IMPORTANT POINT
“No cure shall not be construed as Negligence”- The non-healing or mal-union of fractures is a known complication due to post-operative infections. The patient was investigated and treated with appropriate higher antibiotics. Thus “No cure shall not be construed as Negligence”.

ORDER

This Revision Petition has been filed under section 21 of the Consumer Protection Act, 1986 by the Petitioner B.S.F Composite Hospital (hereinafter referred to as the “Opposite Party No. 4”) and Dr. R. K. Choudhary (hereinafter referred to as the ‘OP-5) against the Impugned Order dated 10.12.2018 passed by State Consumer Dispute Redressal Commission, Kolkata, West Bengal (hereinafter referred to as the “State Commission”) in First Appeal No. 1080/2015.

2. The issue relates to the alleged shortening of leg due to medical negligence after the treatment of fracture of the patient’s leg. For the convenience, the parties are referred to as stated in the Complaint before the District Forum.

3. Brief facts are that the Complainant / Respondent No. 1 (hereinafter referred to as the ‘patient’) suffered “Fracture Lower 3rd Tibia and Upper 3rd Fibula” of right leg. He visited the Petitioner / OP No. 4 Hospital. After examination a plaster was applied and medicine prescribed by Dr. R. K. Choudhary (OP No. 5 / Petitioner No. 2). The plaster was opened after four months, but the alleged complications were developed. Therefore, for 2nd time, plaster was reapplied. However, the fractured leg failed to recover as normal. Thereafter, the OP No. 5 carried out surgery, but patient’s leg became shorter by 1½ cm. Being aggrieved by the alleged wrong treatment, the Complainant filed a complaint before the District Forum, Siliguri.

4. The District Forum held that the OPs are Govt. Hospital and a doctor was working there. The patient was a constable. The total expenditure for treatment was from the government and patient did not pay any money except the registration fee. Based on the principles laid down in Indian Medical Association Vs. V.P. Shantha & Ors., (1995) 6 SCC 651 and on merits, the District Forum held that there was no deficiency of service or negligence from the OPS. The Consumer Complaint was dismissed.

5. Being aggrieved, the Complainant filed the First Appeal before the State Commission.

6. The State Commission allowed the Appeal against the Petitioners - OP No. 4-Hospital and OP No. 5- Dr. R.K.Choudhary. The State Commission directed the doctor (OP-5) to pay Rs.3,00,000/- and the hospital (OP-4) Rs.1,50,000/- to the Complainant.

7. It was also held that there was no evidence on records in support of deficiency in service on behalf of OP Nos.1 to 3.

8. Being aggrieved, the OPs Nos. 4 and 5 filed this Revision Petition.

9. Heard the learned Counsel for both the sides and Dr. R. K. Choudhary, Petitioner No. 2, who was present in person and perused the material on record.

10. The learned Counsel for the Complainant argued that due to wrong treatment and wrong surgery the fractured leg of the patient became short by 1½ cm. The Hospital (OP-4) was also vicariously liable for its failure to ensure proper and reasonable care and treatment done by OP-5. He relied upon the decision of Hon’ble Supreme Court in Paschim Banga Khet Mazdoorsamity & Ors. vs. State of West Bengal & Anr., (1996) 4 SCC 37 wherein it was held that failure of Government Hospital to provide proper treatment to a person is violation of Right to Life under Article 21 of the Constitution of India, hence the case falls under Consumer Protection Act, 1986. Therefore, the District Forum passed the Order impugned without applying the judicial mind and without taking into consideration the evidence on records.

11. The petitioner Dr. R. K. Choudhary, during his argument, narrated the chronology of treatment of the fracture at the BSF Composite Hospital, Kadamtala. He submitted the OPs provided the best possible treatment to the patient with due care attention. If any disability was suffered by the patient, the authority should give proper and adequate help for his disability as per handicaps.

12. I have perused the medical record. It is important to go through the nature of fracture injuries and method of treatment adopted at BSF Hospital (OP-4). The patient Sukhi Ram suffere