Date of Filing: 13.01.2016 Date of Final Order: 06.09.2017
Runa Ganguly, Member.
The present complaint has been filed by the Complainant U/S 12 of C.P. Act 1986. The factual matrix of the case as can be gathered from the case record is that Complainant felt pain in his abdomen and came to the O.P. No. 1 and consulted with the O.P. No.2 on 25.04.2014. After examination the O.P. No. 2 prescribed some medicines with an advice to avoid various non-veg. item and took medicines of Rs. 900/- as cost of medicines from the O.P. No.1. After consuming two or three doses of the medicines some irritation has been felt with acute pain by the Complainant. The Complainant further visited the O.P. No.2 who after examining the Complainant assured that he would be cured within a short time but the physical condition of the Complainant deteriorated gradually with tremendous pain in his abdomen. He again contacted the O.P. No.2 but the O.P. doctor refused to examine him. Thereafter he along with his family members rushed to Recovery Homoeo Clinic at Tufanganj and consulted Dr. Dhiraj Saha and after due treatment the Complainant relieved from itching problem and thereafter for total cure he visited three doctors and had to pay huge money. Afterwards, the Complainant all on a sudden discovered that the O.P. No. 2 is not a registered doctor. Thus, treating by him the Complainant wasted his valuable time, money etc. and suffered various disorder. The O.Ps did not act as per medical ethics which is nothing but deficiency in service.
Thus, the Complainant filed the present case against the O.Ps seeking relief and redress as incorporated in the prayer portion of the complaint.
The O.Ps are contesting the case by appearing through their Ld. Agents and filed separate W/V. The O.P. No. 1 in its turn stated that the present case is not maintainable in its present form as well as in law also bad for mis-joinder and non-joinder of necessary parties. The O.P. contended that this case is liable to be dismissed for want of cogent ground of deficiency in service as alleged by the Complainant against this O.P. The further contention of this O. P. is that the O.P. No. 1 is a Scientific Homeopathy Treatment Centre deals in sale of imported German Homoeopathy medicines and some Homoeopathic consultant also available there like O.P.No.2. The O.P. denied the fact of alleged treatment taken by the Complainant from the O.P. no.2 also purchase of medicines from the O.P. No. 1. The O.P. also contended that the documents marked as annexure –A/1 was not issued by the O.P. and it manufactured by the Complainant with ill motive. This O.P. denied almost all the allegations made by the Complainant in W/V as well as in evidence on Affidavit. This O.P. also denied that the Complainant is a consumer as no money receipt is issued by this O.P. in favour of the Complainant and thus prayed for dismissal of this case with cost.
The O.P. No. 2 by filing W/V contested the case contending inter-alia that the present case is not maintainable etc. like the O.P. No. 1 and denied some allegations of the Complainant. This O.P. also did not admit that the Complainant came to the O.P. with abdominal pain. The fact is that the Complainant came to the O.P.No. 2 with “Glandular Tumor” with constipation as such the O.P. prescribed necessary Homeopathy medicines on the basis of symptoms also advised him to avoid non-veg food. Thereafter, the Complainant did not come further to the O.P. The further contention of the O.P. is that as per Homeopathy Science, Homeopathy medicine has no reaction. This O.P. also claimed himself as a Registered Homeopathy Practitioner and denied all allegations as labeled against him by the Complainant. The O.P. also averred that the alleged treatment by other doctors after a long period from 25.04.2016 might cause some new ailment. By putting all this this O.P. prayed for dismissal of this case with cost as he has no deficiency in service.
In the light of the contention of both parties, the following moot points necessarily came up for consideration to reach a just decision.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service as alleged by the Complainant ? If so, are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs, as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, perused the documents of the Complainant and other materials on record and heard the argument advanced by the agent of the parties at a length. Perused also the Evidence on affidavit, W/Ar. of the Complainant and Opposite Parties.
The Complainant and the O.P. has fled some rulings. Peruse the same but all are not applicable in the present case.
Point No.1.
Evidently, the Complainant went to the O.Ps for taking medical service being influenced by their advertisement. Annexure “A” transpires that the O.P. No. 2 prescribed some medicines and treated the patient and the O.P. No.2 admitted the fact in his W/V. The O.P. No. 2 used the pad of O.P. No. 1 as prescription. Nowhere in the said prescription we find that the treatment was complimentary in nature or the O.Ps are used to provide charitable service. Thus, the relation of the Complainant with the O.Ps. as came it appears from the materials made available in the record, we have no hesitation to say that the Complainant is a Consumer of the O.Ps and thus, this case is well maintainable before the Consumer Forum.
