KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUANANTHAPURAM APPEAL NO.536/05 JUDGMENT DATED 26.4.2010 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.M.K.ABDULLA SONA -- MEMBER Dr.M.K.Balakrishnan, Prasanthi Clinic,Sakthi Nagar, Mangalore – 6,D.K.District, -- APPELLANT Karnataka. (By Adv.Shri Hari Rao & Ors) Vs. K.Abdul Nazeer, Alias Nazeer, -- RESPONDENT S/0 late Abdul Rahiman, Near Mada, B S Nagar, Kunjathur Post, Kasaragod Taluk and District. (By Adv.M.Sasindran & Ors.) JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The above appeal is preferred from the order dated 23rd February 2005 passed by CDRF, Kasaragod in OP.74/03. The complaint in OP.74/03 was filed by the respondent herein as complainant against the appellant/opposite party alleging deficiency in service in treating the complainant at the Prasanthi Clinic of the opposite party at Uppala. The opposite party entered appearance and filed his written version and denied the alleged deficiency in service and also the alleged treatment of the complainant by the opposite party. The opposite party categorically contended that he was not conducting any clinic by name Prasanthi Clinic at Uppala and that the complainant was not treated by him for any ailment. It is further contended that the complaint is a false one and filed at the instance of rivals who are on inimical terms with the opposite party. Thus, the opposite party prayed for dismissal of the complaint. 2. Before the forum below, the complainant was examined as PW1 and witnesses on his side were examined as PWs 2 and 3. Ext.A1 to A11 were also marked on the side of the complainant. The opposite party was examined as DW1 and a witness on his side as DW2. B1 to B5 documents were also produced and marked on the side of the opposite party. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 23.2.05 finding deficiency in service on the part of the opposite party and thereby directing the opposite party to pay a sum of Rs.10,000/- as compensation to the complainant with cost of Rs.1000/-. Aggrieved by the said order, the present appeal is filed by the opposite party therein. 3. We heard both sides. The learned counsel for the appellant/opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal. He canvassed for the position that A1 prescription was not issued by the opposite party and that the Forum below has gone wrong in relying on A1 prescription without proving the same by expert evidence. He also pointed out the difference in medicine consumed by the complainant as noted in Exts.A6 and A7 documents and the medicine covered by A1 prescription and A2 bill. It is further submitted that the Forum below has not considered the documentary evidence adduced on the side of the opposite party to establish his qualification and experience as a doctor. The appellant has also relied on the copy of the judgment passed by the Chief Judicial Magistrate Court, Kasargod in calendar case No.185/03 and submitted that the criminal case was filed at the instance of the complainant herein against the opposite party as the accused for the offence under Section 417, 419, 420, 468 and 471 IPC and Section 15 of the Indian Medical Council Act and the said case ended in acquittal. On the other hand, the respondent/complainant supported the findings and conclusions of the forum below and prayed for dismissal of the present appeal. 4. The points that arise for consideration are:- 1. Whether the complainant in OP.74/03 has succeeded in establishing his case that he was treated by the opposite party M.K.Balakrishnan in the clinic by name Prasanthi Clinic and that A1 prescription was issued by the opposite party in connection with the treatment of the complainant at Prasanthi Clinic? 2. Whether the complainant has succeeded in establishing the alleged deficiency in service on the part of the opposite party therein? 3. Whether the Forum below can be justified in finding the opposite party in OP.74/03 as deficient in rendering service to the complainant and directing the opposite party to pay compensation of Rs.10,000/- with cost of Rs.1000/- to the complainant? 5. POINTS 1 TO 3:- The case of the respondent/complainant is that he was treated by the appellant/opposite party in the appellant’s clinic by name Prasanthi Clinic at Uppala and the said treatment was for fever and headache on 17.7.02. The appellant/opposite party denied the said case of the complainant. It is vehemently contended that there is no such clinic by name Prasanthi Clinic at Uppala, that the complainant was never treated by the opposite party. He also denied issuance of A1 prescription to the complainant. It is further contended that A1 prescription was not issued by the opposite party. The opposite party as DW1 has categorically deposed that A1 was not written by him and he has not signed in A1. 6. Admittedly A1 prescription was in the letter pad of Sreenivas Medical Hall, Mangalore. The appellant/opposite party in his written version has categorically contended that the said letter pad in the name of Sreenivas Medical Hall Mangalore was not issued by him and that he has no contact with the said Sreenivas Medical Hall, Mangalore. In such a situation it was incumbent upon the respondent/complainant to establish his case that the said prescription written on the letter pad of Sreenivas Medical Hall, Mangalore was supplied to the appellant/opposite party. But there is no evidence available on record to show that such a letter pad was issued by Sreenivas Medical Hall, Mangalore to the opposite party Balakrishnan. It is also to be noted that the opposite party has categorically contended that the said letter pad is a concocted one. In that context it was the bounden duty of the complainant to establish the whereabouts of the said letter pad in the name of Sreenivas Medical Hall, Mangalore. The complainant has not succeeded in establishing the fact as to how such a letter pad was printed in the name of Sreenivas Medical Hall, Mangalore and as to how the appellant/opposite party happened to be in possession of such a letter pad. In this situation it is hard to accept the case of the complainant that the said prescription was issued by the opposite party Balakrishnan. 