Mr. Sunil Kanti Kar, Member—This is a complaint case so preferred by one Alok Chakraborty on the alleged negligence of the opposite parties causing untimely death of his wife Shankari Chakraborty.

2. The facts in short as alleged by the complainant is that the petitioner-Alok Chakraborty’s wife Shankari Chakraborty since deceased on 29.10.93 had an attack of fever with loose motion, stomach pain and cold and coughing of blood, etc. and the petitioner at that point of time consulted Dr. N.G. Chakraborty who prescribed certain medicines and further advised for few pathological tests and X-ray, Subsequently the complair ant/petitioner contacted Dr. A.K. Sil, the opposite party No. 2 on 27.10.93 and as per the advice of Dr. Sil the said Shankari Chakraborty was taken to Ecstasy Nursing Home and Diagonostic Services for all pathological tests. After the said pathological tests when it appeared that the said Shankari Chakraborty had some breathing trouble due to cough and cold, to give her best medical treatment as per advice of Dr. A.K. Sil she was admitted in the said Ecstasy Nursing Home and Diagonostic Services as Dr. Sil diagnosed Pneumonitis provisionally.

3. That on 28th October, 1993 as per the advice of Dr.A.K. Sil another specialist Dr. Kaushik Mitra was called for and after examining the patient while ratifying the treatment so adopted by Dr. Sil to the patient he added few more advice such as steam inhalation thrice daily together with moist O2 inhalation and also advised Amikacin injection and other medicines as would appear from the prescription so given by him.

4. On 28th October, 1993 opposite party No. 2 Dr. Sil personally visited Shankari Chakraborty at 10.00 p.m. and expressed his satisfaction to the better condition of the patient. That unfortunately on 29th October, 1992 at 5.00 a.m. upon receipt of a call from the said Nursing Home, Dr. Sil reached the nursing home and apon examining the patient he found that the condition of the patient had deteriorated very rapidly due to Septicaemia and ultimately inspite of their best efforts the said Shankari Chakraborty seems to be expired at 5.30 a.m. and subsequently the said death was confirmed at 9.00 a.m. by the said Nursing Home and accordingly Death Certificate was issued by opposite party No. 2.

5. That in the said complaint/petition, complainant alleged gross negligence on the part of the opposite parties.

6. That upon receipt of Notice to show cause both opposite party Nos. 1 and 2 entered appearance and filed their written objection categorically denying not only their liability but also the allegations so levelled against them and in particular in the written objection of O.P. No. 2 it has been categorically stated that he, being the school friend of the complainant, used to be consulted by the complainant and the members of his family and other relatives in their hour of need and as a good friend he never accepted any money on any occasion and at the time of treating the complainant’s wife too on 27th October, and 28th October, 1993 he did not take and fees from the complainant/petitioner, the question of claiming compensation for alleged deficiency in service on the part of the opposite party No. 2 did ever does now or can at all arise.

7. The learned Advocate appearing on behalf of the complainant/petitioner at the time of arguing the case submitted that —

(a) No proper diagnosis was made by the opposite party No. 2 while treating the deceased Shankari Chakraborty;

(b) That the said Shankari Chakraborty was not under Oxygen on 28th October, 1993 at 10.00 p.m. which caused the rapid deterioration of her health condition;

(c) Septicaemia developed for the reasons best known to the doctors;

(d) The patient was not properly attended by the said nursing home and as such the opposite party No. 1 cannot escape his liability and in support of his arguments he cited the decision as reported in A.I.R. 1969 S.C. at page 128 and also referred Winfield on Tort.

8. The lea