Sri Swapan Sutradhar, v. Dr. Swapan Sarkar, E.N.T.,

Honble Mr. Manojit Mandal, President Order No.4, dated 30/11/2018 The Complainant is represented by his Ld. Advocate and files hazirah. Today is fixed for passing order. The record is taken up for order. The Ld. Advocate appearing for the Complainant has contended that the O.P No.1 Dr. Swapan Sarkar is a Doctor ( E.N.T ) of reputed Hospital in the name and style M.J.N Hospital, Cooch Behar and O.P. No.2 is the Superintendent of M.J.N Hospital, Cooch Behar. The daughter of the Complainant, Smt. Soma Sutradhar, aged 21 years, was suffering due to her E.N.T problem and on 11.08.16 she went to the said hospital for her treatment before the O.P. No.1 and she got her O.P.D Patient Card in lieu of Rs.2/-. On 11.08.16, Dr. Swapan Sarkar treated the daughter of the Complainant and prescribed medicines to Smt. Soma Sutradhar. Subsequently, on taking medicines prescribed by Dr. Swapan Sarkar, the patient Smt. Soma Sutradhar could not realize comfort. On 03.10.16, the O.P No.1 again examined Smt. Soma Sutradhar and prescribed medicines. On 17.11.16, the daughter of the Complainant was admitted at Cooch Behar M.J.N Hospital as per advice of the O.P. No.1 and operation (Tonsillectomy) without pre-operative test was done on Smt. Soma Sutradhar by the O.P No.1 by doing anesthesia but her sense was not revived from the normal operation. Later on, the O.P No.1 declared that the patient was no more

i.e. Smt. Soma Sutradhar expired on 19.11.16 from cardio respiratory failure in a case of post Tonsillectomy, pulmonary oedema. Due to the death of Smt. Soma Sutradhar, her mother got shocked and she also died on 07.12.16 at Tufanganj S.D Hospital. The Complainant has further contended that the O.Ps have failed to use the reasonable degree of skill, care, knowledge and prudent while treating Smt. Soma Sutradhar. The O.P No.1 Dr. Swapan Sarkar was extremely negligent at every step starting from clinical diagnosis and from admission to operation and during the patients treatment, he failed to follow the standard of medical care. The Complainant has further contended that the O.P No.1 Dr. Swapan Sarkar has not given proper advice and treatment and it amounts to blatant medical negligence and deficiency in service. As such, he has prayed to admit the complaint case in accordance with the decisions of Kerala State Consumer Disputes Redressal Commission, Vazhuthacaud, Thiruvanthapuram Dr. Vinod Govind, S/O Rama Varma vs-Roy T.K., S/O Late Kuruvilla. Upon hearing the Ld. Advocate appearing for the Complainant and on perusal of the record and documents including Death Certificate, it appears to us that Smt. Soma Sutradhar was treated at M.J.N Hospital, Cooch Behar as outdoor patient and subsequently, she was admitted at the said hospital and she died on 19.11.16 at M.J.N Hospital, Cooch Behar. The O.P.D Patient Card (Annexure A) speaks that the O.P No.1 is a Medical Officer of the said hospital. From the Cause Title of the complaint, it also appears that the O.P No. 2 is the Superintendent of the said hospital. The O.P.D Patient Card also speaks that the said M.J.N Hospital, Cooch Behar is a Govt. Hospital. There is no whisper in the petition of complaint as well as in the documents that the Complainant or his deceased daughter paid any fees for the treatment of Smt. Soma Sutradhar and or for operation of her to the said hospital or to the said Doctors. In the case of Indian Medical Association vs- V.P. Santha (Supra), Honble Apex Court has considered the issue as to whether service rendered by Govt. Hospital is service under the C.P. Act, 1986 and has laid down following principle in this regard.

Where no charges whatsoever are made from any person and they are given free service it is no service under Section 2(1)(O) of the Act. But where the service is rendered in Govt. Hospital/health centre/dispensary on payment of charges and also rendered free of charges, then it comes within the ambit of service. If a patient or his relative availed of the service of medical practitioner or hospital or nursing home where charges for consultation, diagnosis and medical treatment are borne by the Insurance Company or an employee then such service will come within the ambit of service.

In view of the principle laid down by the Honble Apex Court in the present case, it is crystal clear that if the service is rendered by Govt. Hospital free to all, it is not a service as defined in Section 2(1)(O) of the C.P. Act, 1986. We have already discussed in our foregoing paras that the O.P No.1 and O.P No.2 are Medical Officer and Superintendent respectively of a Govt. Hospital. We have also discussed in the foregoing paras that the Complainant has made no payment for the treatment of her daughter except Registration fees of Rs.2/- only. There is no averment in the complaint to the effect that M.J.N Hospital, Cooch Behar provides medical treatment on payment of charges. It has been held in a case reported in Indian Medical Association vs- V.P. Santha (Supra), Honble Apex Court has observed that service rendered free of charge by a medical practitioner attached to a hospital or Nursing Home or a Medical Officer employed in a hospital or Nursing Home where such services are rendered free of charge to everybody, would not be service as defined in Section 2(1)(O) of the C.P. Act, 1986 and the payment of token amount for registration purpose only at the hospital would not alter the position. The facts and circumstances of the present case and facts and circumstances of the above noted ruling cited by the Ld. Advocate appearing for the Complainant are not same and the said ruling does not strictly apply in the present case. Under the facts and circumstances and in view of the ruling of the Honble Apex Court, we are of the view that the complaint is not maintainable under the C.P. Act, 1986. So, the complaint should be dismissed. Hence, it is Ordered That the complaint case be and the same is dismissed as it is not maintainable in law. However, the Complainant is at liberty to move appropriate court in accordance with the law. The complaint case is, therefore, disposed of accordingly. Let a plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action. The copy of the Judgement/Final Order also available at www.confonet.nic.in. Dictated and corrected by me. [HON'BLE MR. MANOJIT MANDAL] PRESIDENT [HON'BLE MR. DEBANGSHU BHATTACHARJEE] MEMBER [HON'BLE MRS. RUMKI SAMAJDAR] MEMBER