State Consumer Disputes Redressal Commission
Dr. Sudhangsu Sarkar vs Sri Kashinath Sahu on 29 March, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/173/2013 (Arisen out of Order Dated 13/12/2012 in Case No. Complaint Case No. CC/24/2010 of District Bankura) 1. Dr. Sudhangsu Sarkar Asstt. Professor, Dept. of Surgery, B.S. Medical College & Hospital, Gobindanagar, Bankura, P.S. & Dist. - Bankura. ...........Appellant(s) Versus 1. Sri Kashinath Sahu S/o Late Nalini Kanta Sahu, Vill. & P.O. - Gorabari, P.S. - Khatra, Dist. - Bankura. 2. Anamoy Nursing Home Gobindanagar Bus Stand, P.S. & Dist. Bankura. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Ms. Binota Roy, Mr. Prithvijeet Majumder, Advocate For the Respondent: None appears Dated : 29 Mar 2018 Final Order / Judgement HON'BLE MR. TARAPADA GANGOPADHYAY, MEMBER
This Appeal u/s 15 of the Consumer Protection Act, 1986 is directed by the OP No. 1 challenging the judgment and order dated 13.12.2012 passed by Ld. District Consumer Disputes Redressal Forum, Bankura in Complaint Case No. 24 of 2010, directing the OP No. 1 to pay, within 60 days from the date of the order, to the Complainant Rs. 1,50,000/- as compensation and Rs. 10,000/- as litigation cost, failing which the OP No. 1 shall be liable to pay interest @ 9% per annum to the Complainant for the entire period of default.
The brief facts of the case, as appearing from the materials on records, are that the Complainant on 12.6.2009 took his son, being the patient concerned, to the Appellant/OP No. 1-Doctor, hereinafter referred to as "the Appellant", with complaint of pain 'in and around abdomen' when the OP No. 1 provisionally diagnosed 'Appendicitis' and prescribed some medicines. Following the said medicines when the condition of the patient did not improve, the Complainant further took his son to the Appellant on 8.7.2009 when the Appellant advised for certain pathological, serological tests and admission to OP No. 2-Nursing Home where the patient concerned was admitted on 9.7.2009 and discharged on 4.7.2009 with diagnosis of "( R) Psoas abscess" as revealed from the Discharge Certificate dated 14.7.2009. The Complainant recurrently took his son to the Appellant, but without any relief. Then the Complainant took his son to C.M.C., Vellore on 27.10.2009 where the ailment was diagnosed as "ILEOCECAL TB/CROHN'S TO R/O NEOPLASM" as revealed from the Colonoscopy Report dated 27.10.2009. Thereafter, the Complainant took his son on 30.11.2009 to Action Medical Institute, New Delhi, where the ailment was diagnosed as "CARCINOMA CAECUM, T4N1MO (DIRECT EXTENTION TO SKIN) WITH SEIZURE DISORDER" as revealed from the Discharge Summary dated 30.11.2009. It is alleged in the Petition of Complaint that for failure of proper diagnosis of the ailment the son of the Complainant suffered irreparable loss and near to death. With the aforesaid factual matrix the Complainant moved the Complaint Case concerned before the Ld. District Forum which passed the order in the aforesaid manner. Aggrieved by such order the OP No. 1 has preferred the instant Appeal before this Commission.
The Ld. Advocate for the Appellant, in the very beginning, submits that the Ld. District Forum passed the order in a case which was beyond its pecuniary jurisdiction as prescribed u/s 11(1) of the Consumer Protection Act, 1986.
The Ld. Advocate continues that when the value of the damage assessed at Rs. 20,00,000/- which is not indicated to have been inclusive of cost of treatment, is added to the cost of treatment, then the total value of the Complaint Case concerned shall exceed the pecuniary jurisdiction of the Ld. District Forum and the Ld. District Forum shall have no pecuniary jurisdiction. In this context, the Ld. District Forum referred to the decision of the Hon'ble National Commission in Muneesh Malhotra Vs. Era Land Marks (India) Ltd., reported in II (2016) CPJ 258 (NC).
The Ld. Advocate also submits that law is well-settled to the effect that the Courts shall have to decide first before adjudicating any case whether or not the case concerned falls within the jurisdiction of the Court concerned as prescribed under the Act concerned, or else the order will be illegal as in the case on hand.
The Ld. Advocate further submits that it is also well-settled that law point can be raised at any stage of the proceeding, even before the appellate court.
The Ld. Advocate continues that the Ld. District Forum passed the impugned order without any expert-opinion which, as in the case on hand, is essential as the allegation concerned is related to medico-technicality and the Bench itself cannot assume the role of medical expert which is not permissible as per settled principle of law. In this connection, the Ld. Advocate refers to the following decisions:
Inderjeet Singh Vs. Dr. Jagdeep Singh, reported in 2004 (2) CPR 45 (NC), and Upasana Hospital & Anr. Vs. S.Farook, reported in II (2007) CPJ 235 (NC).
Furthermore, it is also well-settled that medical negligence cannot be speculated or inferred or perceived.
The Ld. Advocate finally submits that the decision of the Hon'ble National Commission is binding upon the Consumer Fora in the country, but the Ld. District Forum in the Complaint Case concerned did not follow the said settled principle of law.
The Ld. Advocate concludes that in view of the aforesaid submission and decisions of the Hon'ble National Commission, the impugned order, which appears to have been passed by the Ld. District Forum without ascertaining its pecuniary jurisdiction and thus rendered improperly, should be set aside upon allowing the instant Appeal.
None has appeared on behalf of the Respondent No. 1/Complainant to counter the aforesaid submission of the Ld. Advocate for the Appellant despite receipt of Notice as evident from Order No. 2 dated 11.6.2013 of this Commission, implying thereby that the above submissions of the Ld. Advocate for the Appellant stands uncontroverted.
The Respondent No. 2/OP No. 2 also has not appeared to advance its defence. Consequently, the instant Appeal is being disposed of ex parte against the Respondents.
The Paragraph No. 9 of the Complaint Petition, as available on records, reveals the "damage including compensation and litigation cost" but without any reference to the inclusion of the cost of treatment thereto, clearly indicates that if the cost of treatment incurred to the treating doctor, Anamoy Nursing Home, Anamoy Diagnostic Centre, C.M.C., Vellore and Action Medical Institute, New Delhi, is added to the compensation claimed, then the total value of the Complaint Case may exceed the pecuniary limit of the Ld. District Forum.
The foregoing discussions lead to the conclusion that the Ld. District Forum should have first examined whether or not the aggregate value of the cost of treatment and the compensation claimed falls within the pecuniary limit of the Ld. District Forum as prescribed u/s 11(1) of the Consumer Protection Act, 1986.
Consequently, the impugned order appearing to have been passed beyond the pecuniary jurisdiction of the Ld. District Forum, the instant Appeal is allowed and the impugned order is set aside and the Complaint Case is being remanded to the Ld. District Forum to decide afresh at first whether the aggregate value of the cost of treatment and the compensation claimed falls within the pecuniary jurisdiction of the Ld. District Forum or not, and then the Ld. District Forum will proceed with the adjudication of the Complaint Case concerned on merits.
In view of the aforesaid conclusion we refrain ourselves from passing any opinion on other issues involved in the case.
Both the parties are directed to appear before the Ld. District Forum on 27.4.2018. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER