State Consumer Disputes Redressal Commission
Sri Nitairanjan Samanta vs Sk. Abdul Kader on 28 April, 2009
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/09/50 DATE OF FILING:02.02.2009 DATE OF FINAL ORDER: 28.04.2009 APPELLANTS 1) Sri Nitairanjan Samanta alias Sri Nityaranjan Samanta Prop. of M/s. Janakalyan Polyclinic & Nursing Home Math Chandipur, Opposite Erasal Hospital P.O. & P.S. Chandipur, Nandigram III Purba Medinipur 2) Dr. Srikanta Roy C/o. Janakalyan Polyclinic Nursing Home Math Chandipur, Opposite to Erasal Hospital P.O. Math Chandipur, P.S. Chandipur Nandigram III, Dist. Purba Medinipur Pin 721 659 RESPONDENT Sk. Abdul Kader S/o Late Sk. Kamiruddin Residing at Vill Neturia, P.O. Atattar P.S. Chandipur, Nandigram III, Dist. Purba Medinipur, Pin 721 633 BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MRS. S. MAJUMDER FOR THE APPELLANT : Mrs. S. Dutta, Advocate FOR THE RESPONDENT : Mr. P.K. Tarafdar Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT This appeal was filed against order dated 31.12.08 passed by District Consumer Disputes Redressal Forum, Paschim Medinipur in Complaint Case No.116 of 2003 whereby OP2 was directed to pay the complainant Rs.1 lac as compensation and Rs.3,000/- as litigation cost within thirty days failing which interest was to accrue @ 10% per annum on the aforesaid amount.
OP1 was directed to pay the complainant Rs.25,000/- as compensation and Rs.3,000/- as cost with similar provision for interest in case of default.
The complainant suffered from liver complains some time in the year 1997 and was hospitalized at SSKM Hospital, Kolkata from 11.7.97 to 01.8.97 and, thereafter started normal life. The complainant had Ultra Sonography of upper abdomen in August, 1997. Again in January, 1998 the complainant had undergone USG of the Hepatobiliary system. In the year 2003 due to abnormal pain in abdomen the complainant consulted Dr. D.K. Patra who suggested USG of whole abdomen which the complainant complied.
The complainant took admission at Janakalyan Polyclinic and Nursing Home on 10.7.03. On 11.7.03 operation was conducted by the OP2 Doctor whereafter the OP2 declared that no Gall bladder could be found and the complainant was ultimately released on 20.7.03 though his condition was bad and there was severe abdominal pain. Again an USG was done of upper abdomen on 21.8.03 and the findings there was identical with the findings of the earlier test. The complainant when consulted another surgeon the complainant was advised another operation for removal of gall bladder stone. In the circumstances the complaint was filed seeking compensation of Rs.4,10,000/- towards negligence in treatment.
The OPs filed separate written objection. Complainant examined three witnesses himself a carpenter, his wife and a person of his own profession and Dr. Dhiraj Kr. Patra who advised the complainant at one stage.
The OPs examined themselves as witnesses.
Heard Ms. S. Dutta, the Ld. Advocate for the Appellants and Mr. Tarafder, the Ld. Advocate for the Complainant/Respondent.
Perused the L.C.R. The only contention of the appellant is that the Trial Forum failed to appreciate that the OP2 performed Laparotomy which is a surgical incision in the abdominal cavity for the purpose of examining the abdominal organs as a help for diagnosis and cholecystectomy and laparotomy are completely different matters, the first one done to remove the stone from gall bladder and the second one is done for diagnosis only. The Ld. Advocate for the Respondent contended that the complainant was misled and inspite of several reports by reputed clinic including USG reports, the OP2 performed laparotomy and did not make any attempt to remove the gall bladder.
Allegation has been made of unfair trade practice.
After considering the above contentions we find that the only consideration required to be done by us, is as to whether the OP2 performed a surgery for the purpose of removal of stone from the gall bladder or performed a surgery for the purpose of diagnosis only. The complainant though has made statements in his complaint alleging unfair trade practice on the part of the OP2 by performing surgery without even removing the stone, but the complainant has not examined any expert for the purpose of proving his allegation as regards unfair trade practice or negligence on the part of OP2. The OP2 in his written objection stated that it was told to the complainant that it is difficult to say that pain and discomfort complained by the complainant was due to gall bladder stone or for any other reason and further sophisticated investigation is necessary. It was further stated in the said written objection that the complainant agreed and exploratory laparotomy done by OP2 under general anaesthesia and it was found severe adhesion under surface of liver, duodenum and colon etc. and no gall bladder was found without exploration in the high risk zone which might cause loss of life of the patient. After exploratory laparotomy the actual position was abundantly clear.
In the evidence also OP2 has stated the similar facts. Therefore, it appears that OP2 only went for exploratory laparotomy for the purpose of correct diagnosis as he was having doubts about the reason of the pain suffered by the complainant. The OP2 has stated that as he was not certain whether the pain of the complainant was due to Gall bladder stone or for any other reason he had gone for exploratory laparotomy. The contemporaneous document the Discharge Certificate records exploratory laparotomy.
OP2 in Paragraph 23 of his written objection stated these in detail and also stated in his evidence. OP1 also supported this fact. Dr. Patra also did not state anything in support of the complainants contention. The complainant has not examined any expert to show that diagnosis of the reason of the pain was complete. Therefore, in spite of existence of Gall bladder stone, requirement to go for exploratory laparotomy has not been shown as negligent or unfair trade practice. The present complaint has been filed by the complainant on a belief that the surgery performed by the OP2 was for the purpose of removal of the stone in the gall bladder, though it was not so.
Allegations made by the complainant are on the said premises and, therefore, the premise itself being wrong, the allegation does not stand. OP2 acted in a manner which cannot be stated as negligent or as an instance of unfair trade practice. Complainant also has not proved in any manner, the action of the OP2 amounted to negligent or unfair trade practice nor any expert has been examined by the complainant proving the said aspect. Therefore, we are of the opinion that the complainant has failed to prove the allegation against the OP. Therefore, the impugned judgment cannot stand and the same is hereby set aside and the appeal is allowed. The complaint is dismissed and there will be no order as to costs.
(S. Majumder) (Justice A. Chakrabarti) MEMBER(L) PRESIDENT