JHUMA NAG Vs. AMIYA KUMAR PRODHAN

JUDGEMENT

(1.) THIS is a complaint under the provisions of Consumer Protection Act, 1986 filed by Mrs. Jhuma Nag (hereinafter referred to as the complainant) against Dr. Amiya Kumar Prodhan (hereinafter referred to as the O.P.) on the following allegations. The complainant conceived some time in the month of March, 2002 and contacted the O.P. for consultation and treatment. On 5th March, 2002 the O.P. examined her at his chamber after getting fees from her. He gave a prescription and thereafter on 18th March, 2002 she again went to that chamber of the Doctor who again examined her and issued prescription and advised her to get admitted in the Malda Nursing Home. The O.P. confirmed that she was pregnant and advised her, in the presence of her husband, to get her pregnancy terminated as continuance of the pregnancy would be risky for her life. As per the advice of the Doctor the complainant got herself admitted in Malda Nursing Home and the O.P. performed D.E. on 20th March, 2002 on the complainant under general anesthesia and reported to her husband that the pregnancy had been terminated and he issued discharge certificate on that very day with some advice. He also prescribed some medicines and asked the patient to have check -up after a week. Thereafter she again went to the O.P. 's chamber for a checkup and the O.P. again issued a prescription prescribing certain medicines. But the complainant was not feeling easy and comfortable since after that operation. Therefore, she along with her husband went to Peerless Hospital and B.K. Roy Research Centre in the first week of May 2002 and received treatment there and the Doctors there told her that her pregnancy had not been terminated and she was still carrying. Then the complainant had to undergo certain tests and examinations on payment of huge money and ultimately as per the advice of the Doctors there she was operated upon for the second time for termination of her pregnancy and that operation was successfully done. Thus, the O.P. Doctor even after taking a lot of money from her did not provide any relief to her and practically cheated her. She suffered both physically and mentally and the medicines prescribed by the O.P. and taken by her had adverse effect upon her life and the service that was hired by the complainant from him was not actually rendered and thus there was gross negligence and deficiency in service on the part of the O.P. and hence this case has been filed under the Consumer Protection Act and the O.P. is liable to pay compensation. She has claimed Rs. 5,00,000 of which Rs. 2,00,000 is on account of loss of child, Rs. 2,00,000 for mental pain, agony and sufferings and Rs. 1,00,000 on account of risk of life taken by her.

(2.) THE O.P. -Dr. Amiya Kumar Prodhan contested the case by filing a written version admitting that an operation called medical termination of pregnancy (M.T.P.) was held by him on the complainant and also that ultimately the pregnancy was not actually terminated but denying other material allegations and contending that he had no deficiency in service in the matter because of the following reasons. He has stated that the complaint is not maintainable in view of the express provisions of the M.T.P. Act, 1971 and the pecuniary jurisdiction of the District Forum where she filed the case was exceeded by the claim of Rs. 5,00,000 being added with the value of service in terms of Section 11 of the Consumer Protection Act. It is the further contention of the O.P. that the matter involves complicated questions of law and fact which should not be adjudicated in a consumer Court under its summary trial jurisdiction and it should be referred to a Civil Court and further that the complaint is bad for non -joinder of necessary parties since the other doctors who treated the complainant had not been impleaded. Regarding merits it has been the contention of the O.P. that after the complainant came to him on 5th March, 2002 with a complaint of cessation of menstruation since 21st January, 2002 he examined her clinically and also perused the documents including urine report brought by the patient. He prescribed certain medicines for the purpose of onset of menstruation and advised her certain blood tests with a request to come to him again after two weeks. Thereafter on 18th March, 2002 she came again and reported that her menstruation had not yet started. Then he examined her urine immediately at his clinic and he found that there was presence of pregnancy. USG also was conducted at his clinic and he came to the conclusion that she had either blighted ovum or early gestational sac. Since the complainant's pregnancy was a definite one but at the same time her menstruation ceased since January, 2002, he advised her for a further checkup after two weeks for confirmation whether it was blighted ovum or pregnancy but the complainant and her husband expressed their desire that whatever might be the condition, they did not like to have any further child at that moment and they pressed for termination of her pregnancy. In such a situation at the request of the complainant it was decided that she would undergo surgical intervention. Accordingly, it was decided that the complainant would be admitted at Malda Nursing Home. He performed the medical termination of pregnancy absolutely in good faith. He followed Dilatation of Cervix and Evacuation (D and E) procedure. After the surgery was over, the complainant was discharged on that very day i.e., on 20th March, 2002 in the afternoon with an advice for checkup after seven days. Later he came to know that the complainant had been admitted at the Peerless Hospital on 7th May, 2002 which was after 7 weeks of surgical intervention by him and the attending doctors of that Hospital on clinical examination assessed the pregnancy to be of 8 weeks. Since such assessment of duration of pregnancy was not a definite one and the complainant was not protected against the conception, a fresh conception could not be ruled out. In medical science termination of pregnancy some time fails in about 1 per cent cases particularly when the same is done at the very early stage. Since the D and E procedure is a blind one, his failure in the surgical intervention was an exception and this was well accepted in medical science. It is also possible that in case of twin pregnancy at a very early stage the termination of one pregnancy may amount to continuation of pregnancy in the other one which may be detected at a later stage. Moreover, in some cases congenital deformity of the uterine cavity may also hide the conceptus beyond evacuation. According to the O.P. there is no deficiency in service on his part and the complainant with a mala fide intention has filed this case to make wrongful gain and the case is liable to be dismissed with exemplary cost.

(3.) IT may be mentioned that this case was originally filed before the Malda District Consumer Forum. There the Forum heard on the preliminary issue regarding pecuniary jurisdiction of the Forum and gave a finding in the affirmative. Being aggrieved thereby the O.P. preferred a revision petition before this Commission and this Commission after hearing the same found that the finding of the Forum was not correct and in consequence of the claim made by the Complainant for Rs. 5,00,000 the pecuniary jurisdiction of the District Forum was exceeded because the claim was to be added with the value of service under the provisions of Section 11 of the Consumer Protection Act. Accordingly, the case was taken by this Commission treating it as originally filed case vide order dated 28th February, 2005 of this Commission.