The case of the complainant, in brief, is that the complainant took his ailing son Dhrubajyoty to the O.P who is an Ayurvedic doctor for treatment and he paid huge amount of money to the O.P as per his direction. O.P gave assurance to cure the son of the complainant. The son of the complainant was a patient of lymphoblastic leukaemia (blood cancer) and it was detected on February, 2017 then he was taken to Tata Memorial Hospital, Mumbai for his treatment. The complainant came back to Alipurduar with his son on 26/04/2017 and then after few days two persons came to the house of the complainant and disclosed that the O.P who is a cancer specialist Guruji Cum Ayurved doctor sent them as he got the news of the illness of the Dhrubajyoty and also he treated the patient in a very lower cost with the help of Ayurvedic medicine. The complainant being convinced by such assurance and with a hope for better treatment for his son on 10/05/2017 took his son to the said Ayurvedic doctor R.N. Roy at Tapshikhata. On perusal of the prescription and test report of Tata Memorial Hospital, Mumbai the O.P advised to stop taking those medicines and also advice to take medicines which are handmade Ayurvedic medicines made by the O.P. On that date O.P took money from the complainant towards his fees and cost of Ayurvedic medicines by this way the O.P charge two lakhs from the complainant till 26/10/2017. The complainant further stated that after administrating chemotherapy automatically the platelet count starts raising after 10 / 15 days in a case of blood cancer and taking that opportunity the O.P claimed that due to his treatment the platelet count of Dhrubajyoty raised and the O.P issued a notice upon the complainant in writing on 03/05/2018 demanding more money. The son of the complainant was under the treatment of the O.P on and from 10/05/2017 to 26/10/2017 and during that period he continuously took the products of ayurvedic medicine at the end of October, 2017 the condition of the patient was deteriorating and find no other alternative the complainant took his son in Alipurduar Hospital where he treated as few days as indoor patient and there from again shifted to Tata Memorial Hospital, Mumbai. The attending doctors reproached the complainant for administrating such unscientific products to the patient and also astonished knowing that the facts the prescribed medicines which were prescribed by them in the month of February, 2017 was being stopped as per advice of the doctor. After few days while the condition of the patient was improved the complainant came back to Alipurduar on 23/11/2017 along with his ailing son. The complainant further stated that the O.P published an advertisement on 01/12/2017 in a Bengali daily newspaper Uttar Banga Sambad wherein he claimed that the son of the complainant is became cure due to his treatment without any consent of the complainant and also published the photographs the complainant and his son. Seeing such false advertisement the complainant lodged a written complaint before the Alipurduar Police Station on 06/12/2017. Subsequently the condition of the patient was being deteriorated which compelled the complainant to take the patient Tata Memorial Hospital, Mumbai but his son passes away on 29/03/2018. The complainant again notice that on 15/04/2018 the O.P again published the advertisement in the little magazine with the photographs of his son and complainant himself. The O.P acted whimsical act without taking the consent of the complainant. The complainant lost his son and also monitory loss and mental agony and faced a lot of harassment. Thus the O.P liable to compensate the complainant. The O.P is liable to pay amounting to Rs. 18,00,000/-. The complainant is also entitled to get compensation for his mental agony and harassment amounting to Rs. 1,50,000/- and litigation cost of Rs. 50,000/-.
The O.P contested the case by filing written version. The O.P had denied all the allegations made by complainant against him. O.P has admitted that the son of the complainant Dhrubajyoty Deb was suffered from blood cancer and he was bought to him at his Chamber at Chakraborty Stores, South Khagrabari, Coochbehar by the complainant on 10/05/2017. O.P never appointed any persons to approach the complainant for the treatment of O.P. O.P never advised the complainant to stop the allopathic medicine prescribed by Tata Memorial Hospital, Mumbai. He did not take any fees from the complainant either for his treatment or for the cost of medicines he renders free service. He stated that the notice dated 03/05/2018 is not the notice for demanding money and the complainant tried to malice and showing his unfaithful on the O.P and he has stating here and there regarding the act of the O.P and his activities which is totally defamatory one. He further stated that he never took any fees during the cost of the medicines from the complainant and the complainant is not the consumer and this case is liable to be dismissed. The complainant has filed his evidence-on- affidavit along with a document Xerox of the prescription (Annexure – A), Letter dated 03/05/2018 (Annexure – B), Xerox copy of a paper publication dated 01/12/2017 (Annexure – C).
O.P has filed his evidence-on-affidavit and both have filed their written argument also.
In this context, the following issues are necessarily come up for the proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s. 12 of Consumer Protection Act, 1986?
