple had already three children.

      Further, it is stated by the Complainant in her evidence that they had been facing great difficulty to feed and upbringing the children properly and for that reason and specially for family planning the Complainant decided to undergo the Ligation operation but unwanted birth of a female child, which is the 4^th child of the couple subsequent to Ligation operation, ushered in acute poverty in their family and as a result of which the Complainant and her four children have been  passing days miserably in half-fed condition.

       The complainant has filed one certificate of the Prodhan, Panighata G.P dated 10.05.2018, wherefrom it is elucidated that the total monthly income of the Complainant’s family was Rs.4,000/ in the year 2018.

      The Complainant further stated in her evidence that all that happened due to the negligent act of the concerned doctor and prays for awarding just and proper compensation to the Complainant so that no one would suffer likewise the complainant in future.

      The Complainant further stated in her evidence that the higher authority of health department did not accept and acknowledge her complaint and therefore finding no other alternative she filed the petition of complaint before this District Forum alleging negligence and deficiency of treating doctor.

      Now, it is the settled principle of law that in order to maintain Consumer Complaint before the Consumer Fora, the complainant has to be a consumer within the definition of “Consumer” as defined U/S 2(1)(d) of the C.P.Act,1986.  

      According to the definition,  “Consumer” means any person who

i) buys any goods for a consideration which has been paid or promised or partly paid or partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.

       From the definition given, it is crystal clear that consideration is a sine qua non element and the complainant must have paid the consideration to the service provider for availing of the desired service. If the Complainant has not paid anything and availed of the service free of charges, he or she is not considered as consumer.

      Here, the O.Ps is/are the Medical officer / Government run Primary Health Centre and obviously the treatment provided to the Complainant was free of any charges. The Complainant did not adduce any document or money receipt to the effect that she has paid any consideration amount to the O.Ps hospital for availing the services. Not a single scrap of paper has been filed by the Complainant in that respect.

In this respect, we would like to refer a case decision titled as Indian Medical Association Vs V.P. Shantha, reported in [( 1995)6 SCC 651] wherein Hon’ble Supreme Court was pleased to hold the view that “service rendered at Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients rich and poor are given free service is outside the purview of the expression “service” as defined in Sec- 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital would not alter the position.”

It is further held by the Apex Court that(Supra) “ The other part of exclusionary clause relates to services rendered ‘free of charge’. The Medical Practitioners, Government Hospitals/nursing homes and private hospitals / nursing homes ,(hereinafter called doctors and hospitals) broadly fall in three categories:-

i) where services are rendered free of charge to everybody availing the said services;

ii) where charges are required to be paid by everybody availing the said services; and

iii) where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay are rendered services free of charges.”

Here in the case, the burden of proving lies upon the complainant only to prove the case. But the complainant did not provide any payment receipt or document showing payment made to the O.Ps hospital for the treatment of the complainant.

Firstly, if the O.Ps hospital comes under the first category, then the service rendered by the hospital is free of charge, which is outside the purview of the definition ‘Service’. Secondly, if the O.Ps hospital comes under the second category, then the Complainant must have paid the service charge, i.e the consideration for her treatment. But the Complainant did not adduce any scrap of paper in her evidence to prove the fact that she has paid some amount as consideration for her Ligation Operation to the O.Ps. Thirdly, if the O.Ps hospital comes under the third category, in such a case the Complainant has to prove by cogent evidence that the O.Ps hospital is providing service free of any charge to a certain class of persons and charging for treatment for other specified strata.  But   the Complainant remained silent over the matter and did not produce any document where form we could deduce or make any inference that the O.Ps hospital falls under the third category.

Further, from the documents adduced by the complainant it is easily understandable that the O.Ps hospital is a Primary Health Centre, in short P.H.C run by the State fund, which provides free medical services to the public in general.

Here, the element of consideration is lacking. Even the Complainant could not provide the name of the treating doctor in the cause title of the case. In order to fasten the liability of the negligence of the treating doctor, the complainant has to prove that doctor was negligent while treating his patient and his identity must have come into the light. Otherwise it would be impossible to fix any medical negligence or liability upon the treating doctor, who was all along in disguise.

