KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUANANTHAPURAM APPEAL NO.36/04 JUDGMENT DATED 26.4.2010 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.M.K.ABDULLA SONA -- MEMBER Dr.M.K.Balakrishnan, Janatha Bazar, Uppala, Kasaragod. -- APPELLANT (By Adv.Shri Hari Rao) Vs. M.Yusuf, S/o Mohammed Haji, “Rahmaniya Manzil” P.O Uppala, -- RESPONDENT Kasaragod District. (By Adv.M.Sasindran) JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The above appeal is preferred from the order dated 6th November 2003 passed by CDRF, Kasaragod in OP.90/03 which was filed by the respondent herein as complainant against the appellant/opposite party alleging deficiency in service in treating the complainant by the opposite party as a Doctor practising in Uppala. The opposite party filed written version before the Forum below and contended that there was no deficiency in service on the part of the opposite party and that the opposite party had no occasion to treat the complainant. It was also contended that the complaint is 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 to 4. Exts. A1 to A8 documents were also marked on the side of the complainant. The opposite party was examined as DW2 and a witness on his side was examined as DW1. Exts.B1 to B7 documents were marked on the side of the opposite party. Exts.X1 and X2 documents were also marked through PW4. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 6.11.03 directing the opposite party to pay a sum of Rs.5,000/- as compensation with cost of Rs.1000/- to the complainant. 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 document. He also pointed out that the Forum below has not considered the documentary evidence adduced from the side of the opposite party to prove his qualification and experience to practise as a Doctor. The appellant has also relied on copy of the judgment passed by the Chief Judicial Magistrate, Kasaragod in calendar case No. 185/03 and submitted that the criminal case filed against the appellant/opposite party ( the accused ) ended in his acquittal. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below and prayed for dismissal of the present appeal. He relied on the oral and documentary evidence adduced from the side of the complainant in OP.90/03. 4. The points that arise for consideration are:- 1. Whether the complainant in OP.90/03 has succeeded in establishing his case that he was treated by the opposite party M.K.Balkrishnan by prescribing the medicines contained in A1 prescription and that the complainant suffered inconvenience and discomfort due to the treatment by the opposite party? 2. Whether there was any deficiency in service on the part of the opposite party as alleged by the complainant in OP.90/03 on the file of CDRF, Kasaragod? 3. Is there any sustainable ground to interfere with the impugned order dated 6.11.03 passed by CDRF, Kasaragod in OP.90/03? 5. POINTS 1 TO 3:- The Definite case of the respondent/complainant is that he was treated by the appellant/opposite party on 10.8.02 and that the complainant consumed the medicines prescribed by the opposite party and it resulted in aggravating the ailment of the complainant. But the appellant/opposite party vehemently disputed the said case of the complainant. It was contended that he had no occasion to treat the complainant and to prescribe medicines by issuing A1 prescription. The opposite party as DW2 has denied the issuance of A1 prescription. He also denied the signature in A1prescription. It is to be noted that there is no independent evidence available on record to prove the case of he complainant that A1 prescription was issued by the opposite party M.K. Balakrishnan. It was incumbent upon the Forum below to get an expert opinion regarding the disputed handwriting and signature of the opposite party in A1 prescription. The Forum below has gone wrong in taking the risk of comparing the disputed signature of the complainant that the admitted signature in his vakalath and version. There was no hindrance for the Forum below to get an expert opinion in that matter and to compare the disputed signature of the opposite party with the admitted signature with the aid of an expert. Mere fact that the name of the opposite party is written in A1 disputed prescription cannot be taken as a ground to hold that the A1 prescription was issued by the opposite party. There is no reliable evidence on record to substantiate the case of the complainant that he was treated by the opposite party for the ailment of stomach ache. 6. The Forum below has relied on the testimony of PW2, Dr.V.K. Muhammed. It is to be noted that the very same witness was examined in another complaint in OP.74/03. The aforesaid complaint in OP.74/03 was filed by one Abdul Nazir against the opposite party herein alleging deficiency in service in treating the complainant therein. In the said case also the complainant therein developed a case that by the treatment of the opposite party his disease aggravated and he was admitted in the hospital of by PW2. Thus, PW2 is in the habit of admitting patients who were said to have been treated by the opposite party. This circumstance would create genuine doubt about the credibility of the testimony of PW2 So, this Commission is reluctant to rely on the testimony of PW2 Dr.V.K.Muhammed. 