Monday, October 30, 2023

negligence cannot be presumed in case of medical negligence

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION
WEST BENGAL
11A, Mirza Ghalib Street, Kolkata - 700087
 
First Appeal No. A/104/2018
( Date of Filing : 05 Feb 2018 )
(Arisen out of Order Dated 14/12/2017 in Case No. Complaint Case No. CC/420/2015 of District Kolkata-I(North))
 
1. Dr. Indranil Lodh
40/1A, Hazra Road(1st floor), near Ritchie Road Hazra Road Crossing, Ballygunge Phari, P.S. Ballygunge, Kolkata-700 019.
2. Urvarra IVF Fertility Clinic
40/1A, Hazra Road(1st floor), near Ritchie Road Hazra Road Crossing, Ballygunge Phari, P.S. Ballygunge, Kolkata-700 019.
...........Appellant(s)
Versus
1. Mrs. Kajal Mondal
W/o Sri Manoj Mondal, 87/5/1, North Purbanchal Road, Kolkata - 700 078.
2. Ghosh Dastidar Institute for Fertility Research (P) Ltd.
208, Rash Behari Avenue, Kolkata - 700 029.
...........Respondent(s)
 
BEFORE: 
 HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT
 HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER
 
PRESENT:Ms. Jayati Chowdhury, Mr. Abhik Das, Advocate for the Appellant 1
 Md.Masudur Rahaman Paik, Advocate for the Respondent 1
Dated : 04 Jul 2023
Final Order / Judgement

HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

  1. This appeal has been filed under section 15 of the Consumer Protection Act, 1986 ( in short, ‘the Act’) arising out of the order No. 17 dated 14.12.2017 passed by the Learned District Consumer Disputes Redressal Forum, Kolkata – I (North) ( in short, ‘the District Forum’) in connection with Consumer Case No. CC/420/2015. By the order impugned, the District Forum has allowed the Consumer Complaint on contest.
  1. Briefly stated the facts of the case as mentioned in the Consumer Complaint are that the complainant is a married lady and she got married in the year 2011. Even after her marriage life for 2 years and 6 months, she was not able to conceive. Being allured with the advertisement appeared in the newspaper, the complainant contacted the opposite party No. 1 Doctor. The opposite party No. 1 Doctor advised the complainant for “IVF Package Treatment” for successful recovery of her gynecological problem. For such treatment, the complainant visited the clinic for seven times and incurred an expenses of Rs.1,50,000/- (Rupees one lakh and fifty thousand) only and the complainant further had to bear the expenses of Rs.1,50,000/- ( Rupees one lakh and fifty thousand) only for tests, medicines etc. prescribed by the opposite party No. 1 Doctor. The opposite party No. 1 Doctor received an amount of Rs.1,50,000/- (Rupees one lakh and fifty thousand) only without any just cause and harassed the complainant, for which the complainant sustained pain and injury taking advantage of emotion of the complainant to have a child. Since, the complainant did not get any relief for which the complainant was compelled to file the present case praying for direction upon the opposite parties for compensation of Rs.15,00,000/- (Rupees fifteen lakh) only and refund of amount of Rs.1,50,000/- ( Rupees one lakh and fifty thousand) only respectively for payment made to the opposite party No. 1 as well as the medical expenses borne by her as per the advice of the opposite party No. 1 Doctor.
  1. The opposite party No. 1 Doctor, the opposite party No. 2 Nursing Home and the opposite party No. 3 entered appearance in this case and contested the case by filing written version denying and disputing the case of the complainant.
  1. The specific case of the opposite parties No. 1 & 2 are that the opposite party No. 1 Doctor is a senior consultant and attached to various reputed clinics and she has the specialization in the OBGYN. In order to substantiate the allegation of the complainant the dispute can be resolved by producing evidence of experts and elaborate examination of the witnesses which is not at all possible in this Forum. The complainant filed this case as a chance litigation knowing fully well that the success rate of such treatment is around 15-20% of all patients who are treated. The opposite parties did not give any guarantee to the complainant for having a child for undergoing such treatment. The complainant visited the opposite party No. 2 Nursing Home for consultation on 29.11.2014 and after receiving due information regarding the whole procedure, she registered herself on 01.04.2015 and gave consent to the IVF treatment which might help her to bear a child. The IVF procedure is completely medical and scientific and did not give any assurance that such procedure will result into pregnancy. The opposite party No. 1 Doctor as per medical treatment adopted the necessary steps and even after undergoing such steps if the complainant would not have conceived for which the opposite party No. 1 Doctor cannot be held responsible. As such, the opposite parties No.1 & 2 have prayed for dismissal of the case.
  1. The case of the opposite party No. 3 is that the complainant only once visited the said clinic and no further follow-up action was taken by the complainant for which the opposite party No. 3 should not be made a party and the opposite party No. 3 failed to give opinion on the basis of the treatment rendered by the opposite party No. 1. Accordingly, the opposite party No. 3 has prayed for dismissal of the case.
  1. The District Forum on an appreciation of the materials on record, has allowed the consumer complaint vide order No. 17 dated 14.12.2017 in the above manner.
  1. Aggrieved by the said order the opposite parties No. 1 & 2 have filed this appeal.
  1. We have heard the Learned Advocates appearing for the parties and have also gone through the entire records of the District Forum and perused the materials placed on record.
  1. Learned Counsel for the appellants have submitted before this Commission that the impugned judgment is not in accordance with law. He has further urged that the Learned Forum below erred in law and in fact that in holding the appellants liable to pay compensation when there is no specific proof of negligence on the part of the appellants and no expert Doctor has stated that there was negligence on the part of the appellants at the time of the treatment. He has further urged that the Learned District Forum below ought to have taken the opinion of experts in the field of medicine. Only after taking opinion of experts the Learned Forum ought to have come to the conclusion as to whether there was negligence in the treatment provided by the appellants.
  1. He has further urged that the Learned District Forum has failed to appreciate that the treatment given by the appellants was a routine. No deviation of protocol has been alleged by the complainant at any point of time. In fact, no allegation of deficiency had been made by the complainant against the appellants. Learned Forum below failed to appreciate that which provided by the opposite party No. 1 Doctor is a standard treatment protocol for a patient with an AMH with a score of 0.01. Learned District Forum failed to appreciate that the appellants had acted on all time as per well accepted medical norms and without negligence. He has further urged that the appeal should be allowed and the impugned order / judgment should be set aside.
  1. On the other hand, Learned Lawyer appearing for the respondent No. 1 has urged that the Learned District Forum has passed the order legally. He has further urged that Learned District Forum considered the settled principles of law. So, the appeal should be dismissed and the impugned order should be confirmed.
  1. Having heard the Learned Advocate appearing for both the parties and on perusal of the materials on record it appears to us that it is an admitted position that the complainant being attracted with the advertisement published in the daily newspaper made a contact with the opposite parties. It is also an admitted position that the opposite party No. 1 Doctor after consultation assured that if the complainant would have got treatment of IVF she could conceive a child. It is also an admitted position that the opposite party No. 3 by publication of advertisements in the newspaper claimed that the success rate of such test is 70%. On the basis of misleading advertisement, the complainant being attracted with the success rate made contact with the opposite parties. It is also an admitted position that as per advice of opposite party No. 1, the complainant underwent several tests and assurances given by the opposite party No. 1  which was not fulfilled.
  1. On consideration of the materials available on record it is found that the complainant paid an amount of Rs.1,50,000/- (Rupees one lakh and fifty thousand) only for various tests and medicines and the complainant paid Rs. 1,50,000/- (Rupees one lakh and fifty thousand) only to the opposite party No. 1 for the treatment of IVF.
  1. It is also found on careful perusal of the record that in spite of payment of such huge amount no progress was found.
  1. It is the case of the complainant that the complainant being attracted with the advertisement published in the daily newspaper made contact with the opposite parties and the opposite party No. 1 after consultation assured that if the complainant could have got the treatment of IVF, she could conceive a child. The opposite party No. 3 by publication of the advertisement in the newspaper claimed that success rate of such test is 70 %. Record goes to show that the opposite parties No. 1 & 2 did not deny the same in their written version as well as in their evidence on affidavit filed by them. So, the evidence of the complainant in this regard can be believed.
  1. Another aspect of this case is that though the complainant has claimed that the opposite parties No. 1 & 2 by publication of the advertisement in the newspaper claimed that the success rate of such test is 70% but the opposite parties No. 1 & 2 in their written version have stated that the success rate is 15-20%. Therefore, it appears to us that the opposite party No.3 published misleading advertisement and on reading such misleading advertisement, the complainant was attracted with the success rate and made contact with the opposite parties. It is settled that the Consumer Protection Act gives the consumer the right to seek redress against false and misleading advertisements including compensation for loss and injury caused because of such advertisements.  The advertisement published in this case, the doctors created faith that the complainant could conceive.
  1. The Learned Advocate appearing for the appellants has urged that the respondent No. 1 was properly explained each and every procedure underwent and due to implantation failure the complainant did not conceive which is also known as Serum beta HCG which was done on 17.04.2015 and such failure was completely explained to the respondent No. 1 and her husband and the implications of such procedure. Record goes to show that the appellants have not produced before the District Commission any paper to show that the appellants explained each and every procedure underwent and the implication of failure of such procedure to the respondent No. 1 and her husband. So, such submission of the Learned Advocate appearing for the appellants cannot be believed.
  1. Learned Lawyer appearing for the appellants has further urged that the District Commission failed to appreciate that the appellants had treated the patient for 123 days prior to which the patient was treated by Dr. Suchanda Mukhopadhyay for about 60 days which was also yielded no result. As such, finally the complaint against the appellants for not getting any result is malpractice on the part of the complainants. We fail to accept such contention as made by the Learned Advocate appearing for the appellants.
  1. It appears before us that the appellants have introduced such new facts in the appeal that the respondent No. 1 was referred by one Dr. Suchanda Mukhopadhyay. The appellants have nowhere stated in their written version about such facts. The appellants have only right to appeal against an order / judgment, if the Forum had made any mistake or error to take consideration of any facts which already placed before the Commission or the Commission has made any mistake of law. But we find that in this case the appellants have placed the new facts only to bypass their liability and to misguide this Commission.
  1. Learned Lawyer appearing for the appellants has further urged that medical negligence shall be established by the complainant by producing medical documents and evidence and expert opinion. So, negligence cannot be presumed in case of medical negligence. Mere complaint without any expert opinion against any medical person relating to medical negligence cannot be accepted. We fail to accept such contention of Learned Advocate appearing for the appellants. We find in this case no expert was appointed and no expert opinion was called for. We think that expert opinion is not necessary in all cases where negligence and deficiency in service of a treating Doctor is established from the facts and circumstances of the case.  In the present case before us negligence and deficiency in service on the part of the appellants as discussed earlier has been well established from the facts and circumstances of the case. Therefore, we have no hesitation to hold that the appellants are guilty of medical negligence and deficiency in service.
  1. In Nizam Institute of Medical Sciences Vs. Prashanth S. Dhanuka reported in 2009 INDLAW SC 1047, the Hon’ble Apex Court observed that :-

“In a case involving medical negligence once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence.”

