State Consumer Disputes Redressal Commission
Dr. Prosenjit Pal & Anr. vs Sri Tapas Das on 24 July, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/130/2019 ( Date of Filing : 12 Feb 2019 ) (Arisen out of Order Dated 19/12/2018 in Case No. Complaint Case No. CC/168/2013 of District Hooghly) 1. Dr. Prosenjit Pal & Anr. Jeebondeep Seba Sadan Nursing Home, Kamarkundu, P.S. - Singur, Dist. Hooghly. 2. M/s. Jeebondeep Seva Sadan Nursing Home Rep. by its Director, Dr. Haradhan Manna, Kamarkundu, P.S. - Singur, Dist. Hooghly. ...........Appellant(s) Versus 1. Sri Tapas Das S/o Sri Manik Chandra Das, Sahapur, Dakshinpara, Nalikul Paschim, P.S. - Haripal, Dist. Hooghly, Pin - 712 407. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER PRESENT: Mr. Soumen Mondal, Advocate for the Appellant 1 Biswajit Bar, Advocate for the Respondent 1 Dated : 24 Jul 2023 Final Order / Judgement
HON'BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT This appeal has been filed under section 15 of the Consumer Protection Act, 1986 ( in short, 'the Act') arising out of the order dated 19.12.2018 passed by the Learned District Consumer Disputes Redressal Forum, Hooghly ( now known as 'the Commission') in connection with the Consumer Case No. CC/168/2013. By the order impugned, the District Forum has allowed the consumer complaint.
Briefly stated the facts of the case, as mentioned in the consumer complaint, are that Soma Das, aged 25 years died in a delivery case on 18.01.2013 due to wrong treatment and negligent act of the opposite parties. Said Soma Das, since deceased, was admitted in M/s. Jeevandeep Seva Sadan Nursing Home at Kamarkundu under the care of opposite party No. 1 Dr. Prasenjit Pal of that Nursing Home on 17.01.2013 at noon. The patient was under his treatment since 06.06.2012. The complainant / respondent deposited Rs.10,000/- to the opposite party Nursing Home. At 3.15 p.m., after operation by the opposite party No. 1 a male child was born, the patient was shifted to bed but there was profuse bleeding for which the condition of the patient was deteriorating very soon. Saline and oxygen were given to the patient Soma Das but the condition was not improved. The complainant and others requested the opposite party No. 1 Doctor for taking proper steps for the patient Soma Das for deplorable physical condition. On 18.01.2023 the patient was recommended for better treatment to N.R.S. Medical College & Hospital with the help of the vehicle No. WB/15/B 4908. No oxygen was given to the patient Soma Das by the opposite party No. 1 Doctor. The opposite party No. 1 Doctor was present with Soma Das while she was carrying to Kolkata in the said car. The opposite party No. 1 Doctor with the driver of the ambulance went inside the hospital and came back after some time and started to return towards Singur along with the patient without any consent and opinion to the complainant. Relatives of the patient Soma Das were not allowed to go inside the N.R.S. Hospital. After reaching at Singur, the opposite party No. 1 Doctor stated that the patient passed away. Further case of the complainant is that death of Soma Das was due to negligent act by the opposite party No. 1 Doctor and the opposite party No. 2 Nursing Home. If the Doctor would have acted with proper care, such death might not be taken place. The opposite party No. 1 Doctor issued death certificate. After that there was a meeting in the Nursing Home in presence of all the members of the patient when the opposite party No. 1 Doctor stated that oxygen was not given to the patient in the ambulance and the patient died at Duliagachha in Singur P.S. at the time of going to N.R.S. Medical College & Hospital.
Further case of the complainant is that thereafter the complainant instituted a criminal case under section 304A I.P.C. The newly born baby and the husband of the deceased suffered great loss economically, physically due to sudden demise of Soma Das who was aged 25 years. Hence, the complainant has filed the case praying for directing the opposite parties to pay compensation of Rs.1,99,990/- and other reliefs.
The opposite parties No. 1 & 2 entered appearance in this case and contesting the case by filing two separate written versions denying and disputing the case of the complainant.
