BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.101/2009 Order dated this the 3rd day of March 2010 COMPLAINANT/S Sri.Biligowda S/o Yalavichannegowda, R/o Annahalli Doddi, C.A.Kere Hobli, Maddur Taluk. (By Sri.K.S.Raghu., Advocate) -Vs- OPPOSITE PARTY/S 1.Dr.Siddalingamurthy, 2.Dr.Tarakeshwari, 3.Dr.A.Mahadevaiah, Both are working at R/o Basavaraju Clinic, 2nd Cross, Leelavathi Layout, Maddur. (By Sri.H.B.Chandra Shekar., Advocate) Date of complaint 14.08.2009 Date of service of notice to Opposite parties 14.09.2009 Date of order 03.03.2010 Total Period 5 Months 17 Days Result The complaint is partly allowed, directing the Opposite parties 1 to 3 to pay compensation of Rs.5,000/- to the Complainant with cost of Rs.500/- within two months. Sri.Siddegowda, President 1.This complaint is filed under section 12 of the Consumer Protection Act, 1986 against the Opposite parties claiming compensation of Rs.5,00,000/- alleging deficiency in service. 2.The case of the Complainant is that on account of pain in the right side of his body 5- 6 months prior to the filing of the complaint went to Basavarja Clinic run by Opposite parties 1 to 3 in Leelavathi Extension, Maddur Town. The 1st Opposite party examined the Complainant and informed that he was attacked by paralysis and prescribed tablets and also gave one bottle oil to rub on the right side of the body and received Rs.500/- as fees. The Complainant purchased the tablets prescribed by 1st Opposite party and used it and applied oil to his body, there was no relief. Again, he approached the 1st Opposite party and informed the same and at the direction of 1st Opposite party, 2nd Opposite party examined him and prescribed tablets and gave two injection and also gave one bottle oil and to rub on the right side of his body and received Rs.500/-. Even then, there was no relief in spite of taking the tablets and oil massage. Again, he visited the clinic and at the time, 3rd Opposite party was present and the Complainant informed the non-useful of the prescribed medicines. Then the 3rd Opposite party examined him and prescribed tablets and gave oil bottle and received Rs.500/-. In spite of using the tablets and oil, there was no improvement at all. Therefore, the Complainant approached Dr.Shivaswamy at Channapatna and complained the right side body pain and showed prescription slips given by Opposite parties 1 to 3 and Dr.Shivaswamy examined him and after ECG, the doctor collected Rs.200/- saying that the Complainant was not suffering from paralysis. On account of improper diagnoses and prescription of the medicines by Opposite parties 1 to 3, the medicines created adverse effect on his health and even, the Complainant was put to mental agony, when the Opposite parties informed that he was suffering from paralysis. Therefore, the Opposite parties 1 to 3 have committed deficiency in service committing medical negligence and the Opposite parties 1 to 3 are liable to pay Rs.1,00,000/- for wrong diagnoses and Rs.2,00,000/- for loss of health and Rs.2,00,000/- for mental agony, totally Rs.5,00,000/-. 3.The notices were served on the Opposite parties. The Opposite parties have filed common version signed by 2nd Opposite party. The Opposite parties have denied that the Complainant visited the clinic of the Opposite parties at Maddur about 5 6 months back and 1st Opposite party examined and diagnosed as paralysis and prescribed medicines giving oil and received Rs.500/-. It is also denied that the Opposite parties 2 & 3 also one after another examined him and prescribed medicines and collected fees and Opposite parties 1 to 3 diagnosed the disease as paralysis wrongly and prescribed medicines. It is also denied that the Complainant took treatment from Dr.Shivaswamy. The Complainant with an intention to gain wrongfully if possible has created this story. It is also denied that the Complainant was put to mental agony and loss of health and the Opposite parties have committed deficiency in service by wrong diagnosis. The Complainant is a total stranger to the Opposite parties. At no point of time, they have treated the Complainant. The Opposite parties are discharging their duty as doctors in the address given. In fact, they are giving treatment to paralytic patients. The 1st Opposite party being aged person has stopped his profession and Opposite parties 2 & 3 are running the said clinic. The Opposite parties have maintained registers which contains the name of the patient, their address, date of treatment. There is no entry of the Complainant in the registers. Prior to filing of this complaint, the Complainant had approached the District RCH Officer, Mandya giving a complaint against these Opposite parties. In fact, the RCH Officer had enquired by issuing notices to the Opposite parties and also to the Complainant. The Complainant remained absent on the date of enquiry in spite of notice. The RCH Officer after verifying the documents and registers maintained by the Opposite parties, noticed that the Complainant neither taken any treatment from the Opposite parties, nor visited their clinic. Accordingly, on 04.06.2009 the RCH Officer gave report to the District Health Officer, Mandya. The said report is unchallenged. When the Complainant failed in the said matter, now has filed this Complaint with an intention to gain wrongfully. The Complainant is not a consumer and therefore, the complaint is not maintainable. The complaint is frivolous and vexatious and complaint is liable to be dismissed with costs. 4.During trial, the Complainant and doctor witness are examined and documents Ex.C.1 to C.6 are produced by the Complainant. On behalf of the Opposite parties, 2nd Opposite party is examined and RCH Officer is examined as R.W.1 and documents Ex.R.1 to R.12 are produced. 5.We have heard both the sides. 6.Now the points that arise for our considerations are:- 1.Whether the Complainant took treatment from Opposite parties 1 to 3 as alleged? 2.Whether the case of the Complainant was wrongly diagnosed as paralytic stroke and treatment for paralytic stroke was given by the Opposite parties 1 to 3? 3.Whether the Opposite parties 1 to 3 have committed medical negligence? 4.Whether the Complainant is entitled to the compensation sought for? 7.Our findings and reasons are as here under:- 8.POINTS NO.1 to 4:- The undisputed facts borne out from the materials on record are that the Opposite parties 1 to 3 are running Basavaraja Clinic, Leelavathi Extension, Maddur Town and they are treating the patients of paralytic stroke and there is Yogi Medical and Generals at Thammannagowda Complex, Goravanahalli Road, Maddur, belonging to the sister of the husband of 2nd Opposite party. 9.The grievance of the Complainant is that 5-6 months prior to the lodging of complaint on account of pain on the right side of his body, he approached Basavaraja Clinic and 1st Opposite party examined him and diagnosed that the Complainant was having paralytic Stroke and prescribed the medicines collecting the fees and since there was no improvement, again he approached and at the instance of the 1st Opposite party, 2nd Opposite party examined him and prescribed medicines, receiving the fees and further, since there was no improvement, he went to the clinic and 3rd Opposite party was present and 3rd Opposite party examined him and prescribed medicines, but it was not useful. Thereafter, when he approached Dr.Shivaswamy, P.W.2 at Channapattana, he came to know that he was not suffering from paralysis stroke, but he was suffering from Blood Pressure. Therefore, his health was affected by wrong diagnosis by the Opposite parties 1 to 3 and he was made to spend the amount. 10.But, the Opposite parties 1 to 3 have denied that the Complainant visited the clinic of the Opposite parties and took treatment as alleged by him and Complainant is total stranger. According to them, the Complainant filed a complaint before the District Health Officer and that complaint was enquired by RW.1 Dr.Somashekar, who is working as RCH Officer at Mandya District and gave the report that the complaint is a false one and having failed in that complaint, the present complaint is filed against the Opposite parties in order to get illegal gain if possible. According to Opposite parties, they have maintained registers of patients examined by them and the name of the Complainant does not find a place. Therefore, the complaint is a false one. According to the Opposite parties, on account of old age, 1st Opposite party is not practicing from last 5-6 years and Opposite parties 2 & 3 are running the clinic. 