  1. Thus, we are of the view that the complainant / respondent No. 1 has been able to prove that there was medical negligence on the part of the appellants. 
  1. Under these facts and circumstances and on going through the materials on record we are of the view that the Learned District Commission properly considered the evidences, the facts and circumstances of the case and finally arrived at the conclusion and passed the impugned judgment, which, according to us, calls for no interference by this Commission, and as such, it is liable to be affirmed and the appeal is also liable to be dismissed.
  1. In the result, the impugned order and judgment dated 14.12.2017 passed by the Learned District Commission in connection with complaint case No. CC/420/2015 is hereby confirmed.
  1. There will be no order as to costs.
  1. The appeal is, thus, disposed of accordingly.
 
 
[HON'BLE MR. JUSTICE MANOJIT MANDAL]
PRESIDENT
 
 
[HON'BLE MRS. SAMIKSHA BHATTACHARYA]
MEMBER
 
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every time and occasion it is not possible for the doctor/doctors to be a successful machinery towards the medical treatment of the patient

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION
WEST BENGAL
11A, Mirza Ghalib Street, Kolkata - 700087
 
Complaint Case No. CC/17/2014
( Date of Filing : 24 Jan 2014 )
 
1. Sri Swapan Ghosh
S/o Sri Biren Ghosh, Vill. Dullavpur, P.O. Nadia - Sundarpur, Dist. Nadia,Pin - 741 122.
...........Complainant(s)
Versus
1. Jeevan Deep Special Care & Diagnostic Centre Pvt. Ltd.
Represented by its Medical Superintendent, P.O. Chaltia, P.S. Berhampore, Dist. Murshidabad.
2. Dr. A.K. Bera, Jeevan Deep Special Care & Diagnostic Centre Pvt. Ltd.
P.O. Chaltia, P.S. Berhampore, Dist. Murshidabad.
3. Dr. R. Sarkar, Jeevan Deep Special Care & Diagnostic Centre Pvt. Ltd.
P.O. Chaltia, P.S. Berhampore, Dist. Murshidabad.
4. West Bengal Medical Council
8, Lyons Range (3rd Floor), Kolkata - 700 001.
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT
 HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER
 HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER
 
PRESENT:Mr. Prabir Basu Ms. Binota Roy , Advocate for the Complainant 1
 Ms. Rami Chatterjee, Advocate for the Opp. Party 1
 Ms. Rami Chatterjee, Advocate for the Opp. Party 1
 Ms. Rami Chatterjee, Advocate for the Opp. Party 1
Dated : 03 May 2023
Final Order / Judgement

