West Bengal



The Apollo Clinic, FNC Health Care Pvt. Ltd. - Complainant(s)


Sri Dhiman Dhar Choudhury & Others - Opp.Party(s)

Mr. Bharat Bhushan

12 Oct 2023


11A, Mirza Ghalib Street, Kolkata - 700087
Interlocutory Application No. IA/333/2022
( Date of Filing : 06 May 2022 )
Complaint Case No. CC/297/2019
1. The Apollo Clinic, FNC Health Care Pvt. Ltd.
207, N.S.C. Bose Road, P.S. Bansdroni, Kolkata -700 040.
1. Sri Dhiman Dhar Choudhury & Others
S/o Lt. Dhirendra Dhar Chowdhury, New Town, P.S. Alipurduar, Pin - 736 121.
PRESENT:Mr. Bharat Bhushan, Advocate for the Appellant 1
......for the Respondent
Dated : 12 Oct 2023
Final Order / Judgement


This is  to consider the Interlocutory Application being No. IA/333/2022 filed by OP No. 2 praying for dismissal of the complaint with exemplary cost upon the complainant.

Ld. Advocate for the OP No. 2 has submitted that OP No. 2 has received the notice along with the copy of the said complaint on 24.10.2019 and came to know that the matter is returnable on 07.02.2020 before this Commission for filing the written version. The OP No. 2 has gone through the content and purport of the said complaint and advised to file an application under the  provision of Section 26 of the CP Act, 1986 inter alia challenging  the ground  of maintainability. The entire allegations made in the complaint is frivolous,  concocted and misrepresentation of facts. The complainant visited the clinic of OP No. 2 on 10.08.2016 for the treatment of injury and accordingly, he was attended by a qualified Orthopaedic Surgeon  being  OP No. 1 and it  was written in the prescription that the complainant suffered injury prior to one month from the date of first visit  before OP No.  2   and the OP No. 1  applied the treatment  for the  injury which was happened during the 1st week of July, 2016.   The allegation made in the complaint is that due to wrong treatment of OPs No. 1 & 2, the complainant forced to admit himself in a Bangaluru Hospital (Manipal) travelling from Kolkata and as  per prescription of the Manipal Hospital dated 07.09.2016, the complainant informed that he got the trauma one month back which falls during the  period of August, 2016 and the said period  is after the visit of  OPs .

The complaint   has alleged  the deficiency in service while the treatment  applied on the basis of X-ray report and the physical examination which was required at  that point of time and therefore, the matter of deficiency of service cannot arise. The  allegation of wrong treatment, if any, is within the domain of  medical jurisprudence  and the matter is exclusively within the knowledge of the Orthopaedic doctors  to ascertain the deficiency. The content of the complaint application  and terminology used  in the annexure can only be analyzed by professional Orthopaedic  doctors to define the medical terminology and to  ascertain the course of treatment  by OP No. 1. This Commission  have the jurisdiction  to adjudicate  the  matter which involves the deficiency of service and  unfair trade practice but the instant complaint  deals with such a  matter  which cannot be adjudicated by the Commission. The applicant may approach  efficacious statutory Forum which is competent to deal with the instant case  of alleged wrong diagnosis by the OPs. The OPs No. 1 & 2 rendered best possible medical assistance to the complainant. The service rendered by OP No. 2 does not come within the four corner of deficiency in service  as defined in C.P Act, 1986. The case is barred  by limitation since  the cause  of action arose  on 25.04.2017 and from  that date  the statutory period of two years from the date on which the cause of action  arose has already been expired as per provision of Section 24A of the C.P. Act, 1986. The complainant is not supported by any application for condonation of delay. The complaint has been filed  with ulterior motive  only to harass the OPs for unlawful  gain  from the OPs. The earlier treatment was not  proper before the first visit on 25.04.2017. Therefore, the OP No. 1 has prayed for dismissal of the petition of complaint.

Ld. Advocate  for the complainant has submitted that all the statements made in the Interlocutory Application is baseless with prayer being devoid of any merit. This Commission is the most efficacious statutory Forum to deal with the instant case. The OPs No. 1 & 2  wrongly diagnosed the case and the X-ray report was also incorrect.  Moreover, the Ld. Advocate for the complainant has stated that the case is proceeding ex parte against the OP  No. 2 who has no right  or authority to file the said  petition. All the allegations against the complainant stated in the Interlocutory Application denied by the complainant.

The Ld. Advocate  for the complainant has further stated that the documents annexed with the petition of complaint  are correct and true state of affairs  supported by medical documents. The case is not at  all barred by limitation. Therefore, he has prayed for dismissal of the present application.

Upon hearing the parties and on perusal of the Interlocutory Application and its objection  thereto, it appears to us that the OP No. 2 has primarily prayed for rejection of the complaint case since there is no deficiency in service  on the part of the OPs. But it is astonishing  that in the four corners of the petition,  the OP No. 2 has not stated specifically that there is no deficiency in service on their part. Whether there is any deficiency in service on their part or not that would be adjudicated at the time of final hearing. Moreover, the OP No. 2 has alleged that prior to first visit by the complainant before their clinic, there was  wrong diagnosis but that is also without any concrete evidence and/or  cogent document filed by  OP No. 2.

The OP No. 2 has stated in the petition that this Commission is not competent Forum to adjudicate the medical matter. However,  Section 2(1)(o) of the C.P. Act, 1986  provides the scope to deal with the matter relates to medical service.

Therefore, the statement made in the petition  that this Commission cannot adjudicate the medical negligence case  is not tenable in the eye of law. It is the option of the complainant, where he would approach for alleged medical negligence.

Apart from this, the other allegation of OP No. 2 that the case is ‘barred by limitation’. This plea  of OP No. 2 also  cannot be entertained since the OP No. 2 has stated in Para-15 of the Interlocutory Application that the cause  of action  arose on 25.04.2017 and it appears from the record that the instant case has been filed  on 16.04.2019 by the complainant.  Therefore, the case is filed  within the statutory period of limitation. Moreover, the cause of action is bundle of facts.

The case is proceeding ex parte against  OP No. 2. Therefore, the OP No. 2 has no locus standi to challenge the maintainability of the case.

In view of the above discussion, the Interlocutory Application being No. IA/333/2022 is dismissed on contest with CP cost of Rs.5000/-  (Rupees five thousand) only out of which Rs.2,500/- (Rupees two thousand  five hundred) only  shall be paid in favour of the complainant and Rs.2500/- shall be paid in favour of SCWF within next date so fixed.

Fix 05.02.2024 for filing evidence on affidavit  by the complainant.

To date for filing money receipt towards CP Cost of Rs.5,000/- as aforesaid  by the OP No. 2.

The case is proceeding ex parte against OPs No. 2 & 3.


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