D.O.F. 30.10.2009

D.O.O.27.03.2012

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Dated this the  27^th day of March, 2012.

C.C.294/2009

K. Sapna,

W/o. Madanan,

Madhuban, Keezhanthimukku,

Thiruvangad P.O.,

Thalassery – 3.

(Rep. by Adv.Vijesh Babu C.M.)

1. Dr. Latheesh Kumar, BAMS,

    Santhigiri Nursing Home,

    Chirakkara, Tellicherry,

    Kannur.

(Rep. by Adv. C.R. Rajendran)

2. Santhigiri Ayurveda and Sidda Nursing Home,

     Santhigiri Ashram,

     Pottankode, Trivandrum.

(Rep. by Adv. G.P. Gopalakrishnan)

3.  Karthyayani,

     Santhigiri Nursing Home,

     Chirakkara, Thalassery,

     Kannur.

(Rep. by Adv. C.R. Rajendran)

ORDER

Present : Sri. K. Gopalan, President.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the 1^st and 2^nd opposite parties to return `19,000 collected for treatment and a sum of  ` 50,000 as compensation with a further direction to 2^nd and 3^rd opposite parties to pay  ` 50,000 towards damage caused on account of spreading defamation.

          The case of the complainant in brief are as follows : Complainant approached 2^nd opposite party at Chirakkara, Thalassery Santhi Giri Nursing Home and made consultation for treatment of pain developed on her knees. After check up 2^nd opposite party made believe the complainant that it will be cured, completely within 15 days by ‘panch karma’ treatment and taking medicines produced by 2^nd opposite party which are prescribed by him.  Believing the words of 1^st opposite party he started treatment paying full amount.  In spite of taking all the medicines and treatment for 15 days and thereafter the illness and knee pain increased day by day and after the expiry of 1 ½ month, on 20.06.09 the complainant became totally bedridden and unable to move anywhere.  She could not even bend her legs.  But 1^st opposite party was going on saying that she will be alright soon, by prescribing more and more medicines. On 20.05.2009 because of unbearable pain suffered by her 1^st opposite party was contacted by her husband over phone but he disconnected the same.  She was then taken to 2^nd opposite party Nursing Home, from where they were told to meet 1^st opposite party at his residence.  But when she was taken to him at his residence 1^st opposite party started scolding them and shouted to go out of the compound.  At last she was taken to another Ayurvedic Physician of Kottakkal Arya Vaidya Sala.  She was examined by him and opined that the treatment done by 1^st opposite party was wrong and the dharas which cost 3750 was quite unnecessary for the knee pain. Complainant had to start treatment afresh under Dr.N.P. suresh and now she is almost in a normal condition.  1^st and 2^nd opposite parties are bound to return the amount of treatment and compensation.  Hence this complaint.

          Pursuant to the notice opposite parties entered appearance and filed version.  1^st and 3^rd opposite parties jointly and 2^nd opposite party separately filed version.  The brief contents of the contentions of 1^st and 3^rd opposite parties are as follows :  The complainant approached 1^st opposite party with pain and swelling in almost all joints especially in both knee. It is false to say that she was made believe that the complainant would be cured completely within 15 days by panchakarma and with medicine manufactured by 2^nd opposite party. It is also false that her illness increased day by day and totally bed ridden after 1 ½ months treatment.  It is true that complainant consulted 1^st opposite party with the complaints of pain and swelling in almost all joints especially in both the knee joints with sleeplessness. As per the words of the complainant the symptoms started before three years and underwent allopathy treatment.  They diagnosed it as rheumatoid arthritis. Subsequently she had undergone for some Ayurvedic treatment at some different places but no progress.  This opposite party advice Abbyanga, Alakkizhi and Pizhichil and advice Sirodhara for sleeplessness along with the other medicines. The patient was treated as impatient from 07.05.09 to 21.05.09.  During the said period complainant requested to go home, which is very near to hospital, in the evening time because two small children were alone at the complainant’s house.  She was allowed to go. After the completion of inpatient treatment the complainant got symptomatic relief and the complainant was very happy at the time of discharge. After 10 days complainant consulted again 1^st opposite party. At that time it was seen the complainant got very much relief.  She was given advise to take internal medicine for 6 months and restricted her from doing hard work, traveling and not to take vegetarian and oily food during the period of treatment.  Thereafter 1^st opposite party did not see her.  There was no negligence or deficiency of service on the part of these opposite parties.  Hence to dismiss the complaint.