Shyamal Kumar Ghosh, Member

  1. The instant consumer case has been initiated by the complainant against the opposite parties praying for directions upon the opposite parties 1 to 3 for furnishing the bed-head ticket, directions upon the opposite party no. 4 for taking necessary administrative steps against the opposite party 1, compensation, costs etc.
  2. The brief fact of the case is that complainant’s son viz. Sri Gopal Ghosh met with an accident in the month of January 2011 and he was admitted at the opposite party no – 1/diagnostic centre herein on 30/01/2011 due to fracture of right humerus bone. He was under treatment at the op no 1/diagnostic centre till his discharge on 21/02/2011. At the time of medical treatment he was under treatment of Dr. A.K. Bera, the opposite party no – 2 herein and Dr.R.Sarkar, the opposite party no – 3 herein. After discharge, the pain in his operated part had been still continuing and as a result the complainant visited again at the chamber of op 2/doctor. Some radiological tests had been done and after perusal of the report said doctor advised the complainant for second surgery of his son. Accordingly, Sri Gopal Ghosh was further admitted at the said diagnostic centre on 16/11/2011 for second surgery. The said surgery was done on 19/11/2011 by the opposite parties no – 2 and 3. After immediate post surgery, the acute pain was developed in the right eye. The patient viz. Sri Gopal Ghosh was referred urgently to Disha Eye Hospital and Research Centre, Barrackpore for opthalmological problems wherein evisceration was done. After second surgery, the pain in the fractured area had been continuing and even till date. It is the allegations of the complainant that for correcting the first surgery, the complainant’s son had lost his right eye. The complainant used to consult with other orthopaedic surgeon/surgeons who advised him for another surgery of the fractured humerus bone of the right hand.
  3. It is the further case that the complainant made several requests to the opposite party no – 1 to provide the bed-head ticket of both surgeries but unfortunately the opposite parties 1 to 3 have failed to provide the same to the complainant. In this respect, the lawyer’s notice has also been sent to the opposite parties except op no – 4 but they did not play any care about the event. In absence of bed-head ticket, the proper treatment of Gopal Ghosh could not be possible.
  4. There was a clear and wilful default on the part of the opposite parties 1 to 3 and to that effect the complainant has prayed for compensation amounting to Rs.21,00,000/-(twenty one lakh) only.
  5. The cause of action has been arisen on and from 30/01/2011 when Gopal Ghosh took admission at the diagnostic centre/op no-1.
  6. Hence the instant case has been instituted.
  7. The opposite party no – 1 contested this case by filing written version stating inter alia that the patient viz. Sri Gopal Ghosh has already attained 21 years of the age when he has haired the service from the opposite party no -1 for his medical treatment for the period on and from 30/01/2011 to 21/02/2011 and again from 16/11/2011 to 21/11/2011. As such the patient viz. Sri Gopal Ghosh is actual consumer of the opposite party no – 1 but the complainant has filed the instant case before this Commission instead of Sri Gopal Ghosh and accordingly the complainant cannot be a    consumer as per Consumer Protection Act 1986. The cause of action has been arisen lastly on 21/11/2011 but the petition of complaint has been filed on 24/01/2014 which is hopelessly barred by limitation. The purported notice dated 10th September 2013 was not issued on behalf of the patient and as a result the same is bad in law and unauthorized. After discharge of the patient on 21st November 2011, no request was made for the supply of relevant treatment papers of the patient but after expiry of about 22 months from the discharge, calling for the necessary treatment papers from the end of opposite party  no -1 had no legal authenticity. Having noticed upon the problems of the right eye, the patient was urgently referred to Disha Eye Hospital (Regional Institute of Ophthalmology), Kolkata and not to Disha Eye Hospital only as alleged. It is submitted that the petition of complaint is totally frivolous, vexatious, manufactured etc. and accordingly the ld. advocate has prayed for dismissal of the instant petition of complaint with costs.
  8. The opposite parties no – 2 to 3 also contested this case by filing written version stating inter alia that the opposite parties 2 and 3 lastly have provided medical treatment to Sri Gopal Ghosh on 21/11/2011 but the instant petition of complaint has been filed on 24/01/2014 which is hopeless barred by limitation. The complainant is/was not the consumer in pursuant to the provision of the Consumer Protection Act, 1986. The complainant had no locus standi to file the instant consumer case. It is submitted that prior to filing of the instant consumer case neither the patient nor the complainant had sought for such bed head ticket from the answering parties and as such the complaint is pre-mature. The opposite parties 2 and 3 have provided necessary medical treatment to the patient viz. Sri Gopal Ghosh by following standard medical protocol/norms. The advocate letter dated 10/09/2013 has been written and addressed to only opposite party no – 1 and not to the opposite parties no. 2 and 3. It is submitted that the petition of complaint is totally frivolous, vexatious, manufactured etc. and accordingly the ld. advocate has prayed for dismissal of the instant petition of complaint with exemplary costs.
  9. No written version has been filed by the opposite party no -4 and as such the matter has been fixed for ex-parte against the op no – 4/West Bengal Medical Council.
  10. Ld counsel appearing for the complainant has argued that Sri Gopal Ghosh, the complainant’s son met with an accident in the month of January 2011. He was admitted at the diagnostic centre/op no – 1 for treatment on 30/01/2011. The right humerus bone has been fractured due to aforesaid accident. The operation has been done by the ops 2 and 3 at the op 1/hospital. After operation, he was discharged from the said hospital. But pain in operated area had been continuing. Some radiological tests have been done and op 2/doctor has advised for second surgery. The second surgery has been done by the ops 2 and 3 at the said op 1/hospital on 19/11/2011. The ld advocate appearing for the complainant has further submitted that during post surgery, the acute pain in the right eye had been started. The patient, accordingly, was referred to Disha Eye Hospital and Research Centre, Barrackpore for eye treatment. The evisceration has been done at the said hospital. It has been alleged that for the purpose of correcting the first surgery, the complainant’s son viz. Sri Gopal Ch. Ghosh has lost his vision of right eye. It is further noted that after conducting the second surgery the pain in fractured area had also been continuing. Upon several requests from the end of the complainant, the opposite parties 1 to 3 have failed to supply the bed head ticket to the complainant till date. Ultimately the aforesaid patient has recovered undergoing third operation held at NRS, Kolkata. The patient viz. Sri Gopal Ghosh has been suffering from mental pain and agony due to conducting number of surgeries and loss of vision of right eye. In conclusion, the ld. advocate has also pointed out the provisions of social beneficial legislation in support of her argument.  However, having no other alternative, the ld. advocate has prayed for compensation and other reliefs as prayed for against the opposite parties.
  11. The ld. advocate appearing for the respective opposite parties (except op no -4) argued that the complainant have not received any service from the ops and as such the complainant does not come well within the purview of the definition of the ‘consumer’ as per Consumer Protection Act, 1986. It is further argued that at the time of institution of the instant consumer case, the patient viz. Sri Gopal Ghosh has already attained majority. But Gopal Ghosh has not been impleded as a complainant in the cause title of the said case. The purported notice dated 10th September 2013 issued by the ld advocate is bad in law and unauthorized. Actually the cause of action has been arisen on 21st November 2011 and the complaint has been filed on 24th day of January 2014 which is hopelessly barred by limitation. No petition for condonation of delay has been filed before this Commission at the time of institution of the instant case. Ld. Counsel at the time of argument has submitted that there is no such single sentence or word in the petition of complaint wherefrom it would be found that there is a gross negligence or deficiency in service on the part of the ops. The ld. counsel has also requested the Commission to take a note that there is no such single scrap of papers or documents regarding medical treatment held at NRS, Kolkata. The fact should be corroborated with the relevant/supported documents and papers. The ld. counsel has further added that the notice dated 10/09/2013 has been issued by the complainant and the same has been addressed to the op no -1 only and not to the ops 2 and 3. Regarding supply of bed head ticket, an interlocutory application should be filed before this Commission at the early stage of the said case. But the complainant has failed to take proper steps in this regard within the proper time. Under such circumstances, the said letter has no legal authenticity in respect of the ops 2 and 3. Lastly the ld. advocate has clearly submitted that they have followed all medical protocol properly in order to provide better treatment to the patient. The petition of complaint suffers from many defects and the same is frivolous and vexatious and accordingly the ld. advocate has prayed for dismissal of the petition of complaint with exemplary costs.        
  12. We have heard the ld. advocates appearing for the respective parties at length and in full.
  13. We have considered the submissions of the ld. advocates.
  14. We have metiulously perused the materials available on the record including citations submitted by the ld advocates appearing for the respective parties.
  15. The final hearing has been concluded.
  16. For the purpose of proper adjudication of the instant consumer case we think to note down the following issues which are as follows:-
  17. Whether the complainant comes well within the purview of the definition of the ‘Consumer’ as per Consumer Protection Act 1986 or not,
  18. Whether there is any gross negligence/deficiency in service on the part of the ops or not,
  19. Whether the complainant is entitled to get any relief as prayed for or not,
  20. The above matters should be decided one by one in order to reach final conclusion.
  21. It appears from the copy of the medical papers that the patient viz. Gopal Ghosh was 21 years of age while he was treated at Jeevan Deep Special Care & Diagnostic Centre Pvt. Ltd. on 21/11/2011. From the copy of blood component requisition from Govt. Blood Bank issued by the Health & Family Welfare Dept, Govt of West Bengal, it appears to us that the patient viz. Gopal Ghosh was 21 years of age on the date of admission ie on 16/11/2011. The instant consumer case has been filed on 24/01/2014. Therefore, on consideration of the copy of medical papers of Sri Gopal Ghosh, it appears to us that prior to filing of the instant consumer case Sri Gopal Ghosh, the patient already attained majority. He was not a minor at the time of  filing of the instant consumer case. So Gopal Ghosh should be impleded as a complainant in the instant consumer case but instead of Sri Gopal ghosh, his father viz. Sri Swapan Ghosh has instituted the case. But at this juncture we cannot throw out the instant case on the aforesaid ground in pursuant of decided case law ie Indian Medical Association vs V.P. Santa, wherein the Hon’ble Apex Court has been pleased to decide that as a beneficiary of the goods or service, any person is entitled to file consumer case since the beneficiary comes well within the purview of the definition of the ‘consumer’ as per C.P. Act, 1986. Accordingly there is no hesitation to hold that on the capacity of beneficiary, Sri Swapan Ghosh is entitled to file the same against the opposite parties. As per above discussion, the first issue already framed by this Commission is decided accordingly.
  22. We have carefully perused the discharge certificate issued by the Jeevan Deep/op no -1 wherefrom it appears to us that the patient Sri Gopal Ghosh, 21 years of age, took the admission at the op no -1/nursing home on 30/01/2011 and after operation of right elbow, he was discharge from the said nursing home on 21/02/2011. The said certificate reveals that the patient viz. Sri Gopal Ghosh was discharged in a stable condition with some advices which are appended in the said certificate. One of the advices which has been given to the patient for consultation with his doctor/bone & joint clinic/Jeevan Deep Nursing Home in case of emergency.
  23. Thereafter, we have carefully perused another discharge certificate regarding second operation wherefrom it appears to us that the patient viz. Sri Gopal Ghosh took admission at the aforesaid nursing home/op no – 1 on 16/11/2011 and he was discharged from the said nursing home on 21/11/2011. Non-union of right elbow has been finally diagnosed and to that effect on 19/11/2011 earlier plating has been removed and repeat plating has been done. This certificate also reveals that during the post operative period suddenly acute pain around right eye has been started. On suggestion there may be a chance of loss of vision after 48 hrs and to that effect without any delay on the self same date ie on 21/11/2011 urgently the patient was referred to attend Disha/RIO Kolkata for OPHTHALMOLOGICAL PROBLEMS.
  24. The third operation has been done in NRS, Kolkata as submitted by the ld advocate appearing for the complainant. Ld advocate also argued that the patient Sri Gopal Ghosh has been recovered finally by the treatment provided by NRS. At this juncture no medical papers have been submitted for corroboration of the above statement. In this regard it is the settled principle of law that without any cogent evidence, mere submission advanced by the ld advocate has no legal authenticity at all.
  25. We have carefully perused the consent form dated 19/11/2011 in respect of operation of the patient viz. Sri Gopal Ghosh wherefrom it appears to us that the high risk factors were involved during the span of operation and to that effect the matter has been informed/disclosed to the patient parties and upon perusal of the consent form, patient parties have endorsed their respective signatures upon the said high risk consent form. Accordingly it is clear to us that the process regarding consent taking from the patient/patient party has been done by the ops/doctors and nursing home as per accepted medical protocol.

