KUSTURI ULTRA SOUND CLINIC Vs. NIKHIL KUNDU

JUDGEMENT

(1.) THIS appeal is directed against the order dated 14.1.2004 passed by the Alipurduar District Consumer Forum in DF Case No. 4/2003. By this judgment the Forum allowed the complaint filed by Nikhil Kundu (the present respondent) on contest with cost of Rs. 200 and directed the O.P. Kusturi Ultrasound Clinic (the present appellant) to pay a sum of Rs. 10,000 as compensation by the end of February, 2004 in default, the awarded amount would carry interest @ 8% p.a. from the date of filing of the case till the date of its realisation.

(2.) BEING aggrieved by this judgment the O.P. has preferred the present appeal challenging the order as erroneous and illegal.

(3.) THE case of the complainant was that he was suffering from severe abdominal pain and was admitted into the hospital where he was advised to have Ultra Sonography test of his renal track. Accordingly he got such a test done at the appellant s clinic. As per the USG report it was found that the complainant was suffering from such severe abdominal pain due to the presence of two small calculi of average 6 mm size in the renal sinus of his right kidney and two small calculi of average 7mm size in the sinus of his left kidney. Report was verified by the Doctor as well as the Surgeon at the hospital who prescribed medicines and advised him to drink large quantity of water and further advised him to consult Urologist for better management. Accordingly the complainant followed such advice and he went to the Apollo Hospital for further management and treatment and on 9.9.2002 another Ultra Sonography test was done there, but this time no stone could be detected. Hence the complainant filed this case before the Forum claiming compensation from the O.Ps. for the reason that due to their erroneous and misleading reports the complainant had to undergo mental strain and agony apart from the fact that he had to spend a lot of money in various medical tests and medicines. The Trial Forum after considering the materials on record and the contentions advanced by the parties came to the finding that the reports of Ultra Sonography test might due to intake of certain medicines and anti -biotic treatment the shape and size of the calculi sometimes were likely to be decreased considerably or even sometimes they might be invisible. The Forum has relied upon certain medical authorities in coming to such a finding like Bailey and Love s Short Practice of Surgery at Page 1166 and Harrison s Principles of Internal Medicine (12th edition) at page 1205. Therefore, he did not find any fault on the part of the O.P. Clinic in this regard, but, curiously enough, he has found the O.P. guilty of committing unfair trade practice for conducting ultrasound business without obtaining necessary certificate from Alipurduar Municipality showing its trade s enlistment therein. Being aggrieved by this part of the judgment the O.P. has preferred this appeal. It may be noted that against the first part of its judgment discussed above there has been no appeal by the complainant. Therefore, let us see whether such a finding in the second part of its judgment can be said to be legally justified.