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Judgment
Dr. S.M. Kantikar, Member
The Present Complaint has been filed under section 21 of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainant - CS Pranab Kumar Mishra (hereinafter referred to as the ‘Complainant’) against the Opposite Party - M/s. Nidan Diagnostic & Research Centre claiming compensation around Rs. 23 Crores.
Brief facts that the Complainant approached M/s. Nidan Diagnostic & Research Centre (OP) for Echocardiography colored Doppler test. It was alleged that the OP performed conventional Cardio-ultrasonography instead of ECHO color Doppler test and gave grey scale picture (Ext. A/1) instead of color picture. He further alleged that the machine was also a monochrome one. The Complainant submitted that Color Doppler is used to show the direction and speed of blood flow through the atria and ventricles. It provides a two-dimensional moving image of the heart.
The Complainant further alleged that the Opposite party failed in its fiduciary duty towards their patient. It creates a breach of trust and breach of good faith for the patient and his family members. The Opposite Party violated the Ethical code set by Indian Medical Council vide Chapter – 7, which stipulates that:
“……… A physician shall uphold the dignity and honour of his profession. The prime object of the medical profession is to render service to humanity; reward of financial gain is a subordinate consideration. Who-so-ever chooses his profession, assumes the obligation to conduct himself in accordance with its deals………”
Being aggrieved with the conduct of the Opposite Party, the Complainant filed the instant Consumer Complaint with the prayer:
Damages of Rs. 22,62,49,500.00, as computed in the pre-paras, or any other amount as deemed fit, may be confirmed against the Respondent for their act of misdeed conducted towards the society as well as towards the Applicant, and
An amount of Rs. 1,13,12,475.00 as computed, of any other amount as deemed fit, may be sanctioned in favour of the Applicant for the damage he sustained by the action of the Respondent; and
The residual amount after deducting the Applicant's portion may be ordered to be appropriated to the national exchequer or to a corpus like the Consumer Welfare Fund for deployment in like purposes; and
A prosecution may be initiated against the propounders of such a mischievous and potentially harmful practice under the applicable provisions of the CrPC / IPC; and
The Indian Medical Association may be directed to initiate a proceeding against the concerned doctor, the institution as well as against the promoters of Ms. Nidan Diagnostics and Research Centre. The IMA may be directed to device some ways to curb the practice of deploying unqualified persons in the medical diagnostic labs; and
The cost incurred by the Applicant towards handling the case may be sanctioned, which may be recovered from the Respondent; or
Pass any other orders as deemed fit.
The Opposite Party - Diagnostic Centre, in its written version, submitted that Echo Colour Doppler test was done by a senior Cardiologist and analysed the Doppler colour flow. The report was made on the basis of calculation of Doppler parameters. The Complainant was given the image in a black and white (grey scale) thermal film for rapid disposal of patients. The Complainant was duly informed about the image printed in a black and white (grey scale) thermal film instead of colour film for rapid disposal of patients. It was made clear that there was no 2D Doppler (non-colour machine) available with the Opposite Party. It should be borne in mind that ECHO is a dynamic study, where the movement of cardiac wall, valves, blood flow by colour flow are assessed during the study, the image, being a static representation, is not representative alternative to the diagnosis. The Complainant was informed in detail regarding all the above-mentioned facts. Though it was informed to the Complainant, yet he chose to file a baseless complaint with huge exorbitant amount of more than Rs. 23 crores, which shows intention to make mountain out of mole for nothing.
We have heard the arguments from the learned Counsel for both the sides. Perused the material on record and gave our thoughtful consideration.
It is pertinent to note that the Complainant paid Rs. 1,200/-, whereas he claimed Rs. 1.13 Crore for one individual and/or an amount of Rs. 22.625 Crore for risk imposed on life of numerous anonymous mass of patients was realistic in accounting perspectives.
The Complainant further raised the issue of deployment of an improper device in the Diagnostic Centre for the investigations of vital organs. In support of this contention, forensic expert’s opinion on technical issue of the device is necessary. The Complainant also raised the questions about the mandatory qualifications to perform Doppler test and the genuineness of qualification certificate. He further raised the grounds about misstatement and willful suppression of the facts about the manufacturer of the colour Doppler Machine whether GE or TOSHIBA.
Considering the entirety, in our considered view, the Complainant raised the issues pertaining to the equipment, its make and the genuineness of the reports generated from the machine. He also raised the authenticity of the signature of the Radiologist instead of Cardiologist. He also brought report of forensic expert and raised the technical issue of electronic / digital credentials of machine TOSHIBA vs GE. The Complainant further expressed the doubts about the report which had been signed by the Radiologist and there was no reference suggesting that Dr. Trinath Mishra, the Cardiologist physically performed it. The Complainant raised further concern that Dr. Mishra is a Govt. servant and holding the position of HOD in Cardiology Dept. in MKCG Medical College, Behrampur, thus question raised was how he was doing the private practice and whether he was drawing any non-practicing allowance (NPA) from the State Exchequer and also raised the issues about the website of the Opposite Party.
We have considered the Complainant’s case thoroughly. The Complainant has claimed an arbitrary and imaginary exorbitant amount of Rs. 23,75,61,975/- towards compensation for alleged mental harassment, agony and torture. It was based upon nonspecific, unscientific and laymen conjectures, which appears to be with sole intention to gain pecuniary jurisdiction of this Commission without any germane justification or cogent grounds. We would like to rely upon various authorities of Hon’ble Supreme Court in Synco Industries Vs. State Bank of Bikaner & Jaipur and Others[(2002) 2 SCC 1], and in Pesi Dady Shroff Vs. Boehringer Ingetheim Denmark & Anr.[ Civil Appeal No. 9453 of 2013], the Hon’ble Apex Court has held as under:-
Given the nature of the claim in the complaint and the prayer for damages in the sum of rupees fifteen crores and for an additional sum of rupees sixty lakhs for 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”
Further, on the similar issue, this Commission, in the case of Kumari Sangita Tukaramji Rokde vs. Union of India and Ors.[ Consumer Complaint No 76 of 2014] gave the liberty to the Complainant to approach Civil Court.
This Commission, under the Consumer Protection Act, 1986, is a summary proceedings. The examination of witnesses and their cross-examination is not permissible as such, also it does not deal with the cases of fraud. These entail a lot of evidence and proper investigation. The consumer fora cannot arrogate to itself the powers of Criminal Court. It is too early to give our piece at this stage in absence of solid and unflappable evidence. All these allegations cannot be proved through mere affidavits or interrogatories. It is pertinent to know that cross examination of the witnesses is the life/blood of our legal system. This Commission can go into the subject, only skin deep. It cannot be said at this stage, in which way the wind will blow.
In view of the above discussion, we, therefore, in the interest of justice, without touching the merits, grant the liberty to the Complainant to approach Civil Court or any proper Forum. The above discussion shall not be construed as an expression of final opinion in the matter. The Complainant can seek help for limitation, as laid down in Laxmi Engineering Works vs. P.S.G. Industrial Institute[(1995) 3 SCC 583].