Hon'ble Mr. Haradhan Mukhopadhyay, President.
A very tiny issue over not providing medical assistance despite receiving consultation fees by the OP is the bone of contention which dragged the Complainant to lodge this complaint. The fact as enumerated in the written complaint discloses in brief that, the Complainant Sri Pulak Chandra Dhar aged about 72 years is a practicing advocate. The opposite party Dr. Koushik Dhar is a homeopathic doctor and uses to practice in the given address of the cause title of the complaint at Cooch Behar. On 27.07.2018 at about 8 p.m. the Complainant being accompanied by his wife went to the chamber of OP for consultation and treatment. The OP examined the Complainant for his ailment of warts in the left hand and weakness on the right toe and also hypertension. The OP after examining prescribed five homeopathy medicines and demanded Rs. 200/- for his fees and Rs. 650/- for medicine. The Complainant paid the said fees of Rs. 200/- to the OP and told that he would purchase the medicines from outside homeo pharmacy as he was not having the said sum of Rs. 650/- towards cost of medicine. Accordingly, the Complainant asked the OP to issue a prescription along with the money receipt of fees. The OP got furious and as such ill treated with the Complainant and refused to deliver any prescription. After great persuasion, the OP issued a receipt for fees for Rs. 200/-. The OP also told that he would not issue any prescription unless the Complainant would purchase any medicine from him. Due to non-issue of prescription by the OP, the Complainant suffered physical and mental loss. Due to such misbehavior of the OP, the Complainant fell seriously ill after being returned to home and consequently, he was medically treated further. The Complainant thereafter sent a letter to the OP on 31.07.2018 over the said matter against which the OP asked the Complainant by a reply letter to withdraw the said letter of the Complainant. Therefore, the Complainant files this case against the OP claiming compensation to the tune of Rs. 50,000/- and any other relief as the Commission thinks fit and proper. The cause of action for the present case arose on 27.07.2018 and on subsequent dates which is still continuing.
The OP Dr. Koushik Dhar contested the case by denying each and every allegation made out in the complaint by filing W/V. The positive defence case made out by the OP in their W/V in a few words is that, the complaint petition is devoid of any cause of action being ill-advised and the Complainant is not a Consumer. There was no deficiency in service and as such the case is not legally maintainable. The defence case of the OP in brief is that, the OP is a homeopathy doctor and practicing at Cooch Behar with unblemished career and he was assistant to World famous Homeopathy doctor Dr. Prasanta Banerjee. The further positive case of the OP is that the Complainant came to the OP’s chamber on 27.07.2018 at about 8 p.m. along with some prescriptions of allopath doctor and test reports for taking advice and further treatment of homeopathy from the OP. After going through the prescriptions and reports, the OP came to learn that the Complainant had been suffering from skin problem, nail fungus, hypertension and less sensation. The OP as a doctor advised the Complainant to use medicines of allopath continuously instead of homeopath medicine. Thereafter, the Complainant paid Rs. 200/- to the OP towards consultation fees against which the OP issued money receipt. On 31.07.2018 the Complainant served a letter to the OP with some allegation. The present case is filed to defame the reputation of the OP unethically, so question of issuing a prescription does not arise. The OP replied to the said letter on 13.08.2018. OP had no negligence or deficiency in service towards the Complainant. The OP claimed that the complaint case is liable to be dismissed with cost.
The legal battle between the Complainant and OP doctor in the form of complaint and written version demands for adjudication of the dispute through ascertainment of the following points.
POINTS FOR DETERMINATION
- Whether the Complainant is a Consumer under the C.P. Act?
- Whether the Complainant is entitled to get any relief?
- To what other relief if any the Complainant is entitled to get?
DECISION WITH REASONS
Point No.1.
The main point as to whether the Complainant is a consumer or not is the subject matter of the present point for discussion.
The OP raised a question as to whether the Complainant is a Consumer or not. After perusing the written version of the OP, it transpires that the Complainant paid him Rs. 200/- on 27.07.2018 when he came to his chamber at 8 p.m. along with some prescriptions and test reports for taking advice and further treatment of homeopathy from the OP.
Therefore, it is the admitted fact that, the Complainant went to the OP for taking advice and further treatment of homeopathy from the OP. It is also the admitted fact that the OP is a homeopathy doctor. So the three things stand well proved that the OP is a doctor. Secondly, the Complainant went to the OP for his medical treatment. Thirdly and finally the Complainant paid Rs. 200/-.
Now it does not require to prove that a fee paid to the doctor is meant for any other purpose than medical treatment. The said fee of Rs. 200/- was paid to the OP for the medical treatment of the Complainant goes to prove unequivocally that the Complainant is a Consumer, who wanted to have services from the OP as a doctor. Therefore, there is no any third case being established before the Commission to come to any different conclusion than to hold that the Complainant is a Consumer under the C.P. Act.
Accordingly, Point No.1 stands decided in favour of the Complainant in affirmative.
Point No.2 & 3.
Both the points are very closely interlinked and as such these are taken up together for convenience and brevity of discussion.
Previously, it was held that the Complainant went to the OP on 27.07.2018 for medical treatment and he paid Rs. 200/- to the OP for getting advice and medical treatment. The Complainant proved the said Cash Receipt for Rs. 200/- dated 27.07.2018 No. 8 issued by the OP Dr. Koushik Dhar.
