1.
2. THE petitioner claims himself to be a Medical Practitioner with more than 17 years standing. Opposite party No. 1 is the Director of May Fair Nursing Home at B.T. Road, Calcutta. Opposite party Nos. 2 to 4 are Medical Practitioners attached to the same Nursing Home.
On 28.12.1996 the petitioner''s wife Mrs. Sipra Mukherjee felt slight pain in her body and chest accompanied with no temperature. On the next day she felt pain in abdomen and necessary medicines were administered by the petitioner himself. On 30.12.1996 she felt weakness with slight fever and pain in the left side of the chest. The petitioner applied necessary medicines and his wife had undergone X-ray chest P.A. view and other blood tests.
On 1.1.1997 at about 8.30 a.m. in the morning she complained of mild respiratory trouble, i.e. breathing difficulties and accordingly Dr. Biswajit Banerjee was sent for who arranged for ECG forthwith. The said report depicted only development of Sinus Tachychordia. Accordingly the petitioner got his wife admitted in a cabin at the Nursing Home where she was examined by opposite party No. 2 and necessary medicines were administered.
3. ON the same day, i.e. on 1.1.1997 at about 8.30 p.m. the petitioner with the permission of the Authority of the said Nursing Home and examined his wife personally and noticed persistence of respiratory trouble and drew the attention of the attendant there for taking proper care of her. He contacted opposite party No. 2 over phone at 12.10 a.m. on 2.1.1997 at his residence to enquire about the health of his wife when he was told that her condition was alright. At about 7.10 a.m. Dr. Biswajit Banerjee suddenly called the petitioner over phone and informed that the patient had since been shifted to I.C.C.U. ON receipt of this information he rushed to Nursing Home and noticed that his wife was under cardiac massage. According to the complainant his wife had already expired but to cover up their negligence and to mislead the petitioner that the doctors were seen attending on her.
A Death Certificate was issued on the same day. The petitioner lodged a complaint with the Cossipore P.S. alleging rash and negligent conduct on the part of the opposite parties. The said criminal case is still pending. The petitioner understands that the mode of treatment meted out to his wife was highly irregular and deviating from usual norm of medical practice resulting in her death. The petitioner claims that he had hired the services of the opposite parties for consideration and as such he is a consumer of service. The petitioner holds these opposite parties guilty of negligence and deficiency in service. The deceased left a minor daughter agred about 13 years. Hence the petitioner has approached this Commission claiming compensation of a sum of Rs. 10,00,000/-.
4. THE case is contested by the opposite parties by filing written version wherein the maintainability of the case has been challenged. It has been stated that the complainant has lodged a complaint in the Court of the learned Additional Chief Judicial Magistrate, Sealdah. A specific case was registered with the Cossipore P.S. under Section 304A/34, I.P.C. and on completion of investigation the police has submitted charge-sheet against the opposite parties. According to the opposite parties the evidence of the complainant is being recorded in the aforesaid criminal case. Accordingly it is submitted that it would not be expedient in the interest of justice to proceed with this case. Another ground taken by the opposite party is that they have rendered service to the petitioner free of charge and as such the petitioner cannot be regarded as a consumer within the definition of the word under Section 2(d)(ii) of the Consumer Protection Act.
We have heard the learned Counsel for the opposite party and the petitioner who appears in person. The petitioner is a Medical Practitioner with more than 17 years of practice. His wife Smt. Sipra Mukherjee having developed respiratory trouble, Dr. Biswajit Banerjee was first consulted and ECG report indicated development of Sinus Tachychordia. Thereafter she was admitted in a cabin of the Nursing Home. It is not clear that under whose care and treatment the deceased was put at the Nursing Home. It has however, been stated that opposite party No. 2 examined the patient on 1.1.1997 at 11.30 a.m. It is the positive case of the complainant that with the permission of the Authority of the said Nursing Home he had also examined his wife personally and observed persistence of respiratory trouble. On 2.1.1997 at about 7.00 a.m. Dr. Biswajit Banerjee telephoned him to inform that the patient had since been shifted to I.C.C.U. Accordingly he rushed to the Nursing Home to notice that the deceased was under cardiac massage. Later he came to learn that it was merely to cover up their negligence and to mislead the petitioner. The petitioner alleged the rash and negligent act on the part of the Doctors attending on his wife. The specific acts of negligence have not been pleaded within the four corners of the written complaint. It has been simply stated that the mode of treatment was highly irregular and deviating from usual norm of medical practice leading to the death of his wife. It has of course been stated that the petitioner believed that the death of his wife was attributable to perceptible negligence of the opposite party as well as R.M.O. on duty. The opposite parties have challenged the maintainability of the case on the ground that the services rendered to the deceased were free of charge and as such the petitioner cannot be regarded as a consumer. It is accepted that rendering of any service free of charge cannot be regarded as service. Section 2(d)(ii) enjoins that "consumer" means any person who hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised etc. etc. The complainant filed a xerox copy of bill raised by the Nursing Home wherefrom it would appear that nothing was charged for rendering service to the deceased as she was the wife of a Medical Practitioner. The complainant has not produced any scrap of paper to show that in fact any amount has been paid to the Nursing Home or to the attending Physicians for the service rendered by them. Therefore, we have no hesitation to hold that the contention raised by the opposite party is well-founded and we see no reason to reject the same.
The second ground of objection is that the complainant has lodged a complaint with the learned Additional Chief Judicial Magistrate, Sealdah and a specific case has been started. The police has submitted charge-sheet upon completion of investigation and the trial is proceeding. It is not disputed that the evidence of the complainant is being recorded. In view of the circumstances, learned Counsel for the respondent submits that the present case should not be proceeded with. We find substance in this objection. It appears that with regard to the same subject-matter involving identical issues a criminal case awaits decision. Accordingly we think that it would not be appropriate for this Commission to conduct a concurred adjudication of those issues covering the subject-matter in the instant case under a summary proceeding under the Act when they are already pending adjudication before a Criminal Court. Accordingly we are constrained to hold that this complaint is untenable as the said matter is subjudice before the competent Criminal Court. In view of the discussion aforesaid we uphold both the contentions raised by the learned Counsel for the opposite party and hold that the present complaint cannot be entertained and is as such liable to be dismissed. For the reasons aforesaid, we find no merit in this case which is hereby dismissed on contest. Case dismissed.
