Sri.Siddegowda, President 1. The above complaint is filed under section 12 of the Consumer Protection Act, 1986 seeking compensation of Rs.5,00,000/- against the Opposite parties alleging wrong diagnosis and prescription. 2. The case of the complaint is that, the complainant consulted 1st Opposite party about one year back complaining severe pain of his left leg and left hand, at their Clinic namely Basavaraja Clinic, 2nd Cross, Leelavathi Extension, Maddur. The 1st Opposite party diagnosed the complainant and told that he has suffered paralysis stroke and prescribed medicines, after taking Rs.50/- from the complainant towards the consultation fee. The complainant did not recover after taking medicines prescribed by 1st Opposite party and thereafter he consulted 1st Opposite party, who thereafter instructed the 2nd Opposite party to examine the complainant. The complainant was examined by the 2nd Opposite party and 2nd Opposite party prescribed some medicines after taking Rs.50/- towards fee. The complainant did not recover even after taking medicines and again the complainant met 1st Opposite party who thereafter instructed 3rd Opposite party to examine and 3rd Opposite party examined the complainant and prescribed some medicines taking Rs.50/- towards the fees. Even after, taking the medicines prescribed by 3rd Opposite party, the complainant did not get any relief. Thereafter, the complainant consulted the physician Dr.M.Manchaiah, who examined the complainant for Cervical Spondilosis and advised for ECG and X-ray and prescribed medicines. Though the complainant has not suffered any paralysis stroke, the diagnosis and prescription of drugs by Opposite parties 1 to 3 are totally wrong and have caused loss of health to the complainant and it has resulted in loss of health and also caused mental agony. Therefore, Opposite parties 1 to 3 have caused deficiency of service in not properly diagnosing the disease of the complainant. Therefore, the present complaint is filed. 3. The notices are served on Opposite parties 1 to 3 and Opposite parties have filed version. They have denied the allegations about the diagnosis and treatment by the Opposite parties 1 to 3 deficiency in service. Admitting that they are practicing as doctors at the address given in the cause title, it is pleaded that 1st Opposite party being a Medical Practitioner, due to his old age has stopped his profession long back. The Opposite parties have good name and reputation in the locality. The complainant never visited the Opposite parties to take any treatment. The documents produced by the complainant are not at all pertaining to these Opposite parties. The complainant in order to gain wrongfully has created these documents. The complainant is not a consumer. Therefore, the complainant is not entitled to any compensation. On these grounds, the Opposite party sought for dismissal of the complaint with exemplary costs. 4. During trial, the complainant is examined as CW.1 and one witness Dr.M.Manchaiah as CW.2 and got marked Ex.C.1 to C.13. The Opposite parties did not adduce any evidence. The complainant has filed written arguments. 5. We have heard the counsel for the Opposite parties. 6. Now the points that arise for our considerations are:- 1) Whether the complainant is a consumer of the Opposite parties? 2) Whether the complainant proves that Opposite parties have given wrong treatment with improper diagnosis of paralysis stroke? 3) Whether the complainant is entitled to the compensation as sought for? 7. Our findings and reasons are as here under:- REASONS 8. POINTS No.1 & 2:- The case of the complainant in his complaint and evidence is that due to suffering of pain in his left leg and left hand, he approached the 1st Opposite party who is practicing doctor at the address given in the cause title and paying Rs.50/- to 1st Opposite party and he was examined and diagnosing that complainant is suffering from paralysis stroke prescribed medicines and inspite of taking medicines there was no improvement. The complainant again approached the 1st Opposite party and at the instance of 1st Opposite party, the 2nd Opposite party examined the complainant and prescribed some medicines collecting Rs.50/- towards fee and again inspite of taking medicines, the pain did not stop and therefore, he visited the Clinic and at the instance of 1st Opposite party, 3rd Opposite party examined the complainant and prescribed the medicines and though he purchased the medicines from the shop of the Opposite parties and used there was no improvement and then he consulted physician PW.2 Dr.M.Manchaiah, a physician and he diagnosed that the complainant was suffering from cervical spondilosis and prescribed medicines advising for X-ray and ECG. Therefore, the Opposite parties 1 to 3 have committed negligence in diagnosing the illness of the complainant. stating that he was suffering paralysis stroke and made to suffer with pain and mental agony and use improper medicines. The complainant has produced Ex.C.1 to C.13 to prove its contentions. The Opposite parties have contended that the complainant was not at all treated by the Opposite parties 1 to 3 in their clinic and the documents produced by the complainant are created to gain wrongfully and the complainant is not a consumer and the documents produced are not pertained to these Opposite parties. 