JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. The first petitioner is a nursing home and a company registered under the Companies Act, 1956, represented by its director and shareholder, the second petitioner.

2. The present revisional application has been moved against an order bearing Order No. 2 dated February 24, 2021 passed by the West Bengal Clinical Establishments Regulatory Commission (opposite party no. 2) in Case Reference No. Kol/2019/000681. By the said order, respondent no. 2 imposed a compensation of Rs. 1 lakh against the petitioner no. 1.

3. The complaint before the Commission arose out of the unfortunate of a patient demise who had visited the petitioner no. 1-nursing home for Maxio-Facial Cosmetic Surgery. After having been administered anaesthesia, the patient allegedly had a seizure and was transferred to some other clinical establishment where the patient passed away after about three days of treatment.

4. The Commission recorded that it enquired from the petitioner no. 1 whether the latter preserved the particular vial, syringe and/or any other equipment pertaining to the anaesthesia procedure. It was contended by the petitioner no. 1 that, soon after the incident, the patient had been shifted to some other establishment, of which the petitioner no. 1 had no track. After about three months thereafter, the petitioners received a complaint. Since there was no protocol to preserve the equipment about which the Commission enquired, the petitioner no. 1 had not preserved any such vial, syringe and/or any other equipment.

5. The Commission went on to observe that the patient had a severe convulsion and shock during anaesthesia, on which the petitioner no. 1 should have reviewed the circumstances irrespective of any complaint. The first step of such review, according to the commission, should be to examine the vial and the syringe to find out whether there was anything wrong with the same.

6. The Commission further found that it is true, had the Post Mortem been done, it could get the real answer as to the cause of the death; however, appreciating the mental state of the unfortunate husband of the patient at the material time, it was presumed by the Commission that he could not take any decision on that score, for which the husband cannot be blamed.

7. In the penultimate paragraph of the impugned order, the Commission specifically found that, since it did not know the cause of the death in absence of the Post Mortem examination, it could not fix the responsibility for the demise. However, it could not brush aside the issue and that was highlighted before it. Accordingly, a “token” compensation of Rs. 1 lakh was imposed on petitioner no. 1 and ancillary were orders passed.

8. Learned counsel for the petitioners contends that the impugned order is tainted by patent perversity since the Commission, despite arriving at the finding that it did not know the cause of death, imposed a compensation of Rs. 1 lakh against the petitioner no. 1.

9. Learned counsel for the petitioners relies on Section 2(k) of the West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017 as well as Section 38(1)(iii) of the 2017 Act to argue that the petitioner squarely comes within the definition of “nursing home” as defined in the said Act and the Commission had lacked jurisdiction to decide on questions of medical negligence, which power is conferred solely on the State Medical Council.

10. Only after a complaint of medical negligence was dealt with by the concerned State Medical Council, the Commission-respondent no. 2 can assume jurisdiction.

11. In the present case, it is submitted, no medical negligence having been proved at any point of time and/or even made out, let alone being decided by the State Medical Council concerned, the impugned order was wholly without jurisdiction.

12. Learned counsel appearing for the opposite party no. 2, at the outset, places reliance on Narayana Hrudyalaya Limited and Another vs. West Be