DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PURULIA
CONSUMER COMLAINT No. 12 OF 2007
Date of filing : 8th March 2007
Date of Order : 12th October 2009
Complainant Opposite Party (s)
Akhtar Hussain Khan, 1.South Eastern Railway Central Hospital,
S/o. Late Cheddi Khan, Garden Reach, Kolkata,
Katin Mahalla, Purulia, Through the Medical Director,
P.O., P.S. & Dist: Purulia. South Eastern Railway Central Hospital
Garden Reach, Kolkata – 700 043.
2. South Eastern Railway Hospital, Adra,
Through Chief Medical Superintendent,
South Eastern Railway Hospital, Adra,
P. O. Adra, District: Purulia.
3.Dr. Sanjay Kumar Arya,
Orthopedic Surgeon,
Attached to S. E. Railway Hospital,
Through the Chief Medical Officer,
South Eastern Railway Hospital, Adra,
P.O. Adra, District: Purulia.
Present:
1. Sri B. Das, President.
2. Sri A.K. Sinha, Member.
3. Smt. S. Sengupta (Santra), Member.
For the Complainant : Sri P. Roy, Adv.
For the O.P. No.: Sri P. K. Sen, Adv.
The case of the complainant is stated as follows:-
On 27.4.2005 at night when the complainant, a Railway employee was proceeding to his place of duty, a bi-cycle dashed him and as a result of which he fell down on the ground and sustained injury on his left wrist. The
complainant could not avail himself of the medical treatment from the Railway Hospital, Purulia as it was closed after 7 p.m. and he went to Deben Mahato Sadar Hospital, Purulia with the help of his office staff for treatment. On 28.4.2005 he went to South Eastern Railway Hospital, Adra and he was admitted in the male surgical ward. One lady doctor of the hospital examined him and advised for x-ray and other medical tests and thereafter he was referred to the orthopedic surgeon attached to the hospital. Dr. S.K.Arya, an orthopedic surgeon attached to the said hospital examined him on 01.5.2005 and perused the x-ray report and disclosed that there was comminuted colles fracture in his left wrist and advised for P.O.P. plaster. The complainant felt pain in his left wrist and in spite of that Dr. Arya ignored the same and with the help of his two attendants started for P.O.P. plaster. The complainant was discharged from the hospital on 02.5.2005 with advice to attend orthopedic clinic of the hospital. On 17.6.2005 the plaster was removed by the hospital. On 23.6.2005 the complainant reported the fact to Dr. Arya but he did not advise for fresh x-ray. On 03.7.2005 the complainant went to Siddharth Medical Centre, Purulia where Dr. P.D.Trivedi, an orthopedic surgeon examined him and fresh x-ray was done. Dr. Trivedi detected that there was existence of fracture in the left wrist of the complainant which clearly indicates that the O.P.No.2 (Hospital) was negligent in performing proper duty. The complainant was thereafter referred to South Eastern Railway Hospital, Garden Reach, Kolkata where the doctor opined post immobilization fracture and advised for extensive physiotherapy. The O.Ps. were under obligation to render proper medical treatment to him but there was utter negligence on their part which caused harassment to the complainant. The complainant filed the case against the O.Ps. for compensation to the extent of Rs. 4,75,000=00 along with litigation cost.
The O.Ps. have been contesting the case by filing written version contending, inter alia, that the instant case is not maintainable and that the complainant had no cause of action to file the case. The O.Ps. alleged that after admission of the complainant in the hospital proper care was taken by
the doctors and considering the age of the complainant the DMO (Ortho), Adra, South Eastern Railway Hospital decided not to do any manipulation for reducing the fracture as it might lead to further displacement of fracture and he decided only to apply below elbow P.O.P. cast to the affected limb immobilization. Such decision was taken by the doctor because of the fact that colles fracture is a condition which affects the lower radius of the cancellous part of the bone where the fracture always unites. The proper medical treatment and guidance was given to the complainant by the hospital and he was referred to South Eastern Hospital, Garden Reach also for proper medical treatment. The O.Ps. specifically allege that there was no negligence on their part in discharging such treatment. The allegation of the complainant has no basis at all and they claim for dismissal of the case.
-:Points for determination:-
1. Is the case maintainable in its present form?
2. Is the complainant a ‘consumer’?
3. Is there any deficiency in service by the O.Ps. with regard to the treatment of the complainant?
4. Is the complainant entitled to get compensation as prayed for?
-: Decision with reasons :-
Admittedly, the complainant was a High Skilled Fitter of South Eastern Railways, Adra. Admittedly, after the accident on 27.4.2005 the complainant got first aid from Deben Mahato Sadar Hospital and on 28.4.2005 he was admitted to the male surgical ward of South Eastern Hospital, Adra. The contention of the complainant is that at the time of P.O.P. plaster there was pain in the left wrist and the matter was disclosed to Dr. Arya who ignoring the same started P.O.P. plaster with the help of his two attendants. The complainant further contended that Dr. Arya without anticipating the swelling and without manipulating the swelling of upper palm of the left hand fingers he tightly padded the left wrist for which he felt severe pain, numbness in digit and neurological deficit resulting loss of limbs or functional useless limb.
