State Consumer Disputes Redressal Commission
Raj Kishore vs Maurya Lab on 25 April, 2011
Daily Order
STATE CONSUMER DISPUTES REDRESSAL COMMISSION BIHAR, PATNA First Appeal No. A/573/2007 (Arisen out of Order Dated 18/09/2007 in Case No. CC/198/2003 of District Patna) 1. Raj Kishore Patna BEFORE: HONABLE MR. JUSTICE SUBHASH CHANDRA JHA PRESIDENT HONABLE MRS. RENU SINHA MEMBER PRESENT: ORDER
S.C. JHA, PRESIDENT This appeal has been directed for setting aside the order passed by the learned District Consumer Disputes Redressal Forum, Patna (hereinafter to be referred to as the District Forum) in Consumer Complaint No. 198/2003 wherein and whereunder the learned District Forum has dismissed the complaint of the complainant.
2. The facts giving rise to filing of the complaint before the District Forum are as follows. The complainant Raj Kishore was advised by his Physician for pathological test of his swollen gland on his neck for which he got his F.N.A.C. test done by responden-Maurya Lab, Rajendra Nagar, Patna. The examination report was obtained, which was Annexure-3. There was no sign of any malignancy cell rather it was suspected to be a case of tuberculosis. On the basis of such pathological test, the complainant was prescribed medicine for T.B. by the Physician Dr. S. Nisar Ahmad. When the complainant did not find any improvement he again consulted another Physician Dr. Sunil Kumar, who advised for F.N.A.C. and other pathological test and as such, the complainant again got his F.N.A.C. test done by Maurya Lab, , Rajendra Nagar. In the report, it was found presence of melastatic squamorus cells carcinorna with tumour necrosis, which clearly means that it was a suspected case of cancer. Thereafter, the complainant was advised for test by Tata Memorial Hospital, Mumbai where he was referred and on 17-06-2003/23-06-2003, the complainant obtained Fine needle aspiration Cytology report in which it was reported that there did not exist any malignant cell. So, it was the report contradicting the reports submitted by the respondent-Maurya Lab. where squamrus carcinoma was found.
3. Due to the aforesaid contradictory report, the complainant had to rush from Patna to Mumbai, who sustained unnecessary expenditure and harassment both mental, physical and monetary and as such, the claim of Rs. five lacs was made.
4. O.P.-Maurya Lab, who is also respondent here, appeared and filed their written statement. It was refuted by Maurya Lab. stating therein that FNAC test is an initial test, which is to be followed and confirmed by biopsy test but the complainant did not offer himself for such biopsy test. The claim of the complainant was repudiated also on the ground that the O.P. has neither committed any negligence deliberately nor there was any deficiency on their part.
5. It was also raised on behalf of the respondent-O.P. in the District Forum that the complainant has earlier filed a complaint bearing No. 198/2003 in which the complaint of the complainant was dismissed on 21-05-2005 against the same O.P. The complainant, thereafter, filed Appeal No. 339/2005 before the State Commission wherein order was passed by the State Commission on 12-04-2007 and direction was given for reconsideration after holding biopsy test of the complainant. Thereafter, the complaint was filed. The O.P. did not appear to refute the claim but the complainant did not produce any prescription granted by Dr. Nisar Ahmad, who had earlier treated the complainant. But the complainant had admitted that Dr. Nisar Ahmad had earlier prescribed for FNAC test as well as biopsy test whereas the complainant only got his FNAC test (Fine Needle Aspiration Cytology). The complainant did not offer for biopsy test rather he went on consuming medicine prescribed for T.B. The complainant and did not file any prescription or receipt in this regard.
6. The learned District Forum has held that in the similar case (Jagdishwar Singh Vs. Jaslok Hoppital and Research Centre and Ors). The Hon'ble National Commission in their order has held that FNAC test is initial test process, which can only be confirmed followed by biopsy test. In the original complaint No. 157/1997, the complainant again only got his FNAC test done on the advise of another Physician wherein suspicion of malignancy was reported and thereafter the complainant was referred to TMH, Mumbai where suffering of complainant with T.B. or cancer was rejected. The learned District Forum has also held that there was absence of any expert report so as to hold that O.P. did not possess any valid certificate or expertise qualification. Only on submission of adverse report on pathological sample test would not ultimately mean medical negligence.
7. In nut shell it can be said that the complainant-Raj Kishore has not got himself examined as per prescription of Dr. Nisar Ahmad, who has advised him for FNAC test followed by biopsy test. The O.P.-Maurya Lab. had not done any biopsy test and later on biopsy test was done in Mumbai where it was detected to be a case of not suffering from either T.B. or cancer.
8. Had there been a subsequent biopsy test and submission of contradictory report of T.M.H., Mumbai, the matter would have been otherwise but only on the report of FNAC, it cannot be said that the O.P.-respondent had submitted a wrong report for which they would be held negligent or deficient in providing service.
9. In the circumstance, we do not find any merit in this appeal. So, the appeal stands dismissed. However, there shall be no order as to cost. [HONABLE MR. JUSTICE SUBHASH CHANDRA JHA] PRESIDENT [HONABLE MRS. RENU SINHA] MEMBER