State Consumer Disputes Redressal Commission
Shri Ashok Kumar Pathak vs Dr. Swarnava Roy on 2 March, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/188/2014 (Arisen out of Order Dated 09/01/2014 in Case No. CC/299/2011 of District Kolkata-II(Central)) 1. Shri Ashok Kumar Pathak 45/3A, Raniharshamukhi Road, P.S. Chitpur, Kolkata - 700 002. ...........Appellant(s) Versus 1. Dr. Swarnava Roy M/s. Strelling Hospital, 55/1, Bhupen Bose Avenue, P.S. Shyampukur, Kolkata - 700 004. 2. Dr. Ayush Choudhury 1/266, Jodhpur Park, Kolkata - 700 068. ...........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. Rathindra Kumar Mitra (Authorised Person)/, Advocate For the Respondent: Mr. Avishek Mondal, Advocate Mr. Avishek Mondal , Advocate ORDER
02/03/16 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This Appeal is directed against the judgment and order passed by Learned District Forum, Kolkata, Unit-II in CC 299 of 2011 dismissing the complaint and directing the Complainant to pay penal cost of Rs.10,000/- to the Forum for filing the false and vexatious complaint.
The case of the Complainant/Appellant, in short, is that the Complainant had pain in abdomen and the USG was done on 16/01/09 which showed Kidney stones in the left kidney, larger one measuring 15.5 x 8.8 m.m. and small calculus measuring 4.6 m.m. On 02/08/10 another USG was again done and as per report there was stones such as 4.7 m.m. and 5 m.m., slightly different from that of the earlier one. On 09/08/10 the Complainant suddenly became unconscious and his family members took him to Sterling Hospital where he was admitted and stayed there upto 23/08/10. The operation was done on 14/08/10 for removal of the stones. After operation the pain continued and the patient became unconscious. The Complainant thought it to be a post operative symptom. He was taken to Health Care where as per report it was found that there was calculus measuring 4.6 m.m., that is, almost the same size of stone as revealed earlier. It is alleged that the surgeon did not remove the kidney stone at all from the kidney. Under the circumstances, the Complainant filed the complaint before the Learned District Forum.
The Learned Counsel for the Appellant/Complainant has submitted that after the first operation almost the same size of stone was found in the USG report. It is contended that there was non-application of mind by the Learned District Forum and the impugned judgment should be set aside.
The Learned Counsel for the Respondent has submitted that the first operation was done on 14/08/10 and the patient was released on 23/08/10. It is contended that the discharge summary was issued and it was not an open surgery. It is contended that the D.J. stent was placed and subsequently it was removed. It is contended that as per the second USG report about 10 months later there was stone about 4.6 m.m. which might be a new stone. It is contended that there was no deficiency in service on the part of the OPs and the Learned District Forum was justified in passing the impugned judgment and order.
We have heard the submission made by both sides and perused the papers on record. It is the main contention of the Complainant/Appellant that after operation almost the same stone was found in the second USG report and it was sufficient to prove that there was negligence and deficiency in service on the part of the OPs. It appears from the discharge summary issued by Sterling Hospital that the patient was admitted on 09/08/10 and discharged on 23/08/10. The operation was Pyelolithotomy in the left kidney and D.J. stent placed on 14/08/10. It has been averred in paragraph 14 of the W.V. of OP No.1 that the Complainant opted for open Pyelolithotomy at OP No.1 Hospital and, accordingly, OP No.2 proceeded with the case of the Complainant. In paragraph 15 it has been averred that the operation was done observing necessary formalities and the calculus was removed and the operation was uneventful. It has been stated that after removal of the stone OP No.2 checked the left kidney on C-arm/Fluoroscopy and the kidney was apparently found stone free. The patient was discharged with necessary advice and follow up, but the Complainant came to OP no.2 on 24/09/10 after more than a month at Vishudhanand Hospital with an x-ray report as advised by OP No.2. It has been stated that OP No.2 examined the report which did not show any significant residual calculus and, as such, the OP No.2 removed the D.J. stent and gave necessary advice to the Complainant. In paragraph 17 it has been stated that after about 10 months the Complainant complained of back pain and showed one USG report dated 25/06/11 with calculus measuring 4.6 m.m. After seeing the USG report dated 25/06/11 the OP No.2 prescribed medicines for his symptomatic relief and advised further x-ray after one month. It has been stated in paragraph 18 that the alleged presence of stone of 4.6 m.m. after 9 months of Pyelolithotomy surgery is not impossible and small residual stone of 4 m.m. size are very common after surgery. Such kind of small stone may form within a considerable long period after removal of previous stones by surgery. On this point the Complainant did not adduce the evidence of any expert that formation of new stone after surgery was not possible so as to refute the contention of OP. Moreover, the Complainant visited the OP No.2 on 24/09/10 with an x-ray report wherefrom the OP No.2 did not find any significant residual calculus and, as such, the D.J. stent was removed. The Complainant did not adduce any evidence to show that the OPs did not follow the standard medical practice and procedure in respect of the surgery done. Under such circumstances, we are of the view that the Learned District Forum was justified in dismissing the complaint. But the Learned District Forum while dismissing the complaint observed that it was a false and fabulous complaint and directed the Complainant to pay the penal cost of Rs.10,000/-. We are unable to agree with such finding of the Learned District Forum. When the Complainant had raised a contention under the facts and circumstances of the case, but was unable to prove it, it would not ipso facto mean that the complaint was filed falsely or that it was vexatious.
The Appeal is allowed in part. The order of the Learned District Forum dismissing the complaint is affirmed. But the direction for payment of penal cost of Rs.10,000/- by the Complainant is set aside. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER