1. DR. HAREKRISHNA BISWAS R/o. Qr. No. B2-206/2, V.K. Nagar Durgapur – 713210 PS. NTS, Dist. Burdwan, West Bengal
1. THE STATE BANK OF INDIA Corporate Central Office Madame Cama Marg, Mumbai – 400021
2. The Union of India Through The Secretary Department of Financial Services Ministry of Finance, Room No.9, Jeevan Deep Building Parliament Street, New Delhi – 110001
3. The A.G.M. & Regional Manager State Bank of India, Regional Office Durgapur Branch Premises Near DSP Main Gate, Burdwan – 713203
4. The Branch Manager State Bank of India MAMC (1822), Durgapur – 713210
Burdwan, West Bengal
5. The Union of India Through the Secretary Consumer Protection Unit Department of Consumer Affairs Ministry of Consumer Affairs, Food & Public Distribution Krishi Bhavan, Room No. 49 Dr. Rajendra Prasad Road, New Delhi – 110001
1. The present complaint has been filed by Dr. Harekrishna Biswas as Karta for his wife, Smt. Malti Biswas and himself as complainant. They opened a Joint Fixed Deposit Account with State Bank of India, Durgapur Branch (OP No.4), in the District of Burdwan, deposited a sum of Rs.80,000/- for a period of 1000 days on interest @ 10.50% p.a. The due date of encashment was 04.08.2011. The amount payable to the complainant, on maturity, was Rs.1,06,317/-. The complainant filed Form 15G to the effect that the term deposit periods would continue until the complainant did not want to encash the same as per the conditions laid down in the said term deposit certificate.
2. On 06.11.2013, the complainant went to purchase three Demand Drafts from the said Bank Branch in the name of the Registrar, National Consumer Disputes Redressal Commission, payable at New Delhi, for a sum of Rs.5,000/- each. It is alleged that to the surprise of the complainant, OP No.4 denied to give him permission for encashment of the said amount, due to which the complainant did not have money to meet the expenses for filing the consumer complaints, medical expenses of his family members, marriage of his daughter, etc. The complainant approached the police station and lodged an FIR on 06.11.2013 itself, however, the police did not take any action. Hence he issued notice under Section 80 of the CPC to the then Hon’ble Finance Minister Sh.P. Chidambaram with copies to SBI, Durgapur Branch (OP4), SBI, Regional Office, OP3, Union of India, Department of Financial Services, OP2.
3. Under these circumstances, the present complaint was filed with the following prayers :-
“F. Prayer/Relief, claims & etc, sought for :
1. It is, therefore, respectfully prayed before
this Hon’ble National Consumer Disputes Redressal Commission/Court/Forum that the respondents/opponent parties, except opposite party No.5 (Five), be directed to pay the following amounts jointly and severally to me (Complainant/claimant) :-
(1). In respect of Term deposit A/c No.30560142411 having with the State Bank of India Branch (1822) :-
(a) Full encashment values with interest due upto the date of payment in terms of u/s 74 (1) (a) of the Companies Act, 2013
With (b) 10 (ten) crores of rupees in the terms and conditions of u/s 74 (3) of the Companies Act, 2013, with
(c) 2 (two) crores of rupees for the further contraventions in the terms of the aforesaid u/s 74 (3) of the Companies Act, 2013, with
(d) 5 (five) lakhs of rupees in the statutory provisions of the u/s 452(2) of the Companies Act, 2013, with
(e) 1 (one) crore of rupees in the statutory provisions of u/s 46(!) of the Banking Regulations Act, 1949; with
(f) 1 (one) crore of rupees for first contravention; in the term of u/s 46(6) of the
Banking Regulations Act, 1949; with (g) 1 (one) lakh of rupees for every day during
which the default/contraventions continues for further contraventions, w.e.f. dt. 07.11.2013, according to the statutory provisions of the u/s 46(6) of the Banking Regulations Act, 1949; next
(h) multiply it by 3 (three) in the terms of u/s 447 of the Companies act, 2013; and next
(i) multiply above by 2 (two) in the term of u/s 451 of the Companies Act, 2013; next and
(j) 10 (ten) thousand rupees for the first contravention with further fine of 1 (one) thousand rupees for every day during which the contraventions/default continues w.e.f. 07.11.2013, add fine of first contravention with total fines of further contraventions next multiply it by 3 (three) in the term of u/s 450 of the Companies Act, 2013 and next multiply the said sum of 2 (two) in the terms of u/s 451 of the Companies Act, 2013”.