Further, the complainant did not seek for any opinion from medical experts in order to prove her case. It is held by the Hon’ble National Commission in S. Saravanan Vs M/S Rasi Clinic & Ors, reported in [2017(2) C.P.R-272( N.C)] that “allegation of medical negligence must be proved by adducing expert opinion”.

In view of the above discussion, we are of the considered opinion that the Complainant is not a consumer within the meaning and definition of ‘consumer’ as given U/S 2(1)(d) of the C.P.Act,1986 and as such the case is not maintainable.

Further, the Complainant filed this Consumer Complaint before the District Forum on 05.04.2018 and from the evidence and other materials on record it is seen that the Complainant had gone to the O.Ps hospital on 08.02.2012 for Ligation operation. Subsequently on 25.02.2016 when she visited the Modern Ultra Sonography Centre, at Debagram Katwa More, Nadia for some physical problem, there one ultra sonography was done on her and it is the version of the Complainant that after getting the ultra sonography report she first came to know that she was pregnant for about 23 weeks 4 days around. It is hard to believe that being a mother of three children already, she could not realize that she was pregnant for about 23 weeks and she first came to know about her pregnancy on 25.02.2016 after getting the report. Even if, it is true, and the discovery rule is applied as per the decision of Morgan Vs Grace Hospital [149W Va 783: 144 SE 2d156(1965] and the Judgment of the Hon’ble Supreme Court titled as V.N Shrikhande Vs Anita (2011)1 SCC 53, we construe that the time would run from that day i.e on and from 25.02.2016, then also the limitation period for filing the complaint was over as per Section 24A of the C.P.Act, 1986.As per the said section the time limit for filing Consumer Complaint before the Consumer Fora is 2(two) years, which is to be reckoned from the date on which the cause of action has arisen. But the present Consumer Complaint was filed beyond the statutory limit of time. Further, no petition for condonation of delay was filed as per the provision of sub- sec(2) of the Sec-24A of the C.P.Act,1986.

It is held in Pramod Kumar Vs M/S Global Health Pvt. Ltd & Anr, reported in [2017(2) C.P.R-316( N.C)]that a time barred application cannot be entertained and is liable to be dismissed. It is held by the Hon’ble National Commission “ that in  view of the discussion above, it is clear that instant complaint has been filed almost nine months after the expiry of period of limitation computed from the date on which cause of action last arose. As no explanation for delay has been given nor any application for condonation has been filed, we have no option but to dismiss the complaint as barred by Limitation. Complaint is therefore, dismissed being barred by limitation.”

Therefore, having considered the above discussion and the case decisions referred above, we, without any hesitation, can reach to the conclusion that the instant Consumer Complaint is barred by limitation and on this score alone the complaint is liable to be dismissed.

Further, it is the settled principle of law that the burden of proving lies upon the shoulder of the complainant. Here the complainant has miserably failed to prove that the complainant is a consumer within the meaning and definition of ‘consumer’ as provided under the Act.

       Here, we would like to refer one case decision of the Hon’ble Supreme Court titled as C.P. Sreekumar Vs S. Ramanujam, reported in (2009)7 SCC 130, wherein Hon’ble Supreme Court was pleased to hold that “onus of proving medical negligence lies on the Complainant. Mere averment in complaint is no evidence. The allegations are to be proved by cogent evidence”.      

Further, in order to ascertain whether the O.Ps ( doctor and hospital) is /are negligent or not we have to delve into the evidence of the complainant once again.

The complainant in her evidence stated that on 08.02.2012 the concerned doctor & medical officer was in charge of Bilateral Tubectomy under L.A Ligation at Mira P.H.C Nadia and the complainant, in view of family planning, had gone there for ligation operation and ligation operation was done there on that day, being serial No: 337/M. 

      The document adduced by annexure i.e the prescription of Mira Primary Health Centre, being No: 1295, dated  08.02.2012, supports the fact that the Complainant Anowara Bibi has undergone Bilateral Tubectomy under L.A Ligation at Mira P.H.C, Nadia, yearly serial No: 337/M.  