2nd Opposite party is Ayurvedic Doctor as per Registration Certificate Ex.R.8 and 3rd Opposite party is also holding Registration Certificate (Ex.R.9) from Karnataka Ayurvedic and Unani Practioners Board. The Opposite parties have also produced Ex.R.10, the report by Karnataka Ayurvedic and Unani Practioners Board submitted to Deputy Commissioner, Mandya, after conducting enquiry about the allegations that Opposite parties 1 to 3 giving quack treatment in which the complaint was held to be false. Ex.R.10 is dated 25.11.2005. 11.On the basis of materials available on record, the contention of the counsel for the Opposite parties is that the prescriptions Ex.C.1 to C.4 are created and do not bear the name of the patient, date or signature of the Doctors and therefore, the Complainant is not a consumer and the Complainant has failed to prove that the Opposite parties 1 to 3 treated him and the burden is on the Complainant to prove the medical negligence and has relied upon the decision reported in II (2005) CPJ 205 in Parminder Singh Vs- General Hospital, wherein the Chandigarh State Commission has held that the onus of proving medical negligence lies on person who sets up a case, failure to prove medical negligence on the part of the doctor leads to dismissal of the complaint. In III(2006) CPJ page 312, the Honble National Commission in the case of T.V.Sukumaran Vs- Joy K.Cheriyan has held that in case of medical negligence there must be evidence in support of deficiency in treatment given by the doctor Opposite party, there is nothing to substantiate the allegation that the line of treatment by Opposite party is not correct, no specification allegation of medical negligence proved by examination any expert witness. AIR 2004 Supreme Court 4091 in the case of Dr.Suresh Gupta Vs- Govt. of N.C.T., Delhi is not applicable to the complaint before the Consumer Forum, but the decision refers to criminal liability of the doctor. 12.Now let us examine the materials on record to consider whether the Complainant is a consumer of the Opposite parties and whether he was wrongly treated for paralytic stroke on account of wrong diagnosis by Opposite parties 1 to 3 or whether the complaint is frivolous and false one. 13.The Complainant has produced Ex.C.1 to C.4 and deposed that he took treatment from the Opposite parties and they prescribed the medicines under Ex.C.1 to C.4 for alleged paralytic stroke, when he complained of pain in right side of his body. Of course, Ex.C.1 to C.3 does not bear the date or name of the patient. Admittedly, these prescriptions are on the slip of Yogi Medicals and Generals belonging to relative of 1st & 2nd Opposite parties. It is true that the Complainant has to prove that these prescriptions are issued by Opposite parties 1 to 3. It is commonly known that doctor who examined the patient has to write the name of the patient, date and put a signature and patient will not compel the doctor to write all those things and he is interested in getting only proper treatment. Though Ex.R.1 the copy of the complaint given by the Complainant to the District Health Officer, Mandya was enquired by R.W.1 Dr.Shomashekar and he submitted report as per Ex.R.6, after collecting the records Ex.R.4 & R.5 and though Complainant did not appear for enquiry and though Ex.R.3 a copy of the notice said to have been issued is produced, but there is no proof that the Complainant was served with notice as per Ex.R.3. Further, it appears that is one sided report, because R.W.1 Dr.Somashekar has not examined any of the patients who were taking treatment on that day in the clinic of Opposite parties. But, simply obtained the statement of Opposite parties 2 & 3 and according to the report of Dr.Somashekar 1st Opposite party was present and informed that he has stopped the practicing since 5 to 6 years and the prescription slips given by the Complainant were issued when he was practicing and not relating to the Complainant Billigowda. But, according to the 2nd Opposite party evidence, 1st Opposite party was not present when R.W.1 Dr.Somashekar conducted enquiry. Even, we cannot give any importance to Ex.R.5(a), the alleged list of patients as if, they are written at the same time by same person and therefore, the evidence of R.W.1 and Ex.R.5 cannot be taken in to consideration. 