By Sri. Chandran Alachery, Member:

The complaint filed under section 12 of the Consumer Protection Act for an order directing the Opposite Parties to pay a compensation of Rs.2,00,000/- and cost of the proceedings for their deficiency of service in giving medicines other than the medicine prescribed by the doctor to the Complainant.

2. Brief of the complaint: The complainant is the father of One Mr. Rahesh. M who is working under the 2^nd Opposite Party in their chulikka Estate. As a dependent of Rahesh, the complainant and other family members are getting free medical expenses and treatment from the Hospital run by the Opposite Parties. The complainant is heart patient and geting treatment from Medical College Hospital Calicut. The doctor from Medical College Hospital

Calicut prescribed certain medicines to the complainant and in order to get these medicines on free of cost, the complainant’s son went to the Opposite Party's hospital. Then the 1^st Opposite Party informed him that the same type of medicines are there but only the manufacturing company is different and the 1^st Opposite Party gave the following medicines. The Doctor prescribed Zoril 1 mg 1/2 day but 1^st Opposite Party gave Glim 1 mg, instead of clopilet 75 mg, the 1^st Opposite party gave clopitab 75 mg, instead of Pleoster 5 mg gave hipoes 50 mg, instead of Atpark 50 mg gave Hipoes 50 mg, instead of Mexpro 40, gave Nexito 20. Doctor prescribed 2 tablet daily of Nexpro 40. The Complainant started using the medicines but after a few days, the Health conditions of the Complainant became very worst and started swelling all over body, vomiting, fever, cough etc and he was taken to estate hospital. The complainant became unconscious and on 25.10.2011 he was taken to Good Shaphaered Hospital Chelod and admitted there. On examination, the Doctor found that the health condition of complainant became worst only due to the usage of Nexito-20 instead of Nexparo-40. The act of Opposite Parties are sheer negligence and it caused much mental agony and financial losses to the Complainant. Aggrieved by this, the complaint is filed.

3. On receipt of complaint, notices, were issued to the Opposite Parties and Opposite Parties appeared before the Forum and filed version. In the version, the Opposite Parties contended that the complainant is not a consumer coming under the definition of consumer. The Opposite Parties admitted that the complainant's son is a worker under them and the employer is liable to meet the medical expenses of the worker and his dependents. The Opposite Parties admitted that the Complainant is a heart patient and is under going treatment at Medical College Hospital Calicut and on 02.09.2009 the Complainant undergone check up at Medical College Hospital Calicut. The Opposite Parties denied the allegation that the

1^st Opposite Party gave different medicines to the Complainant's son as described above. The Opposite Parties admitted that on 19.10.2011 in the Complainant had come to the estate hospital with complaint of vomiting and the estate doctor had prescribed medicines. The  allegation that Nexito 20 was given instead of Nexparo 40 is denied by Opposite Parties in the complaint. The Opposite Parties contended that there is no deficiency of service from their part and the complaint is liable to be dismissed.

4. On perusal of complaint and version, documents of both sides, the forum raised the following points for consideration.