We have perused the letter dated 10/09/2013 written by ld Advocate for and on behalf of the complainant addressed to the Medical Superintendent, Jeevan Deep Special Care & Diagnostic Centre Pvt Ltd, wherefrom it appears to us that the complainant has prayed for supply of all authenticated copies of the entire treatment record of the patient Sri Gopal Ghosh. In this respect,t it is our observations that the first surgery has been done in the month of January 2011 and the second/last surgery has also been done on 19/11/2011. Generally after discharge of the patient from any hospital/nursing home, all medial papers including bed head ticket are supposed to hand over to the patient/patient party forthwith. Ld advocate, at this juncture, has argued that prior to the last surgery at the op no 1 nursing home, the complainant has made several requests for providing all medical papers including bed head tickets but unfortunately the ops have failed to provide the same to the complainant. But at this juncture there is no hesitation to hold that there is no such single scrape of papers/documents wherefrom it proves that the complainant has made several requests for providing the same. The last surgery has been done on 19/11/2011. So it is very practical that the cause of action has been started on and from 19/11/2011. But the instant consumer case has been filed on 24/01/2014 ie after expiry of 2 years. Be it mentioned here that no petition for delay condonation has been filed by the complainant. The complainant has kept mum for long period of more than 2 years. Section 24A of the Consumer Protection Act, 1986 clearly speaks that the petition of complaint should be filed within two years from the date on which the cause of action has arisen. Rather by filing the letter dated 10/09/2013 the complainant has tried to constitute continuous cause of action but under such circumstances, it is our views and observations that the mere correspondence does not constitute the repeated/continuous cause of action. In this regard we can safely rely upon the decision STATE OF TRIPURA AND OTHERS VS ARABINDA CHAKRABORTY AND OTHERS REPORTED IN (2014) 6 SCC 460 wherein the Hon’ble Apex Court held that in our opinion, the suit was hopelessly barred by law of limitations. Simply by making a representation, when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of a representation. A person may go on making representations for years and in such an event the period of limitation would not commence from the date on which the last representation is decided...........”

