State Consumer Disputes Redressal Commission
Dr. Tapas Sinha & Others vs Prof. Sita Ram Behani on 12 June, 2013
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : FA/153/2012 (Arisen out of Order No. 15 dt. 20.2.12 of DCDRF, Unit-I, Kolkata in CDF/Unit-I/Case No. 63/2011) DATE OF FILING : 11.04.2012 DATE OF FINAL ORDER: 12.06.2013 APPELLANTS 1. Dr. Tapas Sinha Director, Smile & Profile Dental Treatment Centre Pvt. Ltd. 144A, Rashbehari Avenue, Kolkata-700 029. 2. Dr. Mrinalini Sadhya Smile & Profile Dental Treatment Centre Pvt. Ltd. 144A, Rashbehari Avenue, Kolkata-700 029. 3. Dr. Sourav Ghosh Smile & Profile Dental Treatment Centre Pvt. Ltd. 144A, Rashbehari Avenue, Kolkata-700 029. RESPONDENT Prof. Sita Ram Behani 1/9, Dover Row, Kolkata-700 029. BEFORE : HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT MEMBER : MR. S.COARI MEMBER : MRS. MRIDULA ROY FOR THE APPELLANT : Mrs. K.Mukhopadhyay, Ld. Advocate FOR THE RESPONDENT : In person : O R D E R :
MR. S.COARI, LD. MEMBER The present Appeal has been directed against the judgement and order No. 15 dt. 20.2.2012 passed by Consumer Disputes Redressal Forum, Unit-I, Kolkata in CDF/Unit-I/Case No. 63/2011, wherein the Ld. District Forum allowed the petition of complaint on contest against the Ops with cost thereby holding that the Ops were jointly and/or severally liable to pay treatment expenses of Rs. 10,000/- and compensation of Rs. 75,000/- for harassment and mental agony and litigation cost of Rs. 5,000/- to be paid to the complainant within 45 days from the date of communication of the order, i.d. an interest @ 9% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
The Complainant/Respondents case before the Ld. District Forum, in, brief, was that the complainant, who is an aged person, visited the clinic of the Ops with some dental problems and after examination the attending doctor advised root canal in order to protect the teeth of the complainant. On 19.10.2010 one the doctors of the Dental Clinic started root canal treatment (RCT) of the lower 7th molar tooth of the complainant and the complainant was informed that the total cost of the package would be Rs. 5,000/- and there would be a number of sittings. According to the complainant, after the first sitting the complainant developed infection in the teeth, due to which there was swelling of gum together with severe pain. According to the complainant, thereafter on several dates the complainant attended the clinic and on all such occasions the Ops/Doctors of the clinic in question assured that necessary steps would be taken so as to relieve the pain and discomfort so experienced by the complainant, but with no avail.
According to the complainant, due to the faulty drilling his 7th molar tooth got broken, for which the attending doctors were responsible. Moreover, the said doctors on all occasions assured the complainant of total relief, etc. and did not allow the complainant to seek advice elsewhere. It was the further case of the complainant that subsequently the complainant was not given dates by the Ops so as to enable the complainant to have himself examined for the pain and discomfort, which persisted all along and without any relief whatsoever. Ultimately, finding no other alternative the complainant visited Professor (Dr.) H.D. Adhikari, a specialist, on 24.1.2011 with pain and discomfort and on examination the concerned doctor opined that due to drilling there was an injury in the bone which was causing pain and discomfort and the method of treatment adopted by the Ops would not give any relief to the complainant. According to the complainant, the manner in which the Ops treated the complainant thereby causing severe pain and discomfort to the complainant tantamounted to gross medical negligence and deficiency in service and hence, the petition of complaint was filed for proper redressal.
The Ops contested the case by filing a written version thereby denying and disputing all the material averments mentioned in the petition of complaint contending, inter alia, that there was no medical negligence and/or deficiency in service at the instance of the Ops in the matter of rending medical aid to the complainant and that the petition of complaint having been filed on all false and fictitious grounds the same was liable to be dismissed with costs.
Ld. District Forum while disposing of the petition of complaint has observed that since Dr. Adhikari, the subsequent doctor to whom the complainant had approached, was a specialist doctor of Government Dental College and his opinion should be accepted as experts opinion and that the complainant being an educated senior citizen and a professor by profession, his testimony should be believed and accepted and accordingly, disposed of the petition of complaint in favour of the complainant, as mentioned above.
The only moot question that revolves round the present Appeal is as to whether the Ld. District Forum was justified enough in disposing of the petition of complaint in the manner as mentioned above.
Decisions relied upon by the Appellants :
1.
National Consumer Disputes Redressal Commission, New Delhi, First Appeal No. 426 of 2006 Tagore Heart Care and Research Centre Pvt. Ltd. and another Vs. Mrs. Kanta.
2. Before the Supreme Court of India, Case No. Appeal (civil) 8701 of 1997 Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines and another.
3. National Consumer Disputes Redressal Commission, New Delhi, First Appeal No. 369 of 2006 Phool Chand Soni and others Vs. Dr. Maya Pathak and others
4. National Consumer Disputes Redressal Commission, New Delhi, First Appeal No. 182 of 1999 Shakil Mohd. Vakil Khan Vs. Dr. C.K.Dave.