9. It is pertinent to note that Opposite parties 1 to 3 have failed to file affidavit or enter the witness box in support of their case and lead to evidence in support of their stand. At one stage, in the version, they have pleaded that they are practicing as doctors at the address given in the cause title, in the other breath, it is pleaded that 1st Opposite party due to his old age has stopped his profession long back ago. But, if we peruse the documents Ex.C.1 to C.10 it clearly established that Opposite parties 1 to 3 have treated the complainant. Ex.C.1 & C.2 is the letterhead of 1st Opposite party. Merely, because the name of the complainant is not mentioned, it cannot be said that it is not pertained to the complainant or 1st Opposite party. It is pertinent to note that Ex.C.13 is the pamphlet issued by the Opposite party Clinic and it reveals that they are treating the persons suffering with paralysis stroke and its also disclosing the timings and consultation with a specific note that some other persons are cheating the patients posing themselves as doctor of Nagarakere and instructed to visit only the clinic of the Opposite parties and this pamphlet also bears the phone number. It cannot be said that the complainant is in a position to create all these documents. Ex.C.5 and 6 clearly established that the 2nd Opposite party has examined the complainant and prescribed the medicines because Ex.C.5 is the letterhead of the 2nd Opposite party and signature in Ex.C.5 is similar to the signature found in the vakalath except the absence of initials. Ex.C.1, C.3, C.4 and C.7 are in the handwriting of same person which can be seen by naked eye and it proves to 1st Opposite party has issued Ex.C.8 to C.10 clearly establishes that 3rd Opposite party has prescribed the medicines even though they are not dated and in fact in Ex.C.8 the 3rd Opposite party has put date. Even, the signature in Ex.C.8 to C.10 is almost similar to signature in the vakalath, though 3rd Opposite party has changed his style in the vakalath and 3rd Opposite party is a retired Health Officer as per Ex.C.8, C.9 and it cannot be accepted that the complainant has created these documents. Opposite parties 1 to 3 have remained absent to enter the witness box to confront these documents and non-stepping to the witness box and not filing the affidavit in support of their case give raise to draw an adverse inference against the Opposite parties that if they entered the witness box, the truth would come out. Even though, it is contended that the bills for having paid the consultation fees or the bills for having purchased the medicines from the medical shop are not produced, it is well known that a private medical practitioner will not issue any receipt for having received the consultation fee. Even though, the complainant has not produced the bills for having purchased the medicines prescribed by Opposite parties 1 to 3, but according to the evidence of complainant, he purchased the medicines from the Opposite parties shop in their clinic. According to the complainant, at the first instance, he purchased medicines of Rs.800/- and at the second instance medicines worth of Rs.800/- and lastly medicines worth of Rs.850/- prescribed by 3rd Opposite party was purchased and he took medicines for 3, 4 months. Therefore, it cannot be said that the complainant is not a consumer of the Opposite parties and the evidence and the documents produced by the complainant clearly established that he is a consumer of the Opposite parties for having taken treatment by paying fees from the complainant for consultation. 10. According to the contention of the complainant, the Opposite parties 1 to 3 who one after of another examined and prescribed medicines the pain in the left leg and left arm did not decrease and they diagnosed that the complainant was suffering from paralysis stroke and prescribed medicines. It is the evidence of the complainant that since the treatment given by the Opposite parties 1 to 3 did not give any relief, he approached the physician Dr.M.Manchaiah examined as CW.2 and came to know that he was not suffering from paralysis stroke, but he was suffering from cervical spondilosis and he has examined as CW.2 Dr.M.Manchaiah and according to his evidence on 29.03.2008, he examined the complainant who complained pain in left hand and neck and after careful examination he opined that he was suffering from cervical spondilosis or angina of the heart and advised for ECG and X-ray of the neck and to take rest for 7 days and to admit as inpatient and due to personal problems complainant could not get admitted and requested to prescribe medicines. Therefore, he prescribed medicines ECG & X-ray of neck and to come again thereafter and Ex.C.11 is the prescription slip and Ex.C.12 is the certificate. He further deposed after perusing the documents Ex.C.1 to C.10 that some of the writings could be read and those medicines are pertaining to blood pressure, gastric and strengthening of nerves power and paralysis stroke and the medicines prescribed are allopathic medicines and not ayurvedic. It is not suggested to this witness physician that complainant was not suffering from cervical spondilosis or angina of the heart and he was suffering from paralysis stroke. Of course, he has deposed that the medicines prescribed in Ex.C.1 to C.10 may not cause adverse effect or series consequences. So, the evidence of physician CW.2 is clear that complainant was not suffering from paralysis stroke, but his evidence has remained unchallenged that some medicines prescribed in Ex.C.1 to C.10 are relating to treatment for paralysis stroke. 