State Consumer Disputes Redressal Commission
Smt. Juthika Roy Bhattacharya vs Dr. Manoranjan Sarkar ( Gynaecologist) on 30 June, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1247/2014 (Arisen out of Order Dated 23/07/2014 in Case No. Complaint Case No. CC/72/2013 of District Dakshin Dinajpur) 1. Smt. Juthika Roy Bhattacharya W/o Palash Bhattacharya, Khadimpur behind Sandhya Cinema Hall, P.O. - Balurghat, P.S. - Balurghat, Dist. - Dakshin Dinajpur. ...........Appellant(s) Versus 1. Dr. Manoranjan Sarkar ( Gynaecologist) Doctor of Balurghat District Hospital, P.O. - Beltala Park, P.S. - Balurghat, Dist. - Dakshin Dinajpur. 2. Dr. Satya Narayan Sharma (Gynaecologist) Doctor of Dishari Health Point, 19, B.G. Road, Mokdumpur, Malda - 732 103. 3. Dr. Mainak Sen Doctor of Dishari Health Point, 19, B.G. Road, Mokdampur, Malda - 732 103. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mr. Prasanta Banerjee , Advocate For the Respondent: Ms. Binota Roy, Advocate Ms. Binota Roy, Advocate Ms. Binota Roy, Advocate ORDER 30.06.2016 MR. UTPAL KUMAR BHATTACHARYA, HON'BLE MEMBER.
Instant Appeal u/s 15 of the Consumer Protection Act, 1986, has been filed by the Appellant/Complainant challenging the judgment and order No. 14 dated 23/07/14 passed by the Ld. District Consumer Disputes Redressal Forum, Dakshin Dinajpur, Balurghat in CC Case No.72/13 dismissing the complaint for default.
The facts of the case, in a nutshell, are that the Appellant/Complainant, because of her illness, got herself medically examined in the private chamber of Dr. Suresh Chandra Mandal on 21/10/2011. As per advice of the said Dr. Mandal, on 23/10/2011 the Appellant/Complainant did ultrasonography of her abdomen where her ovaries were seen normal in shape and size. Her urine test conducted on 21/11/2011, confirmed her pregnancy and she started taking medicines as advised by the said Dr. Mandal.
On 28/12/2011, she felt sudden pain in her stomach. She went to Dr. Mandal who diagnosed the pain to be originating from gas and prescribed medicine accordingly. Her husband, on her feeling similar kinds of pain once again on 29/12/11, contacted Dr. Mandal over phone and as advised by the said doctor, got the Appellant/Complainant admitted to the Hospital where the patient was kept on saline. On 30/12/2012, at about 9 A M, the husband of the Appellant/Complainant was informed over telephone that the condition of the Appellant/Complainant was not good and she needed an immediate surgery.
The husband of the Appellant/Complainant contacted immediately the hospital authorities only to be informed that the patient was already shifted to the operation table. The Respondent 1/OP 1, being the Gynaecologist and treating physician, came out, contacted the husband of the Appellant/Complainant. He got one bond signed by the husband of the appellant/Complainant and asked him to arrange for eight bottles of blood of AB+ Group, otherwise, as the Respondent 1/OP 1 informed, the patient will not survive. Subsequently, the said Respondent 1/O.P. 1 operated upon the Appellant/Complainant. On 31.12.2011, the Appellant/Complainant, after coming to senses, felt that her health condition was gradually aggravating.
The Respondent 1/Complainant 1, however, seeing the condition of the patient was being deteriorated further, did not conduct full treatment and referred the Appellant/Complainant, the patient, to the North Bengal Medical College and Hospital, at Siliguri. The condition of the patient being very serious, she could not be shifted to a far off place like Siliguri. She, instead, was shifted to "Dishari Health Point" at Malda under the treatment of Dr. Mainak Sen, the Proforma Respondent 3/Proforma OP 2.On the advice of Proforma Respondent 3/Proforma OP 2, the Appellant/Complainant had to undergo a further operation conducted by Dr. Satya Narayan Sharma, Ginaecologist, the Proforma Respondent 2/Proforma OP 1 attached to the said Dishari Health Point. The USG which had to be conducted on the advice of the doctor before the operation, indicated removal of the right ovary which was, allegedly, done beyond the knowledge of the Appellant/Complainant. Such an illegal act, as complained, has not only reached physical harm to the Appellant/complainant but also subjected her to serious mental agony as such removal of ovary lessened the probability of her becoming a mother in future.
Being aggrieved, the Appellant/Complainant filed the complaint case before the Ld. District Forum which the impugned judgment and order relates to.
Heard the Appellant/Complainant in person. She submitted that there was serious deficiency in service done upon her by the Respondent 1/OP 1. What is worse, as she submitted, that she has been suffering from acute mental agony because of the permanent physical harm that has been reached to her through removal of her right ovary beyond her knowledge and thereby lessening the probability of her becoming a mother in future.
She submitted further that she had an understanding that the Ld. Advocate, whom she had engaged for contesting the complaint case in the Ld. District Forum, was contesting her case properly. Unfortunately, the Ld. Advocate did not attend the Forum on different dates of hearing which led the Ld. District forum to pass the impugned order of dismissal of the complaint case for default.
She prayed for allowing her a chance to prove her case before the Ld. District Forum and accordingly, direct the Ld. District Forum to dispose of the complaint on merit setting aside the impugned judgment and order.
Heard Ld. Advocate appearing on behalf of the Respondents/OPs. She submitted that the Respondents/OPs attended the Ld. District Forum on fixed dates of hearing regularly. Unfortunately, the Ld. Advocate appearing on behalf of the Appellant/Complainant did not show his urge to contest the case as on almost all dates of hearing before the Ld. District Forum, the said Ld. Advocate for the Appellant/Complainant either did not attend or prayed for time on one pretext or other.
Referring to the medical certificates dated 25/08/14 and dated 03/10/14 issued by Dr. Nirmal Chandra Das, A Homoeopath of Uttar Dinajpur in the name of the Appellant/Complainant, she contended that the Medical Certificates were not the valid documents in the eye of law as the same were issued in total non-compliance of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulation,2002.
The Ld. Advocate further referred to the decision of the Hon,ble Apex Consumer Commission reported in 2015(2) CPR 106 (NC) [Latha Venugopal & ors. Vs Thankamma & ors.] Wherein the Hon,ble Apex Commission declined to rely on the medical certificate which was found to be vague as it did not say in so many words that the patient was not in a position to look after his day to day affair and the certificate was not supported by treatment record.
The Ld. Advocate further referred to the observation of the Hon,ble National Commission reported in 2015(2) CPR 226 (NC) wherein the Hon,ble National Commission was pleased to hold "Quit facit per alium facit per se, negligence of a litigant's agent is negligence of the litigant himself."
The Ld. Advocate, Keeping in view the facts narrated above, contended that the medical certificates that the appellant/Complainant had furnished, cannot be taken cognizance of and she should not be entitled as well to any favour on the ground of the negligence of the Ld. Advocate engaged by her.
The Ld. Advocate, with the above submission, prayed for the Appeal to be dismissed affirming the impugned judgment and order.
Perused the papers on record. It appears that the Ld. Advocate on behalf of the Respondents/OPs was critical about the genuineness of the medical certificates furnished by the Appellant/Complainant. On perusal of the medical certificate, we do not find any ground to disbelieve the same. Therefore, with a view to giving her an opportunity of being heard before the Ld. District Forum which she did not get for reasons beyond her control, we consider this a fit case to be remanded to the Ld. District Forum setting aside the impugned order.
Hence, ordered that the appeal is allowed. The impugned judgment and order is set aside and the case be sent back on remand to the Ld. District Forum for hearing of the case from the stage it was last heard according to law.
Both the parties are directed to appear before the Ld. District Forum on 13/07/2016. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER