Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No. 525/2014

This  case has been filed by the complainants against the OPs for getting compensation to the tune of Rs. 17,00,000/- against the OPs for loss of life of Nanda Dulal Chattoraj (predecessor of the complainants)  and for causing mental pain and agony suffering etc. and also for reimbursement  of cost of medical treatment to the tune of Rs. 2,60,000/-  and also for any other relief / reliefs  which are available according to the provisions of Consumer Protection Act, 1986.

Fact of this case

Case of the complainant

The case of the complainant which is deciphered from the petition of complaint in bird’s eye view is that the husband of the complainant No. 1 and the father of the complainant Nos. 2 & 3 i.e. Nanda Dulal Chattoraj was taken to OP No. 1 Hospital  with a history of diabetes with complications of dyspepsia, anorexia, nausea, vomiting and jaundice for previous  15 days  alongwith complications of generalized prurites and passage of clay coloured  stool and progressive   depending of urine  colour  and the OP No. 1 Hospital Authority  admitted the said Nanda Dulal Chattoraj under the care of OP No. 2 and after various tests  and Scan the OP No. 2 advised for immediate Triple Bypass Operation  and as such the operation theatre  as well as blood units were booked and being confused  and disoriented  and without getting any time to think twice  about the proposed  operation  the patient  party practically perplexed  and on 18.06.2013 the OP No. 2 performed  the said operation  and after the said operation the complainants came to know that C.T. Scan  Reports shows that there was a malignant growth in the head of the pancreas  and OP No. 2 is not Oncologist  and the case falls within the purview of Oncology.     It is submitted that the OP No. 2 has operated  the Gall Bladder  and stated that it was required and then the patient was discharged from OP No. 1 Hospital  on 29.06.2013 with an aggravated condition though the OP No. 2 assured the patient would be recovered  soon but the said patient died on 13.09.2013 due to  gross negligence  of OP Nos. 1 & 2 rashly took the decision to operation the patient without referring the same to an experienced Oncologist by violating the ethics  and basic principles of the profession  and for commercial gain of themselves .  It is alleged that in spite of operation of pancreas  the OPs neither informed the complainants  nor sent the sample for biopsy.  It is pointed out  that after discharging of said patient on 29.06.2013 , the said patient  was taken to OP No. 2 at the OP No. 1 Hospital  on 17.07.2013 and the OP No. 2 advised for FNAC and to contact  with Dr. Arunagsha  Kar  which could have been  done earlier  and thereafter the patient was taken to Apollo Hospital, Kolkata  where  Dr. Shaikat Gupta  after examining  the patient  expressed that it is next to impossible  to save  the life of patient as the patient party  could have come earlier before the operation  and  Dr. referred the said patient  to Dr. D.C. Ghosh.  It is asserted that thereafter the complainants had taken the said patient to CMC, Vellore  and after several investigations it reveals that abrupt cut off in the region of head  of pancreas, whipples  on 18.06.2013 and they also expressed  their views similar  with Dr. Shaikat Gupta .  According to the case of the complainant said Nanda Dulal Chattoraj was the main  earning member of the family  and entire  family was depending upon  him  and due to the death of said Nanda Dulal Chattoraj due to negligence  and recklessness  of the OPs  the complainants have been suffering huge financial loss and sufferings mental pain and agony.  For all these reasons  the complainants have prayed before this District  Forum / Commission  for passing order to make payment  of compensation of Rs. 17,00,000/- and to pay the cost of medical expenses of Rs. 2,60,000/- to the complainants by the OPs.

Defence Case

The OP Nos. 1 & 2 after receiving the notice / summons of this District Forum  appeared before this Forum  and contested this case by filing W/V  separately.