(2). In respect of Savings Ban A/c No.11418360822/01190007761/7007 having with the State Bank of India Branch (1822) :-
(a) Pay full amount with interest due in that A/c
upto the date of payment in the term of u/s.
74(1)(a) of the Companies Act, 2013; with
(b) 10 (ten) crores of rupees in the terms of u/s 74(3) of the Companies Act, 2013, with
(c)2 (two crores of rupees for further contraventions in terms of said u/s. 74(3) of the Companies Act, 2013, with
(d) 5 (five) lakhs of rupees in the terms of u/s 452 (2) of the Companies Act, 2013, with
(f) 1 (one) crore of rupees for the first contravention, in the term of u/s 46(6) of the Banking Regulations Act, 1949, with
(g) 1 (one ) lakh of rupees for every day w.e.f. the date 07.11.2013 during which the contraventions /default continues, in the terms of said u/s. 46(6) of the Banking Regulations Act, 1949, with
(h) 10 (ten) thousands of rupees for first contraventions, in terms of u/s 450 of the Companies Act, 2013, with
(i) 1 (one) thousand of rupees for every day w.e.f. 07.11.02103 during which the further contraventions/defaults continues, in the terms of u/s 450 (aforesaid) of the Companies Act, 2013, next
(j) multiply the above sum of sub-paragraph (2)(i) by 3 (three) in the terms of u/s 447 of the Companies Act, 2013, and next
(k) multiply the sum of sub-paragraph (2) (j) by 2 (two), in the terms of u/s 451 of the Companies Act, 2013.
(3). Cost of (complaint initiations, travelling, fooding & lodging, for harassment, papers & printing, typing, mental agony, other detrimental sufferings, & etc.) multiply it by 3 (three) in the term of u/s 447 of the Companies Act, 2013 and next multiply it by 2(two) in the term and conditions of u/s 451 of the said Companies Act, 2013;
F.1 (4) Total Compensation claimed : Prayer to add the amounts under paragraph No. F.1.(1)(j) with amounts of money under the paragraph No.F.1.(2) (k) with amount of money under paragraph No.F.1(3) and next multiply the said sum/product by 5 (five), according to the statutory provisions of u/s 48 of the Banking Regulations act, 1949
F.2 Punishments, disciplinary steps and actions & etc, against the O.P.s or its alternatives :
(a) It is, therefore, respectfully prayed again
before this Hon’ble National Consumer Disputes Redressal Tribunal/Court/Forum Commission to recommend for disciplinary actions, punishments, steps, and etc., against the opponent parties according to the statutory provisions of the following :-
(1) the Consumer Protection Act, 1986,
(2) the Consumer Protection Central Rules, 1987
(3) the Consumer Protection Regulations, 2005,
(4) the service Rules applicable to them (OPs),
(5) u/s 73/74, 75, 271, 272, 447, 448, 449, 450, 451, 452, 463 and etc., of the Companies Act, 2013;
(6) u/s 46, 46A, 47, 48 and etc., of the Banking Regulations act, 1949;
(7) required appropriate provisions of the Reserve Bank of India Act, 1934;
(8) required appropriate provisions of the State Bank of India Act, 1955,
(9) required appropriate provisions of the Indian Penal Codes & the Codes of Criminal Procedures,
(10) as per the provisions of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989,
(11) Constitution of India,
(12) verdicts of the Hon’ble Supreme Court of India in :
(i) Lucknow Development Authority Vs. M.K. Gupta, 1994 (1) SCC 243 pronounced on dt. 05.11.1993,
(ii) Ghaziabad Development Authority Vs. Balbir, and etc., and
(13) any other law & orders and etc., are applicable to them.
F.2.(b) Except any debt, 80 (Eighty) percent of assets & Properties (movable and immovable) of the State Bank of India and 75 (seventy-five) percent of assets/properties (moveable and immovable) of the Government of India (the opponent party No.1 & 2) respectively, shall be in the name of mine (the complainant/ claimant/plaintiff) and I plaintiff/ complainant Dr. Harekrishna Biswas shall be full and absolute authority to use and manage the said property according to my will and directions/orders, etc.
The aforesaid assets & properties shall be besides the other compensations which I claimed.
F.3 Such any other relief which this Hon’ble National Consumer Disputes Court/Tribunal/ Commission/Forum may deem fit and proper in view of the facts, red hand evidences, gravity and etc., of the case, please be granted in favour of me (complainant/claimant/plaintiff) and against the opponent parties.
4. During the arguments, we tried to persuade the complainant to understand that his case pertains to Rs.80,000/- plus interest only, and he was making a claim on the higher side. He was informed that the jurisdiction of this Commission extends to One Crore and above. However, he insisted that he will neither amend the case nor he will approach the lower fora. He could not show us that he is an Income Tax Payee. No evidence recording his status is placed on the record. This must be borne in mind that this Commission under the Consumer Protection Act, 1986, is a summary court. Because the matter pertains to more than Rs.Fifteen Crores, therefore, it entails a lot of evidence. The examination of witnesses and cross-examination is not permissible as such under the said Act. The pleadings of the complainant also entail the element of criminality. However, the criminal court has not given any finding. Even the police did not bother to take any action. There must be some material for a summary court to base its findings. It is too early to give our piece at this stage in absence of solid and unflappable evidence. All these allegations cannot be proved by mere affidavits or interrogatories. A number of issues have to be examined. A number of documents will have to be produced. The cross-examination of the witnesses will be having an important place in this case. It is pertinent to note that cross-examination of the witnesses is the life/blood of our legal system. It is the only way, Judge can decide, to whom to trust and an answer, during such
cross-examination, which may wreck one’s case. It is painfully apparent that it is impossible to gauge the real issue. From the affidavits, this Commission will not be able to winnow truth from falsehood. This Commission can go into the subject only skin deep.
5. In a recent authority Pesi Dady Shroff Vs. Boehringer Ingetheim Denmark & Anr., Civil Appeal No.9453 of 2013, filed against this Commission’s judgment and order passed in Consumer Complaint No.164, dated 10.07.2013, the Hon’ble Supreme Court was pleased to make the following observations :-
“Leaving the question of law open, as to whether in such a fact situation, provisions of Consumer Protection Act, 1986, are applicable, it is open to the appellant to approach the Civil Court for the simple reason that for the purchase price of Rs.4-5 lakhs in 2003, he has claimed a sum of Rs.73.35 crores. Such a claim can be adjudicated only after the assessment of evidence, etc., before the Civil Court and, therefore, it is a fit case where, even if the Consumer Protection Act, 1986, is applicable, the appellant must approach the Civil Court for appropriate relief.
With these observations, the civil appeal is disposed of”.
6. In Synco Industries Vs. State Bank of Bikaner & Jaipur and Others, (2002) 2 SCC 1, the Hon’ble Apex Court has held as
“3. Given the nature of the claim in the complaint and the prayer for damages in the sum ofrupees fifteen croresand for an additional sum ofrupees sixty lakhsfor covering the cost of travelling and other expenses incurred by the appellant, it is obvious that very detailed evidence would have to be led, both to prove the claim and thereafter to prove the damages and expenses. It is, therefore, in any event, not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the civil court. This is an appropriate claim for a civil court to decide and, obviously, was not filed before a civil court to start with because, before the consumer forum, any figure in damages can be claimed without having to pay the court fees. This, in that sense, is an abuse of the process of the consumer forum”.
7. In view of the above discussion and rulings, we, therefore,
dismiss this complaint, with liberty to the complainant to approach the Civil Court and Criminal Court to get redressal of his grievances, as per law. No order as to costs.
