ORDER
Presented by: - Shri Debasish Bandyopadhyay, President. Complaint Case No. 186/2020
This case has been cropped up in view of the written complaint filed by Siddhartha Sundar Chattopadhyay (complainant) for getting compensation to the tune of Rs. 2,09,20,000/- from the OP Nos. 1 & 2 for medical negligence, deficiency of service and unfair trade practice on the part of the OPs in the matter of providing medical treatment to the Piyali Chattopadhyay (wife of the complainant) by the
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OPs.
Fact of this case Case of the complainant :-
The case of the complainant which is deciphered from the complaint petition in bird's eye view is that complainant is the ill-fated husband of Piyali Chattopadhyay expired on 11.04.2019 due to medical negligence of the OP No. 1 and said Piyali Chattopadhyay (victim) was a Railway Employee and at the time of death she was getting salary of Rs. 50,251/- per month and her service was / is continuous one and permanent till the year 2044 and there is also every opportunity of getting promotion and enhancement of salary in future. It is also stated by the complainant in the complaint petition that the complainant married Piyali Chattopadhyay on 23.11.2008 and out of the wed-lock a male child has born on 08.05.2014 through some critical procedure and on 5thApril, 2019 the complainant and her wife came to know that Piyali Chattopadhyay (now deceased) became pregnant by Rapid Test and on 6thApril, 2019 the complainant and his wife visited Dr. Argha Basu and as per USG Report Dr. Basu confirmed the pregnancy. It is pointed out that on 7thApril, 2019 the complainant alongwith his wife visited OP No. 2 Nursing Home and on the same day OP No. 1 did the abortion immediately and charged Rs. 8,000/- without considering the USG Report and about critical position of uterus of the victim. It is alleged that while aborting the patient Piyali Chattopadhyay, the OP No. 1 did not consider the fact that the 1stbaby has born through a critical procedure and while aborting the OP No. 1 perforated the patient's body at uterine and intestinal following dilatation and evacuation without any information and consent from the complainant and the OP No. 1 did not explain the risk of abortion. It is further alleged that the OP No. 1 was so negligent, if failed to evacuate every contents of the pregnancy which is the principal cause of septicemia following the death of the victim Piyali Chattopadhyay . It is also the case of the complainant that due to the negligence on the part of the OPs, urine and stool of the patient Piyali Chattopadhyay was blocked and she was suffering from severe abdominal pain. It is asserted that upon calling OP No. 1 suggested some medicines but which had no use and said OP No. 1 ought to advise USG
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after abortion of the victim immediately and referred her to super-specialty hospital. According to the case of complainant side OP No. 1 suggested USG Test after a long gap of 24 hours and on 9thApril, 2019 USG Report revealed that number of holes at large intestine, uterus and seeing the said report OP No. 1 referred the victim (Piyali Chattopadhyay) to Medical College Hospital, Kolkata, which could have been done at the early and on 10thApril, 2019 a prolong surgery over the said patient (Piyali Chattopadhyay) was done at midnight for repairing the perforated organs of the victim but unfortunately on 11thApril, 2019 at the morning said victim (Piyali Chattopadhyay) expired due to septic shock for which the OPs are highly responsible . It is alleged that the OP No. 1 had the knowledge of perforation of organs of the victim at the time of operation but the said OP No. 1 was so negligent in his behavior that he never asked for further USG for post operative treatment. It is also alleged that the OP No. 1 failed to clear the remains of foetus from the uterus of the victim which the another cause of septicemia, as a result of which the victim expired within 36 hours of M.T.P. done. For all these reasons the complainant has prayed for awarding compensation as per chart described in the complaint petition.