Case of the OP No. 1  -  The  OP No. 1 by filing W/V  has categorically denied all the material allegations leveled against OP NO. 1 and this specific case  of the OP No. 1 in a nutshell is that the patient was brought to the emergency of OP No. 1 Hospital  on 12.06.2013  with a history of painless of dyspepsia, anorexia, nausea, vomiting  since last  15 days  associated with yellowish urine and whitish stool and the said patient was diabetic and was under medication.  And the first diagnosis was of jaundice going by the clinical symptoms and history told by the patient  Nanda Dulal Chattoraj .  It is submitted that the patient was clinically examined by OP No. 2 and he after examination and also after perusing the test reports was of the opinion that the patient had been suffering from obstructive jaundice  and advised medicines like Pantoprazole, Vitamin K as conservative management  for the time being  and the patient was advised for C.T. Scan on 12.06.2013 for a definite diagnosis of the said patient.   It is pointed out that on 12.06.2013  the patient was referred to Dr. S.K. Shah an Endocrinologist for his opinion  Dr. S.K. Shah had  seen the said patient  regularly on and from 13.06.2013 and then the patient  was again referred to Dr. S. Mukherjee  (Consultant Gastroenterologist) who first saw the patient on 14.06.2013 and again on 15.06.2013 after seeing  the CECT Abdomen Report   opined the patient  is a candidate of Triple Bypass Surgery.  The CT Scan  Report  came on 15.06.201`3 which shown heterogeneous enhancing mass lesion seen in pancreatic head and uncinate infiltrating into pylorus and 1^st and 2^nd part of duodenum with consequent luminal wall thickening which clearly indicates  that there is spread of carcinoma from pancreas to stomach  and duodenum  and it as shown dilataion of IHBR, CHD and CBD with grossly distended Gall Bladder and  more importantly  it shown  fat plane with SMV is not well defined  at one place  which definitely suggests  non-resectability  and no curative procedure  was possible  due to an advanced growth.   It is submitted that when carcinoma is found in two different organs then the most probable  diagnosis  is metastasis of carcinoma  and advanced invasive disease and  it is stated that from the CT Scan  Report  it is obvious that the jaundice was caused by definite obstruction  and spread of the carcinoma from pancreas.  It is pointed out  that the Dr. treated the patient  from the opinion that the suitable surgery for the condition faced by the patient  will be a palliative Triple Bypass  which was opined  by S. Mukherjee  and it is not possible for him to do a stenting  by ERCP method due to tumour infiltrating  the pylorus as well as 1^st and 2^nd  parts of the duodenum and accordingly  it was settled by the treating Drs that  the standard and accepted procedure in such case  for palliative  Triple Bypass  which was planned to be performed  on 18.06.2013 according to   the case of OP No. 1 the Triple Bypass Surgery  is a surgery where the bile duct  is cut keeping  a safe margin above the blockage  and reconnected  to the small bowel and this bypass of the blocked part of the bile duct  allows  the bile to flow  from the liver into the bowel which  causes  improvement  of jaundice  and alongwith  this a Gastrojejunostomy is performed to bypass impending  gastric outlet  obstruction so that the patient  can properly as long as  survive.  The entire treatment  process as well as the reason of the surgery  and the probable  outcome of the surgery  was repeatedly  explained to the patient  as well as  his relatives ( wife and sons who are the complainants) .  It is also alleged that the Hospital Authority  had also taken consent from the patient  and his relatives before performing the said surgery.  It further alleged that the surgery was uneventful and the desired objective of the surgery was fulfilled  and after surgery the patient was shifted to ICU and then  to the ward and after 11 days  of observing the patient  and finding the patient  to a stable  condition  the patient was discharged on 29.06.2013 with advice of continuing medicines  like Razo, Lasilactone, Paracetamol, Inj lantus etc. and follow up after 4 days.    

According to the case of the OP No. 1 there is  no fault, negligence or deficiency of service  on the part of the OP No. 1  has prayed before this District Commission for dismissing  this complaint case  with heavy cost.