The specific case of the opposite party No. 1 is that the patient Soma Das had a caesarian delivery at 3.15 p.m. on 17.01.2013. The patient and her male child were both good and alright. Thereafter, normal post operative care and advice were provided to the patient. On the same day at around 8.30 p.m., the patient Soma Das suffered pain in her abdomen. It was detected as a case of epigastric discomfort and the patient was treated. The patient was kept under supervision and required medicines were prescribed and administered. At about 4.00 a.m. on 18.01.2013, the patient's condition was deteriorated and then the opposite party No. 1 Doctor referred the patient to any higher centre or any State Medical Facility.
Further case of the opposite party No. 1 is that, the patient was taken to N.R.S. Medical College & Hospital for better treatment. The opposite party No. 1 Doctor was present with the patient but at the time of admission of the patient at N.R.S. Medical College & Hospital, the patient had no pulse beat and heart beat and did not have any other symptoms of life.
Further case of the opposite party No. 1 is that the patient expired but the patient was examined by the emergency Doctor of the said N.R.S. Medical College & Hospital. The emergency Doctor also confirmed the death of the patient. If a patient brought dead, post mortem examination was to be held. The patient party strongly denied to undertake post mortem examination. The opposite party No. 1 being emotionally attached to the patient party, the opposite party No. 1 Doctor issued death certificate in hurried manner. After few days as per request of the complainant a fresh death certificate was issued by this Doctor. As such, the opposite party No. 1 issued death certificate for two times.
Further case of the opposite party No. 1 Doctor is that the patient expired due to sudden cardiac arrest and due to suspected amniotic fluid embolism. It is a situation when amniotic fluid enters into the vessel of the mother which may or may not mix with the blood. If it does not mix with the blood it becomes a bubble or embolism and thus blocks the blood supply in the very small calibre vessels culminating into restricted blood supply to the vital organ. This disease is very uncommon and nearly fatal. It is difficult for a Doctor to diagnose.
Further case of the opposite party No. 1 is that the opposite party No. 1 treated the patient to his best ability and in accordance with infrastructure available to him. The opposite party No. 1 is not guilty of negligence for not taking proper care for acting against the laws of the land. As such, the opposite party No. 1 has prayed for dismissal of the case. The specific case of the opposite party No. 2 is that the complaint case is not maintainable against him. The complainant has no cause of action to file the instant case against the opposite party No. 2. The opposite party No. 2 has been impleaded in this case unnecessarily in spite of having no specific and clear complaint against the opposite party No. 2 Nursing Home within the four corners of the petition of complaint regarding any sort / manner of deficiency in service or any negligence on the part of the opposite party No. 2 Nursing Home in rendering their services to the patient Soma Das.
Further case of the opposite party No. 2 is that no complaint as against this opposite party No. 2 Nursing Home has ever been made in the petition of complaint lodged by the complainant. The father of the deceased Soma Das lodged criminal case before the Singur Police Station being the Singur Police Station Case No. 121/2013. Hence, the opposite party No. 2 has prayed for dismissal of the complaint case. Both parties adduced evidence in support of their case.
The District Forum on appreciation of the materials on record has allowed the consumer complaint vide order dated 19.12.2018 in the above manner.
Aggrieved by the said order both the opposite parties have filed this appeal.
We have heard the Learned Advocate appearing for both the parties and have also gone through the entire materials on record of the District Forum.
Learned Lawyer appearing for the appellants has submitted before this Commission that the impugned judgment is not in accordance with law.
He has further submitted that the complainant has filed this case against the opposite parties praying for Rs. 1,99,990/- towards compensation which have been mentioned in the prayer portion of the petition of complaint as well as in the claim portion of the petition of complaint. But in the claim portion of the petition of complaint, the complainant has written 9,19,000/- (Rupees nine lakh and nineteen thousand) in words only.
He further submitted that the Learned Forum below has wrongly directed the opposite parties to pay a compensation of Rs.19,50,000/- (Rupees nineteen lakh and fifty thousand) only. If the claim amount is Rs.19,09,999/- then the District Forum has no jurisdiction to entertain the consumer case.
He has further argued that in absence of expert evidence to prove medical negligence the instant complaint case cannot be succeeded. He has further submitted that the Learned District Forum passed the final order without proper appreciation of the evidence adduced by the parties. On the other hand, Learned Lawyer appearing for the complainant / respondent has urged that Learned District Forum has passed the order legally.