The HON’BLE NATIONAL COMMISSION IN MAHESH NENSI SHAH VS ORIENTAL INSURANCE CO. LTD. REPORTED AT III (2006) CPJ 414 (NC) wherein Hon’ble NCDRC held that no amount of correspondence between the parties can extend the period of limitation. In State bank of India vs B.S. Agricultural Industries reported in II (2009) CPJ 29 SC, wherein the Hon’ble Apex Court has been pleased to hold that “if the complaint is per se barred by time and the complainant does not seek condonation of delay under section 24A(2), the Consumer Forum will have no option but to dismiss the same. In PRIYA RAMANY (DR) VS SURENDRA UGALE (DR) & ANR reported in II (2015) CPJ 173 (NC), wherein Hon’ble National Commission has been pleased to hold that “we have considered the pros and cons of this situation. There is a huge delay of more than four and a half years. We have also thought that whether, discretion should be used in this case or not. This cannot be said to be a continuous cause of action. The actual cause of action had arisen when she was discharged on 03/07/2010 and she was well aware of the fact that the treatment given by the op was allegedly defective. This cause of action cannot continue for a long time.” In the instant case the last discharge of the patient has been made on 19/11/2011 and as such the aforementioned consumer case should be filed within 2 years from the date of cause of action but the same has been filed on 24/01/2014 which is against the settled principle of law and accordingly the matter is hopelessly barred by limitation as per our view.

  1. It is admitted that the first surgery has been done in the month of January 2011. The second surgery has also been done on 19/11/2011. Immediately post surgery in second time the acute pain in the right eye has been started. The ops/doctors and nursing home has referred the patient to Disha eye hospital. Evisceration has been done on 26/11/2011 in respect of treatment of right eye. Ld advocate has further stated that for correcting first surgery the patient viz. Sri Gopal Ghosh has lost his right eye. After stating aforesaid statements we do not find any single word/statements that there is any gross negligence and deficiency in service on the part of the ops/doctors/nursing home. We do not find any material regarding gross negligence or deficiency in service on the part of the ops. No cogent evidence has been produced before this Commission for corroborating the facts of the complainant. The mere averment in the petition of complaint has no evidentiary value at all. It is the duty of the complainant to prove his case as the burden of proof lies upon the complainant. In this respect we can safely rely upon GIRISH CHANDRA V. BHATT & ORS VS STERLING HOSPITAL reported in III (2018) CPJ 178 (NC) wherein the Hon’ble National Commission has been pleased to hold that “it is settled law that the onus to prove medical negligence lies largely on the complainant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint by no stretch of imagination. Be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. In my view the present consumer complaint completely lacks facta probantia and ought to be dismissed on that ground alone.”  In Sri Ajit Kr. Roy vs Dr. Amitabh Mishra, in RP case being no – 3068 of 2010, Hon’ble NCDRC has been pleased to hold that “the petitioner should have produced some cogent, convincing and plausible evidence to show that the doctors were negligent at any time. Apprehensions cannot take the place of proof.” In the instant case we find no such cogent and plausible evidence at the behest of the complainant for proving gross negligence or fault on the part of the doctors/nursing home. In case of medical negligence specific act of negligence has to be alleged and then proved as to how that amounts to negligence. But upon careful perusal of four corners of the record we find no such whisper in the petition of complaint against the opposite parties in this regard. So the second surgery does not constitute any fault or negligence on the part of the opposite parties in any manner whatsoever. Mere presumption and averments in the petition of complaint have no evidentiary value at all. Corroboration of the statements by filing cogent evidence is highly needed in order to prove his or her case. In this regard we find lack of sufficient evidence.   
  2. Upon careful perusal of the prayer portion of the petition of complaint it appears to us that the complainant has prayed for furnishing the bed head tickets for treatments of the patient viz. Sri Gopal Ghosh, but in this respect it is our opinion that one interlocutory application for providing bed head tickets towards medical treatment of the aforesaid patient should be filed by the complainant but no such prayer has been made by the complainant during pendency of the instant consumer case.
  3. We find expert opinion in respect of the instant consumer case wherefrom it appears to us that the second operation on 19th November 2011 was done under cover of intravenous broad spectrum antibiotics along with other medications. As per record goes, there was no clinical evidence of local infection at operation site detected during operation, as per operation note. The said report also reveals that unfortunately, as there is neither report of culture sensitivity from local aspirate from operated site as well as from affected eye and no evidence of preoperative and postoperative blood culture, in this prevailing situation, it cannot be concluded that source of infection was the operative site or operative trauma resulted in infective complications for eye. However there is possibility of endogenous infection from septic emboli anywhere in the body resulting in orbital cellulities. From the aforesaid observations of the expert committee, it is crystal clear to us that there are no such specific remarks regarding medical negligence on the part of the opposite parties.  
  4. Upon careful perusal of all prescriptions along with all medical papers available on the record it is clear to us that the opposite parties have maintained all accepted medical protocol and treatments properly and as such we are not in a position to pass any comments that the ops have committed wrong or fault in treatments of the patient. A doctor is not guilty of negligence if he has acted in accordance with a practice so accepted by a responsible body of medical men skilled in that particular art held in Bolam vs Friern Hospital Management Committee (1957) 2 AII ER 118.
  5. Ld advocate appearing for the complainant has submitted some citations in support of complainant’s case. By filing the same, ld advocate has argued that deviation from practice acceptable to medical profession constitutes medical negligence. Ld advocate has further argued that it is the duty of the hospital to satisfy that there was no lack of care or diligence and lastly it has been further argued that no patient can be treated in a casual manner. On earlier occasions, it has already been stated that the burden of proof lies upon the complainant to prove his/her case. The statements regarding allegations against the opposite parties/doctors and nursing home made in the petition of complaint should be corroborated with cogent and plausible evidence but in absence such evidence, medical negligence cannot be proved. We find no such material wherefrom it is proved that the patient has been treated in casual manner. Rather the various prescriptions reveal that the opposite parties/doctors and nursing home have taken proper care in order to provide proper medical treatment to the patient. So the petition of complaint filed by the complainant has no merit at all.   
  6. For every time and occasion it is not possible for the doctor/doctors to be a successful machinery towards the medical treatment of the patient though they are always trying to provide proper medical treatment to the patient so that the patient can be improved and cured. It should be remembered that they are also social human beings living in our society. So, in each and every occasion it should not be just and proper to cause any blame to them on the ground of medical negligence. If it is so, the doctor/doctors would be in fear and at this juncture they are not in position to provide proper treatment to the patient. It cannot be forgotten that without doctor/doctors, our society would be in danger. So without any cogent and strong evidence, it should not be proper to cause any blame to any doctor/doctors in case of medical negligence.    
  7. Considering all aspects from all angles and keeping in mind the present position of law and regard being had to the aforementioned citations we find that the complainant has failed to make out his case properly. Accordingly medical negligence on the part of the opposite parties is not proved and hence the complainant is not entitled to get any relief/reliefs as prayed for.
  8. Under such circumstances, we are constrained to dismiss the instant consumer case on contest against the opposite parties 1 to 3 and dismiss the same against the opposite party 4 ex-parte without any order as to costs.
  9. The instant consumer case stands disposed of.
  10. Note accordingly.
 