The Case of OP No. 2 – The OP No. 2 also contested this case by filing W/V and has practically denied all the material allegations leveled against him by the complainant in the complaint petition.  This specific case of Op No. 2 in bird’s eye view  is that on 12.06.2013 the patient Nanda Dulal Chattoraj who was diabetic  and under medication  was brought to the OP No. 1 Hospital with history of painless dyspepsia, anorexia, nausea, vomiting  for last   15 days associated with yellowish urine discharge and  whitish stool discharge .  OP No.1 and  as such the Op No. 2 was on call surgeon.  On 12.06.2013  the patient was admitted under the supervision of OP No. 2 and after examining the test reports  of the patient the OP No. 2 was of the opinion  that the patient was suffering from jaundice  and advised medicine like Pantoprazole, Vitamin K  as conservative  management  for the time being and advised for CT Scan  for definite diagnosis of the patient and on 12.06.2013 the patient was referred to Dr. S.k.Shah, an Endocrinologist,  for his opinion who had seen the said patient and thereafter the patient was referred to Dr. S. Mukherjee who had checked up the said patient  on 14.06.2013 and on 15.06.2013  after checking  the CECT Abdomen  said Dr. was of the opinion  that the said patient was a candidate for Triple Bypass Surgery.  It is submitted that the CT Scan  Report came on 15.06.2013 which was showing heterogeneous enhancing  mass lesion seen  on the pancreatic head with consequent luminal wall thickening which clearly  indicates  that there is a spread of carcinoma  from pancreas to stomach  and duodenum follows dilataion of IHBR, CHD and CBD WITH GROSSLY DISTENDED Gall Bladder.  It is also stated that more  importantly it shown fat plane  with SMV is not well defined at one place which definitely suggests non-resectability  and that no curative  procedure  possible due to advance  growth and when the carcinoma is found two  in different organs  then the most probable diagnosis  is metastasis  of carcinoma  and  advanced  invasive disease and from the CT Scan  Report  it is obvious  that  the jaundice was caused by the definite obstruction  from the spread of the carcinoma  of the pancreas  and as such  it was opined that the suitable surgery  for the condition faced by the patient would be Palliative Triple Bypass  as also opined  by Dr. S. Mukherjee  and as it was not possible  for him  to do a stenting by ERCP method due to the tumor  infiltrating  the pylorous  as well as  1^st  and 2^nd parts of duodenum  and so it was decided to go for a standard and accepted procedure  in such case  which is a Palliative Triple  Bypass where  the bile duct is transacted  keeping  a safe margin above the blockage  and reconnected to the small bowel alongwith  a Gastrojejunostomy  is performed   to bypass  impending  gastric  outlet  obstruction  allowing the patient  to eat properly  as long as  he survives  and also as per standard  protocol  the Gall Bladder  is removed as a distended  Gall Bladder reduces space for a good choledocho-jejunostomy  and this  operation a Gold Standard  Palliative Operation  of the pancreatic carcinoma  also bear in mind  that the patient was 69 years  old and diabetic.  It is alleged  that the surgery was uneventful  and desired objective  was fulfilled and the patient was shifted to ICU and then to the ward and the patient was discharged  on 29.06.2013.  It is alleged that pre-operative FNAC was not done as because the Percutaneous Guided FNAC is not mandatory for diagnosis  and still controversial with false negative rates of around 20% and the serious fatal complications like bile leak , biliary peritonitis, infection  and septicaemia  also another risk is of seeding of cancer cells in the needle tract as well as peritoneal cavity leading to cancer and apart from this in a patient with a bilirubin  of 24.8 on admission   it is definitely dangerous to do an FNAC from the pancreas  which might lead to severe internal haemorrhage  and also death.  It is pointed out  that the patient was advised for CA 19.9  Test for carcinoma  which was done on 16.06.2013 and reflected  a level of 884 where the normal is less than  27%  and above level of 100%  of CA 19.9  is suggested  of unresectabililty  or metastasis and hence  as such level the treatment is only palliative and considering the age  and the condition of the patient  Triple Bypass Surgery was done to reduce the  bilirubin  level and to prevent  the possibility  of development of hepatic coma.    According to the case of OP No. 2  the said surgery  was performed following protocol to its trust sense but   it is utter misfortune  that patient party did not turn up for the follow up treatment as advised  and expect immediately after discharge the patient  died on 13.09.2013.  It is further alleged that there is no fault, negligence or deficiency of service on the part of the of Op No. 2.  For all these reasons the OP No. 2 also prayed before this District Forum / commission  for dismissing  this complaint case  with heavy cost.