DECISION WITH REASONS At the time of hearing the Ld. Advocate for the Respondent/Complainant has submitted before us that the Ld. District Forum has meticulously traversed the case of the respective party and in arriving at a just and proper decision has not left any stone unturned and as such, the impugned judgement is very much sustainable under the law. According to the Ld. Advocate, when there is no denial of the fact at the instance of the Appellants that the complainant did approach the Appellants/Ops with some dental problems and save and except aggravating the pain and discomfort in the teeth of the complainant the Ops having failed to render any sort of appropriate medical relief so as to enable the complainant to get rid of the discomfort and pain, question of disbelieving the case of the complainant does not arise. While supporting the impugned judgement the Ld. Advocate for the Respondent has submitted before us that the Ld. District Forum was quite justified in putting much reliance on the case of the complainant when, admittedly, the complainant is a respectable person in the society being engaged in the profession of teaching in a renowned institution and that the complainant being armed with an opinion of a specialist doctor the complainant is very much entitled to the reliefs as prayed for. While concluding his submissions the Ld. Advocate for the Respondent has submitted before us that mere fact of the complaint case reveals that there is medical negligence and/or deficiency in service at the instance of the Ops. When, admittedly, the complainant did not get any relief from the Ops in spite of attending the Ops several times, the Ld. District Forum was quite justified in upholding the case of the complainant thereby designating the Ops to be medically negligent and deficient in service, as claimed by the complainant and that the impugned judgement should be confirmed.
We have duly considered the submissions so put forward on behalf of the Respondent/Complainant and find that in this case the complainant has come forward with a case that in spite of attending the Ops in the matter of tooth problem, the complainant was subjected to several sittings for the purpose of root canal treatment, but with no avail and the complainant instead of getting relief experienced persisting pain and discomfort and ultimately, the complainant approached a specialist, Dr. H.D.Adhikari, who has opined that the method of treatment adopted by the Ops has caused broken bone in the mouth of the complainant and that the pain and discomfort would persist in such sort of treatment and hence, the petition of complaint.
The Ops, on the other hand, have come up with a case to the effect that there was no medical negligence and/or deficiency in service at the instance of the Ops, as claimed by the complainant and that in the absence of any cogent and reliable evidence as against the Ops in the matter of medical treatment and deficiency in service the petition of complaint is liable to be dismissed.
We have carefully gone through the materials on record including the impugned judgement and find that the Ld. District Forum has heavily banked upon the prescription and report of Dr. H.D.Adhikari, stated to be a specialist doctor of a Government Dental College. But, unfortunately, neither the said Dr. Adhikari was not examined on behalf of the complainant nor the Appellants/Ops were given a chance to cross-examine the said doctor on the point of medical negligence on the part of the Ops so alleged by the complainant. In this connection, we are of the considered opinion that by mere production of a medical prescription will not ipso facto render the same to be a medical experts opinion and if that be the case, we think that the Ld. District Forum was not justified in relying upon this aspect of the complainant/Respondents case and pass the impugned judgement. Besides that, we are also not in a position to accept the observation so made by the Ld. District Forum so far as it relates to accepting the case of the complainant to be a gospel truth as because the complainant is a senior citizen and also a professor by profession of an educational institution. We have duly considered the decisions so relied upon by the Appellants and find that in the decision reported in National Consumer Disputes Redressal Commission, New Delhi, First Appeal No. 426 of 2006 Tagore Heart Care and Research Centre Pvt. Ltd. and another Vs. Mrs. Kanta, the Honble National Commission has held, Still, however, where the complexities of the medical treatment as well surgical procedures are required to be examined. It is desirable to have the experts opinion. Mere fact that the patient suffers some adverse effect during or after the surgery is not enough to take a frog-leap and say that it is a case of Res Ipsa Loquitur. For example, in surgical operation of fractured tibia-fibula, as a result of an accident, there may sometimes take place complication due to fat embolism.
That may prove to be fatal.
However, it may not be prevented even though the operating surgeon is an expert and well experienced orthopedician.
We have also considered the decision of the Supreme Court of India, Case No. Appeal (civil) 8701 of 1997 Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines and another, wherein the Honble Supreme Court has held, The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent.
The deficiency in service has to be distinguished from the tortuous acts of the respondent. In the present case, the complainant has failed to produce any expert opinion. Besides that, it is an established proposition of law that the complainant must prove his case independently. If that be the position, we are of considered opinion that the principles laid down in the above-mentioned decisions are very much applicable to the instant case.
Accordingly, we hold that the Complainant/Respondent having failed to prove his case, as made out in the petition of complaint, he is not entitled to the reliefs as prayed for.
Having considered the present Appeal in the light of above discussions we find that there is merit in the present Appeal, which, in our opinion, should be allowed. In the result, the Appeal succeeds.
Hence, it is ORDERED that the Appeal stands allowed on contest but without any order as to costs. The impugned judgement stands set aside. Consequently, the petition of complaint stands dismissed.
MEMBER MEMBER PRESIDENT