Defence Case - The OP No. 1 has contested this case by filing written version where Op No. 1 has categorically denied the case of the complainant and this specific case of the OP No. 1 is that the complainant has no cause of action for filing this case and this complaint case is not maintainable in its present form and in the eye of law and this complaint case is not coming under the banner of consumer disputes under Consumer Protection Act, 1986. It is the case of the OP No. 1 that the disputes involved in this case is a complicated dispute and so without any expert opinion this District Commission / Forum has no jurisdiction to try this case. According to the case of the OP No. 1 she explained the risk of operation of the victim and advised the complainant and the victim to continue the pregnancy upto the delivery of child but they did not followed the advice of OP No. 1. It is asserted that the complainant has instituted this case for causing damage of the reputation and goodwill of OP No. 1 who is a renowned Doctor having good reputation in the medical field. It is alleged that the OP Nos. 1 & 2 have taken all types of post operative care of the victim (Piyali Chattopadhyay) and advised medicines to the
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victim. According to the case of the OP No. 1 he advised the complainant to admit the patient at Mahavir Hospital and the patient party admitted the patient at Mahavir Hospital and also advised the patient party for performing USG of hole abdomen and finally the OP No. 1 referred the said patient to Medical College for better treatment and after admission of the victim at Medical College the OP No. 1 went there to see the patient where the OP No. 1 was ill behaved by the patient party and so he left the spot. According to the case of the OP No. 1 he has no negligence and deficiency of service on his part and so he has prayed before this District Commission for dismissing this case.
The OP No. 2 has also contested this case by filing written version where the OP No. 2 has categorically denied each and every allegations of the complainant. This specific case of the OP No. 2 is that the victim alongwith complainant came to surgical method of abortion willfully and out of their free consent due to her physical condition and social reason. It is also stated that both the patient and her husband i.e. complainant gave consent and the patient was admitted on 07.04.2019 at about 8.45 AM at the OP No. 2 nursing home and OP No. 1 performed the operation after explaining the risk of such operation. It is also pointed out that after operation the OPs had taken post operative measure and thereafter discharged the patient from the OP No. 2 institution. It is also stated by the OP No. 2 that the complainant has not highlighted any claim against the OP No. 2 and there is no deficiency of service or negligence on the part of the OP No. 2. For all these reasons the OP No. 2 has prayed before this District Commission for dismissing this case.
Points of consideration
On the basis of the pleadings of the parties this District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points of consideration :-
(i) Whether this District Commission has jurisdiction to try this case?
(ii) Whether this case is maintainable in its present form and in the eye of law ?
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(iii) Is the complainant consumer under the OPs or not ?
(iv) Whether the complainant has any cause of action for filing this case against the Ops or not ?
(v) Whether the complainant is entitled to get compensation from the OPs to the tune of Rs. 2,09,20,000/- or not?
(vi) Is there any negligence, deficiency of service and unfair trade practice on the part of the Ops or not?
(vii) To what other relief or reliefs is the complainant entitled to get in this case?
Evidence on record
In order to prove the case the complainant has submitted evidence on affidavit against the said evidence on affidavit the OPs have filed interrogatories and against the said interrogatories the complainant has given reply .
On the other hand the Ops also have submitted evidence on affidavit against which the complainant has filed interrogatories and against such interrogatories the OPs also have given reply.
In addition to the filing of evidence on affidavit by both sides, they also have filed documents in support of their cases.
Argument highlighted by Ld. Advocates of complainant side & OP side
In course of argument the complainant side and OP Nos. 1 & 2 have filed their Brief Notes on Argument . In addition to the filing of Brief Notes on Argument both parties also have highlighted their verbal argument.
Decision with reasons
The first four points of considerations which have been framed over the issue of jurisdiction, maintainability, cause of action and whether the complainant is a consumer under the OPs or not, are very vital issues and so these four points of considerations are clubbed together and taken up for discussion jointly at first.
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For the purpose of deciding the fate of the above noted four points of considerations, there is urgent necessity of making scrutiny of the material of this case record and there is also urgency of scanning the evidence of record. The jurisdiction issue is a vital issue and so this matter is taken up for consideration at first. Regarding this matter this District Commission on close examination of the complaint petition finds that the complainant has described the value of this complaint case as Rs. 2,09,20,000/- . But fact remains that the upper limit of the pecuniary jurisdiction which is embodied in the Consumer Protection Act, 2019 is Rs. 50,00,000/- . So, it is crystal clear that the value which has been shown and described in the complaint petition is much mare higher than the pecuniary jurisdiction limit of this District Commission. For that reason it is crystal clear that this District Commission has no pecuniary jurisdiction to try this complaint case.
As this District Commission has no pecuniary jurisdiction to try this complaint case, this District Commission is of the view that this complaint case is also not maintainable in its present form and in the eye of law. Moreover in this instant case the complainant side in their petition of their complaint has categorically described that the complainant was medically treated under Dr. Argha Basu but the said Dr. Argha Basu has not been impleaded as a party in this case although Dr. Argha Basu is a necessary party of this case. So, it is crystal clear that this complaint case is also bad for non-joinder of necessary parties.