Points of consideration

On the basis of the pleadings of the parties adopted by the complainants and OPs in this case, this District Forum / Commission for the purpose   of arriving at just and proper decision and also for deciding the  fate of this complaint case , is going to adopt the  following points of consideration :-

1. Has  this District Commission any jurisdiction to try this case ?
2. Whether the complainants are the consumers  under the OPs or not?
3. Whether this case is maintainable in its present form  and in the eye of     law or not ?
4.  Is there any cause of action for filing this case  by the complainants in this case or not?
5. Is there any negligence, fault and deficiency of service on the part of the OPs in the matter of medical treatment provided to Shri Nanda Dulal Chattoraj ( predecessor of the complainant)  or not ?
6. Whether the complainants are entitled  to get the order passing direction to the OPs for making payment  of compensation to the tune of Rs.17,00,000/- and also for making payment of Rs.2,60,000/- which is the cost of medical treatment of deceased Nanda Dulal Chattoraj.
7. To what other relief / reliefs the complainants are the   entitled to get in this case?

Evidence on  record

 The complainants in order to prove their case has filed  evidence on affidavit  and against the said evidence on affidavit the OP Nos. 1 & 2 have submitted interrogatories  and against the said interrogatories  the complainant side has given reply.

At the same time, the OP Nos. 1 & 2 have filed their separate  evidence on affidavit  in this case and against the said evidence on affidavit the complainant side also have filed separate interrogatories and OPs also have given reply against the said interrogatories.

Argument  highlighted  by Ld. Advocates of both parties

The complainant side  and OPs have filed their separate BNA in this case.  Besides  filing of the BNA Ld. Advocates for the said OP Nos. 1 & 2  also have highlighted verbal argument and  referred series of case laws in support of their cases.  In course of argument Ld. Advocates for the complainant side and OP Nos. 1 & 2 also have given emphasis on the oral and documentary evidence which have been produced by the parties in this case.

Decision with reasons

The first four points of consideration which have been framed on the ground of jurisdiction, whether the complainants are the consumers under the OPs or not, whether this case is maintainable in its present form and in the eye of law and whether the complainants have any cause of action for filing of this case or not are very vital issues for determination of the fate of this case  and so these points of consideration are taken up for discussion jointly  at first.

For the purpose of deciding the fate  of the above noted four points of consideration  this District Commission finds that there is necessity of making scrutiny of the material of this case record  and there is also urgency for scanning the evidence on record.

In this regard, it is important to note that the OPs after entering appearance in this case and filing W/V, have filed separate application on the ground that this Complaint Case No. 525/2014 is not maintainable in its present form.  The complainant side has filed W/O against the said petition.  But fact remains that this District Commission observed that the said issue of maintainability is to be heard alongwith trial of this case.

