STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 217 of 2013 |
Date of Institution | : | 28.05.2013 |
Date of Decision | : | 13.09.2013 |
Dr. Batra’s Positive Health Clinic Pvt. Ltd., SCO No.45-46, Sector 8-C, Madhya Marg, Chandigarh now at present SCO No.16-17, Ground Floor, Sector 9-D, Madhya Marg, Chandigarh through its authorized signatory Sh. Avtar Singh, Administrative Officer.
…Appellant/Opposite Party.
Versus
Master Harjot Singh, minor through his father and natural guardian Jagmohan Singh s/o Late Sh. Nirmal Jot Singh R/o H.No.3235, Sector 15-D, Chandigarh.
….Respondent/Complainant.
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
SH. DEV RAJ, MEMBER.
Argued by: Sh. Ashwani Talwar, Advocate for the appellant.
Sh. Sandeep Khunger, Advocate for the respondent.
PER DEV RAJ, MEMBER.
This appeal is directed against the order dated 30.04.2013 of the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), passed in Consumer Complaint No.71 of 2010 vide which, it accepted the complaint of the complainant, against the Opposite Party (now appellant) and directed it, as under: -
“20. Resultantly, the complaint is partly allowed. The OP is directed to refund the amount of Rs.18,700/- given by the complainant to it. OP shall also make payment of a compensation of Rs.1,00,000/- to the complainant for mental agony and harassment on account of unfair trade practice and deficiency in service. It shall also make payment of litigation expenses of Rs.11,000/- to the complainant.
21. This order shall be complied with by the OP within one month from the date of receipt of its certified copy, failing which, OP shall be liable to refund the above said awarded amount to the complainant along with interest @9% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation, as mentioned above.”
2. The facts, in brief, are that Master Harjot Singh, complainant, being minor, filed a Consumer Complaint before the District Forum, through his father and natural guardian alleging that he (Harjot Singh) was suffering from hair fall problem. It was stated that the complainant came across a newspaper advertisement in the year 2006, and subsequently, similar advertisement published by the Opposite Party in ‘The Times of India, New Delhi, Chandigarh’ dated 18.7.2009 (Annexure C-1), which represented that the doctors of the Opposite Party were specifically trained in Trichology (Science of hair) by international experts and had successfully treated over a lakh hair patients by using cutting edge technology like video Microscopy. It was also advertised that the Opposite Party could help to find out the nature of hair loss and to detect early hair loss, even before someone realized it. It was further stated that after going through the said advertisement in newspaper, the complainant alongwith his father visited the office of the Opposite Party and the doctors present there assured him that the problem of his hair fall would be treated. It was further stated that on the asking of the doctors, the father of the complainant deposited a sum of Rs.5,500/- on 19.4.2006 vide receipt (Annexure C-2). It was further stated that the Opposite Party started the treatment of the complainant. It was further stated that on 21.4.2007, the complainant again deposited a sum of Rs.6,500/- with the Opposite Party vide receipt (Annexure C-3). It was further stated that the complainant told the Opposite Party a number of times in the year 2007 that there was no recovery of hair fall but it told him that the treatment was going on, and the patient would recover early. It was further stated that the complainant again deposited a sum of Rs.6,700/- vide receipt (Annexure C-4), after the assurance of the Opposite Party, that the results would come in that year, and he need not worry about the hair fall. It was further stated that the Opposite Party also advised the complainant to have a special diet, as per diet chart (Annexure C-5). It was further stated that when the complainant did not find any recovery, he asked the Opposite Party to refund the amount received by it because all the hair on his head had disappeared. The complainant alongwith the complaint also attached his photograph before the treatment and his recent photograph as Annexures C-5 and C-6. It was further stated that the complainant, being Sikh by religion, felt shy while going to School, because the hair of his head, being the essential part of his religion, and those of eye brows had disappeared. It was further stated that the complainant suffered great depression, due to improper as well as deficient treatment, given by the Opposite Party. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), for directing the Opposite Party to refund Rs.18,700/- spent on treatment; pay Rs.50,000/- spent on special diet; Rs.4,00,000/- as compensation for harassment and mental agony, Rs.11,000/- towards Counsel fee and Rs.3,300/- as cost of litigation, was filed.
