HON’BLE MR. TARAPADA GANGOPADHYAY,MEMBER

          This Appeal U/s 15 of the C.P.Act 1986 is directed by the Complainant against the Judgement and Order dated 22.8.2013 passed by the Ld. District Forum , South 24 Parganas in connection with Complaint Case no. 78 of 2011, dismissing the Complaint on the ground of the failure of the Complainant to prove his case.

          Brief facts of the case, as emerging from materials on record, are that the Appellant/Complainant on 26.8.2009 took his 80 years old mother to Respondent 1/OP 1-Institute for treatment of “Cirrhosis of Liver” and the Respondent 1/OP 1-Institute on 27.8.2009  transferred the patient concerned to Bed No. 2103A and on 29.8.2009 to ITU upon diagnosing the patient concerned as suffering from “Cirrhosis of Liver and Hepatic Encephalopathy” as revealed from the Assessment Sheets dated 20.8.2009 of the Department of Emergency of the Respondent 1/OP 1 –Institute. On 30.8.2009 the Appellant/Complainant was informed that the patient concerned was put under ventilation for lung infection and the patient concerned was released from Ventilation on 2.9.2009, but on 3.9.2009 the patient concerned was further placed under the ventilation due to critical condition of the patient as revealed from the petition of the Complaint. The patient having got no relief despite staying at the Respondent 1/OP 1 –Institute from 3.9.2009 to 15.9.2009 the Complainant got his mother released on 16.9.2009 on risk bond and on the same day got his mother transferred to Renaissance Hospital Pvt. Ltd. Kolkata -700 059 where the patient died on 30.9.2009 for “HOSPITAL AQUIRED PNEUMONIA IN A CASE OF CHRONIC LIVER DISEASE” as evident from the Death Certificate dated 30.9.2009 of the said Hospital. It is alleged in the Petition of complaint that despite incurring Rs.5,23,010/- (Rupees five lakhs twenty three thousand ten) for cost of treatment the patient died for deficiency in careful and reasonable service and resultant medical negligence as well on behalf of the Respondents/OPs. With the aforesaid factual matrix the Complainant being the legal representative of the patient concerned filed the Complaint case concerned before the ld. District forum which dismissed the Complaint Case. Dis-satisfied by such order the Complainant has moved the instant Appeal before this State Commission.

          Ld. Advocate for the Appellant/Complainant submits that the Ld. District forum passed the order impugned ignoring the evidence of documents of treatment as available on records such as the noting in the Death Certificate dated 30.9.2009 or Renaissance Hospital to the effect “HOSPITAL AQUIRED PNEUMONIA…………….”.

          Ld. Advocate also submits that the CASE HISTORY FORM  of Ward No.HDU/M, Bed no. 2103, as available on records shows that the patient concerned was diagnosed as suffering from “Cirrhosis of liver  __   hepatic  encephalopathy”, and theDeath Certificate dated 30.9.2009 of the Renaissance Hospital Pvt. Ltd where the patient was transferred from the Respondent 1/OP 1 –Institute for no relief of the patient therefrom, shows that the patient died in “HOSPITAL AQUIRED PNEUMONIA IN A CASE OF CHRONIC LIVER DISEASE”.

          Ld. Advocate adds that the ‘ Hospital Aquired Pneumonia’ being the cause of death as shown in the Death Certificate was not diagnosed at the time of admission to the Respondent 1/OP 1-Institute  as evident from the Assessment Sheet dated 26.8.2009 and hence  the same was caused during the stay of the patient concerned at Respondent 1/OP1 –Institute where the patient was put under ventilation which is prone to cause infection as revealed from the Publication available on records.

          Ld. Advocate continues that the ventilation as the patient concerned was put under is  prone to the infection during the stay of the patient at Hospital which is otherwise known as Nosocomial Infection which ultimately caused Pneumonia to the patient concerned during his stay  at the Respondent 1/OP 1-Institute as evident from the “Doctor’s Instruction Sheet” dated 14.9.2009.

          Ld. Advocate further submits that the documents of treatment do not reveal any preventive action on behalf of the Respondents/OPs to prevent Nosocomial Infection in respect of Pneumonia which is caused by ventilation as in the case on hand

          Ld. Advocate continues that despite presence of symptoms of Pneumonia the Respondents/OPs did not take proper and reasonable care on their behalf.

