SUBHASHIS DHAR vs SANJUKTA SENGUPTA

DR. Subhasis Dhar and DR. Sanjoy Ghosh, both Medical Officers of Damodar Valley Corporation have come up in appeal against the order of the State Commission, West Bengal, directing the two Doctors to pay Rs. 2 lakhs each to the complainant. The first grievance of the appellants is that the order of the State Commission was passed ex parte against them, they were not served with any notice. It has been recorded in the order of the State Commission that DR. Subhasis Dhar and DR. Sanjoy Ghosh did not attend the Commission either in person or through their authorised representatives. In fact, notices were proposed to be issued to show cause why further penalty would not be imposed against them for not appearing before the Commission.

THE appellants'' case before us is that the husband of the complainant was an Engineer working at Chandrapura THErmal Power Station operated by Damodar Valley Corporation. THE complainant, Smt. Sanjukta Sengupta, started staying with her husband at the power station since 1983. In 1983 itself she developed certain bronchial problems which kept on increasing. She had breathing trouble and she consulted Dr. Samarendra Nath Bagchi. From the year 1985 the bronchial problem started increasing. On the advice of Dr. Bagchi she came to Dr. Subhasis Dhar the appellant No. 1 for treatment. In the year 1987 the complainant''s condition deteriorated. She left Chandrapura and came to Calcutta for further treatment. While at Calcutta her problems ceased and Dr. M.R. Chetri, when she consulted, opined that until and unless she came to Dr. Chetri in the aggravated and in a state of distress a proper medical assessment could not be made. Secondly, Dr. Chetri wanted the proper medical report of the treatment which was being given by Dr. Subhasis Dhar. Dr. Chetri also suggested that as her condition had improved in Calcutta she should leave Chandrapura where her condition had deteriorated because of the environmental pollution. THE complainant immediately after her return to Chandrapura in the year 1987 requested Dr. Dhar to furnish a report in detail regarding her problem and treatment which could be shown to Dr. Chetri for his expert opinion. THE allegation of the complainant was that in spite of all efforts and repeated requests Dr. Dhar did not prepare such report even up to 1993. In the year 1991 the complainant started suffering acutely. All her bronchial problems increased. Dr. Dhar assured her that she was receiving proper treatment and it would not be necessary to go to an expert. The only medicine prescribed by Dr. Dhar for the treatment of the complainant''s condition was ''Sedonel''.