More so, this District Commission on close examination of the evidence on record finds that the victim Piyali Chattopadhyay (wife of the complainant) was finally medically treated at Medical College and Hospital, Kolkata and urgent operation was conducted by the Doctors of Medical College and Hospital, Kolkata. But fact remains that no Doctor of Medical College and Hospital who provided medical treatment to the victim Piyali Chattopadhyay ( wife of the complainant) has been examined as a witness of this case. Moreover, the said Doctors of Medical College and Hospital who provided medical treatment to the victim Piyali Chattopadhyay (wife of the complainant) has also not been examined as a expert for
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getting expert opinion relating to medical negligence and deficiency of service on the part of the OPs. In this regard it is the settled principle of law that expert opinion is essential in the cases of medical negligence. This legal principle has been observed by Hon'ble Apex Court and it is reported in AIR 2018 S.C. Page 4625. In this instant case the complainant side in spite of getting sufficient opportunity has neither produced any expert opinion to prove the case of the medical negligence and deficiency of service against the OPs. In this regard it is important to note that the complainant side has also not filed any prayer in writing for referring this case to the medical expert for examination of the papers and documents of medical treatment of the victim Piyali Chattopadhyay and for passing opinion as to whether the OPs have any medical negligence or deficiency of service or not. On close examination of the material of this case record this District Commission observed that the complainant practically has not highlighted any allegation against OP No. 2 Lords Health Care. When there is no claim of the complainant against the OP No. 2, this case is found not maintainable against OP No. 2.
A cumulative consideration of the above noted discussion goes to show that the complainant has failed to prove the medical negligence and deficiency of serve of OP No. 1 by way of providing any expert opinion or by way of examining any Doctor witness of the Medical College and Hospital who provided medical treatment to the victim Piyali Chattopadhyay. This matter is also highlighting that the complainant has also failed to establish this case of medical negligence and deficiency of service against OP No. 1 Doctor . Thus, it is crystal clear that this complaint case is not maintainable in its present form and in the eye of law. In the light of the observation made above the first four points of considerations which have been framed in this complaint case are decided against the complainant.
Regarding the points of consideration Nos. 5 to 7 this District Commission finds that the complainant has failed to prove the basis of his claim of compensation to the tune of Rs. 2,09,20,000/- . When the complainant has failed to prove the
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basis of his huge claim of compensation against the OPs, this District Commission is of the view that the complainant is not entitled to get any compensation from the OPs. In this regard it is also vital to note that the complainant in support of his huge claim of compensation has failed to produce any cogent document. Considering these factors and also in view of the reported decision which is published in 2024
(3) Indian Civil Cases (SC) Page 295 this District Commission is of the view that the complainant is not entitled to get any compensation from the OPs. In this instant case the complainant side has referred series of case laws namely :- Jacob Mathew Vs. State of Punjab & anr. of Hon'ble Apex Court, Kunal Saha Vs. AMRI of Hon'ble Apex Court, V. Krishna Rao Vs. Nikhil Super specialty Hospital of Hon'ble Apex Court, Kusum Sharma & Ors. Vs Batra Hospital & Medical Research of Hon'ble Apex Court &, V. N. Shrikhande Vs. Anita Sena Fernandes of Hon'ble Apex Court but this case laws are found not applicable in this instant case in view of the decision of Hon'ble Apex Court which is reported in AIR 2018 Supreme Court Page 4625.
Recapitulating the above noted discussion this District Commission finds that the complainant has failed to prove his case in respect of all the points of considerations and this District Commission is of the view that this District Commission has no pecuniary jurisdiction to try this case, this case is not maintainable and the complainant has no cause of action for filing this case and the complainant has also not entitled to get the compensation which he has prayed in this case. In view of such position 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. 186/2020 be and the same is dismissed on contest as this District Commission has no pecuniary jurisdiction to try this case and as this complaint case is not maintainable.
Let the complaint petition be returned to the complainant for filing the same before the appropriate forum.
No order is passed as to cost.
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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
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DEBASISH BANDYOPADHYAY
PRESIDENT
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DHIRAJ KUMAR DEY
MEMBER
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