 
[HON'BLE MR. JUSTICE MANOJIT MANDAL]
PRESIDENT
 
 
[HON'BLE MRS. SAMIKSHA BHATTACHARYA]
MEMBER
 
 
[HON'BLE MR. SHYAMAL KUMAR GHOSH]
MEMBER
 
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Sunday, October 29, 2023

Section 126 of the Representation of the People, 1951

 

Section 126 of the Representation of the People, 1951, prohibits displaying any election matter by means, inter alia, of television or similar apparatus, during the period of 48 hours before the hour fixed for conclusion of poll in a constituency. The relevant portions of the said Section 126 are re-produced below: -

(126. Prohibition of public meeting during period of forty-eight hours ending with hour fixed for conclusion of poll-

 

(1)No person shall –

(a)    ………………….

(b)   Display to the public any election matter by means of cinematograph, television or other similar apparatus;

(c)    …………………….

In any polling area during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll for any election in the polling area.

(2)    Any person who contravenes the provisions of sub-section(1) shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.

(3)    In this Section, the expression “election mater” means any matter intended or calculated to influence or affect the result of an election.)

 

2.         During elections, there are sometimes allegations of violation of the provisions of the above Section 126 of the Representation of the People Act, 1951 by TV channels in the telecast of their panel discussions/debates and other news and current affairs programmes. The Commission has clarified in the past that the said Section 126 prohibits displaying any election matter by means, inter alia, of television or similar apparatus, during the period of 48 hours ending with the hour fixed for conclusion of poll in a constituency. “Election matter” has been defined in that Section as any matter intended or calculated to influence or affect the result of an election. Violation of the aforesaid provisions of Section 126 is punishable with imprisonment upto a period of two years, or with fine or both.

 

3.         In this connection, attention is also invited to Section 126A of the R.P. Act 1951, which prohibits conduct of Exit poll and dissemination of their results.

 

4.         The Commission once again reiterates that the TV/Radio channels and cable networks should ensure that the contents of the programme telecast/broadcast/displayed by them during the period of 48 hours referred to in Section 126 do not contain any material, including views/appeals by panelists/participants that may be construed as promoting/prejudicing the prospect of any particular party or candidate(s) or influencing/affecting the result of the election.

 

5.         Concerned TV/Radio/Cable/FM channels are free to approach the state/district/local authorities for necessary permission for conducting any broadcast related events which must also conform to the provisions of the model code of conduct and the programme code laid down by the Ministry of Information and Broadcasting under the Cable Network (Regulation) Act with regard to decency, maintenance of communal harmony, etc. They are also required to stay within the provisions of Commission’s guidelines dated 27th August, 2012 regarding paid news and related matters. Concerned Chief Electoral Officer/District Election Officer will take into account all relevant aspects including the law and order situation while extending such permission.