In November, 1991, the complainant became seriously ill for which she was admitted to a hospital when Dr. Dhar for the first time changed some of the medicines, but Sedonel was continued to be given. After 12 days under Dr. Dhar''s treatment an X-ray was called for. It was at that stage the husband of the complainant took her to Calcutta and contacted Dr. Purnendu Sen who suggested a new prescription and also stated that the type of problem faced by the complainant was being caused by environmental pollution. After some time the complainant went back to Chandrapura. Her husband met Dr. Dhar and showed him the two prescriptions of Dr. Chetri and Dr. Sen and pointed out that Dr. Dhar was taking a view contrary to the view taken by the two eminent Doctors of Calcutta. At that Dr. Dhar became furious and did not pay any heed or attention to the prescription given by Dr. Sen. At that stage the complainant''s husband was transferred from Chandrapura to the headoffice at Calcutta, but in a very short span of time because of a conspiracy he was again transferred to Mejia Thermal Power Station of DVC. In the middle of August, 1993, the complainant became seriously ill and developed breathing problem. She consulted Dr. Sanjoy Ghosh, Appellant No. 2 at 12 O''clock in the night. The husband of the complainant brought her to the quarter of Dr. Sanjoy Ghosh. Dr. Ghosh asked the husband of the complainant to call one Mr. Bela from a nearby quarter who was an employee of the clinic of the DVC to open the clinic and in the meantime Dr. Ghosh promised to go to the clinic to examine the patient. In spite of the best efforts of the complainant''s husband all attempts to bring Bela to the clinic failed. Bela failed to go on the plea of headache. At 1 a.m. of 21.8.1993 Dr. Ghosh was apprised of the situation. He was also informed about the earlier prescriptions of Dr. Chetri, Dr. Sen and all prescriptions were shown to Dr. Ghosh. Dr. Ghosh made very rude remarks about the prescription given by Dr. Sen and Dr. Chetri and gave one injection, "Hydrecatisyne" which is usually given for bone problem and not for bronchial problem. The treatment did not give any relief to the complainant. The complainant''s husband''s request to keep the patient in the clinic for the night was refused. Finding no other alternative she was brought back to her quarter and the next morning the complainant''s husband requested Dr. Ghosh to arrange for an ambulance to shift the complainant to Bankura hospital. Dr. Ghosh''s reply was that such arrangements were not required. He advised that the complainant should not be removed anywhere. Over the next 3 or 4 days the condition of the complainant became worse and her husband removed her to Calcutta on 30th August, 1993. She was placed under treatment of Dr. Sen who saw the prescription of Dr. Ghosh and stated that proper treatment had not been given. A new prescription was given by Dr. Sen. Unfortunately, when the complainant came back to Mejia with her husband Dr. Ghosh saw the prescription given by Dr. Sen and advised the complainant not go to Dr. Sen or Dr. Chetri, but to see Dr. Sameer Gupta at Park Street, Calcutta for further treatment. The complainant remained under the treatment of Dr. Ghosh at Mejia where her condition deteriorated. New symptoms developed like acute pain in the chest. The throat was choked and acute pain was felt all over the body. The complainant''s husband came to Calcutta with the prescription of Dr. Ghosh, showed the prescription to Dr. Sen and Dr. Chetri. They started giving new medicines which were administered to the complainant and the complainant''s condition improved. Thereupon the complainant''s husband made a representation to the Chief Medical Officer, Damoder Valley Corporation against Dr. Ghosh. The complainant alleged that during the period 1983-94 she had been subjected to negligent and careless medical treatment as a result of which she suffered in health. She was a talented singer in her early days, but that talent was lost due to illness. The complainant lodged a complaint with the State Commission on 4th June, 1996. Date of hearing was fixed on 24th June, 1996 itself. Finding that no return of service was filed, the State Commission adjourned the case to 5th July, 1996. On that date Performa respondent No. 8, Chief Medical Officer, Damodar Valley Corporation, C.I.T. Complex, Maniktala Civil Centre, Calcutta- 5, appeared and prayed for time. Ultimately, the case was fixed for hearing on 18th July, 1996. When the case was taken for hearing on 18th July, 1996, the Advocate for Performa respondent No. 8 was present. The case was, however, adjourned to 1st August, 1996 and then again to 8th August, 1996.

THE grievance of the appellant is that this case was ultimately disposed of without hearing them and even without serving any notice upon them. THE case was principally against them and steps should have been taken to serve them directly. It appears that Dr. Dhar was posted to Chandrapura Power Station till 19th May, 1995. He was, thereafter, transferred to Durgapur THErmal Power Station in the State of West Bengal. THE notice sent to him at Chandrapur THErmal Power Station could not be served upon him at all or tendered to him for acceptance. No attempt was made to serve the appellant No. 1 at Durgapur where he was posted. Likewise, R. Ghosh, Appellant No. 2, joined Mejia THErmal Power Station in March, 1989 and in June, 1995 he was transferred to Maithon Dam in Bihar. No attempt was made to serve Dr. Ghosh at the new address where he was living and/or working. Dr. Ghosh was not informed about the various dates of hearings of the case. The point taken on behalf of the appellant is that the order of the State Commission should not have been passed without properly serving the appellants at their place of working. This point prima facie is not without merit. But, we do not propose to dispose of the case on this point. The real question in a case like this is whether there has been any medical negligence in treatment of the complainant on the part of the appellants. Unfortunately, no medical evidence was tendered by the complainant. The case has been disposed of on the basis of the certificates given by the eminent persons who were not medical men. One of the points made by the Dr. Ghosh, Appellant No. 2, is that the complainant was receiving more or less the same treatment from the appellants as was prescribed by the two Calcutta Doctors. On the second visit of the complainant to Dr. Sen the following medicines were prescribed by Dr. Sen which had been also prescribed by Dr. Ghosh. "1. Bricarex Expectorant. 2. Autrin. 3. Pellybion."