      Further, from the evidence of the complainant it is evident that the complainant on 25.02.2016, due to her physical illness visited Modern Ultra-Sonography Centre at Debagram Katwa More, Nadia and one ultra-sonography was done there on her, where she was detected pregnant for about 23 weeks 4 days. The copy of ultra sound report dated 25.02.2016 proves the fact that she was bearing the live fetus for about 23 weeks in her womb and the subsequent ultrasound report, dated 22.04.2016, detected intra uterine single live pregnancy of 33 weeks 0 days and ultimately she gave birth of a female child at Debagram Nursing Home on 19.05.2016, who was later christened as ‘Siddika Khatun’.

       It is beyond believable or imagination that being a mother of three children already, the complainant could not understand or apprehend that she was got pregnant once again. The symptoms and changes appeared in the body must have indicated the complainant beforehand the date of ultra sonography about her pregnancy, as she was quite acquainted with such symptoms, and from that point of view it is hard to believe that she could not realize that she was pregnant.  If she did not want the child, she could have approached the O.Ps hospital or any other hospital for termination of her pregnancy, but the complainant did not opt for it. No rational or prudent man would accept that the complainant, being a mother of three children, did not have any knowledge of her conception at the initial stage of her pregnancy and she got the knowledge only after undergoing ultra sonography, when the period of conception was about 23 weeks. It is surprise to mention here that the Complainant did not consult any doctor at the initial stage or within that first 23 weeks of her pregnancy and laid idly and thereby the golden period had been lost. Not a single scrap of paper has been filed by the Complainant that she visited any doctor at the initial stage. On a certain day when she was about 23 weeks of pregnancy she went to a Ultra Sonography Centre and discovered herself that she was pregnant.

      Here in this case, a child was born to the complainant even after she had undergone a sterilization operation by a doctor of the O.Ps hospital, but the doctor was not liable because there cannot be a 100% certainty that no child will be born after a sterilization operation.

        In this aspect, we would like to discuss the following case decisions, from which it would be crystal clear that because of the failure of tubectomy or sterilization operation, the doctor cannot be held liable for medical negligence, as there was no 100% guarantee.

      In State of Haryana Vs Raj Rani [reported in (2005)7 SCC-22 / IV(2005) CPJ-28( SC)], the Hon’ble Supreme Court was pleased to hold that “ if a child is born to a woman even after she had undergone a sterilization operation by a surgeon, the doctor was not liable because there cannot be a 100% certainty that no child will be born after a sterilization operation”.

      Further, in Kamla Kesharwani Vs Supdt. Shyamshah Medical College and Gandhi Memorial Hospital ,reported in [III( 2009) CPJ-17( N.C)], the Hon’ble National Commission was pleased to hold the view that  “even after tubectomy operation a child was born to the Complainant. But this cannot be a case of medical negligence as there is no guarantee that child birth will not take place after tubectomy operation”.

       In Lok Nayak Hospital Vs Prema , reported in IV(2018)  C.P.J-110( Del H.C)  Hon’ble High Court while setting aside the order of the trial Court was pleased to hold the view that “medically there is never 100% chance of success in sterilization operations/tubectomy”. In the said case Complainant/Respondent alleged medical negligence against the doctor and hospital that sterilization operation was not performed successfully and consequence of which Complainant/Respondent conceived again and she claimed damages. The Hon’ble Court held that “mere fact that operation was not successful, by itself cannot be a reason to hold Defendant/ Appellant and its doctor guilty of negligence. Once there is no specific allegation of negligence, it cannot be held that in fact and law Defendant/Appellant is liable. If the Complainant/Respondent did not want to bear a child she could have well got abortion done within time and which was not so got done by Complainant/Respondent”.

Further, in Chief Executive Officer, Zilla Parishad  Vs Saguna Bai, reported in [(2009) CPJ-192( N.C) the Hon’ble National Commission was pleased to hold the view that  “in spite of undergoing tubectomy operation the complainant, who had already three children, became pregnant. In the premises, she had preferred a complaint alleging medical negligence. The District Health Officer, Zilla Parishad, Jalgaon contested the complaint and submitted that the complainant had signed a consent form. According to which for failure of the tubectomy, the doctor cannot be held liable.