In the said receipt, the name of the OP is printed but there is no prefix before his name as Dr, but it is fact that the OP is a homeopath doctor. A close reading of the said receipt being Annexure-A discloses further that the said sum of Rs. 200/- was received from the Complainant Pulak Chandra Dhar on 27.07.2018 by the OP. But there are two heads of receiving the said money as service charge and/or supply of medicine.
The Complainant alleged that after payment of the said Rs. 200/-, the Complainant told the OP that he would purchase the medicine from outside homeo pharmacy since he had not sufficient money with him at that time. Accordingly, the Complainant asked the medical prescription from the OP along with the Money Receipt. The OP then turned furious, ill treated and refused to issue prescription.
The OP admitted that the Complainant went on the unfateful day for medical treatment to the OP. But the OP advised the Complainant to use medicine of allopath. Now it is a big question as to how the OP did not express the said opinion through the medical prescription. It is palpably clear that the OP Doctor expressed his opinion to continue the allopath medicine but there is no document to show that he exactly expressed the same opinion. The OP doctor charged Rs. 200/- from the Complainant either for service charge or supply of medicine. “Service charge is meant for services rendered by the doctor in the form of medical treatment for examination.” In the given facts and circumstances the OP seems to have charged the sum of Rs. 200/- towards providing services i.e. service charges.
It is the specific allegation that since the Complainant did not want to purchase the medicines prescribed by the OP for Rs. 650/- due to not having money of Rs. 650/- with him, so the OP did not issue the medical prescription.
Now the said allegation has been strengthen with the circumstantial evidence available in the given facts and circumstances, It stands established that the Complainant paid Rs. 200/- to the OP but the later did not issue any prescription. Since the Complainant proved well that he paid Rs. 200/- to the OP for his medical treatment, so the onus is shifted upon the OP to establish as to why the medical prescription was not issued. Secondly, the receipt of fees for Rs. 200/- being Annexure-A discloses that the OP also uses to supply medicine. But in the instant case, the supply of medicine is not stricken off. It means that OP also wanted to sell the medicine to the Complainant or in other word wanted to have the medicine supplied to the Complainant. Since, the Complainant had no money with him, so he could not purchase the medicine from the OP. Therefore, it stands well established from the direct and circumstantial evidence that, the OP did not issue the medical prescription for not purchasing the medicines.
So far as the reply to the letter of the Complainant dated 31.07.2018 being Annexure-C is concerned, the OP could not deny the said allegation specifically through his letter dated 13.08.2018 other than an evasive denial. Since, there was no specific reply against the said allegation, so the OP could not make out any defence case against the said allegation.
Ld. Advocate for the Complainant argued that as a doctor it is the duty of the OP to treat a patient. Instead the doctor without issuing prescription issued a receipt of fees. So he did not perform the duties of a doctor. From the receipt, it would be found that he supplies medicine, but his tendency is that if no medicine is taken then no prescription would be issued. So it is professional negligence and deficiency in service.
Ld. Defence Counsel denied and argued that it is not deficiency in service because the OP Doctor advised the Complainant to go to allopath doctor. Usually doctors do not issue such receipt.
The argument is not acceptable in as much as it stands well established that the Complainant was charged for Rs. 200/- for medical treatment. So the OP was duty bound to issue prescription because whatever the doctor has the opinion that ought to have been expressed in the medical prescription only.
In this regard, Rule 18 of W.B. Clinical Establishments Rules, 2003 provides for that a keeper of Clinical Establishment shall keep the following registers of the patient: (a) Register of Admission and Discharge/Death of the patient, (b) Register of expenditure incurred by the patients for treatment in the Clinical Establishment, (c) Records of treatment.
In the instant case, the OP failed to prove any of the said documents before this Commission that the said registers are maintained. This sort of demeanor/ activities of the OP tantamounts to violation of the provisions of law.
The well recognized book for ascertaining medical negligence/ professional negligence written by Dr. Jagdish Singh in the book “Medical Negligence and Compensation” 2nd edition 2002, Page No. 86 provides for interalia that the omission to do something which a reasonable man, guided by those ordinary considerations whcih ordinarily regulate human affairs, would do or the doing of something which reasonable and prudent man would not do. A professional like a medical practitioner engaged in one of the learned professions require a high level of training and proficiency. Dereliction of such duty tantamounts to professional negligence.
In the instant case, the OP Doctor deviated from his solemn duty as imposed by the aforesaid rules relating to medical jurisprudence.
Thus after assessing the evidence available in the case record, vis-à-vis the argument advanced by both the parties, it stands well established that the OP acted in a manner with the Complainant on the specified date and time which is unbecoming for a doctor and it tantamount to professional negligence.
Accordingly, both the Points No. 2 & 3 are answered in affirmative and goes in favour of the Complainant.
In the result, the Complaint Case succeeds.
Hence, it is
Ordered
That the Complaint Case No. CC/62/2018 be and the same is allowed on contest with cost Rs.2,000/-. The Complainant do get an award of Rs.20,000/- from the OP as compensation for harassment and mental agony. The opposite party is directed to pay a sum of Rs.22,000/- to the Complainant within 1 (one) month from the date of passing the Final Order failing which the OP shall pay an interest @ 6% p.a. from the date of passing the Final Order till the date of realization thereof.
Let a plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.
The copy of the Final Order is also available in the official Website www.confonet.nic.in.
Dictated and corrected by me.