Dr. Ghosh also prescribed "Ventforte". The composition of the said medicine is : "(a) Theophyllin (b) Selbutamol."

Dr. Sen prescribed "Theoasthalin Forte" instead of Ventforte. The composition of Theoasthalin Forte is : "(a) Theophyllin (b) Seabutamol."

Dr. Purnendu Sen prescribed "Celestamine Tablet" as anti-allergic and steroid. The appellant No. 2 prescribed "Trexyl" as anti-allergic The appellant No. 2 also gave another medicine "Petasma" or "Zerosma" as preventive measure. The appellant No. 2 prescribed injections namely "Deriphyllin Plus Efcorlin". The composition of Efcorlin is "Hydrocortisone". Dr. Purnendu Sen prescribed "Celestamione Tablet" (Steroid used in emergency). The point made on behalf of the appellants is that the respondent received more or less the same treatment in Chandrapura and Mejia as she received from the Calcutta Doctors. The brand names of some of the drugs may have been different. The composition of those drugs was more or less the same. The appellants have emphatically denied the allegation about the alleged displeasure at the wrong treatment expressed by either Dr. Sen or Dr. Chetri. The main point made by the appellants was that the condition of the complainant was aggravated by industrial pollution at Chandrapura and at Mejia. When the complainant went to Calcutta she felt better. In fact, there has been no lack of care in treatment on the part of the two appellant Doctors. At one point of time she was referred to Dr. S.P. Gupta, M.D., F.R.C.P. for further advice and opinion. The complainant was also sent to Vellore for further treatment in the year 1995. The expenses for this borne by the D.V.C. It has further been argued that the appellants are not responsible for the transfer and posting of the husband of the complainant. There is no reason for holding the appellants negligent and there is no reason for passing directives to the appellants to pay large sums of money. The appellants are employees of D.V.C. Whenever an employee of D.V.C. falls ill he goes to the appellants for treatment. The appellants do their best and treat the patient according to their judgment as best as they can.

IT has further been stated that the complainant had also filed a writ petition before the High Court at Calcutta being C.O. 7971 (W) of 1995 on the same cause of action which was dismissed for default. No leave was obtained by the complainant from the Court to institute this complaint on the same cause of action. The case was disposed of by two separate and concurring judgments-one by the President of the Commission and the other by the two Members. The President in his judgment has written : "It has been alleged that a particular medicine, namely, ''Sedonel'', was not suitable for the petitioner. But, the physicians of the petitioner doggedly prescribed this medicine for her. Her prayer for reference to an expert was ignored. The result of the treatment was most unsatisfactory and conceivably it told upon her health and created a helpless sense of insecurity. A formal recommendation for treatment by an expert might have helped her tremendously. But, this was not available. It seems that pollution created by the plant of the Corporation was directly responsible for the injury caused to the petitioner''s health. The Doctors might not be responsible for it. But, a sympathetic attitude might have brought an immense change in the petitioner''s health, opposite parties 8 and 9 are therefore prima facie guilty of deficiency in service."

It has been stated by Dr. Subhashis Dhar, the appellant No. 1 that while the complainant was at Chandrapura she came to Dr. Dhar on five occasions for treatment. Dr. Dhar treated the complainant for an allergic manifestation as best as he could. It has been further stated by Dr. Dhar on affidavit that : "The allegations of the respondent No. 1 against the appellant No. 1 about wrong application of the medicine i.e. "Sedonel", is without any foundation and incorrect inasmuch as the respondent No. 1 has been suffering from Bronchial Asthma and Sedonel is the medicine to control and/or reduce the symptoms of bronchial asthma. It would be evident from prescription of Dr. Purnendu Sen, an eminent Doctor of Calcutta and which is also being strongly relied upon by the respondent No. 1 that "Sedonel" was also prescribed by Dr. Sen. The fact also shows that Dr. Purnendu Sen prescribed medicine for disease of bronchial asthma. The respondent No. 1 was sent to C.M.C. hospital, Vellore as a special case by the D.V.C. and sanction was accorded by the D.V.C. vide Memo No. G/A-8/91 (approval journey) /95-096 dated 23rd June, 1996. A copy whereof is annexed hereto and marked with letter ''H''. On or about 9th June, 1995, Dr. D.J. Christooner of C.M.C. Hospital of Vellore diagnosed the complainant No. 1 to have extrinsic allergic Asthma. A copy of the said certificate dated 9th June, 1996, is annexed hereto and marked with letter ''I''.