Ld. Lawyer appearing on behalf of the O.P. submits that the instant case is not maintainable as notice under Section 80 of Civil Procedure Code has not been strictly applied with. In this context we are of opinion that the notice under Section 80 of C.P.C. is not necessary for filing the instant case against the O.Ps. specially when the case is a quasi-judicial proceeding. Accordingly, we are of opinion that the instant case is perfectly maintainable.
Now let us see whether the complainant is a consumer under C.P.Act or not. Ld. Lawyer appearing on behalf of the O.Ps. submits that the complainant is not a consumer to the O.P. as no charge was taken by them from him for his treatment and no amount was deducted from the salary of the complainant for such treatment. Ld. Lawyer for the complainant submits that the complainant is a consumer under C.P.Act and refers to a decision as reported in a 1995 (3) Supreme Court 412. On perusal of the said decision at page 413 we find that the said decision is against the complainant. It has been held by their Lordships that service rendered free of charge by a medical practitioner attached to a hospital/nursing home or a medical officer employed in a hospital/nursing home where such services are rendered free of charge to everybody, would not be ‘service’ as defined in Section 2(1)(o) of the Act. the payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position. Admittedly, the complainant would get free medical treatment from South Eastern Railway Hospital. In the view of the decision of the Hon’ble Supreme Court we hold that the complainant availing of such free of charge services from the O.Ps. will not be considered as a consumer at all.
Be that as it may let us consider the remaining two points. Let us consider whether there was any deficiency in service for rendering medical treatment by the O.Ps. to the complainant. Admittedly, the complainant got treatment from South Eastern Railway Hospital, Adra and Dr. Arya treated him. Thereafter the complainant was treated by Dr. Trivedi of Siddharth Medical Centre, Purulia. The complainant deposes in his cross-examination that Dr. Trivedi of Siddharth Medical Centre, Purulia issued a certificate regarding defects of treatment done by Dr. Arya. Dr. Trivedi also told him that the treatment done by Dr. Arya was defective. It is interesting to note that no such report is forthcoming before the Forum. on perusal of the evidence of Dr. Arya (O.P.No.3) we find that he was an orthopedic surgeon of the said Hospital and his duty was to render treatment both private patients and employees of South Eastern Railway Hospital if they are admitted in the Hospital. Dr. Arya also deposes that the complainant sustained comminuted colles fracture in left wrist and the fracture sustained by him is simple in nature but not complicated. He opines that the colles fracture affects lower end of radius and colles fracture bones always unite together in normal course. It is not correct that unless fracture bones are properly set up there is scope of reunion of bones in fractured point. Dr. Arya also deposes that after examining the papers he took a decision to get the complainant under his care and control and he gave emphasis on the age of the patient as well as the condition of the fracture and in view of comminuted fracture he decided to treat the complainant without any manipulation and by below P.O.P. casts application in such position. On perusal of Exbt. “2” we find that the complainant was referred to South Eastern Railway Hospital, Garden Reach, Kolkata by the Medical Superintendent of O.P. Admittedly, the complainant was treated at South Eastern Railway Hospital, Garden Reach, Kolkata and they did not find fault with the treatment of Dr. Arya of Adra Hospital. They recommended extensive physiotherapy as was done by Dr. Arya previously.
On perusal of the evidences on record we do not find any deficiency in service rendered by the O.Ps. to the complainant. In this context we are of opinion that the Forum cannot attribute negligence on the part of a doctor if he has performed his duties to the best of his ability with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical provision this Forum finds that the doctor has attended the patient with due care, skill and diligence and if the patient suffers permanent ailment, it would be difficult to hold the doctor guilty of negligence. Suppose there was an error of judgment by Dr. Arya at the time of treatment of the complainant. In this context we are of opinion that a doctor cannot be found negligent merely because in a matter of opinion he made an error of judgment.
In view of the above findings we hold that the complainant is not a consumer under C.P.Act and there was no deficiency in service by the O.Ps. with regard to the treatment of the complainant in their hospital. We are of opinion that the complainant is not entitled to get compensation and litigation costs as prayed for. We further hold that the complainant filed the instant case without any just cause and the case should be dismissed. Hence,
O r d e r e d
That the Consumer Complaint case be and same is dismissed on contest without costs.
Let certified copy of this order be supplied to the parties free of charge.