He has further submitted that Learned District Forum considered the settled principles of law and have properly decided the matter after appreciating the evidence adduced by the parties. So, the appeal should be dismissed and the impugned order should be confirmed. Having heard the Learned Advocate appearing for both the parties and on perusal of the materials on record it appears to us that it is an admitted position that Soma Das, aged about 25 years, since deceased was admitted at the opposite party No. 2 Nursing Home at Kamarkundu under the care of opposite party No. 1 Dr. Prasenjit Pal on 17.01.2023.
It is also an admitted position that on 17.01.2023 at 3.15 p.m. after operation by the opposite party No. 1 Doctor a male child was born.
It is also an admitted position that there was profuse bleeding for which the condition of the patient was deteriorating. Saline and oxygen were given to the patient but the condition of the said patient was not improved.
It is also an admitted position that on 18.01.2013 the patient namely Soma Das was recommended for better treatment to N.R.S. Medical College & Hospital by opposite party No. 1 Doctor.
It is also an admitted position that on 18.01.2013 Soma Das passed away.
It is also an admitted position that no post mortem examination was held on the dead body of the deceased Soma Das.
It is also an admitted position that the opposite party No. 1 Doctor issued two death certificates for the death of Soma Das.
Now, we shall have to consider as to whether the impugned judgment passed by the Learned District Forum should be sustained.
Learned Lawyer for the appellants has drawn attention to the petition of complaint filed by the complainant and he has urged that the complainant has filed the case against the opposite party by claiming of compensation of Rs.1,99,990/- (Rupees one lakh ninety nine thousand nine hundred and ninety) only but the complainant in the petition of complaint has claimed Rs.1,99,990/- (Rupees one lakh ninety nine thousand nine hundred and ninety) only in figures and Rs.9,19,000/- (Rupees nine lakh and nineteen thousand) only in words. But the Learned Forum below failed to determine that the complainant has claimed Rs.19,09,999/- (Rupees nineteen lakh nine thousand nine hundred and ninety nine) only plus litigation cost. Thus, the Learned Forum has no jurisdiction to allow compensation of Rs.19,50,000/- (Rupees nineteen lakh and fifty thousand) only plus litigation cost.
On the other hand, Learned Lawyer for the respondent conceded the submission to the effect that the complainant filed the complaint case praying for compensation amounting to Rs.1,09,990/- ( Rupees one lakh nine thousand nine hundred and ninety) only and in the prayer he also claimed the same amount in figure but in words he claimed Rs.9,19,000/- (Rupees nine lakh and nineteen thousand) only.
On careful perusal of the record including the petition of complaint it is found that the complainant has clearly and categorically stated in the petition of complaint in paragraph No. 18 that the complainant has prayed for a decree directing the opposite parties to pay compensation of Rs.1,99,990/- (Rupees one lakh ninety nine thousand nine hundred and ninety) only. At the same time the complainant has prayed in the claim portion of the petition of complaint in page No. 7 that he claimed Rs.1,99,990/- (Rupees one lakh ninety nine thousand nine hundred and ninety) only in figure but in words he has written Rs.9,19,000/- (Rupees nine lakh and nineteen thousand) only.
After careful perusal of the impugned judgment it is found that by the order impugned, the Learned District Forum has given direction upon the appellants to pay Rs.19,50,000/- (Rupees nineteen lakh and fifty thousand) only to the complainant. Though the complainant has not paid the above mentioned amount in the petition of complaint. In such a situation, it may be concluded that the Learned District Forum has committed material illegality in passing the impugned judgment. In the result, we hold that the impugned order should be set aside and the complainant should be given an opportunity to amend the prayer and claim portion of the petition of complaint in order to remove the confusion about the actual claim amount.
In view of the above, we are of the considered opinion that this is a fit case where the matter should be remanded to the Learned District Forum to decide the case afresh in view of the observations recorded in the body of the order. Accordingly, the impugned judgment is set aside and the matter is remanded back to the Learned District Forum to decide the matter afresh. Both parties are directed to appear before the Learned District Forum on 16.08.2023. The Forum, thereafter shall give opportunity to both the parties to lead their respective evidence as per the provision of the Consumer Protection Act and then settle the dispute according to law.
In the given circumstances both the parties to bear their own cost.
The appeal is, thus, disposed of accordingly.
Let a copy of the order be sent down to the Learned District Forum at once for information.
[HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER