State Consumer Disputes Redressal Commission
Dr. Pradip Kumar Mitra vs Sri Swapan Kumar Roy on 12 November, 2014
DRAFT STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, MIRZA GHALIB STREET KOLKATA 700 087 S.C. CASE NO.FA/455/2013 (Arising out of order dated 25/02/13 in Case No.CC/469/2012 of District Consumer Disputes Redressal Forum, Barasat, North 24-Parganas) DATE OF FILING:26/04/13 DATE OF FINAL ORDER:12/11/14 APPELLANT : Dr. Pradip Kumar Mitra Consultant Surgeon in Obstetrics/Gynaecology & Endoscopy Attached with Zenith Super Specialist Hospital 9/3, Feeder Road (Rathtala) P.S. Belgharia Kolkata-700 056 District-North 24-Parganas RESPONDENT : Sri Swapan Kumar Roy B-30, Ramkrishna Park Sodepur, P.S. Ghola District-North 24-Parganas BEFORE : HONBLE JUSTICE : Mr. Kalidas Mukherjee
President HONBLE MEMBER : Mrs. Mridula Roy HONBLE MEMBER : Mr. Tarapada Gangopadhyay FOR THE APPELLANT : Mr. D. B. Chaudhuri Ld. Advocate FOR THE RESPONDENT : Mr. Debrup Chakraborty Ld. Advocate
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: O R D E R :
12/11/14 HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This Appeal is directed against the judgment and order passed by Learned District Forum, Barasat, North 24-Paraganas in case no.CC 469 of 2012 allowing the complaint ex parte with cost of Rs.5000/- against the OP with the direction upon the OP to pay sum of Rs.2 lakh to the patient within one month from the date of order failing which punitive damage @ Rs.300/- per day shall be paid by the OP till full realization and out of the amount to be collected as punitive damages 50% thereof shall be paid to the patient and the balance be deposited with the SCWF.
The case of the complaint, in short, is that his daughter Sangita Roy was a student at Higher Secondary level and in the month of May 2012 she started suffering from stomach pain. The OP is the Consultant Surgeon attached to Zenith Super Specialist Hospital situated at 9/3, Feeder Road (Rathtala), Belgharia, Kolkata-700 056 and diagnosed the ailment as appendicitis. The OP disclosed that the entire package for the operation and other necessary medicine and incidental charges would be Rs.20,000/-. The patient was admitted in the Zenith Hospital on 01/06/12 and the operation was done on 02/06/12. At the time of operation the OP asked the Complainant to pay a further sum of Rs.7,500/-.
The patient was released from the Hospital on 03/06/12. The Complainant took his daughter to the chamber of the OP on 07/06/12 for check up and at that point of time pus was coming out of the operative portion. The OP advised proper dressing on 09/06/12.
The OP prescribed some medicines, but to no effect. On 16/06/12 without getting any improvement the OP started antibiotic tablets and injection, but unfortunately no positive improvement was found. The condition of the patient was deteriorating day by day.
Under such circumstances, the Complainant contacted another surgeon Dr. A. Dey on 23/07/12 who opined that there was serious infection in the operated area. On 30/07/12 the Complainant took his daughter to Dr. Debasis Roy at the outdoor of Apollo Hospital. The said doctor advised the Complainant for open surgery to remove pus producing area in the operated place. The said doctor also asserted that during the time of first operation due to some gross negligence on the part of the OP the entire operated place got infected which caused sufferings of the Complainants daughter. The operation was again done on 02/08/12 and thereafter the patient gradually recovered from the ailments. The Complainant had to spend huge sum of money and the OP was responsible for the sufferings of the Complainant. For the said reason, the complaint was filed before the Learned District Forum.
The Learned Counsel for the OP/Appellant has submitted that on 25/03/13 the doctor received one registered letter from the Complainant containing the ex parte order passed by the Learned District Forum.
It is contended that notice was not served upon the OP/Appellant and the Learned District Forum was not justified in directing the Complainant to serve notice upon the OP/Appellant. It is contended that in the A/D card there is no signature of the OP/Appellant. It is further submitted that the residence of the Appellant is at B-19, Ramkrishna Park, P.S. Ghola, North 24-Parganas at which the letter containing the final order of District Forum was sent by the Complainant and on the reverse of the said envelope it was mentioned lock and key. It is thus contended that the Appellant did not get an opportunity to contest the case before the Learned District Forum by adducing the evidence and putting questionnaire. It is submitted that the OP/Appellant used to park his car at the garage of the Complainant and on 30/07/12 the Complainant appeared at his Clinic and insulted, assaulted and abused the OP with filthy language and directed him to vacate his garage where the OP used to keep his car on rental basis for 13 years. It is submitted that the OP by letter dated 09/08/12 addressed to I.C., Ghola and by another letter dated 02/11/12 informed the I.C., Ghola about the alleged assault and humiliation done by the Complainant. It is submitted that no documents and no expert opinion were filed by the Complainant before the Learned District Forum and the Learned District Forum made out a third case. The Learned Counsel for the Appellant has referred to the decision reported in 2013 (2) CPR 244 (NC) [Ramesh Chand Chourasiya vs. Wazid Ali] wherein it has been held that the Complainant himself cannot send notice to OP. The Learned Counsel has referred to another decision reported in 2012 (4) CPR 149 (Del.) [Vikrant Chemico, Industries Pvt. Ltd. vs. Kunal Singh] wherein it has been held that service of notice is not an empty formality.
The Learned Counsel for the Respondent has submitted that the Appellant has suppressed the material facts. It is contended that although the amount of package was Rs.20,000/- for the operation including the cost of medicine, the OP again claimed Rs.7,500/- from the Complainant. It is submitted that after discharge from the Hospital pus was coming out and day by day the condition of the patient worsened. It is contended that in the Apollo Hospital skin grafting was also done. It is contended that notice was duly served upon the OP/Appellant.
We have heard the submission made by both sides and perused the papers on record. It appears that vide order no.2 dated 17/12/12 the Learned District Forum recorded that there was a primafacie case and the complaint was admitted directing the Complainant to issue notice upon OP by speed post with A/D at his own cost.
Vide order no.4 the Learned District Forum recorded that the Learned Lawyer for the Complainant was present and the A/D card was received after service upon the OP. By order no.7 dated 25/02/13 the judgment was delivered ex parte.
It appears that in the A/D card which the Complainant produced before the Learned District Forum, there was no signature of the OP and there appears signature of some other person. The address in the A/D card shows 9/3, Feeder Road, Belghoria, but the residence of the OP/Appellant was at B-19, Ramkrishna Park, P.S. Ghola where the notice was sent by the Complainant on 23/03/13 allegedly containing the copy of the ex parte order. In the case of Ramesh Chand Chourasiya vs. Wazid Ali (supra) it has been held that Complainant himself cannot send notice to OP. Under the circumstances aforesaid, we are of the considered view that the notice was not properly served upon the OP/Appellant. Moreover the treatment sheet of both the Hospitals having not been produced, we find it expedient in the interest of justice to send back the case on remand.
The Appeal is allowed. We set aside the impugned judgment and order. The Learned District Forum will give opportunity to the OP/Appellant to contest the case and thereafter the case be disposed of on merits according to law.
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MEMBER(TG) MEMBER(L) PRESIDENT