State Consumer Disputes Redressal Commission
Dr. Debasish Chatterjee vs Smt. Swapna Dutta on 5 September, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/1343/2013 (Arisen out of Order Dated 30/09/2013 in Case No. Complaint Case No. CC/123/2013 of District North 24 Parganas) 1. Dr. Debasish Chatterjee Tulip Nursing Home Pvt. Ltd., 96, Rishi Bankim Chandra Road, P.S. Dum Dum, Kolkata-700 028, Dist. North 24 Pgs. ...........Appellant(s) Versus 1. Smt. Swapna Dutta W/o Sri Satyendra Nath Dutt, 17/4/A, P.W.D. Road, P.S. Baranagar, Kolkata - 700 035. 2. Tulip Nursing Home Pvt. Ltd. 96, Rishi Bankim Chandra Road, P.S. Dum Dum, Kolkata-700 028. ...........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. Soumen Mondal Mr. Subhrendu Halder, Advocate For the Respondent: Mr. S. S. Mukherjee, Advocate Mr. S. Mukherjee, Mr. Abhik Kr.Das, Advocate Dated : 05 Sep 2016 Final Order / Judgement
HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT These are the two Appeals, one filed by the Complainant bearing no.FA 90 of 2014 and the other bearing no.FA 1343 of 2013 filed by the OP Doctor against the judgment and order passed by the Learned District Forum, North 24-Parganas in CC 123 of 2013 allowing the complaint and directing the OP Nos.1 and 2 jointly and severally to pay Rs.4 lakh to the Complainant within two months from the date of order failing which punitive damage @ Rs.100/- per day till compliance will be charged on them and, if levied, the same will be deposited with the Consumer Welfare Fund.
The case of the Complainant/Respondent, in short, is that she, aged about 62 years, was suffering from arthritis in the right knee and consulted the Doctor OP No.1 and as per his advice got herself admitted in the OP No.2 Nursing Home on 16/01/13. On the same day the OP No.1 conducted the operation at about 4.30 p.m. and after completion of operation the Doctor informed that it was successful. In the next morning, that is, on 17/01/13 the husband of the Complainant came to learn that there were two small blisters on two legs of the Complainant owing to the use of hot water bag on 16/01/13 at night. After operation both the legs of the Complainant had no feeling due to local anesthesia and as the patient had shivering and senselessness of both the legs she was provided with hot water bag below the knees of two legs and it was connected with the electric switch board. When the Complainant got back her sensation at midnight on 17/01/13 she felt burning sensation in both the legs and cried for help. The nurses came and switched off the hot water bag. On 21/01/13 the Complainant was discharged without mentioning the burn injury in the discharge certificate. Thereafter the Complainant was under the treatment of OP No.1 and upon his advice was examined by Dr. R. N. Bhattacharjee who advised skin grafting. Thereafter the Complainant was taken to SSKM Hospital on 29/01/13 and thereafter was admitted on 03/02/13 at Vision Care Hospital for plastic surgery by Dr. Arindam Sarkar. The Complainant's husband had spent huge sum of money for proper treatment of Complainant which was caused due to negligence of the OPs. For the said reason the Complainant filed the complaint case before the Learned District Forum.
The Learned Counsel for the Complainant/Appellant has submitted that after operation hot water bag was placed below both the knees, but due to negligence of the OPs it was not switched off by the aya or nurse. It is submitted that the Complainant had suffered severe burn injury during her stay at the Nursing Home. It is submitted that so far as the arthroscopy was concerned, there was no allegation against the Doctor. It is submitted that the treatment of the Complainant is still continuing and the Learned Advocate for the Appellant referred to the decision reported in (2004) 8 SCC 56 [Savita Garg (Smt.) vs. Director, National Heart Institute].
The Learned Counsel for the Respondent No.2 Nursing Home has submitted that the Learned District Forum had no pecuniary jurisdiction to entertain the complaint. It is submitted that the patient took hot water bag herself without the knowledge of the staff of the Nursing Home and there was contributory negligence on the part of the Complainant. It is submitted that there is mis-joinder of necessary party, in as much as, the aya and the nurse have not been impleaded and the subsequent Doctors rendering treatment to the Complainant are also the necessary parties in this case.
The Learned Counsel for the Appellant Doctor has submitted that the operation done by the Appellant was successful and there is no allegation against the Doctor so far as the operation is concerned. It is submitted that there is allegation against the Nursing Home. It is contended that the follow up procedure was done at the Nursing Home. It is submitted that the hot water bag was insisted by the patient party and not advised by the Doctor or Nursing Home Authority. It is contended that the Learned District Forum had no pecuniary jurisdiction to entertain the complaint.
We have heard the submission made by both sides and perused the papers on record. In paragraph 1(h) it has been stated that the cost together with compensation was to the tune of Rs.18,39,890/-. It is, therefore, clear that the complaint was within the pecuniary jurisdiction of the Learned District Forum.
As to the point of non-joinder of necessary parties it appears that the operation was done by the OP No.1 Doctor at OP No.2 Nursing Home where the Complainant sustained severe burn injury during her stay at Nursing Home after operation. The contention of the Learned Counsel of the OP Nursing Home that hot water bag was applied by the patient party without the knowledge of the staff of the Nursing Home or Nursing Home Authority is not at all acceptable. Evidently, the patient was lying admitted under the care and management of the OP Nursing Home from 16/01/13 to 21/01/13. From the materials on record it further appears that the Complainant continued the treatment for long and series of medical prescriptions, bills have been submitted showing the seriousness of the burn injury suffered by the Complainant.
From the materials on record it is found that there is no allegation so far as the arthroscopy conducted by the OP No.1 is concerned. It was the duty of the Nursing Home Authority and the staff attached thereto to take proper care and caution of the patients lying admitted in the Nursing Home. In this respect there was grave negligence on the part of the Nursing Home Authority and its staff.
Having heard the submission made by the Learned Counsel for the parties and on perusal of the materials on record we are of the considered view that the OP No.1 Doctor was not responsible in any way for the burn injury caused to the Complainant during her stay in the Nursing Home. It is the Nursing Home Authority OP No.2 being solely responsible for the sufferings of the Complainant is to pay cost and compensation to the Complainant. On perusal of the impugned judgment and materials on record, we are of the considered view that the OP No.2 Nursing Home Authority is to pay the compensation of Rs.5 lakh and litigation cost of Rs.25,000/- to the Complainant. We, therefore, modify the impugned judgment as hereunder.
The OP No.2 of the complaint, that is, Tulip Nursing Home Pvt. Ltd. is directed to pay compensation of Rs.5 lakh and litigation cost of Rs.25,000/- to the Complainant within 45 days from this date failing which simple interest @ 9% p.a. shall accrue on the aforesaid amount from the date of default till realisation. The complaint is allowed against OP No.2 and dismissed against OP No.1 of the complaint. Both the Appeals are thus disposed of. 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