3. The Opposite Party, in its written version, stated that it was an ISO:9001-2008 Company and provide homeopathy treatment for various ailments from which the different patients were suffering. It was further stated that the advertisement (Annexure C-1) was published in the newspaper as a caution to various patients, who were having hair loss and emphasized that anybody with hair loss problem should understand that all was not well within his body. It was admitted that the doctors of the Opposite Party were specifically trained in Trichology (science of hair) by international experts and had successfully treated over a lac hair patients. It was further stated that the complainant had failed to attach the advertisement of the year 2006 by which he was allegedly lured. It was further stated that the advertisement (Annexure C-1) dated 18.7.2009 was subsequent one, when the patient had stopped coming to the clinic and, as such, it did not have any relevance. It was further stated that, in fact, the complainant was known to an ex-employee of the Opposite Party and was taken care of by the senior doctors namely Dr. Ambika Chaudhary and Dr. Danial Raj. It was further stated that the complainant was suffering from chronic hair disorder and had hair fall problem, which had resulted into patches in the scalp, which were already there. It was further stated that that Opposite Party never undertook that the patient would be completely cured. It was further stated that since the complainant had come through an employee of the clinic, he was registered by paying a discounted amount of Rs.5,500/- instead of Rs.7,900/-, which was charged normally. It was further stated that the patient was found to be suffering from the problem of ‘alopecia totalis’, which was a very rare disorder. It was further stated that the prognosis was explained to the complainant in April, 2006 and he started taking treatment. It was further stated that the patient felt better and he decided to take treatment for two more years, which was evident from the follow ups, taken by the doctors. It was further stated that there was improvement, in the condition of the patient. It was further stated that the complainant never asked for the refund of the amount. It was further stated that homeopathy drugs do not have any side effects or cause of any aggravation of disease. It was further stated that the regular follow ups and the reviews that were done by various doctors ruled out the possibility of any unfair trade practice or negligence on the part of the doctors attending on the patient. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor did it indulge into unfair trade practice. The remaining averments were denied, being wrong.
4. The parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint partly, against the Opposite Party, in the manner, referred to, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
7. We have heard the Counsel for the parties, and, have carefully perused the evidence and record.
8. The Counsel for the appellant/Opposite Party submitted that the respondent/complainant had himself chosen to take treatment and there was no allurement from the side of the Opposite Party. It was further submitted that hair loss problem is a chronic disease. It was further submitted that the appellant/Opposite Party treated the patient and hair loss was lessened. It was further submitted that the respondent/complainant was never told that hair would grow. It was further submitted that the respondent/complainant took treatment for complete three years and, in case, he was not satisfied, he could discontinue the same. It was further submitted that Dr. Paramjeet Singh Ranu, Member of Council of Homeopathy, in his interrogatories, stated that the treatment given was perfectly in order. It was further submitted that there was no averment, in the entire complaint about negligence. It was further submitted that there was also no averment, in the complaint, that there was any adverse impact by Lazer Comb treatment. It was further submitted that Lazer Comb treatment was like applying gel or massage and is not a part of Homoeopathic science. It was further submitted that the Lazer Comb treatment was wrongly taken as Lazer Gun by the District Forum. It was further submitted that the District Forum, in its order, wrongly held the appellant/Opposite Party deficient on the ground of advertisement, which was published, being unethical but such a plea was not part of the complaint. It was further submitted that the patient in the present case was suffering from a chronic disease and his condition did not improve despite taking allopathic medicines from 2004 to 2006, homeopathic medicines from 2006 to 2009 and now till 2013. It was further submitted that in Para 9, the District Forum observed that homeopathic medicines ‘Flouricum Acidum, Jaborandi, Calcarea Carb, Pulsatilla’, which were given to the complainant, as claimed by Dr. Bindu Sharma, did not have any side effects or after effects but her claim with regard to Lazer Comb treatment and SPR were not recognized in the science of homeopathy and could not be considered, in any way, as homeopathic treatment. Lastly, it was prayed that the appeal be accepted and the impugned order, passed by the District Forum, be set aside.
