BEFORE THE STATE CONSUMER DISPUTES REDRESSAL

COMMISSION, ODISHA: CUTTACK

R.P. Case No. / 2018

IN THE MATTER OF:

An application under Section 17(b) of the Consumer

Protection Act, 1986.

And

IN THE MATTER OF:

Tanulata Mohanty, aged about 68 years, W/O- Sri B.B.

Mohanty, Plot No. A/L-118, VSS Nager, P.O/P.S-

Sahid Nager, Bhubaneswar- 751007, Dist- Khurda,

(Senior Citizan Redg No. 54).

---- Petitioner

( Complainant in Forum Below)

Versus
1. Dr. Gautam Panda, Eye Specialist, Regn No.
10648 (Orissa) of Kalinga Hospital Ltd, At-
Chandrasekharpur, P.S.- Chandrasekharpur,
Bhubaneswar, Dist- Khurda
2. Kalinga Hospital Ltd,Bhubaneswar
Chandrasekharpur, P.S.- Chandrasekharpur,
Bhubaneswar, Dist- Khurda, through its managing
Director
---- Opp.Parties
(Respondents in Forum Below)
 - 2-

The humble petition of the

petitioner above named

MOST RESPECTFULLY SHEWETH:

1. That in this revision petition the petitioner challenges the order Dt.

05.05.2018 in C.D. Case No. 226/2014 passed by the learned

District Consumer Dispute Redressal Forum, Khurda, Bhubaneswar

in directing the petitioner/complainant to take appropriate steps for

obtaining medical expert opinion relating to the alleged medical

negligence at own cost for hearing of the case,while the matter is at

the verge of final disposal.

2. That the brief fact of the case as alleged by the complainant in the

complaint case filed before the learned District Consumer Forum is

that on 18.06.2013 at 9 AM the complainant, visited Kalinga Hospital

Ltd for consultation on the problem in her left eye. Dr. Gautam Panda

checked the eye of the complainant and advised for instant “retina

detachment” surgery on the same day otherwise the patient would

loose vision for all the times. Dr. Gautam also told that Rs. 20.000/-

to Rs. 21,000/- will be required for the surgery and the patient would

be discharged within 3 to 4 hours after surgery. On such advice of

Dr. Panda the complaint agreed for surgery and Rs.21, 000/- was

deposited on 18/06/2013 before hospital authority as indoor

advance. But no such estimate of package on expenditure for

surgery or any guidelines in shape of booklet/leaflet or brochure in

support of it was given by the respondents. After deposit of above

 - 3-

money the complainant was sent to Bed No.172 Ward No. C-II, her

regn. No. and IPD No. was 259418 dated 18.06.2013 and 92092

dated 18.06.2013 respectively. Then she was sent to OT at about

7.30 PM which was after 10 hours from consultation time. From OT

she was carried to ICU in critical conditions at mid night of

18.06.2013 and the whole night and whole day of 19.06.2013 she

remained in the OT and ICU. For next two days i.e. 20.06.2013 and

21.06.2013 also she was shifted to Bed No. 172 in the same

Hospital. In such a critical conditions the complainant remained for 4

days in the aforesaid Hospital. Therefore Dr. Gautam Panda is solely

responsible. Complainant further alleged that besides deposit of Rs.

21,000/- on 18.06.2013 as told by Dr. Panda he was compelled by

the patient relation department of the Hospital to deposit further

amount of Rs. 44,816/-. Accordingly the said amount was deposited

before the hospital authority. Retina detachment surgery was not

successful and the cornea was inactive due to wrong method of

operation undertaken by Dr. Panda. Besides that after discharge

Dr. Panda continued follow up treatment for a further period of one

and half month but he did not confess his negligence but the same

was detected on 25.7.2017 and 5.8.2013 at KIMS Hospital,

Bhubaneswar and Aditya Jote Eye Hospital Pvt Ltd., Mumbai. True

copy of the complaint petition is annexed herewith and marked as

Annexure- 1.

