State Consumer Disputes Redressal Commission
Sri Rabin Das, S/O Kali Kumar Das vs S.S.K.M. Hospital & Two Ors. on 22 November, 2013
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal 11A, MIRZA GHALIB STREET KOLKATA 700 087 S.C. CASE NO FA/443/2011 (Arisen out of Order dated 14/09/2011 in Case No.06/2008 of District North 24 Parganas, North 24 Parganas DF, Barasat) DATE OF FILING : 14.10.2011 DATE OF ORDER: 22.11.2013 APPELLANT : 1. SRI RABIN DAS S/O KALI KUMAR DAS Vill & P.S. Vabla, P.S. Basirhat Dist. 24 Parganas RESPONDENTS : 1. S..S.K.M. HOSPITAL Being represented by its superintendent, Kolkata-700020. : 2. Dr. Suchitra Majumder, Erstwhile Doctor (i.e., POSTED AT S.S.K.M. HOSPITAL while operation was done) being the resident of Flat No.A/2/8, Puraba Abasan, 24 R.C. Ghosh Lane, Kolkata-700039 3. DEPUTY DIRECTOR EMPLOYEES STATE INSURANCE CORPORATION Benefit-1, Panchadeep Bhawan, 5/1 Grant Lane, Kolkata-700012 BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya HONBLE MEMBER : Sri Jaganatth Bag FOR THE APPELLANT : 1. Mr. Souvik Chatterjee, Ld. Advocate FOR THE RESPONDENT No.1 : 1. Mr. Atindra Kumar Mukerjee, Ld. Advocate FOR THE RESPONDENT No. 2 : 2. Mr. Pradip Sadhukhan, Ld. Advocate FOR THE RESPONDENT No. 3 : 3. Mr. T.K. Chatterjee, Ld. Advocate. ________________________________________________________________________ Sri Debasis Bhattacharya , Member
This appeal is directed against the judgment dated 14.09.2011 in Case No. 06/2008 passed by the Ld. District Forum, North 24 Parganas. By the impugned judgment, the Ld. District Forum has dismissed the case on contest without cost. Being aggrieved by and dissatisfied with the same, the Complainant thereof has preferred this appeal.
The case, as made out in the petition of complaint, shorn of unnecessary details, is that he was an employee of Crompton Greaves as Security Guard. On 30.03.2001, he was examined by the doctor of OP No.3. He also visited different Hospitals attached to the OP No.1, and ultimately OP No.2 came to a conclusion that he had cataract. On 23.04.2001, he was further examined by the OP No.2, who advised laser biometric, examination of blood and dental check-up. Thereafter, on 01.06.2001, the OP No.2 further examined him, and the OP No.2 took decision to operate the cataract. Since the operation, he had been suffering intolerable pain and he made complaint to the OP No.2 as well on-duty Nursing Staff of the OP No.1, but he was discharged from the OP No.1 Hospital with direction to attend the Hospital after 07 (seven) days. On 11.06.2001, he attended to the OP No.2, but she did not take any cognizance of his severe pain and casually prescribed some medicines with further instruction to visit after 07 (seven) days. Again on 18.06.2001, he met the OP No.2, who advised him to get admitted in the OP No.1 Hospital. He got himself admitted in the OP No.1 Hospital on 19.06.2001, but having no improvement during his 08 (eight) day stay there and then the OP No.2 handed over him a letter directing to attend R.I.O., Medical College and she also expressed that further operation is required to be performed in the operated eye and assured him that after the second operation, he would gain normal vision. Accordingly, he got himself admitted there, but was discharged with an endorsement in the Discharge Certificate, Patient left Hospital on risk bond. Ultimately, his right eye was removed on 22.08.2001, but his treatment records will go to show that at the time of operation of the right eye, he had infection and for such negligent and deficient operation, his left eye was damaged, and he lost his vision in the left eye. He was under treatment of Dr. L.V. Prasad of L.V. Prasad Eye Hospital and it was declared that the initial fault as well as for the negligent and deficient act of the OP Nos. 1 &2, he will in no way regain vision of the left eye. Accordingly, the OP Nos. 1 & 2 are fully responsible and liable for his total blindness for which they are to compensate him. As such, this case.