Point No.2.
The medical shop of the O.P. No.1 and the chamber of the O.P. No. 2 , both are within the jurisdiction of this Forum and also this complaint valued at Rs. 3,35,000/-.i.e. within pecuniary limit as per C.P. Act, 1986 for which there is no dispute in the point of territorial as well as pecuniary jurisdiction. We are of the considered view that this Forum has both territorial and pecuniary jurisdiction of this Forum.
Point No.3 & 4.
Both the points are taken up together for convenience of discussion and sake of brevity.
On perusal of the documents made available in the record it appears that the Complainant went to O.Ps with abdominal pain and some other ailments.
The Complainant alleged that, after consuming the medicine as prescribed by the O.P. No.2 the Complainant felt some reaction and thereafter treated by another doctor and he cured. The Complainant files two documents obtained through RTI which reflects that the O.P. No. 2 is not a registered practitioner(Annexure-C). The O.P.No.2 claimed himself qualified to be a Homoeopathic practitioner on the strength of a Registration certificate issued by the Central Council of Biochemic and Complex Homoeo Medicine in India” vide his Registration Certificate No.9519 dated 12/03/2005. (Annexure-5)
The letter, Ref. no. HC/646 dated 16.09.2016 of council of Homoeopathic Medicine, West Bengal under Dept. of Health & Family Welfare, Govt. of W.B/ by Dr. Atish Bondyopadhyay, Registrar (on deputation), informed the Complainant that the Doctor’s Registration No. 9519 under part-“A” belongs to Dr. Dilip Kr. Maity of Gogrash, Raghunathbari, Midnapur and Registration No.9519 under part B belongs to Dr. Nila Dasgupta of N/2/3, Room 4, PNT Qtr, CC Block, Salt Lake City, Kolkata-64. The Registration No.5919 under part-A belongs to Dr. SK. Habibur Rahaman of Bhangagoram, Deulpota, Midnapur and Registration No. 5919 under part-B belongs to Dr. Ear Mohammad of Ketugram, Burdwan (Annexure-C).
The O.P. No.1 in its W/V and evidence on affidavit clearly stated that the O.P. No.2 is a Registered Medical Practitioner duly registered with “Central Council of Biochamic and Complex Homoeo Medicine in India” vide his Registration Certificate No.9519 dated 12/03/2005 and thus, the O.P. No.2 is well entitled to practice in Biochemic and Homeopathy. During the course of argument the Ld. Agent for the O.Ps vehemently argued that the Complainant did not purchase any medicine from the O.P. No.1 as per advice of the O.P. No.2 and denied the Annexure “A-1 as filed by the Complainant also stated that the Complainant is not a consumer of O.P. No. 1. This point has been clearly described in point No.1.
In this juncture, we place our reliance on the information of Central Council of Homeopathy as gathered by the Complainant through RTI (Annexure-E) which reflects that the Central Council of Biochemic and Complex Homoeo System in India is not authorized to issue any registration certificate for practicing Homoeopathy and Central Council of Biochemic and Complex Homoeo Medicine in India is not concerned with Central Council of Homoeopathy. Further, Annexure “D” clearly transpires that “Central Council of Biochemic and Complex Homoeo Medicine in India” is not a recognized council of Homoeopathic/Biochemic system of medicine. Registration of a Homoeopath (Practitioner) under Council of Homoeopathic Medicine in West Bengal is compulsory to practice Homoeopathic and Biochemic Medicine in West Bengal under HCC Act 1973 and its subsequent amendment.
The issue as to what constitutes medical negligence has been clearly observed by a three Judges Bench of the Hon’ble Supreme Court in Jacob Mathew vs. state of Punjab &Anr. Reported in (2005) 6 SCC 1; where in it has been clearly described that …………”a professional may be held liable for negligence on one of the two findings : either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess……….”
It is crystal clear (Annex. E) that neither the name of the O.P. No. 2 has been registered with the concerned authority nor the Central Council of Biochemic and Complex Homoeo Medicine in India has any authority to issue Registration Certificate to the Homoeopath Practitioner.