3. That after notice was issued by the court below the opposite

parties/respondents appeared through their counsel and filed the

 - 4-

written version substantially denying the alleged story of the

complainant and stating there in that the case is not maintainable in

law as well as on facts; allegation against the complainant is not

supported by any opinion of a qualified medical expert and having

been filed without support of any expert medical opinion from any

recognized expert of the specialty being Ophthalmology and without

citing any scientific paper and clear specification of nature, quality

and quantity of negligence of deficiency in services not provided by

the opposite parties/respondents to the complainant. Further stated

the complainant has filed this complaint making false and vexatious

allegations and claiming an exorbitant amount of compensation

without any justifiable basis for making such claim to harass and

defame the opposite parties who have not committed any negligence

in treatment of the complainant or in providing the necessary

infrastructure and facilities for the said treatment. The copy of the

separate reply (written version of opp-parties) dated 27.01.2015 and

28.01.2015 are filed herewith and marked as Annexure-2 series.

4. That the petitioner in response to the counter submitted by the opp-

parties submitted a rejoinder. The copy of the rejoinder affidavit Dt.

08/04/2015 is filed herewith as Annexure-3

5. That while the matter was pending thus for final adjudication the

Opposite parties/Respondents on some mis-statement filed two

separate petitions vide petition dated 27.07.2015 and 07.09.2015

with same prayer for sending the case record for expert medical

opinion relating to the alleged medical negligence. The copy of the

 - 5-

petitions dated 28.07.2015 and 07.09.2015 are filed herewith and

marked as Annexure-4 series.

6. That the petitioner submitted his reply to the said petition objecting

such prayer for sending the case record for expert’s opinion. The

copy of the said objection dtr 22/06/2016 is filed herewith as

Annexure-5

7. That the learned Forum below on an erroneous view allowed the

said petition by the directing the complainant/petitioner to take

appropriate steps for obtaining medical expert opinion relating to the

alleged medical negligence at his own cost for hearing of the case.

The free copy of the order dated 02.05.2018 passed in C.D.Case

No.226/2014 passed by the learned District Consumer Disputer

Redressal Forum, Khurda, Bhubaneswar is filed herewith and

marked as Annexure-6.

Being aggrieved by the order Dt. 02.05.2018 in

C.D. Case No.226 / 2014 passed by the learned
District Consumer Dispute Redressal Forum,
Khurda, Bhubaneswar the petitioner prefers to
move this Hon’ble Commission on the following
amongst others;

GROUNDS

A. For that the order passed by the learned District Consumer

Forum Khurda, Bhubaneswar is illegal, arbitrary, whimsical and

passed without application of proper judicial mind.

 - 6-

B. For that the learned Forum below has reached a wrong

finding without going in to the facts of the case to entertain the

petition filed by the opposite parties.

C. For that the learned forum has committed gross illegality in

passing an order directing the complainant/petitioner to take

appropriate steps for obtaining medical expert opinion relating to the

alleged medical negligence at own cost instead of hearing of the

case while the petitioner had already submitted his rejoinder affidavit

much prior to filing the said petition as in Annexure-3. When the

matter was ready for final disposal.

D. For that the learned forum committed a wrong when the

complainant has specifically stated that the Opp-parties have not

followed due procedures before retina detachment surgery of the

complainant which amounts to clear violation of the medical council

of ethics. Thus the opposite parties/respondents have

misrepresented the court on some falsehood to snatch out an order

from the court.

E. For that before coming to any finding the learned Forum

should have come to any finding as to whether the opposite parties

have any right to claim for medical expert opinion in this case, where

the complainant has specifically denied in her rejoinder affidavit

about the necessity of expert opinion and proved through

documents that medical negligence was committed during her

treatment. As such lack of any such finding proves the order is

illegal and not in consonance with law.

 - 7-

F. For that on the nature of claim, the allegation made by the

opposite parties does not warrant the justification of entertaining the

petition filed before the learned Consumer forum for expert opinion at

such a belated stage.

G. For that the learned forum has exercised a jurisdiction not

vested in it but passed such illegal order against the petitioner for

obtaining medical expert opinion relating to the alleged medical

negligence at own cost for hearing of the case. As such the same is

liable to be set aside.

H. That the complainant has adopted dilatory tactics to protract

the litigation with some mischievous intention only to delay in

disposal of the case before the learned Forum below.

I. For that since the present petitioner has already filed it’s

rejoinder affidavit against the written version filed by the opposite

parties the learned forum should have considered the same and

should have rejected the prayer of the opposite parties/respondents.