1. Whether there is deficiency of service from the part of Opposite Parties?

2. What order as to cost and compensation?

5. Point No.1:- In addition to complaint, the Complainant produced proof affidavit and Complainant is examined as PW1. The documents produced by the Complainant are marked as Exts.A1 to A7. Ext.A1 is the copy of ticket, Ext.A2 is reference letter, Ext.A3 is the slash of Nexpro-40, Ext.A4 is the Slash of Nexito 20, Ext.A5 is the discharge summary of Good Shaphered Hospital, and Ext.A6 is the slip issued by 1^st Opposite Party to the Complainant. The Complainant's witness is examined as PW2. 1^st Opposite Party filed chief affidavit and is examined as OPW1 and documents marked as Ext.B1. Opposite Parties witness is examined as OPW2 and documents Exts.B2 to B4 are marked. Ext.B1 is a book showing the details of medicines given to the complainant. The page showing the details of medicine are marked as Ext.B1(a). O P register is marked as Ext.B2, Page No. 63 of O.P Register is marked as Ext.B2(a), Copy of Bill is marked as Ext.B3. Stock Register is marked as Ext.B4. Here, the main question is whether the 1^st Opposite Party gave Nexito 20 to the complainant instead of Nexpro 40 or not. Ext.A6 is a document produced by Complainant which shows that “instead of T. Nexpro mistakenly given Nexito”. OPW1 who is a pharmacist of Opposite Party's hospital admitted that he has written the Ext.A6 document. OPW1 gave explanation to Ext.A6 in such a way that the complainant requested him to write it in order to show it to the doctor who treated the complainant at Medical College Hospital, Calicut for the easy understanding of doctor. The Forum perused the Ext.A6 document and found that the explanation given by OPW1 in Ext.A6 document is not credit worthy and convincing. OPW1 can write detailed explanation as per his version in Ext.A6 instead of writing it as if he had committed the mistake. What prevented him to write detailed explanation in Ext.A6 if his version is the real fact. On going through Ext.A6, it is understood that the 1^st Opposite Party committed great mistake in giving exact medicine to the Complainant. The complainant specifically stated that Nexito 20 is supplied by 1^st Opposite party from the Hospital on 02.09.2011. 1^st Opposite party stated that it is purchased from outside. But on going through Ext.B4 document, for the period of 01.04.2011 to 30.03.2012, it is seen that Nexito 20 mg was there in the stock as per stock register. As per Ext.B3 tax invoice form also, Nexito 20mg was there in the stock. On going through Ext.A1 document, it is seen that the doctor from Medical College Hospital Calicut prescribed Nexpro 40 to the Complainant. PW2 is the doctor who treated the Complainant at Good Shaphered Hospital, Chelod who had deposed before the Forum that the Complainant's health condition became worst due to the side effect of using Nexito 20 instead of Nexpro 40. That is stated in discharge summary also ie in Ext.A5. On going through Ext.B1 document marked with objection, it shows that on 01.09.2011, the hospital supplied nexpro 40 to the Complainant. But doctor from Medical College Hospital Calicut prescribed the medicine only on 02.09.2011 and Complainant approached the Opposite party's hospital only on 02.09.2011.

On going through the entire evidences, the Forum found that there is clear latches from the part of 1^st Opposite party in supplying the medicine to the Complainant. More over the Complainant's son is a worker of 1^st and 2^nd Opposite Parties and one cannot presume that a worker will file a complaint against his master without happening the alleged incident. Due to the latches of Opposite Parties the Complainant's health condition became very worst and the Complainant suffered great mental agony and financial loss. 1^st Opposite party is the worker of 2^nd Opposite Party who is running hospital, Master is liable for the deficiency of  service from the side of servant. So there is deficiency of service from the part of 1^st and 2^nd Opposite party in this case for which they are jointly and severally liable to compensate the complaint. The point No.1 is found accordingly

6. Point No.2:- Since point No.1 is found in favour of Complainant, the complainant is entitled to get the cost and compensation.

In the result, the complaint is partly allowed and 1^st and 2^nd Opposite parties are directed to pay Rs.1,00,000/- (Rupees One Lakh) only to the Complainant as compensation for mental agony and financial loss sustained by him due to the negligence of 1^st and 2^nd Opposite parties and to pay a cost of Rs.5,000/- (Rupees Five thousand) only to the Complainant. The 1^st and 2^nd Opposite Parties shall comply the order within one month from the date of receipt of this order failing which the Complainant is entitled to get 12% interest thereafter.

Dictated to the C.A transcribed by him and corrected by me and pronounced in the Open Forum on this the 31^st day of July 2014.

Date of filing:17.12.2011

PRESIDENT: Sd/-

MEMBER : Sd/-

MEMBER : Sd/-

/True copy/

Sd/-

PRESIDENT, CDRF, WAYANAD.

A P P E N D I X

Witnesses for the Complainant:

PW1. Mahesh. Estate Worker.

PW2. Dr. Krishna Das Doctor.

Witnesses for the Opposite Parties:

OPW1. Basheer. Pharmacist.

OPW2. Cedrick Pharmacist

Exhibits for the Complainant:

A1. Copy of OP Ticket.

A2. Letter. dt:24.10.2011.

A3. NEXPRO-40

A4. NEXITO 20

A5. Discharge Summary.

A6. Slip issued by the 1^st Opposite Party to the Complainant.

A7. Authorisation.

Exhibit for the Opposite Parties:

B1. Book.

B1(a) Details of Medicines.

B2. O.P Register.

B2(a) Page No.63 of O.P Register.

B3. Copy of Bill. dt:07.09.2011.

B4. Stock Statement from 01.04.2011 to 30.03.2012.