SABYASACHI BHATTACHARYYA,J. - (1.) Affidavit-of-service filed in court today be kept on record. The grievance of the writ petitioner is that the West Bengal Clinical Establishment Commission acted without jurisdiction in re- affirming its order dated July 4, 2019 whereby a compensation of Rs.5 lakh was directed to be paid by the petitioner hospital to the parents of a child, who met with her unfortunate death during her stay and treatment in the hospital.
(2.) Learned counsel for the petitioner argues that the Commission merely has power and assumes jurisdiction upon adjudication as to whether there was any medical negligence. In the absence of such adjudication, the Commission does not have any authority or power to pass an order of compensation. In this regard, learned Counsel cites the provisions of Section 38(1)(iii) of the West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017 (hereinafter referred to as the '2017 Act'). By placing reliance on the said provision, it is argued that an adjudication has to precede the passing of an order of compensation by the Commission. In this regard, learned Counsel also cites a judgment reported at (2009)9 SCC 221 (Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and others), in particular paragraphs 137 and 157 thereof. It is argued on the strength of the said decision that the yardsticks of deciding on medical negligence or deficiency of service, which were to be adopted by courts, were categorically set forth in the said judgment and it was also observed that the individual liability of the doctors and hospitals must be judged on those criteria.
(3.) It is submitted that, in the present case, although the petitioner/hospital categorically alleged subsequently that no concession was given by the hospital on July 4, 2019, which will also be reflected from the written arguments filed on behalf of the petitioner/hospital before the Commission, the Commission incorrectly recorded a concession having been offered by one Dr. Joydeep Bhattacharjee, to pay the sum of Rs. 5 lakh, and subsequently refused to revoke the said order even upon a specific application in that regard being made by the petitioner.;