…………. (J. M. MALIK, J.) PRESIDING MEMBER
.…..…….(DR. S. M. KANTIKAR) MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.3242 OF 2013
(Against order dated 12.05.2010 in First Appeal No. 1998/2004 of the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow)
Dr. R.K. Pandey, Surgeon, R/o Mohall Betial Hata, Near Hanuman Mandir, District Gorakhpur, Presently residing at Krishna Hospital, Daudpur (Near DIG Bungalow), District Gorakhpur (UP)
1. Sri Chandra Shekhar Pandey S/o Ram Murti Pandey R/o Village Siswa Bazar, District Maharajganj (UP)
2. Dr. Salil Chandra S/o Late P. C. Srivastava, R/o Mauja Gandhi Nagar, District Gorakhpur (UP)
3. Saraf Hospital Gandhi Nagar, Golghar, District Gorakhpur (UP)
4. National Insurance Company Limited, Branch, Bank Road, District Gorakhpur (UP)
REVISION PETITION NO.3364 OF 2013
(Against order dated 12.05.2010 in First Appeal No. 1998/2004 of the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow)
Saraf Hospital Through its Partner, Dr. Uma Saraf, W/o Sh. Shyam Sundar Saraf R/o Betial Hata, Krishna Niwas, Post Sadar, District Gorakhpur, UP
1. Chandra Shekhar Pandey, S/o Sh. Ram Murti Pandey, R/o Village Biswa Bazar, Distt. Maharajganj, UP
2. Dr. Salil Chandra S/o Late P. C. Srivastava, R/o Mauja Gandhinagar, District Gorakhpur, UP
3. Dr. R. K. Pandey, Surgeon R/o Mohalla Betial hata, Near Hanuman Mandir, District Gorakhpur, Presently Residing At Krishna Hospital
4. National Insurance Company Limited Bank Road, District Gorakhpur, UP
HON’BLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For Dr. R. K. Pandey: Mr. Ashok Narayan, Advocate with Mr. Dhar Dubey, Adv.
Mr. B. S. Sharma, Advocate
For Saraf Hospital : Mr. Sukant Vikram, Advocate
For Chandra Shekhar
Pandey : Mr. T. H. Naqvi, Advocate
For Dr. Salil Chandra : Mr. Ambarish Kaushal Srivastava, Adv.
PRONOUNCED ON 10th July 2014
PER DR. S.M. KANTIKAR, MEMBER
1. This judgment will decide two Revision Petitions as the facts are similar, which are filed against the impugned orders of the State Consumer Disputes Redressal Commission (in short, ‘State Commission’) in Appeal No. 18 of 2010 and Appeal No. 39 of 2010 .The State Commission dismissed the Appeal filed by the Petitioner and allowed the Appeal filed the Respondent for enhancement of compensation against order of the District Consumer Disputes Redressal Forum (in short, ‘District Forum’). We draw the facts from RP/3242 of 2013.
2. The complainant Chandra Shekhar Pandey’s wife since deceased Smt. Shanti Pandey(herein “patient”) had undergone a Ultra-Sonography test (USG) by Dr. Salil Chandra,(OP-1) and was diagnosed as a case of gall stones of 6x6 mm and 6x9mm size in her gall bladder. Thereafter, as per advise of Dr. Chakarpani Pandey, physician the Complainant took his wife to the surgeon Dr. R. K. Pandey(the petitioner/the OP-2), who advised surgery for removal of her gall bladder at the cost of Rs.10,000/-. Accordingly, the patient Smt. Shanti Pandey was admitted in Saraf Hospital, Gorakhpur on 16.11.2000 for surgery by Dr. R.K. Pandey. During operation, Dr. Pandey, did not find any stone in the gall bladder, but noticed that the gall bladder was malignant (Cancer). Dr. Pandey proceeded to conduct surgery for removal of gall bladder without calling any cancer specialist. Then the patient was kept in Saraf Hospital (OP-3) for nine more days under observation without any treatment of cancer, and she expired on 25.11.2000. Thus, the Complainant filed a complaint before District Forum, Gorakhpur with allegations that, Dr. Salil Chandra (OP-1) had issued wrong report of gall stones, while Dr. R. K. Pandey knifed against norms of surgery of a malignant part and OP-3 Saraf Hospital who kept the patient unnecessarily for 9 days. The Complainant prayed for total compensation of Rs.3,00,000/-
3. The District Forum dismissed the complaint. Therefore, aggrieved by the order, the complainant filed the First appeal 1998/2004 before the State Commission by reiterating that Dr. Salil Chandra and Dr. R. K. Pandey were guilty of medical negligence.