In the light of the above decision of Hon’ble Supreme Court and two valuable information of concerned authority supplied by the Complainant, we are of considered view that the O.P. No. 2 without possessing any requisite degree and certificate treated the patients including the Complainant claiming himself as Medical Practitioner in Homeopathy which is nothing but medical negligence and unfair trade practice.
Besides, the O.P. No.1 is running the clinic by allowing the O.P.No.2 , a fake doctor to practice in Homeopathy by using its pad for which the proprietor of O.P. No. 1 cannot evade its liability. Being the principal he ought to verify the degree, qualification, Registration No. of the O.P. No.2 but without doing so the O.P. No. 1 allowed the O.P. No. 2 to run practice in homeopathy. Thus, we have no hesitation to say that the O.P. No. 1 is running his business in connivance with the O.P. No 2 which is nothing but unfair trade practice.
The O.P. No. 1 is running his business by opening a medical clinic in the name and style “German Homoeo” in the heart of this town with a trade license issued by the municipality of Cooch Behar by allowing the O.P. No. 2, a fake doctor to run Homoeopathy practice which is dangerous. The act and conduct of the O.P. No. 1&2 is certainly come under unfair trade practice as described in Section 2 (1) (r) of C.P. Act 1986.
In the light of the foregoing discussion, also the documents made available in the record it is well established that the O.P. No. 2 is not a registered Homoeopath practitioner. In the prescription there is also no registration No. of the said doctor. The O.P. No.2 supported his treatment to the Complainant though he has no capacity/authority to treat any patient in Homeopathy. The Registration No. of the O.P. No. 2 has no recognition in the eye of law, as per information received through RTI. Thus from all corners, the deficiency in rendering medical service, medical negligence to the Complainant and unfair trade practice by the O.P. No. 2 and the unfair trade practice as adopted by the O.P. No.1 have been clearly established.
The Forum is of great concern of the consumers of both O.Ps who are still using their unfair trade practice. In the present case, the Complainant has pointed out the medical negligence and illegal trade practice of the O.Ps and a good number of consumers have already made victims of medical negligence and unfair trade practice of the O.Ps. The Complainant is also a victim of medical negligence and unfair trade practice of the O.Ps. So, the Complainant should be compensated and O.Ps be directed in following manner.
The O.P. No.1 may be directed to pay Rs. 1,00,000/- for unfair trade practice out of which Complainant may get Rs. 25,000/- and the rest amount may be deposited in the Consumer Legal Aid Account.
The O.P. No.2 may be directed to pay Rs. 2,00,000/- for medical negligence and unfair trade practice out of which Complainant may get Rs. 25,000/- and the rest amount may be deposited in the Consumer Legal Aid Account.
Thus, the complaint succeeds. Fees paid are correct.
Hence ,
it is ordered,
That the complaint case be and the same is hereby allowed on contest against the O.Ps. with cost of Rs.10,000/-.
The O.P. No.1 is directed to pay Rs.1,00,000/- for unfair trade practice out of which the Complainant shall get Rs. 25,000/- and the rest amount shall be deposited in the Consumer Legal Aid Account.
The O.P. No.2 is directed to pay Rs.2,00,000/- for medical negligence and unfair trade practice out of which the Complainant shall get Rs. 25,000/- and the rest amount shall be deposited in the Consumer Legal Aid Account.
The O.P. No. 1&2 are also directed to pay Rs. 25,000/- each to the Complainant as mentioned above by 45 days from the date of this order.
The O.P. No. 1 is further directed to deposit Rs.75,000/- to the Consumer Legal Aid Account and the O.P. No. 2 is directed to deposit Rs. 1,75,000/- to the Consumer Legal Aid Account by 45 days from the date of this order.
The O.P. No. 1&2 are directed to pay Rs.5,000/- each to the Complainant as litigation cost by 45 days from the date of this order
The O.P. No. 2 is also directed to stop his practice in Homeopathic medicine at once.
The O.P. No. 1 is also directed not to allow the O.P No. 2 to run his practice as Homeopath Practitioner at its clinic.
The O.Ps are hereby further directed to comply with the order within 45 days from this date of this order, failure of which the O.Ps shall have to pay @ Rs.50/- each for each days delay, by depositing the accrued amount if any in this regard, in the State Consumer Welfare Fund, West Bengal after the expiry of the stipulated period above.
Let a copy of this order be sent to the C.M.O.H. Cooch Behar for his information and taking necessary action, if any.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
Dictated and corrected by me.