9. On the other hand, the Counsel for the respondent/complainant, submitted that the affidavit filed by Dr. Bindu Sharma to the effect that the doctors were specially trained in tricology, was not supported by any cogent evidence. It was further submitted that the Lazer Comb treatment involved one sitting of the complainant, in the presence of his father, in a month. It was further submitted that the doctors were not competent to administer Lazer Comb treatment. It was further submitted that the appellant/Opposite Party had told the respondent/complainant that the treatment would take three years and, therefore, the complainant continued with the same. The Counsel for the respondent/complainant specifically referred to the following contents of the advertisement:-
“Hair loss could be due to various causes such as diabetes, anaemia, polycystic ovarian syndrome, thyroid disorders, and stress related disorders.
Our doctor at Dr. Batra’s, specifically trained in Trichology (science of hair) by international experts, have successfully treated over a lakh hair patients. Using cutting-edge and technology like Video Microscopy, we can help you to find out the nature of your hair loss and to detect early hair loss even before you realize it.
So, stop taking your hair loss lightly, treat it now before it’s too late.”
10. He further submitted that on Annexure C-2, which is a receipt dated 19.4.2006, words “Dr. Batra’s SUPER SPECIALITY HOMEOPATHY’ were mentioned. It was further submitted that on Annexures C-3 and C-4, words “Dr. Batras WORLD’S LARGEST CHAIN OF HOMEOPATHY CLINICS” and “Dr. Batra’s MULTISPECIALITY HOMEOPATHY” had been mentioned. It was argued by the Counsel that in homeopathy, the doctors are having Degress of DHMS and BHMS equivalent to MBBS, and, equivalent to MD Degree in Allopathy. It was vehementally argued that no evidence, whatsoever, in support of the claim of the appellant/Opposite Party that the doctors were qualified having Degrees of MD, what to talk of super speciality, was produced by the appellant/Opposite Party. It was further submitted that no affidavits of Dr. Ambika Chaudhary and Dr. Danial Raj, who treated the patient, were brought in evidence. It was further argued that Dr. Bindu Sharma, Advisory Homeopathy, never treated the respondent/complainant. It was prayed that the appeal being devoid of merit be dismissed.
11. The question, that falls for consideration, is, as to whether, there was any medical negligence, on the part of the Doctors of the appellant/Opposite Party, who administered treatment to Master Harjot Singh complainant. The Hon’ble Supreme Court in para-94 of its judgment titled as Kusum Sharma and Ors. Vs. Batra Hospital and Medical Research Centre and Ors. I(2010) CPJ 29 (SC), observed as under:-
“94. On scrutiny of the leading cases of medical negligence both in our Country and other Countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence, the following well known principles must be kept in view:
I. | Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. |
II. | Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. |
III. | The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. |
IV. | A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. |
V. | In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. |
VI. | The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. |
VII. | Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. |
VIII. | It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck. |
IX. | It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. |
X. | The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. |
XI. | The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.” |
Their Lordships observed that the aforesaid principles, must be kept in view while deciding the cases of medical negligence. It is evident from the principle of law, laid down, in the aforesaid case, that, as long as, the Doctor performs his duties and exercises an ordinary degree of professional skill and competence, he/she cannot be held guilty of medical negligence. It is imperative that the Doctor must be able to perform his/her professional duties, with free mind.
12. In the case of Jacob Mathew (Dr.) Vs. State of Punjab & Anr.-III (2005) CPJ 9 (SC), it was held by the Apex Court, that a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of the surgery would invariably be beneficial much less to the extent of 100% for the person operated upon. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the reasonable skill, in that branch of profession, which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill, with reasonable competence.