4. The State Commission, Lucknow, UP held Dr. R. K. Pandey (OP-2) and Saraf Hospital (OP-3) guilty of medical negligence and deficiency in service. State Commission ordered the OP-2 and 3 to pay jointly and severally .compensation of Rs.2,55,000/- and Rs.10,000/- as litigation cost.
5. Aggrieved by the impugned order dated 12.05.2010 of State Commission the OP 1 and 3 approached the Hon’ble High Court, Allahabad by filing Writ Petition (c) No 36953/2010 which granted the stay in favor of petitioner and on 26.07.2013 the writ petition was dismissed on the ground of alternate remedy. The Hon’ble High Court also granted liberty to the Petitioner to file the Appeal and Revision Petition within 6 weeks along with application under Section 5 of the Limitation Act. Accordingly, the petitioner filed this revision on 9.9.2013.
6. We have heard the counsel for the parties. The counsel for the complainant vehemently argued on the main point of limitation as there is a delay of 1125 days in filing this revision petition, hence it should be dismissed. Also, on merit, he reiterated his contention of medical negligence against all the OPs which led to the death of his wife.
7. The counsel for OP-2 argued that the delay was not an intentional one. He brought our attention towards the application filed by the petitioner/OP-2. The reason stated that, OP-2 has approached the High Court by filing a writ petition against the order of State Commission, which was dismissed by High Court on the ground of alternate remedy and granted him liberty to file revision within 6 weeks as per law under Section 5 of the Limitation Act. The petitioner filed this revision accordingly within 6 weeks. The Counsel relied upon the judgments of Hon’ble Supreme Court in the case,
a) Shyamlal KantiDanda Vs. Chunilal Chaudhary, AIR 1984 SC 1732
b)Balbir Singh Vs. Bogh Singh AIR 1974 SC 650.
Therefore, we are of considered view that it is a bonafide explanation to the delay of 1125 days in filing this Revision Petition. Accordingly, we condone this delay in the interest of justice.
8. On merits, we have perused the written objections of OP-1 Dr. Salil Chandra, filed before this commission on 15.04.2014. He has contended that the Ultrasound (USG) report was correct. He has explained it as:
“ That stone or stones present in the gall bladder irritate the Mucosa present in the gall bladder and can change the progress of disease. Continuous irritation of Mucosa by stone or stones can convert it in malignancy. But in medical field of OP-1 i.e. Radiology there is no provision of such predictions on the basis of ultrasound and neither Medical Science permits such prediction. It is also important to note that final decision regarding confirmation of disease is done through ‘Histopathology’ in which confirmation is done through tissue. Which is common parlance is biopsy.”
9. He has also expressed that the USG as sensitivity of 91% - 98% and about 5% falls on negative reports are possible due to:
a) Improper fasting/preparation
b) Excessive Bowel Gas
c) Food in Bowel
d) Reverberation artifacts
Also stated that due to thickness of gall bladder wall the diagnosis may be diagnosed as:
(i) Acute/Chronic Cholecystitis, or
(ii) XanthogramlometiousCholecystitis, or
10. Thus, the USG has its limitation. He has also stated that he had experience of more than 18 years in his profession by which he exercised reasonable degree of skills in diagnosis of that patient. He had relied upon Bolam’s Test, Jacob Mathews case to substantiate his stand of no negligence. He has also advised the patient for a free follow up, but patient never turned up. Apart from the diagnosis of USG, proper clinical check-up through biopsy, CT Scan, or through MRI is always recommended.
