MIHIR BANERJEE Vs. ABHIJIT ROY

JUDGEMENT

(1.) An unfortunate father of a 12 years old girl child, who lost her life within a span of almost 12 hours of suffering episodes of vomiting and diarrhoea, is the Petitioner in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"). He questions the legality and correctness of order dated 22.9.2008 passed by the State Consumer Disputes Redressal Commission, West Bengal (for short "the State Commission") in S.C. Case No. 554/A/2001. By the said order, the State Commission has affirmed the order passed by the District Consumer Disputes Redressal Forum, Hooghly (for short "the District Forum") in Complaint Case No. C.D.F. 103/2001, dismissing the complaint filed by the Petitioner, alleging medical negligence on the part of the Respondent in treating his daughter.

(2.) The material facts, as emerging from the complaint, are as follows:

(3.) The complaint was contested by the Respondent. In the written version to the complaint as well as in his evidence by way of affidavit, it was pleaded that being a family friend he had been treating the family without even charging fees for treatment and for the treatment in question also, he had not received any consideration. Therefore, the Complainant not being a "consumer" within the meaning of Section 2(l)(d)(ii) read with Section2(l)(o) of the Act, the Complaint was not maintainable. On merits, it was stated that he had prescribed the aforestated two injections in the morning after examining her blood pressure, pulse, tongue, etc.; as she was diagnosed as suffering from gastroenteritis or early stage of gastroenteritis; she was advised to take ORS and plenty of fluids; the condition of the patient was absolutely steady and stable at the time of her clinical examination and around 1.45 p.m. he was informedby some relatives of the Petitioner that the condition of the deceased had improved; thereafter he had left for Kolkata for personal work and till 7.30 p.m., nobody had contacted and informed him about her condition; he visited the residence of the Petitioner around 9.45 p.m. to examine her but found that Dr. A.N. Har was examining her and had advised immediate hospitalization. It was alleged that the family members of the Petitioner had assaulted him and had damaged his medical instruments. It was also stated that when the maternal uncle of the deceased, accompanied by some other people, came to his residence in a belligerent mood and had told him that the Nursing Home would issue the death certificate only after autopsy is conducted to find out the cause of death, he issued the death certificate under pressure from them. He strongly denied prescribing Imosec-F and Pyrexnon-650-1/2 tablets and stated that the name of the said medicines had been written on his prescription, dated 22.5.2001, by someone else.