State Consumer Disputes Redressal Commission
Apollo Gleneagles Hospital vs Subhra Sankar Mukherjee on 11 December, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/1035/2014 (Arisen out of Order Dated 20/08/2014 in Case No. CC/198/2011 of District Kolkata-II(Central)) 1. Apollo Gleneagles Hospital 58, Canal Circular Road, E.M. Bypass, Kolkata - 700 054. ...........Appellant(s) Versus 1. Subhra Sankar Mukherjee S/o Late Susanta Kumar Mukherjee, 2, Shibtala Road, P.O. & P.S. - Naihati, Dist. - North 24 Pgs., Pin - 743 165. 2. Dr. Purnendu Roy, Consultan Department of Gastro Surgery & laparoscopy, Apollo Gleneagles Hospitals 58, Canal Circular Road, Kolkata - 700 054. 3. Dr. Mahesh Goenka, Director & Chief Institute Gastroenterology, Apollo Gleneagles Hospitals 58, Canal Circular Road, Kolkata - 700 054. ...........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. Prabir Basu Ms. Binota Roy , Advocate For the Respondent: Inperson/, Advocate Mr. Asimes Goswami, Mr. Sumit Sen., Advocate ORDER
11/12/15 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT These are the two Appeals bearing no.FA 1035 of 2014 filed by OP No.1 Apollo Gleneagles Hospitals and FA 1064 of 2014 filed by Dr. Purnendu Roy, that is, OP No.2 against the judgment and order passed by Learned District Forum, Kolkata, Unit-II in case no.CC 198 of 2011 whereby the Learned District Forum allowed the complaint on medical negligence.
The case of the Complainant/Respondent, in short, is that Smt. Sharmishtha Mukherjee, wife of the Complainant had been suffering from abdominal pain and on investigation it was diagnosed as calculus cholesistitis. On 21/03/10 the OP No.2 advised for her admission. Upon admission in OP No.1 Hospital laparoscopic cholesistectomy was performed by OP No.2 on 23/03/10 under general anesthesia without examination of any kind of pathological test. The OP No.2 on perusal of the report on USG, blood report, biochemistry report and report of hormone assay done by ECO Hospital & Diagnostics did not pass any comment and deliberately took decision of operation and did not think that taking of medicine prescribed by ECO Hospital could have changed the report of the tests done previously. As such the Complainant has reason to believe that OP No.2 failed and neglected to discharge his duties by not doing the necessary tests immediately before operation. The OP No.2 should have noticed that diagnosis of the doctor of ECO Hospital was calculus cholesistitis with hypothyroid and it should have been noticed by OP No.2 that operation was withheld by the said Hospital due to altered LFT and thyroid. As such, the OP No.2 was required to be more cautious while performing the said operation and the precautions were not taken by the OP No.2. The patient was about 38 years of age and she was discharged on 25/03/10. After discharge from the OP No.1 Hospital the patient had been suffering from fever and further pain in abdomen. On the advice of OP No.2 the patient was admitted in Apollo Gleneagles Hospitals on 04/04/10 under OP No.2. For the first time MRCP was done and it was reported that there were stones in Common Byle Duct (CBD). OP No.2 advised for ERCP for extraction of stone from CBD and the patient was referred to Dr. Mahesh K. Goenka, the OP No.2 who carried out the ERCP process on 06/04/10. After such report the OP No.3 admitted after ERCP that the patient might have sustained mild injury in the pancreas during the ERCP process. The OP Nos.2 and 3 failed to take due care and to treat the patient with skill. Ultimately the wife of the Complainant died on 07/05/10 with multi organ failure as a consequence of acute pancreatitis.
The Learned Counsel for the OP No.1 Hospital/Appellant has submitted that the complaint before the Learned District Forum was not maintainable for want of pecuniary jurisdiction and the judgment passed by the Learned District Forum was a nullity. It is contended that no expert evidence was adduced by the Complainant and the Learned District Forum was not justified in passing the impugned judgment and order.
The Learned Counsel for the Appellant/OP No.2 has submitted that the total claim including the value of services exceeded the pecuniary limit of the Learned District Forum and the impugned judgment passed by Learned District Forum was a nullity. It is contended that the Learned District Forum was not justified in allowing the case against OP Nos.1 and 2 and exonerating the OP No.3. It is contended that Dr. Roy is a Laparoscopic Surgeon.
We have heard the submission made by both sides and perused the papers on record. At the very outset it appears that in paragraph 11 of the complaint it has been averred that the OP No.1 Hospital handed over a bill amounting to Rs.12,73,766.91 and in prayer portion the Complainant has claimed the compensation of Rs.19 lakh and litigation cost of Rs.25,000/-. It has been held by the Hon'ble National Commission in the decision reported in 1996 (2) CPR 26 (NC) [M/s Quality Foils India Ltd. vs. Bank of Madura Ltd. & Anr.] and in RP No.2679 of 2011 and RP No.2680 of 2011 [P.S. Srijan Enclave & Ors. vs. Sanjeev Bhargav and Sanjay Dewan] that the total value of goods and/or services as well as that of compensation would determine the pecuniary limit of jurisdiction of Consumer Fora. As per provision contained in section 17(1)(a)(i) of the C. P. Act, 1986 the value of services availed of and compensation should be taken together in determining the pecuniary jurisdiction of the Commission. In the instant case the value of services, that is, the total amount of the bill is Rs. 12,73,766.91 and the amount of compensation as claimed is Rs.19 lakh with litigation cost of Rs.25,000/-. The aforesaid amounts taken together would exceed the pecuniary jurisdiction of the District Forum. It is the settled law that the judgment delivered without having pecuniary jurisdiction would amount to nullity. In the instant case the Learned District Forum at the stage of admission of the complaint case ought to have held that the complaint was beyond the pecuniary limit of the District Forum. The judgment, therefore, being a nullity is liable to be set aside.
Both the Appeals are allowed. The impugned judgment is set aside. The Complainant is at liberty to file the complaint before the appropriate Forum. This judgment will govern both the Appeals as stated above. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER