ORDER

The instant Appeal has been filed under Section 19 of the Consumer Protection Act 1986, against the order of the State Consumer Disputes Redressal Commission, West Bengal (for short, the ‘State Commission”) in Complaint Case being S.C. No. 18/O/2004 passed on 29.11.2007, whereby the State Commission dismissed the complaint on ground that the Complainant failed to prove any negligence against the OPs.

Brief facts:-

2. On 30.04.2004 at about 6 AM, the Complainant’s daughter Ms. Antra (for short ‘the patient’) while going to school by an Auto-Rickshaw met with an accident. Immediately she was rushed to emergency at Kasturba Gandhi Hospital (in short, ‘OP-1’). Dr. Subimal Gupta (in short, ‘OP-4’) examined her and shifted to ICU and IV saline was started. The patient vomited twice. It was alleged that the Complainant asked about the seriousness of head injury and if necessary, he wanted to take his daughter to some other hospital for better treatment, but on contrary the OP-4 told that sleeping injection had been given and the patient will be sent for CT Scan to Asansol. As per the advice, for CT Scan, the Complaint took her to Avishkar Diagnostic Centre at Asansol (in short, ‘OP-9’). Patient vomited twice during said period. The CT report was seen by OP-4 and told not to be worry. But on the next day (01.05.2004) morning, the OP-4, based on the condition, told the Complainant to take the patient to another hospital having Neurology Department and on the next morning, the OP-4 told the Complainant to better consult Neuro-surgeon as faculty was not available in the OP-1 hospital. At about 9.30 AM, the condition of patient deteriorated and the Complainant allegedly noticed through ICCU glass that few doctors were busy in massaging chest of his daughter and placed her on the ventilator. The Complainant contacted OP-7, Dr. Anil Kumar Rakshit, who allegedly told that in the CT scan there was clear internal hemorrhage seen. If the patient does not respond within 30 mins, then the chances of survival would be less. Thereafter, on the same day the patient declared dead at 7.00 PM.

3. The Complainant alleged that the CT Scan, PM findings and the death certificate clearly showed head injury and Scalp swelling on left side of occiput. Thus, under such grave condition, the ordinary surgeon (OP-4) ought to have referred the patient, but he treated the patient without any knowledge in neurology and neurosurgery. The patient was 10 years old and only child of the complainant who died due to negligence and lack of due care and treatment from the OPs. Being aggrieved, the father of Child filed the Consumer Complaint before the State Commission, Kolkata and prayed compensation of around 38 lakhs.

Defense:

4. The OPs filed their reply and submitted that the allegations are false and frivolous. The OP-1 and 2 have admitted that in the hospital, there was neither Neurology nor Neurosurgery unit. The Complainant, being a Local Railway employee, working at the Chittaranjan Locomotive works, knew very well that there was no neurosurgeon and no neurology unit in Kasturba Gandhi Hospital, but therein he was willing for treatment under Dr. S. Gupta, the OP-4. The OPs submitted that on 30.04.2004 the patient, was admitted with a trauma to the head and abrasion over both knees and small abrasion over frontal region of skull. There was no history of any unconsciousness, history of vomiting once. The Glasgow Coma Score (GCS) was 15. The patient was admitted and for constant supervision and to avoid disturbance from the attendants, she was kept in ICCU. The CT scan was advised and necessary permission was taken from Chief Medical Superintendent of the hospital who also visited the patient during the routine round. The funduscopic examination was done but there was no papilledema. It was further submitted that the patient’s attendants made their arrangement of their own to take her to Asansol for CT scan. The Complainant gave undertaking for the same on the