LAXMAN DAS Vs. ASHIT BARAN KAR
LAWS(TNCDRC)-2008-9-22
TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Decided on September 01,2008

LAXMAN DAS Appellant
VERSUS
Ashit Baran Kar Respondents

JUDGEMENT

- (1.) WE have heard Mr. B.K. Bhattacharyya, learned Counsel for the appellant. Neither the respondent nor his Counsel is present today. There is no prayer for adjournment.It may be noted here that on 30.7.2008 this Commission heard Mr. Guha, learned Counsel for the respondent.
(2.) THIS appeal has called into question correctness and validity of the judgment dated 28.2.2008 rendered by the District Forum,West Tripura, Agartala in CC -34 of 2006 dismissing the complaint and the claim of the appellant for compensation. Before adverting to the issues raised in this appeal we may briefly notice the material facts. The appellant had taken his wife to Dr. Asit Baran Kar, the respondent herein, on 1.10.2005 for termination of pregnancy of his wife, the reason being that they had already two issues and so were unwilling to go for the third. The deceased wife was operated upon by the respondent with the help of his assistants. She was discharged thereafter. But she had bleeding pain and other problems. Her condition did not improve even after a month, she had also high fever. She was again brought to the respondent on 5.11.2005 after a brief examination by one Dr. Chayan Bhattacharjee on that day. The respondent examined her again and opined that there was a second child in her womb. He advised for a second termination which the appellant agreed to. The second termination was done on 5.11.2005 following which the condition of the patient fast deteriorated following profuse bleeding. She had to be admitted to IGM Hospital on the following day and then shifted to G.B. Hospital on 8.11.2007. But even after another operation in G.B. Hospital she could not be saved. On 13.11.2005 she breathed her last. The appellant felt aggrieved for inept handling by the respondent. So, FIR was lodged by the appellant in the West Agartala Police Station alleging that the death of his wife was due to negligence on the part of the respondent herein who was an Ayurvedic physician having no experience in surgery. The case was investigated and prima facie materials against the accused person were found. Accordingly, criminal trial ST 4I (WT) A of 2006 was set in motion in the Court of Asstt. Sessions Judge, West Tripura,Agartala. Several witnesses including the appellant herein were examined by the prosecution the case is yet to be concluded. Simultaneously the appellant instituted a complaint case for compensation against the respondent herein on the ground of medical negligence. Before the District Forum the appellant examined him alone and adduced certified copy of the deposition of witnesses examined by that criminal Court. Postmortem report, FIR and copy of the charge -sheet were placed on record. But the respondent chose not to adduce any evidences.
(3.) THE learned District Forum closed the claim on the basis of the materials on record recording an observation that in the absence of more cogent evidence it would be difficult to record a finding that the respondent was guilty of medical negligence. The District Forum further observed that according to the opinion expressed in the post mortem report the injuries found in the uterus of the deceased were 4 to 6 days' old . The autopsy was done on 13.11.2005 and, therefore, the District Forum observed that the injuries must have been not earlier than 8.11.2005. The specific allegation is that the respondent had done the second abortion on 5.11.2005. Therefore, it is difficult to say that the injuries mentioned in the post mortem were those caused during abortion done on 5.11.2005 by the respondent. Proceeding from that angle the District Forum dismissed the claim. Aggrieved the present appeal has been preferred. After carefully going through the complaint, certified copy of the deposition of the witnesses examined before the Criminal Court as well as the post mortem report, we find no reason to take a view different from the District Forum. No independent evidence has been placed on record by the appellant to enable the District Forum to take a definite view that apart from the injuries which were responsible for the death of the deceased the respondent was medically negligent for other reasons. In other words, without going into the question whether the injuries found on the body of the deceased were caused by the second miscarriage allegedly done by the respondent, the question of any other negligence on the part of the respondent calling for compensation against him could not be distinctly pressed. It is submitted by Mr. Bhattacharyya that he has no information about the fate of the Sessions trial. This information is very much necessary as the outcome of the said proceeding and observations of the Criminal Court, if any, about criminal liability of the respondent would be very much relevant to sustain a claim for compensation. Viewed from this angle we can safely say that the claim of the appellant, built on the allegation that his wife died due to medical negligence by the respondent, cannot be decided by us for the reason that similar question is under consideration of a Criminal Court . At the same time we hasten to add that a separate proceeding for compensation could be simultaneously preferred before the District Forum if the subject matter of the criminal proceeding could be delinked from the question of other medical negligence for the purpose of compensastion.;


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