          Ld. Advocate also submits that the aforesaid reference of evidence and submission  clearly indicate that the ld. District Forum passed the order impugned without taking into consideration the above-mentioned evidence on records and passed the order contrary to the evidence on records.

          Ld. Advocate further submits that the Expert opinion dated 3.7.2013 being contrary to the evidence of documents of treatment on records can not be acceptable, and that its acceptance is not mandatory as well - settled.

        Ld. Advocate concludes that in view of the aforesaid evidence of treatment on record and the submission the instant Appeal should be allowed, the impugned order passed  ignoring the evidence on records should  be set aside and the Complaint case be restored.

          On the other hand, Ld. Advocate for the Respondents/Ops submit that Expert-Opinion dated 3.7.2013 which is necessary for establishing medical negligence, reports no negligence on the part of the Respondents/OPs, and hence the ld. District forum rightly dismissed the Complaint Case concerned.

          Ld. Advocate adds that the patient was released on 16.9.2009 but after such release Respondent 1/OP 1 –Institute prescribed medicines on 17.9.2009 which clearly indicates taking  of proper care on behalf of the Respondent 1/OP 1 –Institute.

          Ld. Advocate concludes that in view of the Expert- Opinion the instant Appeal should be dismissed and the order impugned be affirmed.

           Heard both the sides, considered their irrespective submissions and perused the evidence on record.

           The Case History Sheet of the Respondent 1/OP 1 –Institute dated 26.8.2009, related to HDU/M, Bed No. 2103, in respect of  the admission of the patient concerned does not reveal diagnosis of Pneumonia at the time of admission at Respondent 1/OP 1 –Institute  whereas the Death Certificate dated 30.9.2009  of the Renaissance Hospital  reports the cause of death  being “Hospital Aquired Pneumonia”, which clearly indicates that the patient was inflicted with Pneumonia during her stay at Respondent 1/OP 1 –Institute in course of staying under ventilation which is  prone to infection as revealed from the Publication placed on record.

        Documents of treatment, as available on record, do not reveal that the  Respondent 1/OP 1-Institute took any preventive step to prevent Pnumonia while the patient concerned was put under  ventilation at its ITU.

        Moreover there is no evidence on records on behalf of the Respondent 1/OP 1 –Institute to show that the source of infection lay outside the Respondent 1/ OP 1 -Institute .

          Submissions of the ld. Advocate for the Appellant on the basis of evidence of treatment clearly indicate that his submission has more force than the submission of the Ld. Advocate for the Respondents/OPs.

          The Expert-Opinion in question appears to be contrary to the documents of treatment and its acceptance is not mandatory as is well settled by the Hon’ble Supreme Court in V.Kishan Rao –Vs- Nikhil Super Specialty Hospital, reported in 2010(3) CPR 101 (SC) that Expert Opinion is not mandatory in all cases. In the case on hand expert-opinion appears to be contrary to the documents of treatment and hence the same is not acceptable.

          The foregoing facts and evidence of treatment, as available on records, lead to the conclusion that the instant Appeal deserves to be allowed and accordingly the same is allowed. The impugned order is set aside and the Complaint case concerned is restored. In this context, reliance is placed on a decision of the Hon’ble National commission in the Apollo Emergency Hospital –Vs- Dr. Bommakanti Sai Krishna and Anr., reported in 2013(1) CPR 402 (NC) wherein it was observed

         “…………………………… there is nothing to show the source of infection lay outside hospital . Thus, there is preponderance of possibilities of the infection having been acquired in the hospital itself. We, therefore, do not accept the contention that it was necessary for the Complainant to  produce expert evidence to prove negligence on the part of the concerned Doctor in Hospital” .

          Consequently, the Instant Appeal is allowed against Respondent 1 and 2 /OPs 1 and 2 and dismissed against Respondent 3/ Op 3 against whom there is no allegation of negligence, impugned order is set aside and Complaint Case is restored.  The Respondents 1 and 2/OPs 1 and 2 are directed to pay jointly and severally , within 45 days from the date of the order, to the Appellant/Complainant Rs.10 Lakhs (Rupees Ten lakhs) including cost of treatment being Rs.5,23,010/- (Rupees five lakhs twenty three thousand ten) for sufferings and  loss of life of the mother of the Complainant and Rs.20,000/- (Rupees twenty thousand) as litigation cost, failing which the Respondents 1 and 2/OP 1 and 2 shall be liable to pay to the Appellant/Complainant interest @ 9% per annum for the entire period of default.