- Has this Commission jurisdiction to try the instant case?
- Is there any deficiency in service on the part of the O.Ps?
- Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
Considering the nature and character of the case all these points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience. The case has been filed u/s. 12 of the Consumer Protection Act, 1986 by the complainant.
Point Nos. 1 & 2:- The first question as raised by the O.P is that complainant is not the consumer as per law as because O.P did not receive any fees even the cost of medicines from the complainant and he render the free service to the complainant. On the other hand complainant stated that for the treatment of his son he has paid two lakhs to the O.P including the cost of Ayurvedic medicines. After considering the submission of both sides we find that the complainant not files any receipt or documents regarding payment of fees or the payment of medicines which he purchased. The complainant has stated that as per Annexure- B the O.P has demanded money from him. But Annexure - B reveals that it is a notice for causing defamation sent by the O.P to the complainant and nowhere in the said letter has any demand of money in written. So, in absence of any document regarding payments etc. we find that the ones of prove is upon the complainant when the O.P denied the receiving the fees and cost of medicines but here the complainant has failed to prove the payment of fees and cost of medicines and in that case he is not the consumer as per law. The complainant resides within the jurisdiction of this Commission but according to Annexure - A the treatment was done by O.P at Coochbehar but as the complainant resides within the jurisdiction of this Commission and this Commission has the jurisdiction to try the same.
Point Nos. 3 & 4:- In this case the allegation of the complainant is that his son suffers from blood cancer and he was treated at Tata Memorial Hospital, Mumbai. The doctors advised some medicines to his son but on 10/05/2017 he took his son to the O.P who is an Ayurvedic doctor for the treatment of his son as some agent of O.P asked them to treat by the O.P. He has paid two lakhs to the said O.P for his fees and cost of medicines. O.P advised him to stop all the allopathic medicines as prescribed by the Tata Memorial Hospital, Mumbai and after few days the son of the complainant was improved but after few months that is after October, 2017 the condition of his son deteriorated and he again went to Tata Memorial Hospital, Mumbai where the doctor stated that due to the unscientific medicines used by O.P and the condition of his son was deteriorated and ultimately his son died. It is admitted position that the son of the complainant was suffering from blood cancer he was treated by doctor of Tata Memorial Hospital, Mumbai and thereafter, he was treated by O.P Annexure - A is the document to show the same. From Annexure - A it appears that several Ayurvedic medicine was prescribed by O.P but nowhere in the said prescription it is mentioned that the allopathic medicine be stopped. It also appears that after few months the condition of the complainant’s son was deteriorated and he went to go Tata Memorial Hospital, Mumbai and after few months his son died. Now the question is whether there is negligence from the part of the O.P. The complainant went to O.P with his son for treatment knowing it fully well that he is an Ayurvedic doctor and O.P prescribed some Ayurvedic medicines there is nowhere in the record that this Ayurvedic medicine caused the death of his son. The doctor Tata Memorial Hospital, Mumbai did not state anything in this matter for which the complainant did not file any documents in Tata Memorial Hospital, Mumbai. It also appears that the son of the complainant was under the treatment of O.P from 10/05/2017 to 26/10/2017. It also appears from the complaint that at the end of October, 2017 the condition of the patient was deteriorated and then he went to Tata Memorial Hospital, Mumbai but no such document was filed from the side of the complainant to show that due to the treatment of the O.P the condition of the patient was deteriorated. So negligence from the part of the O.P has not been established here.
The another point is raised by the complainant is that on 01/12/2017 in Uttar Banga Sambad the O.P published one advertisement with the photographs of the complainant and his son stating that due to the treatment of the O.P the son of the complainant is cure but it was a false advertisement. We find that in the present case this matter can not be adjudicated as because it is completely civil in nature and this Commission can not try this matter. The complainant has claimed Rs. 18,00,000/- as compensation of his son but why he has claimed this amount for his son has not been specifically clarified. The negligence has not been proved. There is no documents is to show that the Tata Memorial Hospital, Mumbai said that due to the treatment of this O.P the condition of his son deteriorated. The document is the Annexure - A does not reveal any endorsement of the O.P stooping of allopathic medicine.
After considering all these facts we find that the negligence has not been proved. That a part there is no such documents that the complainant has paid the fees to the O.P it has already been discussed. The complainant is not the consumer and accordingly he is not entitled to get any benefit from this case.
Thus all the points are disposed of accordingly.
Hence, for ends of justice; it is;-
ORDERED
that the instant case be and same is dismissed on contest against O.P without cost.
Dictated & Corrected by me
