NILKANTA SARKAR Vs. S N BANERJEE

JUDGEMENT

(1.) This is a complaint under Section 17 of the Consumer Protection Act, 1986 filed by one Sri Nilkanta Sarkar against three doctors viz. Dr. S.N. Banerjee (O.P. No. 1), Dr. P.K. Saha (O.P. No. 2) and Dr. T.K. Biswas (O.P. No. 3) on the following allegations.

(2.) The complainant s wife aged 40 was suffering from fever with headache with effect from 1.8.2001. On 2.8.2001 the complainant took her to the O.P. No. 1 who after clinically examining the patient prescribed Calpol and anti-biotic drug for four days. After applying of those drugs, the complainant found no improvement in the condition of the patient and hence he again went to the O.P. No. 1 on 8.8.2001 when the O.P. No. 1 after examining the patient prescribed some diagnostic tests with the sole intention to ascertain whether the patient had been suffering from Malaria or Typhoid and this doctor prescribed Paraxin 500 mg. along with Calpol without making any test on 8.8.2001(vide Annexure - A). But this time also on application of those drugs no improvement was found in the condition of the patient and hence the complainant approached Dr. P.K. Saha on 22.8.2001 who after thorough check-up prescribed some medicines but unfortunately even after taking those medicines, the conditions of the patient did not improve. Then on 27.8.2001 at 4 p.m. the patient became senseless and immediately she was taken to Sub Divisional Hospital, Asansol wherefrom she was referred to the O.P. No. 3 Dr. T.K. Biswas for C.T. Scan of her brain. After seeing the report of X-ray and Scan the O.P. No. 3 s observation was that the patient s condition was absolutely normal. The complainant seeing that the doctors of Asansol Sadar Hospital failed to diagnose the disease of the patient, took the patient to P.G. Hospital as per the instruction of the said doctors of Sub Divisional Hospital and the doctors of P.G. Hospital upon inspection of Brain Scanning Plates opined that the patient was suffering from Meningo-Encephilitis and as per their instruction the patient was taken to I.D. Hospital, Beliaghata on that very day, i.e., 28.8.2001 when she was admitted there. In spite of treatment being provided at that hospital the patient ultimately succumbed to the ailment on 31.8.2001. Such death was due to the fact that there had been inordinate delay in diagnosing or combating the disease called Meningo-Encephilitis. All the three O.Ps. were equally liable for their negligence in the matter of coming to a proper diagnosis of the disease and their failure to provide proper treatment of the disease. Placing of reliance on the report of C.T. Scan without examining the C.T. Scan Plates certainly is not an instance of following of correct procedure of medical treatment. In view of such absence of reasonable skill and care on the part of the attending doctors there has been deficiency in the service in the part of the O.Ps. and they being guilty of medical negligence, the complainant has alleged this complaint under the provisions of Consumer Protection Act praying for an award of compensation for the untimely death of his wife Smt. Shyamali Sarkar, an amount to the extent of Rs. 10,00,000/- and further compensation for deficiency in service on the part of the O.Ps. of Rs. 8,00,000/- + litigation cost of Rs. 10,000/-.

(3.) The O.Ps. have contested the case by filing separate written versions denying therein all the material allegations of the complaint. They have challenged the status of the complainant as a Consumer on the plea that the complainant did not hire any service from them. They have also questioned the propriety of such a case being tried by a Consumer Forum for the reason that it involves complicated issues and points which are of highly technical nature and the fact that voluminous evidence is required to be taken for the purpose of proper adjudication of this case and therefore a Civil Court would have been appropriate Forum for hearing of such a case. Their averments as regards the merit of the case will be discussed while we will discuss our findings in the body of the judgment and hence to avoid repetition we are not stating them here.