7. Another important aspect to be noted at this juncture is the medicine prescribed by the opposite party on 30.7.02. In A1 prescription, the drug prescribed is Novospar and it was prescribed on 30.7.02. But that medicine was purchased by the complainant only on 31.7.02. According to PW3, the medical shop is 250 ft away from the clinic of the opposite party. If that be so, the medicine prescribed on 30.7.02 ought to have been purchased on 30.7.02 itself. But A2 bill is dated 31.7.02. More over, the medicine sold by A2 bill is by name Torospar. It is come out in evidence that Novospar and Torospar are different brand names of one and the same medicine. Ext.A6 admission record and A7 Doctors record issued from Nisa hospital would show that the medicine administered to the complainant was Norspan. So, the ailment if any suffered by the complainant could be due to consumption of Norspan instead of Novospar or Torospar. So, it is too much on the part of the complainant to find fault with the opposite party. These discrepancies regarding the medicine prescribed, the medicine purchased by A2 bill and the medicine consumed as per A6 and A7 records would create genuine doubt about the case of the complainant. 8. The complainant has got a case that due to consumption of the medicine prescribed by the opposite party, the complainant suffered difficulties and that his Kidney and Liver became weak. But there is no evidence on record to show that the Kidney and Liver became weak due to consumption of medicine prescribed by the opposite party Balakrishnan Had there been any such serious disease affecting the Liver and Kidney, the complainant should not have preferred Nisa Hospital situated at Bandiyodu. According to the complainant he was treated at Nisa Hospital by PW2 Dr.V.K.Mohammed. It is come out in evidence that PW2 Dr.V.K.Mohammed is having only his basic qualification of M.B.B.S degree. It is also come out in evidence that there was no facility in Nisa Hospital to conduct test and other investigations for repairing the damage to Kidney or Liver. In such a situation, the complainant ought not have preferred the treatment of PW2 Dr.V.K.Mohammed. It is admitted by the complainant that Bandiyodu and Mangalore are having equal distance from Kunjathoor where the complainant was residing at the relevant time. It is admitted that at Mangalore there are well equipped hospitals. Had the complainant was in such critical stage adversely affecting his Liver and Kidney he would have gone to any other better hospital in Mangalore. 9. The fact that the complainant approached PW2 at Nisa Hospital would create genuine doubt about the bonafide on the part of the complainant. It is to be noted that another consumer complaint was filed by one M.Yusuf against the appellant/opposite party .M.K.Balakrishnan by filing a complaint as OP.90/03. In the aforesaid complaint also the complainant therein was treated by the opposite party .M.K.Balakrishnan and the disease got aggravated and he was also taken to the Nisa hospital where the complainant therein was treated by PW2 Dr.V.K.Muhammed. In the aforesaid complaint in OP.90/03 also the very same Doctor was examined. So, this circumstance would also create genuine doubt about the genuineness and correctness of the case put forward by the complainant. It would in turn support the case of the opposite party that a false complaint has been filed against him at the instance of persons who are on inimical terms with the opposite party. A suggestion was put to PW2 Dr.V.K.Muhammed that he is giving false evidence against the opposite party at the instance of Dr.Khader for the purpose of harassing the opposite party. But, the Forum below has not considered all these circumstances while evaluating the evidence of PWs 1, 2 and 3 and also the documentary evidence available on record. 10. The Forum below has also gone wrong in comparing the disputed signature of the opposite party in A1 prescription with that of the admitted signature of the opposite party in A10 document. It was not just or proper on the part of the Forum below in comparing the disputed signature of the opposite party with his admitted signature and coming to the conclusion that signature in A10 is that of the opposite party. It is to be noted that high risk is involved in making such a comparison without the assistance of expert evidence. It was just and proper on the part of the Forum below to get the disputed signature compared with the admitted signature of the opposite party with the aid of an expert in the field, especially, in the light of the discrepancies and inconsistencies in the oral as well as documentary evidence available on record. 11. The complainant in OP 74/03 had also preferred a criminal complaint as CC 185/03 before the Chief Judicial Magistrate, Kasaragod. The said criminal complaint was preferred against the opposite party M.K.Balakrishnan. The opposite party was the accused in the said calendar case 185/03 on the file of the Chief Judicial Magistrate, Kasaragod. The Judgment in that calendar case 185/03 was pronounced on 30th May 2007. The aforesaid criminal case was disposed of after passing of the impugned order in OP.74/03. In the aforesaid judgment the Chief Judicial Magistrate had occasion to consider the certificates issued by the various authorities in the name of the opposite party M.K.Balakrishnan. It was held in that criminal case that the accused therein M.K.Balakrishnan is competent to practice as a Doctor in Ayurveda and Homoeopathic medicines. His competency to practice as a Doctor in Ayurveda and Homoeopathic medicine had been recognized by the competent authorities. In the aforesaid criminal case Dr.V.K.Muhammed was examined as PW2 and the complainant herein was examined as PW1. After a detailed discussion of the evidence on record, the evidence of PWs 1 and 2 therein was disbelieved by the Criminal Court and the offence alleged against the accused M.K.Balakrishnan was negatived and that the accused was acquitted of the charges leveled against him. The aforesaid Judgment in calendar case 185/03 would strengthen the case of the appellant/opposite party that the consumer complaint in OP.74/03 was a false complaint filed to wreck vengeance against the opposite party M.K.Balakrishnan. So, this State Commission has no hesitation to set aside the impugned order dated 23/2/05 passed by CDRF, Kasaragod in OP.74/03. The complainant in OP.74/03 has not succeeded in establishing his case that he suffered discomfort and inconvenience on account of the deficiency in service on the part of the opposite party M.K.Balakrishnan. The complainant has also miserably failed in establishing his case as alleged against the appellant/opposite party M.K.Balakrishnan. These points are found in favour of the appellant/opposite party. In the result the appeal is allowed. The impugned order dated 23.2.05 passed by CDRF, Kasaragod is set aside. No order as to costs. M.V.VISWANATHAN -- JUDICIAL MEMBER M.K.ABDULLA SONA -- MEMBER s/L | 