7. The case of the respondent/complainant is that he approached the opposite party Balakrishnan for getting the ailment of stomachache treated at the hands of the opposite party and that as a result of the said treatment his illness aggravated and thereby he was admitted in Nisa Hospital owned by PW2. But there is nothing on record to show that the medicine prescribed by the opposite party caused inconvenience or discomfort to the complainant. Exts. A4 to A8 documents were produced from the side of the complainant. It would not show that administration of the medicine prescribed by the opposite party caused inconvenience or discomfort to the complainant. So, the case of the complainant that he suffered deficiency in service at the hands of the opposite party cannot be believed or accepted. The Forum below cannot be justified in allowing the complaint on the ground of the alleged deficiency in service. 8. The Forum below has also relied on the testimony of PW4. Exts.X1 and X2 documents and the oral version of PW4 would give an indication that PW4 was very much interested in giving evidence against the opposite party. PW4 cannot be treated as an independent and impartial witness. The Forum below has gone wrong in relying on the testimony of PW4 in finding the opposite party negligent in treating the complainant. 9. The Forum below placed reliance on the testimony of PW4 and thereby rejected the medical certificates and experience certificates produced by the opposite party to prove his qualification and experience. PW4 could speak about the competency of the opposite party to practice as a Doctor in Allopathic medicines. In fact, there is no acceptable evidence other than the interested testimony of PW1 to show that the opposite party prescribed Allopathic medicines or that the opposite party practised in the field of Allopathic medicines. 10. The appellant has also relied on the judgment pronounced by the Chief Judicial Magistrate, Kasaragod in calendar case No.185/03. The aforesaid judgment was pronounced after passing of the impugned order in OP.90/03. It is to be noted that the aforesaid criminal case was filed at the instance of one K.AbdulNazir who filed another consumer complaint against the opposite party as OP.No.74/03. It is to be noted that in the aforesaid criminal case the very same Dr.Mohammed was examined as a prosecution witness and the opposite party M.K.Balakrishnan was examined as a defense witness. It is true that the opposite party was the accused in the aforesaid criminal case charged under Section 417, 419, 420, 468, 471 IPC and Sections 15 of the Indian Medical Council Act. The allegation in the said criminal case was also as alleged in the present complaint in OP.90/03. The learned Chief Judicial Magistrate considered the competency of the opposite party herein to practice as a doctor in Ayurvedic medicines. In the said case, the Forum has also considered the certificates produced by the accused to prove his qualification and experience to practice as a Doctor in Ayurveda and alternative medicine. The materials available on record, the facts and circumstances of the case would show that OP.90/03 was filed to cause un-necessary harassment to the opposite party M.K.Balakrishnan. There was no bonafide or truth in the complaint in OP/90/03. But, the Forum below failed to evaluate the evidence on record in its correct perspective. The mere fact with some witnesses have deposed against the opposite party cannot be taken as a ground to find an innocent person guilty of deficiency in service. There is no clinching evidence to substantiate the case of the complainant that the opposite party prescribed Allopathic medicines by issuing A1 prescription. It is hard to believe that the appellant/opposite party issued A1 medical prescription to the complainant. So, this Commission have no hesitation to set aside the impugned order passed by the Forum below. Hence we do so. Thereby the complaint in OP.90/03 on the file of CDRF, Kasaragod is also dismissed. These points are answered accordingly. In the result, the appeal is allowed. The impugned order passed by CDRF, Kasaragod in OP.90/03 is set aside. No order as to costs. M.V.VISWANATHAN -- JUDICIAL MEMBER S/L M.K. ABDULLA SONA -- MEMBER | 