          2^nd opposite party contended as follows :  Complainant was treated as an inpatient from this opposite party’s nursing home from 07.05.09 to 21.05.09. Opposite party had collected a total sum of ` 13,000 from the complainant towards the inpatient treatment expenses but it is false that complainant had paid ` 6000 for purchasing medicine from opposite party.  The allegations of complainant regarding the illness, the incident alleged to have taken place on 20.06.09 etc are all unfounded and denied.  Opposite party No.3 is a very old lady who is more than 80 years old and she is not a staff of this hospital.  As and when the 2^nd opposite party requires the assistance in puncha karma Therappy the 3^rd opposite party was called.  Remuneration to her would be paid then and there.  This opposite party sent reply to lawyer notice for and on behalf of 1^st and 3^rd opposite parties also.  There is no deficiency in service on the part of this opposite party and not liable to pay any compensation.  Hence to dismiss the complaint.

          On the above pleadings the following issues have been taken for consideration.

1.     Whether there is any deficiency in service on the part of opposite party?

2.     Whether the complainant is entitled for the relief as prayed in the complaint?

3.     Relief and cost.

The evidence consists of the oral testimony of PW1, DW1 and Ext.A1 to A5, Ext. B1 and B2.

Issues No.1 to 3 :

          Admittedly complainant underwent treatment on inpatient Santhigiri nursing home in the month of May from 07.05.2009 to 21.05.2009.  Complainant’s case is that inspite of taking all the medicines and treatment for 15 days and even thereafter, the illness and knee pain increased and ultimately bedridden within a period of 1 ½ month.  On 20.06.09 when she was taken to 1^st opposite party, treating doctor, he did not even care to see her, instead started scolding and shouted to go out.  Then she was taken to another doctor Dr. N.P. Suresh, another Ayurvedic Physician.  After examination he opined that the treatment done under 1^st opposite party were all wrong and the dhara was quite unnecessary for the knee pain. After the treatment under him she is almost in a normal condition.  Complainant alleges that 1^st and 2^nd opposite party has applied unfair trade practice and done deficiency in service and caused mental agony with financial loss.  Opposite party on the other hand contended that the complainant approached in May, 2009 with complaint of pain and swelling in almost all joints especially in both the knee joints.  She was treated as inpatient from the hospital from 07.05.2009 to 21.05.2009.  After the completion of the inpatient treatment the complainant got symptomatic relief and she was happy at the time of discharge.  After 10 days again consulted and found she had much relief. 1^st opposite party specifically contended that he did not give any promise to cure the disease like Rheumatoid Arthitis within a limited period.

          Ext.A1 prescription proves that the complainant had been undergoing treatment of 1^st opposite party from 07.05.2009 to 21.05.2009 which is an admitted fact. Ext.A2 shows that complainant paid ` 13,000 to 2^nd opposite party/ Nursing Home. It is also an admitted fact.  Complainant had the case that an addition of amount of 6000 also had been paid but no receipt is seen produced.