14.Coming to the treatment of Complainant, there is no reason to suspect the evidence of the Complainant that he was treated by Opposite parties 1 to 3 and the Ex.C.1 to C.4 are given by the Opposite parties 1 to 3. Ex.C.4 is to be proved in the handwriting of 3rd Opposite party when compare to his statement Ex.R.4 and his signatures in vakalath. Further, Opposite parties 1 and 3 failed to enter witness box to test their veracity about issue of prescriptions slips Ex.C.1 and C.4 respectively. Therefore, an adverse inference has to be drawn against the Opposite parties 1 & 3 for their failure to enter the witness box holding that they have remained absent assuming that they had to speak the truth. Even though, the complete signature of 2nd Opposite party is not found in Ex.C.2 & C.3, but when we compare the small signature in Ex.C.2 & C.3 with that of Ex.C.7 & C.8 which are admittedly the small letterhead of 2nd Opposite party, they are similar. Further, no doctor will issue receipt for having received the fees except in registered Nursing Home or Hospital or Laboratory. Therefore, the Complainant has proved that the Opposite parties 1 to 3 have treated him obtaining the fees and prescribed the medicines and therefore, the Complainant is a Consumer. 15.The next point to be considered is whether the Opposite parties 1 to 3 have wrongly diagnosed the case of the Complainant and prescribed medicines for wrong diagnosis. As per the certificates Ex.R.7 to R.9, Opposite parties 1 to 3 are expected to practice in Ayurvedic system only. As per the evidence of P.W.2 Dr.Shivaswamy and his certificate Ex.C.5 and ECG report Ex.C.6, the Complainant was treated by him with a history of burning sensation for the right side limbs since 15 days and he did not find any symptoms of paralytic stroke and the medicines prescribed in Ex.C.1 are not medicines of Ayurvedic, but they are Allopathic medicines. Further, according to him before prescribing those medicines affecting central nervous system, C.T. Scan should be done. Even though, P.W.2 has not deposed that the Complainant did not say that he was suffering from paralysis stroke and this doctor did not enquire whether he took treatment from other doctors earlier, but there is no suggestion to this doctor whether the Complainant stated that the doctors Opposite parties 1 to 3 prescribed medicines saying that he was suffering from paralytic stroke. Even though, there is detailed complaint in Ex.R.1 given by the Complainant to the District Health Officer and it is simplified in the complaint before this Forum, on that ground alone, the complaint cannot be viewed with suspicion and we have to assess the evidence independently. Further, the 2nd Opposite party in her evidence has admitted newgral is not Ayurvedic medicine, but it is a allopathic medicine. Though, there is no evidence that the medicines prescribed in Ex.C.2 to C.4 are not Ayurvedic medicines, but they are allopathic medicines, because P.W.2 has not whispered any nothing about the medicines prescribed in Ex.C.2 to C.4. But, the evidence of P.W.2 clearly proves that the prescribed medicines in Ex.C.1 to C.4 are not Ayurvedic, but they are allopathic medicines pertaining to nerves system. The evidence clearly proves that the Complainant was not suffering from any paralysis stroke during that period. Therefore, the evidence clearly proves that the 1st Opposite party has treated the Complainant for paralytic stroke and continued by Opposite parties 2 & 3 prescribing allopathic medicines, though they are empowered to prescribe only Ayurvedic medicines as they are only Ayurvedic doctors. The prescriptions of allopathic medicines by Ayurvedic doctor after diagnosis of paralysis stroke for which admittedly the Opposite parties give treatment is illegal and medical negligence. Therefore, the Opposite parties 1 to 3 have committed medical negligence in giving treatment in allopathic system wrongly diagnosing as paralytic stroke to the Complainant, though he was only having blood pressure and thus, have committed medical negligence. 16.Naturally, the wrong diagnosis by a doctor creates mental agony and further, the patient will put to unnecessary expenses for treatment. Under these circumstances of the case, it is just and reasonable to award compensation of Rs.5,000/- to the Complainant against the Opposite parties 1 to 3. 17.In the result, we proceed to pass the following order; ORDER The complaint is partly allowed, directing the Opposite parties 1 to 3 to pay compensation of Rs.5,000/- to the Complainant with cost of Rs.500/- within two months. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 3rd day of March 2010). (PRESIDENT) (MEMBER)