As such the order is liable to be set aside.

J. For that the order of the forum below is a cryptic one and

absolutely non-est in the eye of law when the same is passed on

surmise and conjecture.

K. For that there are other grounds which will be urged at the

time of hearing.
 - 8-

PRAYER
It is therefore prayed that your honour would be

graciously be pleased to admit the case, call for LCR and after

hearing be pleased to quash/set aside the order Dt. 02.05.2018 in

C.D. Case No. 226 / 2014 passed by the learned District

Consumer Dispute Redressal Forum, Khurda, Bhubaneswar.

And for this act of kindness the appellant as in duty bound shall

ever pray.

Cuttack by the appellant through

Dt.04.06 .2016

Advocate
AFFIDAVIT

I, Tanulata Mohanty, aged about 68 years, W/O- Sri B.B.

Mohanty, Plot No. A/L-118, VSS Nager, P.O/P.S- Sahid Nager,
Bhubaneswar- 751007, Dist- Khurda, (Senior Citizan Redg No.
54),do hereby solemnly affirm and state as follows:-

1. That I am the petitioner in this Revision petition and

acquainted with the fact of this case.
2. That the facts stated above are true to the best of my
knowledge and belief.
Identified by

Advocate Deponent
(Sevati Soren)
Date: 25.05.2018
Certificate
Certified that due to want of Cartridge Paper, thick white paper has been used

in this case.
 - 9-

Cuttack
Date:25.05.2018 Advocate

BEFORE THE ORISSA STATE CONSUMER DISPUTE

REDRESSAL COMMISSION, CUTTACK

Misc case No 2018

(Arising out of RP .No. /2018)

IN THE MATTER OF :
An application for stay operation of the order Dt
passed in CD Case NO 226/2014 by the District
Consumer Dispute Redressal Forum, Khurda,
Bhubaneswar.

And
IN THE MATTER OF:
Tanulata Mohanty ---- Petitioner
Versus

Dr. Gautam Panda & another --- Opp. Parties

The humble Petition of the

petitioner above named

Most Respectfully Sheweth:

1. That the petitioner has filed the aforementioned Revision

petition challenging the order Dt. 05.05.2018 in C.D. Case No.

226/2014 passed by the learned District Consumer Dispute

Redressal Forum, Khurda, Bhubaneswar in directing the

petitioner/complainant to take appropriate steps for obtaining medical

 -10-

expert opinion relating to the alleged medical negligence at own cost

for hearing of the case. While the matter is ready for final disposal.

2. That to avoid repetition the contents of the aforementioned

revision petition may be treated as a part of this petition.

3. That the order is passed without following the proper

procedure and on non application of mind when the

petitioner/complainant has specifically proved that medical

negligence was committed by the Doctor for her treatment.

4. That the learned forum is unjustified in directing for the

petitioner to obtaining medical expert opinion relating to the alleged

medical negligence when the same is proved by the petitioner in her

documents.

5. That unless the order passed by the learned Forum below is

stayed the petitioner will sustain irreparable loss and injury.

PRAYER

It is therefore prayed that this Hon’ble Commission may be

graciously pleased to pass an appropriate order of stay operation of

implementation of the order Dt 02.05.2018 passed in C.D. Case NO

226/2014 passed by the Learned District Consumer Dispute Redressal

Forum, Khurda, Bhubaneswar till disposal of the Revision petition.

And for this act of kindness the petitioner as in duty bound shall

ever pray

Cuttack By the petitioner through

Date: 25.05.2018 Advocate

 -11-

AFFIDAVIT

I, Tanulata Mohanty, aged about 68 years, W/O- Sri B.B.

Mohanty, Plot No. A/L-118, VSS Nager, P.O/P.S- Sahid Nager,

Bhubaneswar- 751007, Dist- Khurda, (Senior Citizan Redg No.

54),do hereby solemnly affirm and state as follows:-

1. That I am the petitioner in this Revision petition and

petitioner in this misc case and acquainted in this case.

2. That the facts stated above are true to the best of my

knowledge and belief.

Identified by

Advocate Deponent
Date: 25 .05.2018

Certificate

Certified that due to want of Cartridge Paper, thick white paper has

been used in this case.

Cuttack

Date: 25.05.2018 Advocate