11. The Opposite parties 1 to 3 have admitted in the version that they are medical practitioners at the address given in the cause title. According to the Ex.C.1, 1st Opposite party is a registered medical practitioner. It is not revealed that whether it is practicing ayurvedic medicines or allopathic medicines and Ex.C.13 clearly established that 1st Opposite party is a ayurvedic medical practitioner and 2nd Opposite party is a degree holder in ayurvedic medicines as per Ex.C.5 and 3rd Opposite party is a retired Medical Officer. The evidence of the complainant that Opposite parties 1 to 3 diagnosed that the complainant was suffering from paralysis stroke and he was prescribed medicines. On what basis Opposite parties 1 to 3 came to opinion that complainant was suffering from paralysis stroke is not forthcoming at all. It is not the case that the complainant was subjected to some laboratory medical examinations and on the basis of the reports, they confirmed that complainant was suffering from paralysis stroke. 12. Even though, the Dr.M.Manchaiah CW.2 has admitted that there is less possibility of causing adverse effect on consumption of the medicines prescribed in Ex.C.1 to C.10, but by prescribing wrong medicines, the complainant was made to suffer for nearly 9 months until treatment by the Dr.Manchaiah CW.2 and specifically some other doctors namely Dr.Nagarajamurthy in Maddur Government Hospital and then Dr.Nandeesh at Mandya as per the evidence of the complainant. Of course, the burden of proving medical negligence lies on the persons who set up of the case and negligence has to be alleging specific instances of negligence and prove each of them to be eligible for compensation under Torts as held in II (2005) CPJ 205 in Parminder Singh Vs- General Hospital (SC). Of course in the decision II (2007) CPJ 235 (NC) in the case Upasana Hospital Vs- S.Farook, the Honble National Commission has held that onus lies on the complainant to prove the medical negligence and in that case it is observed that there was no expert evidence produced by the complainant for alleged negligence in surgery. But in the present case, the complainant has established that the Opposite parties have diagnosed and treated for paralysis stroke wrongly and made the complainant to suffer for months together for spending amount for the treatment and the complainant has examined physician, an expert whose evidence has remained unchallenged. The citation I (2005) CPJ 10 (NC) in the case of Shantaben Mulgibhai Patel Vs- Beach Candy Hospital and Research Centre is not helpful to the Opposite parties as the facts are entirely different, because it is not the case that Opposite parties 1 to 3 are the medical men skilled in the treatment of paralysis stroke. The contention of the Opposite party side is that the complainant has approached one doctor of another for instant result and therefore his claim of medical negligence is not tenable as observed in IV (2007) CPJ 64 (NC) in the case of Ajay Gupta Vs- Pradeep Aggarwal. But the facts are not applicable to the facts of the case, because in this case is established that the treatment given is contrary to the established medical norms and there is expert evidence that the complainant was not suffering from paralysis stroke. In fact, the complainant did not want an instant result for the cure of pain in the left leg and left arm and evidence discloses that has taken treatment for more than 9 months from the Opposite parties and only in the month of March 2008 the complainant approached the physician PW.2 Dr.M.Manchaiah. 13. Of course, a degree holder in Ayurvedic medicine can prescribe allopathic medicines and even though the some of the medicines prescribed by the Opposite parties have not caused adverse effect to the complainant, but the wrong diagnosis by the Opposite parties that the complainant was suffering from paralysis stroke clearly established the medical negligence and caused mental agony to the complainant and suffering and spending of the amount for treatment. 14. Under these circumstances, the complainant has proved the medical negligence of Opposite parties 1 to 3 and in the present circumstances, it is reasonable to award compensation of Rs.20,000/- for the amount spent for treatment by the Opposite parties and mental agony. 15. In the result, we proceed to pass the following order; ORDER The complaint is partly allowed against the Opposite parties No.1 to 3 jointly and severally directing them to pay compensation of Rs.20,000/- with cost of Rs.750/- to the complainant within 6 weeks. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 22nd day of August 2008). (PRESIDENT) (MEMBER) (MEMBER) ctj
