BEFORE

THE HON'BLE PRESIDENT MRS. JUSTICE MALASRI NANDI

THE HON'BLE MEMBER MR. CHANDAN DAS(JUDICIAL)

THE HON'BLE MEMBER MR. PRATIM KUMAR BORA(JUDICIAL)

THE HON'BLE MEMBER MR. TAPAS KUMAR GHOSH

JUDGMENT(CAV)

BY HON'BLE MEMBER MR. PRATIM KUMAR BORA,

1) In this instant appeal, the appellant has challenged the order dated 10-01-2024 passed by the learned District Commission, Kamrup(M) dismissing the complaint registered as C.P. Case No. 3/2024 on the ground of the lack of a prima facie case in the complaint petition. The case of the appellant in brief is that when he was undergoing treatment as indoor patient in GMCH, Guwahati from 09-07-2023 to 12-07-2023, he was detected as a patient of Chronic Kidney disease. In para 7 of the afore mentioned complaint petition, the complainant stated that with consultation with the treating doctors, he came to know that the cause of his disease of kidney was the wrong diagnostic report of the opposite party Diagnostic centre dated 03-07-2023, thus the said report also put him in mental, physical and financial sufferings and also resulted into loss of earning and it was due to deficiency of service on the part of the opposite party.

2) The complainant annexed the copy of the report dated 03-07-2023 (Annexure-1), the copy of prescription dated 07-07-2023 (Annexure-2), copy of report of Ultra Care Diagnostic Centre (Annexure-3) and discharge certificate issued by the Gauhati Medical College & Hospital (GMCH) as Annexure-4.

3) The learned District Commission below heard the complainant’s learned counsel on the point of admission of the complaint petition for disposal as no ailment of unfair trade practices was found as such learned District Commission dismissed the complaint petition.

4) The appellant assailed the impugned order passed by the learned District Commission before this Commission with the grounds that the appellant/complainant should not be suffered for the fault on the part of the engaged counsel, the learned District Commission failed in error while exercising the power under Section 36 of the Consumer Protection Act, 2019, the learned District Commission committed error while deciding no case of unfair trade practice for deficiency in service on the part of the respondent/opposite party.

5) In response to the notice issued to the respondent, the respondent appeared before this Commission and submitted written argument besides arguing the case orally.

6) The appellant filed the written argument and also argued the case orally.

7) The facts in the written argument of the complainant/appellant which are not made available in the complaint petition in CP Case No. 3/2024 are that on 04-01-2023, the complainant/appellant fell sick, so he visited Hakra State Dispensary and as per the Doctor's advice, he examined his RBS level in the Diagnostic centre (respondent/opposite party) on 04-01-2023, and his RBS level showed 153 mg/dl, which was within the normal range. Again, when he fell sick on 02-03-2023, he got his RBS tested and now the level of RBS shoot up to 201 mg/dl, his RBS level was also tested on 29-05-2023 and 03-07-2023 and results were 137 mg/dl and 112 mg/dl respectively. As the reports of RBS test were normal, so the Doctor advised him not to worry.

8) In his written argument, it is also stated that on 07-07-2023, he consulted with Dr. Deepak Chanchal Borbora and as per the advice of the Doctor, he got his Glucose (Fasting & PP) tested that his Fasting Glucose Level showed 420 mg/dl and Glucose/PP 460 mg/dl, that it was deficiency of service on the part of the respondent/opposite party because on 03-07-2023, the opposite party found his RBS level 112 mg/dl and after five days it shoot up to 460mg/dl when tested in one diagnostic centre name Ultra Care Diagnostic centre.

9) He further stated that he had been undergoing medical treatment from 09-07-2023 to 12-07-2023 in Gauhati Medical College & Hospital(GMCH), Guwahati and his ailment was diagnosed as chronic kidney disease Type-