Appellant/Complainant, Anupam Bhattacharyya hails from Agartala, Tripura. As per the Consumer Complaint before the State Commission, he was admitted into OP/hospital, Calcutta Medical Research Institute (CMRI), Kolkata, on 12.8.1999 with a fracture of the left leg. He was treated by OP-2/Dr Subrata Dasgupta at CMRI. On 17.8.1999 a surgical operation was performed on his left femur bone and he was discharged on 27.8.1999. In this surgery an IM (Intramedullary) Nail (rod) was implanted in his femur bone of the left leg by OP-2. Thereafter, he was checked by OP-2 on four occasions, till 13.8.2000.

2. Allegedly, as per the advice given by OP-2, the Complainant had started walking without support of any crutch or stick. One morning he found suddenly that he was unable to move and suspected that Iron Nail had broken inside his leg. He was taken back to the OPs at CMRI on 3.9.2000. However, the complaint petition does not show whether any diagnostic or corrective procedures were performed at CMRI in this visit.

3. The main allegation against the OPs is that the Iron Nail had not been properly fixed with screw for interlocking. As claimed, the surgery was performed negligently by OP-2/Dr. Subrata Dasgupta. As per the complaint petition, the Appellant/Complainant was taken to Vellore Christian Medical Colleges, where the broken Iron Nail was removed and another fresh nail was installed into his femur bone with proper interlocking.

4. In his Complaint before the State Commission, Complainant, Anupam Bhattacharyya sought reimbursement of the entire cost of treatment together with compensation of Rs.12 lacs.

5. OP-1/CMRI and OP-2/Dr. Subrata Dasgupta have filed separate replies before the State Commission. The case of CMRI was that it is a highly reputed private hospital with efficient doctors, trained paramedical staff and adequate support services. Allegations made by the Complainant are denied, as not borne out from the bed head ticket of the patient. As claimed, no specific allegations are made against the CMRI in the complaint.

6. In a separate reply before the State Commission, OP-2/Dr. Subrata Dasgupta has raised the following issues—

i. The complaint was filed in 2005 while the cause of action had arisen in 2000.Therefore, the State Commission should have dismissed it on the ground of limitation. We however, note that the seal of the West Bengal State Commission on the complaint clearly shows that it was received in May, 2002. It is also numbered by the State Commission as a complaint of 2002. Therefore, the question of limitation would not arise at all, as the cause of action had arisen sometime in September 2000.

ii. The main plea of OP-2 is that in this case the post-surgery recovery was uneventful and without any complication. The patient was discharged walking on two crutches. Merely because complications had arisen subsequently, it cannot be called a case of failure or negligence on the part of the treating doctor.

iii. On the allegation relating to breaking of the interlocked iron nail inside the left femur bone of the Complainant, the written statement of OP-2 has the following explanation to offer:-

“This Opposite Party states that I M Rods are known to break occasionally due to stress. It further states that this is an accepted phenomenon and text book and medical literature and there is nothing new in the instant case though it is most unfortunate. Moreover the Rod put in was Indian made and the same was used for cutting down the cost at the request off the complainant himself. But in any case it is stated that the Indian made are also used by Orthopaedic Surgeon with very goods results. It is further stated that the incident of breaking up of Rod is very unfortunate but it happens in other parts of world also with Foreign Rods”.

iv. Another contention of OP-2 is that it was not a case of improper fixation of Iron Nail. Had it not been fixed properly, the Complainant would not have been able to even get up from hi