On the other hand, the contention put forward by the OP No.2 in her W.V. stands that the complaint is not maintainable both in law and fact and is barred by the law of limitation, and the same is misconceived, frivolous and vexatious. It is also barred by the principles of estoppels, waiver and acquiescence. The brief history of treatment of the Complainant is as under:
On 30.03.2001, the Complainant with complain of blurred vision for 04 (four) years, headache and heaviness of head was examined by Dr. Robin Ghosh of E.S.I., who referred him to an Eye Specialist Dr. Amit Saha of E.S.I., who examined him, but in spite of change of glasses, he noticed no significant improvement and his finding was cataract of right eye with old posterior synechia. On 29.05.2011, the patient was admitted in Eye Ward in SSKM Hospital and on 01.06.2001, Synaechiolysis+ECCE+PCIOL implantation (Right Eye) was done under Local Anaesthesia. She was on leave from 04.06.2001, and in the meantime he was discharged. On 18.06.2001, the Complainant presented himself with complaint of pain, redness, dimness of vision, watering (RE) with heaviness in head preceded by flu like symptoms, and visual acquity was having defective perception of rays. Provisional diagnosis of Endophthalmits (RE) was made and urgent admission was advised, but the patient refused admission on 18.06.2001, on the ground of taking permission from E.S.I. and inability to buy some medicine.
Ultimately, he got himself admitted and conservative treatment was continued till 26.06.2001. But, as, on 27.06.2001, the patient again complained of pain and swelling in right eye, etc., it was decided to send him to the Regional Institute of Ophthalmology, Kolkata (Retina Clinic), where there is functioning Vitreo-Retinal Unit, but he did not opt for it and likened to continue his treatment in SSKM Hospital. On 13.08.2001, the patient was again admitted to the SSKM Hospital and Evisceration (RE) was done under LA and thereafter discharged on 30.08.2001 with certain advice and that he may resume duties on 03.09.2001. This OP was transferred to Burdwan Medical College as Assistant Professor, Department of Ophthalmology on 14.09.2001. The patient attended Eye OPD at SSKM Hospital on a number of occasions after release and he was declared fit to do his duties, by Prof. (Dr.) Dilip Chatterjee. Accordingly, it is crystal clear that whatever treatment was done by her was according to best judgment and nothing beyond the medical ethics, rather considering the predicaments, especially the pecuniary condition, she tried to give her heart to the treatment. The most astonishing fact is that the Complainant did not mention in the petition of complaint that his left eye was operated twice elsewhere before he came for treatment at SSKM Hospital for his right eye. His cataract on left eye was operated at a Nursing Home on 09.01.1998 and subsequent post operative Uveitis with Secondary Glaucoma Left Eye was operated at R.I.O. on 29.05.1998, and Left Eye Laser was also done on 21.05.2011 for thick after cataract elsewhere, as advised by the E.S.I. Eye Specialist. So, the dimness of vision in Left Eye could a sequel of any such procedures. For such suppression of vital fact, his claim must fail on the principle of equity. Under the facts and circumstances, she prayed for dismissal of the complaint.
The case put forward by the OP No.3 in the W.V. is that there is a specific provision in the E.S.I. Act, 1948 regarding the medical treatment of I.P. to be given by the State Government as per Section 58 of the said Act and also provides the provision for reimbursement of the expenses towards outside treatment of the I.P. The complaint is also time barred and hit by provision of limitation and has no leg to stand. Therefore, it prayed for dismissal of the complaint.
It is to be considered if the facts and circumstances enumerated by the Appellant as well as in law, there is a need to reverse the impugned judgment.
Decision with reasons.
Ld. Advocate for the Appellant has submitted that the Appellant used to work as Security Guard in a godown as his livelihood. He had eye problem, mainly in right eye and it was diagnosed as cataract. After the operation, virulent infection arose and his right eye was removed. Then, his left eye was affected. Thus, he became totally blind and dependent on his wife. But, the Ld. District Forum dismissed the case on some alleged medical terminology/term in which it has no expertise. A pure expert evidence is pivotal in the matter which has been said by the Honble Supreme Court. The judgment is based upon the single expert opinion, which is partisan. It is a case of loss of vision of both eyes, which shows there was lack of care and negligence. From cataract, he became blind. It was not such a serious case like bypass, brain surgery, but only cataract. So, naturally burden shifts from the Complainant to the doctor. The only intention of the patient was to cure himself from the cataract. So, it is inevitable for the Doctor to prove otherwise. The expert whose report was relied on by the Ld. District Forum was not cross-examined. Endopththatmitis means internal infection of eye globe, usually as a result of a perforating injury. Cryptic character of the Report is indigestible. The case was started before the Ld. District Forum, Unit-I, Kolkata by the Appellant, which was subsequently transferred to the Ld. District Forum, North 24 Parganas. A remand prayer is made in the matter, that too in the Ld. District Forum, Unit-I, Kolkata. He has referred a decision of the Honble Supreme Court, reported in 1999 (8) Supreme 401 in which it was held that an expert is not a witness of fact. His evidence is really of an advisory character. Report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in Court and has to face cross-examination. He has referred a decision of the Honble National Commission in FA No. 763/2007, in which case also the complaint was remitted back to the State Commission for deciding the same afresh, in a similar matter. He has referred a decision of the Honble National Commission, reported in I (2008) CPJ 170 (NC), in which case it was underlined that if the Respondent wanted to proved that due care and caution was taken in all good faith, while giving treatment, then they should have proved this fact in view of provisions under Section 106 of the Evidence Act. He has referred another decision of the Honble Supreme Court, reported in 2000 (2) Supreme 594, in which it was held that the principle enshrined in Section 9 of the Carriers Act, 1865 that plaintiff in suit against carrier for loss/damage, need not prove negligence is applicable to proceedings under the Consumer Protection Act, 1986. He has referred another decision of the Honble Supreme Court, reported in AIR 1976 SC 700, in which it was held that a presumption about negligence will arise in the absence of any explanation by the driver and the maxim res ipsa loquitur would be attracted.
Ld. Advocate for the Respondent No.1 has submitted that no negligence was found on its part and also no strong evidence against the impeached Doctor. There is no infirmity or perversity in the impugned judgment. Appellant could not able to prove his case of negligence, which is primary.
Ld. Advocate for the Respondent No.2 has submitted that the appeal mainly rests on law. No gross error/irregularity could be shown by the Appellant and experts evidence came before the Ld. District Forum, and the case was accordingly dismissed. The allegation against the single expert is unjust, improper and baseless. Clearly, the Appellant did not come in clean hands in making the complaint case and made interpolation for his own purpose and benefit. His right eye was operated, but the allegation is regarding infection in left, which a separate and impendent identity. He has objected for the remind of the case. He further made out that the Appellant suppressed very material facts in regard to his left eye operation and other connected treatments in the left eye, which shows that he did not come in clean hands.
Ld. Advocate for the Respondent No.3 has submitted that the Director, E.S.I. (MB) Scheme is the Administrative Head, who was not made a party by the Appellant. In any case, according to Section 75 of the E.S.I. Act, E.S.I. Court in Kolkata is the proper forum for a case against the E.S.I. So, the case of the Appellant is not maintainable against it.
In the L.C.R., it is found that there is a report of Prof. Gautam Bhaduri, Director, Regional Institute of Ophthalmology, Medical College Hospital, Kolkata-700073 dated 03.12.2010, as an expert in the matter. It is also found from the L.C.R. that thereafter the Complainant/Appellant made a prayer petition dated 15.12.2010 by affidavit for an order for issuing summons upon him to appear and depose on dock. By an order bearing no. 61 dated 07.01.2011, the Ld. District Forum opined that since the Doctor was not examined-in-chief, the Forum is unable to put the doctor on the dock for cross-examination, but, liberty can be given to the Complainant for furnishing pin-pointed questionnaire against the report of the expert. The Complainant ventilated his grievances against such order by petition dated 13.01.2011 for preferring a Revisinal Application against it and on 11.02.2011 was fixed for bringing appropriate order from the State Commission. Though the Complainant filed a petition on 11.02.2011, the date for argument was fixed. On 03.03.2011 also, the Complainant filed a petition stating that he is going to prefer a revisional application within the prescribed period of limitation, and the next date for argument was fixed on 25.03.2011, and thereafter argument was heard.
In such facts and circumstances, when the concerned report is not vouched or vindicated by an affidavit by the maker, it cannot ipso facto go into evidence. In any case, an opportunity to cross-examine him by the Complainant cannot be shut down. Accordingly, the Complainant must be given another opportunity to cross-examine him either by necessary questionnaire or by calling him to face cross-examination before the Ld. District Forum in person, if there is such an extreme need. No allegation was made at the time of the appointment of such an Expert or after his report by the Complainant, he being associated with R.I.O., Kolkata. In fact, R.I.O. has not been made a party in the complaint case by the Complainant. Further, the case initially was instituted before the Ld. District Forum, Unit-I, Kolkata, but on petition for transfer by the Complainant before this Commission, the case was transferred from the Ld. District Forum, Unit-I, Kolkata to the Ld. District Forum, North 24 Parganas for disposal. Accordingly, there is no merit in the plea of the Ld. Advocate for the Appellant to make remand of the case to the Ld. District Forum, Unit-I, Kolkata.
Accordingly, the case is remanded back, setting aside the impugned judgment as per following order.
Hence, ORDERED that the appeal be and same is allowed on contest without cost. The impugned judgment is set aside. The case is remanded back to the Ld. District Forum, North 24 Parganas, with the direction to give one more opportunity to the Complainant to cross-examine Dr.Gautam Bhaduri either by way of interrogatories or by asking him to be cross-examined on dock as the situation calls for and requires for the best interest of justice, as per the finding made before, and thereafter to dispose the case within one month hence, as the case is an old one.
Let a copy of this judgment along with L.C.R. be forwarded to the Ld. District Forum, North 24 Parganas, forthwith.
MEMBER MEMBER