After going through the material of this case record this District Commission finds that the complainants are the resident of Barisha, P.S. Thakurpukur , Kolkata  but the OP No. 1 is carrying on business at the Andul Road which is under the District of Howrah and the OP No. 2 is also a medical practioner  of the same area of Andul Road under the district of Howrah.  In view of such position  according to the provision of Section 11 of the Consumer Protection Act, 1986 when the OPs are carrying on business  and carrying medical profession  within the district of Howrah, this District Forum / Commission has the jurisdiction to try this case.   In this connection with the pecuniary jurisdiction of this case, this District Commission after going through the material of this case record finds that the patient Nanda Dulal Chattoraj (predecessor in interest of the complainants) was admitted in the OP No. 1 Hospital under the care and supervision of OP No. 2 and one Palliative Triple Bypass Surgery  was done  at the OP No. 1 Hospital by OP No. 2 on 18.06.2013 and the said patient was admitted at the OP No. 1 Hospital on 12.06.2013 and was discharged on 29.06.2013 and total medical expenses  of Rs. 2,60,000/- was paid  by the complainants to the OPs who received the said amount.  This factor is clearly reflecting this District Commission has its pecuniary jurisdiction to try this case.  Thus the jurisdiction issue is decided in favour of the complainants.

Now, the question is whether  the complainants are the consumers  under the OPs  or not.  In this connection  this District Commission has already observed that the  OPs have / had received Rs. 2,60,000/- from the complainants for providing  medical treatment and conducting surgery of Palliative Triple Bypass Surgery of Nanda Dulal Chattoraj since deceased  who is the predecessor  in interest of the complainants.  It is crystal clear that OP Nos. 1 & 2  have provided service in lieu of taking money from the complainants .  This matter is clearly depicting that the complainants are the consumers under the OPs.

Now the question is whether  this case is maintainable  in its present form and in the eye of law or not .  In this connection this District Commission after going through the material of this case record  and  the documents provided by the complainant side and OPs finds that the Nanda Dulal Chattoraj since deceased (predecessor in interest of the complainants) was medically treated by Dr. S.K. Shah  (Endocrinologist)  and thereafter the said patient  was medically treated by Dr. S. Mukherjee  (Gastroenterologist)  at the said OP No. 1 Hospital. But fact remains  that the above noted two Doctors  have not been impleaded  as parties of this case  by the complainants although  they are the said parties.  Moreover after discharging  from the OP 1 Hospital on 29.06.2013 the said patient  Nanda Dulal Chattoraj was medically treated by Dr. Shaikat Gupta  at the Apollo  Hospital and thereafter at CMC, Vallore.  But fact remains that the said Shaikat Gupta  and CMC, Vallore also have not been impleaded  as parties in this case. 

All these factors are clearly reflecting   that this case is defective for non-joinder  of necessary parties.  Moreover, the name of the OP No. 1 has been changed and at present the name of OP No. 1 has been designed  as Narayana Multi Specialty Hospital, Andul Road, Near Chunabati, Podra, Mourigram, Howrah – 711 109.   In this regard it is important  to note that the complainant side has not changed the name of OP No. 1 in this case by way of making amendment .  In view of such position this District Commission is of the view that if for argument sake  this case is awarded in favour of the complainant side, it would be difficult for the District Commission to execute the said award as because  as per present petition of complaint, the award is required to be passed against OP No. 1 West Bank Hospital which is no longer in existence.  If the award passed by this District Commission is found inexecutable at the time of execution of the case such award would be treated as “incomplete  award  due to  defect of  party”.  This factor is also reflecting  that this case which is filed by the complainant in its present form is not maintainable.  

In this instant case the complainant side in support of their point of contention  that there is negligence / deficiency of service on the part of the OPs as the CT Scan Report came on 15.06.2013 which stated “heterogeneous  enhancing mass lesion seen in pancreatic head  and uncinate infiltrating into pylorus and 1^st  and 2^nd  part of duodenum with consequent luminal wall thickening” which clearly indicates that there is spread of carcinoma  from pancreas to stomach  and duodenum.  Also it showed “dilataion of IHBR CHD and CBD with grossly  distended Gall Bladder”.  More importantly  it showed fat plane with SMV is not well defined at one place which definitely suggests non-resectability  and that no curative procedure was possible due to an advanced growth.   In this regard it is stated that when carcinoma is found in two different organs then the most probable  diagnosis is metastasis of carcinoma and advanced invasive disease.  It is stated that from  the CT Scan Report it is obvious  that the jaundice was caused by  definitive obstruction and spread of the carcinoma from pancreas.

In order to prove this matter the complainant side  refer the evidence of complainant  and also the evidence of OP Nos. 1 & 2  and also has relied / given emphasis  on the expert report submitted by Dr. A. K. Gupta (Endrocrinologist).  In this connection it is the defence alibi that the doctor treating the patient  formed the opinion that the suitable surgery for the condition faced by the patient will be a palliative Triple  Bypass which was also opined by Dr. S. Mukherjee as it was not possible for him to do a stenting by ERCP  method due to the tumour infiltrating the pylorus as well as 1^st and 2^nd  parts of duodenum.  Accordingly it was settled by the treating doctors that the standard and accepted procedure in such case for Palliative Triple  Bypass which was planned to be performed  18.06.2013  bearing in mind that patient  was nearly 69 years old, frail and diabetic.

In support of such point of contention the OPs have given emphasis  on the expert report produced  by IPGME & R  - SSKM , Hospital  on 22.05.19  and also has given emphasis  on the enquiry reports submitted by West Bengal Medical Council.

On comparative studies  of the above noted  point of contention  and the evidence given by complainant side and OPs and also after making scrutiny of the documents produced by complainant side  and OPs , this District Commission finds that on 21^st November, 2019 the complainant without any order of this District Commission / Forum  has submitted the expert opinion  of Dr. A.K. Gupta  and said Dr. A.K. Gupta  is a Forensic Doctor  and never treated  any Cardiac  patient and has no academic qualification  for Oncology.  In this regard it is very important  to note that  the complainant cannot without any leave of the District Commission filed any expert opinion as a counter piece  of expert report which have been  produced by the 6 (six) members attached with  IPGME & R – SSKM, Hospital  as per direction of the Hon’ble State Commission.  In this regard this District Commission / Forum shall not be out of mind  that on several occasions  Hon’ble National Commission and Hon’ble State Commission of West Bengal have expressed that the expert opinion  of Dr. A.K. Gupta  being a self-proclaimed  expert  in the medical field  cannot be accepted as Dr. A.K. Gupta  is not possessing  the required medical qualification to provide any such expert opinion over the issue  of Oncology.

 On comparative  studies of the reports submitted by IPGME & R – SSKM Hospital  and West Bengal Medical Council  this District Commission observed that both the above noted authority  have given clean chit to the OPs.  In this connection it is important to note that the Enquiry Committee which is formed by West Bengal Medical  Council consisted  of one Oncologist  and have examined  all the papers  and documents produced by the complainants  and the complaint which is lodged before the West Bengal Medical Council is by the complainant.  But fact remains  that   Enquiry Report  submitted by West Bengal Medical Council  is also reflecting that the Drs. / OP Nos. 1 & 2  have no fault / negligence  or deficiency of service on their part.  In this regard it is very important to note  that the complainant have lodged the complaint before the West Bengal Medical Council but surprisingly  the Enquiry Report  which is submitted  by West Bengal Medical Council have not been challenged  before the Higher Authority. 

In view of such position this District Commission / Forum  has no other  alternative but  to rely on the Enquiry Report  submitted by West Bengal Medical Council and the expert  report which is produced by IPGME & R – SSKM Hospital.  It is also very pertinent to mention that the complainant side  in support of their above noted point of contention have neither examined  Dr. Shaikat Gupta of Apollo Hospital  nor produced and proved  the Medical Examination Papers issued by Dr. Shaikat Gupta (Oncologist).  Similarly,  it is also very important to note that the complainants went to CMC, Vellore alongwith said patient  and at CMC, Vellore said patient was medically examined  and as per case of the complainant side the CMC, Vellore  Authority also supported the views of Dr. Shaikat Gupta (Oncologist).  In this connection this District Commission shall not be out of mind over the issue that the papers of medical treatment produced by CMC, Vellore also have neither been produced by the complainants nor been proved by the complainants.  Thus, it is crystal clear that the case of the complainants  that there is  a fault / negligence / deficiency of service  on the part of the OPs is bereft by any cogent  independent / impartial  medical evidence .  So, this District Commission  cannot accept  the point of contention and case of the complainants.