The case of the petitioner''s husband P.S. Sengupta has been stated in a letter dated 20th December, 1993, to the Chief Medical Officer, D.V.C. The subject matter of the letter is difference of opinion of Dr. M.K. Chetri and Dr. P. Sen with D.V.C. Doctors regarding treatment of Smt. S. Sengupta." It reads as under : "In the year 1983 when I was working in C.T.P.S. the breathing trouble of my wife started. She was being treated by Dr. S. Bagchi who diagnosed the case as bronchial asthma and being treated accordingly. But the trouble aggravated in spite of continuous treatment. The patient was taken to Dr. H.K. Chetri, a renowned physician in 1987 in my own interest. Dr. Chetri diagnosed the case as allergic bronchial asthma, triggered by environmental pollution and advised her to remain in dust-free area. He advised to convey his opinion to the attending Physician at Chandrapura. After that first attending physician Dr. S. Bagchi certified accordingly for a change to a better place.

While she was under treatment of Dr. S. Bagchi, I consulted Dr. S. Dhar also. The advice of Dr. Chetri was also conveyed to Dr. Dhar. He issued a medical certificate stating "undergoing treatment at C.T.P.S. Hospital in July, 1991. Once the condition became so acute that she has to be hospitalised. Ultimately the patient was brought to Calcutta to Dr. Purnendu Sen. Dr. Sen also diagnosed the case to be allergic bronchial asthma and advised a treatment with change of place to dust free area, which was advised by Dr. Chetri earlier. The prescription and advice of Dr. Sen had been shown to Dr. Dhar and he was requested to issue a medical certificate accordingly. At last after repeated requests he had given a certificate for a change of place, which in the opinion of Dr. Sen and Dr. Chetri should have been given earlier. I had been transferred to Calcutta for few months on the ground of my wife, and she was gradually recovering. In this condition again I was transferred to Mejia in June, 1993. The condition of the patient started deteriorating and once the condition of the patient became such that she was taken to Dr. S. Ghosh of Mejia T.P.S. at night. The prescription and certificates of Dr. Sen and Dr. Chetri and certificates of D.V.C. Doctors were shown to him, but Dr. S. Ghosh differed in opinion totally with that of Dr. Sen and Dr. Chetri and advised to consult Dr. Samir Gupta of Park Street, Calcutta. I have conveyed the opinion of Dr. Ghosh to Dr. Sen and Dr. Chetri. Being instructed by a few Doctors I am keeping you aware of the facts and as I had sent all documents previously to you I am not sending the same further. Lastly, I will request you once again to enquire about the matter." (PP 57-58). In another letter dated 24.7.1995 Mr. Sengupta, husband of the complainant written to the Director of the Medical Services (CMC), D.V.C. Calcutta for his transfer to Calcutta for continuation of medical treatment of his wife. In that letter he wrote : "Sir, I would like to inform you most respectfully that my wife is suffering from respiratory problem for long years. As advised by Dr. P.B. Bose (Dy. Director of Medical Service, D.V.C, Calcutta) I had gone to Dr. S.K. Gupta. Dr. S.K. Gupta and Dr. M.K. Chetri had advised me to go to C.M.C.H., Vellore for medical treatment of my wife, which is in the knowledge of Dr. P.S. Bose, D.V.C., Calcutta. Treatment related papers of Vellore dated 8.6.1995, medical certificate of Vellore dated 9.6.1995 and medical certificate of Dr. S.K. Gupta dated 27.6.1993 are enclosed herewith. As the patient is now in severe stage it will be helpful for me if proper steps are taken immediately to transfer me Calcutta so that I can continue the treatment of my wife (p. 65). It appears that the complainant was sent to C.M.C.H., Vellore. From the Discharge Summary dated 8.6.1995 given by the hospital at Vellore the petitioner''s problem has been noted as ''acute allergic asthma'' which reads as under :