Further, even if sterilization fails, the complainant can get Medical Termination of Pregnancy ( MTP) free of charge. Had she approached them, they would have performed the MTP without any cost.

 Apart from the question whether failure of tubectomy operation would per se amount to medical negligence, it has also to be seen whether the complainant is a consumer or not as tubectomy has been done free of charge. Besides that any woman undergoing tubectomy operation gets Rs.130/ from the Government as incentive”.

The Supreme Court has earlier explained the consequence of availing of the services of hospitals etc. ‘free of charge’ in Indian Medical Association Vs V.P. Shantha reported in [( 1995)6 SCC 651].

The Apex Court observed:-

“ As regards the expression ‘free of charge’ in Sec- 2(1)(o) it must be held that the medical practitioners, Government hospitals/nursing homes and private hospitals/ nursing homes( hereinafter called doctors and hospitals) who render service without any charge whatsoever to every person availing of the service would not fall within the ambit of service under Sec-2(1)(o) of the C.P.Act,1986. The payment of a token amount for registration purposes only would however, not alter the position in respect of such doctors and hospitals.”

The cause of action based on failed sterilization operation perhaps cannot be stretched too far because there remains chance of failure. This aspect has been clarified in State Vs Shiv Ram reported in [AIR-2005(SC)3280], wherein the Apex Court observed:- “ The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground of claim; it is for the woman who has conceived the child to go for medical termination of pregnancy.  Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed.”

The Hon’ble Court further observed that “the methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. Section 3(2), Explanation II provides that if the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971.”

      In view of the ratios of the above decisions the complaint surely has no legs to stand upon and the National Commission also dismissed it.

Further, in Jacob Mathew Vs State of Punjab, reported in [( 2005)6 SCC-1], the Hon’ble Supreme Court was pleased to hold the view that “it is not possible for any doctor to assure or guarantee that the result of treatment would invariably be positive. The only assurance which a professional can give is that he is professionally competent and has requisite skill and has undertaken the task entrusted to him with reasonable care”

Further, in Martin D’Souza  Vs Mohd. Ishfaq, reported in [(2009)3 SCC -1], it was held by the Hon’ble Supreme Court that “a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field”.  

While allowing the revision petition, the Hon’ble National Commission in J.N. Shori Multi Specialty Hospital & Anr   Vs Krishan Lal & Anr, reported in 2021(3) C.P.R-15( N.C) , was pleased to hold the view that “Negligence cannot be attributed to doctor so long as he is performing his duties to best of his ability and with due care and caution”.

      In Malay Kumar Ganguly Vs Sukumar Mukherjee, reported in (2009)9 SCC 221, Hon’ble Supreme Court gave a guideline and specifically mentioned the factors to be considered for establishing medical negligence or deficiency of service of a doctor, and further directed that the Courts would determine the following:-

i) No guarantee is given by any doctor or surgeon that the patient would be cured.

ii) The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill.

iii) Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence.

iv) Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.

v) In a complicated case, the court would be slow in contributing negligence on the part of the doctor, if he is performing his duties to the best of his ability.

Considering the entire evidence of the Complainant, submissions made by the Ld. Advocate for the Complainant as well as the materials on record, and further in view of the ratios of the above decisions of the Hon'ble Supreme Court, Hon’ble High Court and Hon'ble National Commission, we are of the considered view that the complaint surely has no legs to stand upon and it is liable to be dismissed.

The Complainant is not a consumer and the O.Ps are not service providers and the complaint is a time barred application. The O.Ps are not deficient or negligent at all.

Further, as the complainant is not a consumer under the O.Ps and as the complainant failed to prove the relationship of consumer-service provider in between her and the O.Ps, question of any deficiency does not arise at all and/or further as she also failed to prove any deficiency or negligence on the part of the treating doctor/hospital, she is not entitled to get any claim. The complainant miserably failed to prove her case and it is liable to be dismissed.

       All the points, therefore, have been discussed elaborately and go against the   complainant.

Hence

  It is ordered that the Consumer Complaint, being No: C.C No: 57 of 2018 is dismissed ex-parte.

No order as to costs.

 Let free copies of this order be given to the parties concerned as per C.P.R, 2005.