          The first allegation of the complainant is that the 1^st opposite party / doctor assured him that her disease would be cured within 15 days and upon those assurance she started the treatment. Opposite party denied the allegation and contended that as per the words of the complainant the symptoms started before 3 years as slight pain and swelling in both knee joint and gradually progressed affecting other joints also.  Ext.B2 goes to show that it is recorded also.  The case history further seen recorded in Ext.B2 that it affected gradually to other joints also and she underwent allopathic treatment.  They diagnosed it as scheumatoid arthritis.  She undergone some Ayurvedic treatment at different places and the result was the same. But PW1 denied in cross examination she was having knee pain before 3 years. She has also deposed that before consulting 1^st opposite party she has not undergone any allopathic treatment. PW1 deposed in her cross examination that “cà-hmXw ]qÀ®-ambn kpJ-s¸-Sm¯ Akp-J-am-sW¶v Rm³ a\-Ên-em-¡n-bn-«p-­v. AXn\v Ønc-ambn acp¶v Ign-¡-W-sa¶v a\-Ên-em-¡n-bn-«p-­v.  ]Yyw ]men-¨n-sÃ-¦n AkpJw amdn-sö Imcyw F\n-¡-dn-bmw.  hS-I-c-bn-ep-ff kptcjv tUmIvSÀ Ct¸mgpw Fs¶ NnIn-Õn-¡p-¶p-­v.  2009se AtX tcmK-¯n-\mWv Ct¸mgpw NnIn-Õ-sb-Sp-¡p-¶-Xv.  Ct¸mÄ F\n¡v \à hy-X-ym-k-ap-­v.  ]t£ ]cn-]qÀ®-ambn AkpJw amdn-bn-«nÃ.”  The above evidence reveals that she has been undergoing treatment by Dr.Suresh for the same disease for which 1^st opposite party had treated and the same is not yet fully cured.  She has also deposed that “NnIn-Õn-¨m Ft¸mÄ AkpJw t`Z-am-Ip-sa¶v ]d-bm³ tUmIvSÀ¡v Ign-bn-Ã.” That means complainant is aware of the fact that the doctor can’t predict when the disease will be cured.  So the allegation that 1^st opposite party assured complainant that the disease would be cured within 15 days, lost its base.  Opposite party took the contention that since peculiar nature of the disease Rheumatoid Arthritis, no physician can make belief patients that they can completely cure the disease within a limited period.  It can be seen that after the alleged incident on 20.06.2009 she was taken to Dr.N.P.Suresh and continued treatment under him even now. But her illness has not been fully recovered as per the evidence of the complaint.  Admittedly complainant received a satisfactory treatment by Dr.Suresh.  But evenafter a long period of treatment complainant could not recover fully.  Thus the treatment under 1^st opposite party for a short span about one month cannot be treated as an enough period to cure the complainants disease, in the light of the report of experience of the treatment provided by Dr.Suresh. 

          The main case of the complainant is in respect of the event on 29.06.2009.  Complainant alleged that on 20.06.2009 when her husband contacted 1^st opposite party over phone, he disconnected the phone even without giving any advice. Then she was taken to 2^nd opposite party and therefrom to 1^st opposite party. But when he saw them at once started scolding them like anything and shouted to go out of the compound.  He did not even care to see the patient who was lying in the car.  Thus she was taken back and then to Dr. Suresh in Kunhippally, Chomballa. This is a serious allegation.   If this incident is proved there is no doubt the doctor has committed the offence of deficiency in service with element of criminality which is expected to be alien to the highly respected medical profession. That can only be considered as the reflection of moral turpitute, which is undoubtedly amounts to unjustifiable service of deficiency.   Hence it required a close scrutiny.  1^st opposite party denied the incident that happened on 29.06.2009.