"History of presenting complaint : 36-year-old female is known allergent to ash. Her 1st symptoms occurred in 1983 in Bihar where she developed progressively severe attacks of breathlessness, when she was exposed to non-organic dust/(fly ash, coal dust) from 1990 she has had increasing symptoms of the same disease. She was treated with intermittent steroids since 1993 with Bacoride forte, D.S.C.G., Wysolone, Beclate with absolutely no prophylactic relief. However, in areas with no coal dust, ash she feels perfectly fine.'' (p. 66) It was further stated in the discharge certificate :

"Discussion : 36-year-old female, a known case of acute allergic bronchitis (allergent to fly ash, coal dust) was admitted for evaluation she develops the acute s/s of wheezing while staying in the factory where her husband works. She is absolutely symptom-free when she stays in places not exposed to allergens. For her wheezing s/s, she is being put on Tab. Deriphylline, Becoride forte and salbutamol inhaler. During her hospital stay, all investigations were normal. She is advised to shift her residence from the current place to a place where exposure to allergy can be avoided. Recommendations :

Tab. Deriphylline Retard 300 mg. twice daily Becoride forte 2 puffs twice daily by spacehaler Salbutamol inhaler 2 puffs whenever needed Advised to change site of residence to a place free of allergies." (p. 67) Two more medical certificates have been annexed by the complainant in the complaint. They are given by Dr. S.K. Gupta dated 27.6.1995, 29.11.1995. In the first certificate dated 27.6.1995 it has been certified that : "To whom it may concern This is to certify that Mrs. Sanjukta Sengupta, aged 55, resident of D.V.C. quarters, Mejia is under our treatment and is suffering from severe allergy of the upper and lower respiratory tract with bronchial asthma. She should not expose herself to fly-ash dust, environmental pollutants, long journeys and polluted areas. She should immediately seek a change in residence and environment from Mejia alongwith her husband for the next five years in order to recover. She should be periodically re-evaluated for her lungs problem at our clinic."

(P-70). And in the 2nd certificate dated 29.11.1995 it has been stated that : ''To whom it may concern. This is to certify that Mrs. Sanjukta Sengupta, aged 55 years, wife of Mr. P.S. Sengupta of D.V.C. now posted at Mejia has been under my care for several months now. Besides her respiratory problems, she also has gross valvular lesion of heart. Though she is keeping well in Calcutta. She has recently a life-threatening attack of respiratory allergy, causing shocking and respiratory distress. Only after staying a few hours at Mejia, I strongly recommend her not to visit Mejia again. Since separation from her husband has caused mental problems and deterioration in her clinical condition, I feel that the case may be considered sympathetically for transfer of her husband to a more congenial environment." (P. 69) On 23.12.1995 the complainant once again saw Dr. Gupta who prescribed certain medicines for her and directed to go after 15 days. From this prescription of Dr. Gupta it appears that the complainant was receiving treatment from Dr. Gupta. In that prescription Dr. Gupta had also recommended, "the patient is strongly recommended that patient may travel to Vellore, C.M.C. where she had some cardiac operation a year ago. She is now fit to travel to Vellore". Neither in the discharge certificate given by C.M.C. Vellore nor in the prescription of Dr. Gupta there is any suggestion that the treatment given to the petitioner by the two appellants was wrong. The bronchial condition of the complainant was caused by fly-ash dust and other environmental pollutants. If the complainant continued to stay in polluted areas her allergic condition was likely to deteriorate. This was the basic problem according to all the doctors. No medical witness was examined to show that the treatment given by the D.V.C. doctors was wrong. Even if it is assumed, for argument''s sake, that the D.V.C. doctors did not prescribe the same medicines which were prescribed by the three Calcutta doctors, it cannot be concluded that it was a case of medical negligence. It appears that the three Calcutta Doctors did not prescribe identical medicines. Without proper medical evidence it would be wrong to conclude that the two D.V.C. doctors had given wrong treatment and wrong medicines to the complainant. The complainant on the one hand says that her allergic conditions were brought about by industrial pollutants of the places where her husband was posted on the other hand, her complaint is that her condition deteriorated because of lack of proper treatment by the D.V.C. doctors. But, both Dr. Gupta and the doctors at C.M.C. Hospital, Vellore, recommended the complainant to stay at a pollution free place. Neither Dr. Gupta nor the C.M.C. Hospital doctors at Vellore suggested that the treatment that was being given was wrong or with better treatment she could continue to stay at polluted atmospheres like Chandrapura or Mejia Thermal Power Stations. We are of the view that the two appellant doctors should not have been held guilty of giving wrong treatment without some medical evidence to that effect. We have not been shown any expert medical opinion that the treatment given and the medicines prescribed by the two appellants were wrong. Even if it is assumed that the two appellants had erred in their judgment, it cannot be held straightaway that there was medical negligence or deficiency of service. The complainant''s problem was that her husband was posted at Thermal Power Stations.