 

6.                  Attention of all media is also drawn to the following guidelines issued by Press Council of India to follow for observance during the election:

 

(i)                 It will be the duty of the Press to give objective reports about elections and the candidates. The newspapers are not expected to indulge in unhealthy election campaigns, exaggerated reports about any candidate/party or incident during the elections. In practice, two or three closely contesting candidates attract all the media attention. While reporting on the actual campaign, a newspaper may not leave out any important point raised by a candidate and make an attack on his or her opponent.

 

(ii)               Election campaign along communal or caste lines is banned under the election rules. Hence, the Press should eschew reports, which tend to promote feelings of enmity or hatred between people on the ground of religion, race, caste, community or language.

 

(iii)             The Press should refrain from publishing false or critical statements in regard to the personal character and conduct of any candidate or in relation to the candidature or withdrawal of any candidate or his candidature, to prejudice the prospects of that candidate in the elections. The Press shall not publish unverified allegations against any candidate/party.

 

(iv)             The Press shall not accept any kind of inducement, financial or otherwise, to project a candidate/party. It shall not accept hospitality or other facilities offered to them by or on behalf of any candidate/party.

 

(v)               The Press is not expected to indulge in canvassing of a particular candidate/party. If it does, it shall allow the right of reply to the other candidate/party.

 

(vi)             The Press shall not accept/publish any advertisement at the cost of public exchequer regarding achievements of a party/government in power.

 

(vii)           The Press shall observe all the directions/orders/instructions of the Election Commission/Returning Officers or Chief Electoral Officer issued from time to time.

 

The above guidelines should be duly observed for compliance by all the concerned media.

Election Commission of India

 

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The Emblems And Names (Preventation Of Improper Use) Act, 1950

 

The Emblems And Names (Preventation Of Improper Use) Act, 1950

THE EMBLEMS AND NAMES (PREVENTATION OF IMPROPER USE) ACT, 1950

ACT NO. 12 OF 1950 [ 1st March, 1950.]

An Act to prevent the improper use of certain emblems and names for professional and commercial purposes.

BE it enacted by Parliament as follows:--




1. Short title, extend, application and commencement.

(1) This Act may be called the Emblems and Names (Prevention of Improper Use) Act, 1950 .

(2) It extends to the whole of India 1[ , and also applies to citizens of India outside India.

(3) It shall come into force on such date 2[ as the Central Government may, by notification in the Official Gazette, appoint.

2. Definitions. In this Act, unless the context otherwise requires,--

(a) " emblem" means any emblem, seal, flag, insignia, coat- of- arms or pictorial representation specified in the Schedule;

(b) " competent authority" means any authority competent under any lay for the time being in force to register any company, firm or other body of persons or any trade mark or design or to grant a patent:

(c) " name" includes any abbreviation of a name.

3. Prohibition of improper use of certain emblems and names. Notwithstanding anything contained in any law for the time being in force, no person shall, except in such cases and under such conditions as may be prescribed by the Central Government, use or continue to use, for the purpose of any trade, business, calling or profession, or in the title of any patent, or in any trade mark or design, any name or emblem specified in the Schedule or any colourable imitation thereof without the previous permission of the Central Government or of such officer of Government as may be authorized in this behalf by the Central Government.

4. Prohibition of registration of certain companies etc.

(1) Notwithstanding anything contained in any law for the time being in force, no competent authority shall,--

(a) register any company, firm or other body or persons which bears any name, or

999999. Extended to Sikkim Brought into force w. e. f. 16. 5. 1975 in Sikkim w. e. f. 1. 9. 1975 vide S. O. 208 (E), vide S. O. 4292 dt. 16. 9. 75 dated 16. 5. 1975. The Act comes into force in Pondicherry on 1. 10. 1963 vide Reg. 7 of 1963, s. 3 and Sch. 1. Extended to Goa, Daman and Diu with modifications by Reg. 12 of 1962. s. 3 and shedule. Extended to and brought into force in Dadra and Nacar Haveli (w. e. f. 1. 7. 65) by Reg. 6 of 1963, s. 2 and sch. 1.

1. The words" except the State of Jammu and Kashmir" omitted by Act 62 1956, s. 2 and Sch (w. e. f. 1- 11- 56). 2. 1st September, 1950, see gazette of India, 1950, Pt. II, Sec, 3, p. 451.

(b) register a trade mark of design which bears any emblem or name, or

(c) grant a patent in respect of an invention which bears a title containing any emblem or name, if the use of such name or emblem is in contravention of section 3.

(2) If any question arises before a competent authority whether any emblem is an emblem specified in the Schedule or a colourable imitation thereof, the competent authority may refer the question to the Central Government, and the decision of the Central Government thereon shall be final.

5. Penalty. Any person who contravenes the provisions of section 3 shall be punishable with fine which may extend to five hundred rupees.

6. Previous sanction of prosecution. No prosecution for any offence punishable under this Act shall be instituted, except with the previous sanction of the Central Government or of any officer authorized in this behalf by general or special order of the Central Government.

7. Savings. Nothing in this Act shall exempt any person from any suit or other proceeding which might, apart from this Act, be brought against him.

8. Power of the Central Government to amend the Schedule. The Central Government may, be notification in the Gazette, add to or alter the Schedule, and any such addition or alternation shall have effect as if it had been made by this Act.

9. Power to make rules. 1[

(1) ] The Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

(2) 1[ Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]

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