           1^st opposite party contended that the complainant was treated as impatient from 07.05.2009 to 21.05.2009 and she was satisfied with the treatment at the time of discharge.  1^st opposite party also contended that after 10 days of discharge she again consulted 1^st opposite party and it was seen she got very much relief.  The case of 1^st opposite party is that complainant did not met the doctor thereafter.  1^st opposite party further contended that he was working as medical officer at Government Ayurveda Dispensary at Ulikkal on temporary contract basis under NRHM Scheme.  The duty time was 9 am to 3 pm. The dispensary at Ulikkal situated at 50 Km away from the 1^st opposite party.   So 1^st opposite party has to leave his house by 7 am.  On 20.06.2009 also 1^st opposite party  was on duty at Ulikkal dispensary. So the incident which is alleged to be took place on 20.06.2009 is false one and is a cooked up story. In the cross examination DW1 answered to a question that he has drawn salary from Govt. Ulikkal dispensary.  Ext.B1 is the duty certificate produced by DW1/1^st opposite party in order to prove that he had been on duty as Medical Officer at Govt. Ayurveda Dispensary, Ulikkal on 20.06.2009 Saturday and the duty time was 9.00 am to 1.00 pm and 2.00 pm to 3.00 pm.  The duty certificate shows that doctor was present in the hospital.  It is important to note that no question was put to the mouth of DW1 with regard to the incident allegedly taken place on 20.06.2009.  Even, there was, no suggestion put to witness.  Naturally the allegation lost its leg on this reason alone.  On careful scrutiny of evidence it can be seen complainant depended solely up on the affidavit evidence given by PW1/complainant.  The interested testimony of the complainant also cannot be considered as a sufficient evidence so as to ignore the duty certificate and come into the conclusion that the incident is true. The driver of the car could have been examined as a witness to prove the incident.  He being an independent witness could have been given best evidence in respect with regard to the incident. Complainant was laying down in the car.  Hence the husband and the driver were the best persons capable of adducing evidence in respect of the alleged incident on 20.06.2009.  Complainant did not take initiative to bring them on box, which naturally spoiled scope of proving the case on that point.

          Moreover, it has come in evidence that after a prolonged treatment under Dr.Suresh complainant did not get complete relief.  From 21.06.2009 complainant has been under his treatment.  If the satisfactory treatment happened to be failed to achieve full relief even after such a long treatment it is not possible to blame 1^st opposite party for failure of relief to the expected level with a treatment of nearly one month.  Anyhow, if the treatment given by 1^st opposite party in anyway caused for increasing the ailment suffered by the complainant,  complainant should have taken steps to adduce the evidence of a medical expert. Complainant has the case that after the examination of the complainant and going through the prescriptions issued by 1^st opposite party Dr.Suresh was of opinion that the treatment done under 1^st opposite party were all wrong and dhara which cost `3750 was quite unnecessary for the knee pain of complainant. If Dr.Suresh was examined that would have been the best evidence to prove the case of complainant.  But there is no such evidence before the Forum.

          In short, the close appreciation of evidence does not help to conclude that there is deficiency in service on the part of opposite party.  Complainant’s case is mainly against 1^st opposite party.  So also it can be seen no evidence adduced against 3^rd opposite party except the interested testimony of PW1.  Afterall she is an old lady.  Without clear cogent evidence it is not possible to say she is guilty of deficiency in service, whatever may be her status.  Since complainant has failed to adduce cogent and clear evidence to prove the case, we are of opinion that no case is established against opposite parties.  Hence the issues No.1 to 3 stands answered against complainant.

          In the result, the complaint is dismissed.  No cost.

             Sd/-                             Sd/-                              Sd/-

President                      Member                        Member

APPENDIX

Exhibits for the Complainant

A1.  Prescription(3 in numbers A1(a), (b), (c).

A2.  Receipt dated 17.05.2009.

A3.  Copy of lawyer notice dated 11.08.2009.

A4.  A.D. card (3 in numbers)

A5.  Photocopy of prescription issued by Dr.Suresh.

Exhibits for the opposite party

B1.  Duty certificate issued by Govt.Ayurveda Dispensary, Ulikkal.

B2.  I.P. Case sheet.

Witness examined for the complainant

PW1. Complainant.

Witness examined for opposite party

DW1.  Dr. Latheesh Kumar

      /forwarded by order/

                                                                     SENIOR SUPERINTENDENT