THERE is another baffling aspect of the case. The complainant first saw Dr. Bagchi for her allergic problems, who referred her to the 1st appellant. Obviously, she did not get any relief from the treatment given by Dr. Bagchi. THEREupon, she saw the appellant No. 1 at the suggestion of Dr. Bagchi. While receiving treatment from appellant No. 1 and thereafter from appellant No. 2, she saw two eminent doctors at Calcutta. She could have taken the medicines prescribed by them, particularly, Dr. Sen. It is not explained why after getting a prescription from Dr. Sen, she continued with the medicines prescribed by the appellant No. 2.

HE certificate in favour of tHE complainant was issued by Prasanta Kumar Sur, a former Minister of tHE State of West Bengal who has no medical qualification and also by Ananda Shanker, Tanusree Shanker, Madhabi MukHErjee, Swarup Dutta, Jochhan Dastidar, KHEyali Dastidar, Amitava Chowdhury and Sankha Ghosh. All tHEse persons are well known figures in tHE fields of Cinema, Arts and Culture. But none of tHEm is a doctor. THE complainant however lodged a complaint with tHE Medical Council of India (West Bengal Branch) against tHE two appellants. However, tHE Medical Council of India did not pursue tHE matter. From the evidence brought on record it is not possible to hold that either of the two appellants were guilty of medical negligence or deficiency in service in the treatment to the complainant.

The complainant''s husband was working as Senior Divisional Engineer at Chandrapura Thermal Power Station. Mr. Sengupta was a qualified engineer and was appointed as such by the D.V.C. to work as an Engineer at their Thermal Power Stations. He was posted at Chandrapura and then transferred to Mejia. There is no Thermal Power Station of D.V.C. at Calcutta. If Mr. Sengupta had to be posted at Calcutta it had to be on some administrative capacity at the Calcutta Office. Although there is a suggestion of conspiracy in not posting Mr. Sen Gupta at Calcutta, we do not find any factual basis for this allegation. In any event, the two doctors could not have been parties to such administrative decisions.

WHETHER to take away the complainant''s husband from the Thermal Power Station and post him in some administrative post is a decision to be taken by the D.V.C. on administrative grounds. The allergic condition of the wife might have been a ground for the D.V.C. to transfer Mr. Sengupta to Calcutta or some other pollution- free place. But, it had to be an administrative decision. Having taken the job as an engineer to work in Thermal Power Station Mr. Sengupta cannot be heard to say that he should not have been retained at a Thermal Power Station because the pollution created by a Thermal Power Station was having ill-effect on his wife''s health. The suitability of Mr. Sengupta for any post other than the post of an Engineer is not known but, it is entirely an administrative decision. In any evident Mr. Sengupta is not a complainant before us. In fact the question of posting and transfer of an employee cannot be raised before this Commission. WHETHER Mr. Sengupta should have been transferred to Calcutta on humanitarian ground is also not a question fit for decision before this Commission. The only question is whether there was any deficiency of service in the treatment of Mrs. Sengupta by the two D.V.C. doctors, the appellants herein. We are of the view that the complainant has failed to prove her case of deficiency of service against the two appellant doctors.

THERE is yet another point which we need not decide in the facts of this case. As an employee of the D.V.C. the petitioner''s husband and his wife were entitled to free medical treatment. The contention of the appellants is that the complainant cannot be treated as a consumer in such circumstances. In view of the decision taken by us on merits, we need not decide this point in this case. The appeals, therefore, succeed. The order of the State Commission is set aside. The complaint is dismissed. There will be no order as to costs. Appeal allowed.