All the above noted factors are clearly reflecting that the complaint case is found not maintainable   as it is bad for defect of parties and the award if it is at all passed for argument sake cannot be executed  at the time of execution of this award.

When the case is found not maintainable in its present form and in the eye of law,  this District Commission is of the view that the complainants have no cause of action for filing this case.

Thus, the above noted  two points of consideration which have been framed on the ground of maintainability  and cause of action are decided against the complainants.

The point of consideration No. 5 has been framed over the issue whether the OPs have any fault / negligence / deficiency of service in the matter of providing medical treatment of the patient   Nanda Dulal Chattoraj, since deceased   (predecessor in interest  of the complainants) or not .  In support of this issue the complainant side  has adopted the plea  that in spite of having knowledge  that the said patient Nanda Dulal Chattoraj has been suffering from carcinoma  at the head of pancreas  which spread even to the stomach performed the Palliative Bypass Surgery without obtaining  proper consent  from the complainants or from the patient.   But fact remains that in support of such contention  of the complainants over the above noted issue  this District Commission after going through the material of this case record finds that there is no corroborative evidence and in the absence of any cogent medical evidence the above noted point of contention and the case laws  which have been referred by the complainant side  in support of above noted point of contention  cannot be accepted. Thus it is crystal clear that the case of complainant side in support of point of consideration No. 5 is found bereft of any cogent  medical evidence.  In this regard it is the settled principle of law that when there is no cogent medical evidence the Doctors  cannot be held  negligent for the death of the patient .  This legal principle has been observed by Hon’ble Apex Court  in the case of

KALYANI RAJAN   VS. INDRAPRASTHA APOLLO HOSPITAL AND OTHERS

which is  reported in  (2024) 3 Supreme Court Cases 37

Under this position this District Commission is of the view that there is no fault, negligence or deficiency of service on  the part of the OPs.  So, this point of consideration is also decided against the complainants.

In this instant case the complainants have claimed  compensation to the tune of Rs. 17,00,000/- and also prayed for passing order directing the OPs to pay cost of medical treatment  of Rs. 2,60,000/-.  In this connection it is very important to note that in determining compensation in the cases of medical negligence, a balance has to be struck between demanding of person claiming compensation, as also the interests of those being made liable to pay.  This legal principle has been observed by the Hon’ble Apex Court  and it is reported in 2024 (III) Indian Civil Cases 295 (SC).  In this instant case the complainants have miserably failed to prove the basis of their claim  of compensation  of Rs. 17,00,000/-.  In view of such position  this District Commission is of the view that the complainant side has failed to establish that they are  entitled to get the compensation  amount in this case from the OPs.

Thus the points of consideration Nos. 6 & 7  are also decided against the OPs. 

A cumulative consideration of the above noted discussion goes to show that this complaint case is not maintainable in its present form and in the eye of law and there is no cause of action for filing this case by the complainants and there is no fault  or deficiency of service on the part of the OPs and the complainants are not entitled to get any compensation  from the OPs.  For all these reasons this District Commission has no other alternative but to dismiss this case on contest.

In the result, it is accordingly,

ORDERED

That this Complaint Case being No. 525/2014 be and the same is dismissed on contest. No order is passed as to cost.

The parties of this case are entitled to get a free copy of this judgment as early as possible.

Let this judgment / final order be uploaded in the official website of this District Commission immediately.

Dictated & corrected by me

  President