11. The counsel for OP-2 argued that, the OP-2, Dr. R. K. Pandey, is a surgeon, having a wide experience of surgery for about 22-23 years and he is well versed with the modern methods of surgery. It was an admitted fact that he operated the case for gall bladder stone by relying upon the USG report and clinical findings. At the time of performing operation, he found that the gall bladder and surrounding area was suspicious of cancer and he could not find any gall stone. Therefore, he took a biopsy for the proper diagnosis of the cancerous growth and to decide further line of treatment. The mode of future surgical treatment or non-surgical management by Chemo/Radio therapy of such patient depends upon the confirmed histo-pathological diagnosis of malignancy. Thus, we are of considered view that, OP-2 was correct in his treatment and decision, and it was as per standard of medical practice and we don’t find any act of negligence on the part of OP-2 Dr. Pandey.
12. In our opinion, Dr. Salil Chandra’s affidavit appears to be an exaggerated one. No doubt, he is a well-qualified Radiologist and has an experience of about 2 decades in his concerned Specialty. However, it is quite surprising to note as to how he was failed to diagnose gall bladder cancer? It was not a reasonable care and caution. It was not an error of judgment but it was a mistake and wrong diagnosis. The submissions of OP-1 are nothing but beating around the bush. It is against the Bolam’s principle. We disagree with his clarification about, the thick gall bladder wall or other differential diagnosis. Thus, he is responsible for the wrong committed by him.
13. The third point in this Revision Petition is whether the Saraf Hospital is liable? The Counsel for the Saraf Hospital argued that his Hospital has no role in the treatment of the patient. The OP-1 & 2 were Consultants who treated the patient in his hospital having proper facilities. Hence, the hospital should not be held liable for the wrongs, if any.
14. We have given thoughtful consideration and referred few medical text books on Pathology and Surgery. We have relied upon several decisions on medical negligence pronounced by Hon’ble Supreme Court. It is a well settled law laid down by the Hon’ble Supreme Court in case of Dr. Laxman Balkrishna Joshi Vs. Dr. Triambak Babu Godbole and Another (1969) 1 SCR 206, that a doctor when consulted by a patient owes him certain duties, namely:-
a) Duty of care in deciding whether to undertake the case.
b) A duty of care in deciding what treatment to give.
c) A duty of care in administration of that treatment.
15. The OP-2 Dr. R. K. Pandey, acted with proper care and his clinical acumen. He has not deviated from the standard of medical practice. We hold the OP-1, Dr. Salil Chandra, liable as he failed to diagnose gall bladder malignancy and the metastasis by USG study. Therefore, if USG diagnosis would have been correct, the operation for gall stone might have been deferred by OP-2. Even otherwise, the OP-2 was doing surgery after opening the abdomen by taking only biopsy; and waited for the histopathology report. This is a recognized medical practice. The patient was in advanced stage of cancer, thus the death of patient was not due to any delay in referring the patient to cancer hospital. Hence, we are not inclined to fasten any liability of medical negligence on the surgeon (OP-2), but in our opinion the OP-1, Radiologist is liable for wrong diagnosis. The OP-3 the Saraf Hospital has limited role in this case; we do not find any lapses or negligence by it. Therefore, with the forgoing discussion, we find there is apparent error in the order of the State Commission. We set aside the order of the State Commission and we hold the OP-1, Dr. Salil Chandra, the Radiologist is responsible for the entirety. As the patient’s death was not due to any negligence , but it was due to an advanced (metastatic) cancer of gall bladder, therefore we restrict and fix the liability of medical negligence on OP-1 for his wrong diagnosis and pass the following order:
The OP-2, Dr. R. K. Pandey and OP 3, the Saraf Hospital are exonerated. The OP-1 Dr. Salil Chandra is directed to pay Rs.50,000/- as compensation to the complainant, within 3 months, otherwise it will carry interest @ 9% pa, till its realization.