13. In Laxman Balakrishan Joshi Vs. Trimbak Bapu Godbole and Anr.-AIR 1969 SC 128, the Apex Court laid down the criteria for determination of the professional duty of a medical man. The Hon’ble Supreme Court held that a person who holds himself out ready to give medical advice, and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, when consulted by a patient, owes himself certain duties viz. a duty to care, in deciding whether, to undertake the case, in deciding what treatment to give or duty of care, in administration of that treatment.
14. It is evident, from the principle of law, laid down, in the aforesaid cases, that as long as, the Doctor performs his duties and exercises an ordinary degree of professional skill and competence, he cannot be held guilty of medical negligence. It is imperative that the doctor must be able to perform his professional duties, with free mind. In the instant case, Master Harjot Singh was having hair loss problem. The complainant having come to know from newspaper advertisement in the year 2006 and subsequent similar advertisement published by the appellant/Opposite Party in the newspaper ‘Times of India’ dated 18.7.2009 (Annexure C-1), decided to take treatment from the appellant/Opposite Party and an amount of Rs.5,500/- vide receipt dated 19.4.2006 (Annexure C-2) was deposited with the appellant/Opposite Party. Subsequently, vide receipt dated 21.4.2007 (Annexure C-3), receipt dated 5.10.2008 (Annexure C-4), a sum of Rs.6,500/- and Rs.6,700/- respectively were deposited. Thus, in all, an amount of Rs.18,700/- were paid by the complainant to the appellant/Opposite Party.
15. The argument of the Counsel for the appellant/Opposite Party that according to Dr. Paramjeet Singh Ranu, Member of Council of Homeopathy, (who was professional rival of the appellant) treatment given was perfectly in order, is devoid of truth. The following extracts from the affidavit of Dr. Paramjeet Singh Ranu are reproduced below, which without there being any iota of doubt, do not at all support the averments made by the appellant/Opposite Party:-
“(b) Mr. Jagmohan Gandhi visited my clinic with his son Master Harjot Singh with a reference of some of my patient treated by me. He showed me all the reports and treatment done by the Batra clinic where I noticed that the Homoeopatic Part was well done and ethical but the part of use of laser treatment by laser guns by the Homoeopaths at Dr. Batra’s Positive Health Clinic did not appeal to my mind as in the above said regulations under the Professional misconduct clause 35(13) “Claiming to be a specialist without having put on substantial number of years of study and experience in the subject concerned or without possessing a special qualification in the branch concerned” I felt that it is a real misconduct done by the physician handling the patient. As per clause (9) of the code of ethics I came forward to give my fearless and unprejudiced opinion in this case.
(c) Being the Elected Member of the State Homoeopathic Council and former Member of the Central Council of Homoeopathy also it was my moral duty to expose such type of illegal and corrupt practices done by our colleagues in the profession in the interest of the public and profession.
(d) My focus in the statement filed before this Hon’ble Forum through an affidavit dated 3.10.2012 is based mainly towards the unethical practices of the doctors at Opposite Party claiming to treat the patients for baldness by Homoeopathic science. In Para 7 of my affidavit I had stated that the Laser comb treatment is not a part of Homoeopathic medicine.”
16. It is further borne out from an extract of literature relating to ‘The HairMax LaserComb’, placed, on record, at Pages 406 and 410 of the District Forum file alongwith with the questionnaires served upon Dr. Paramjeet Singh Ranu that “…….The HairMax LaserComb is a proven hair loss solution and is the first and only home use device cleared by the FDA for the promotion of Hair Growth…..”. In this view of the matter, the claim of the appellant/Opposite Party of being SUPER SPECIALITY HOMEOPATHY, WORLD’S LARGEST CHAIN OF HOMEOPATHY CLINICS and MULTISPECIALITY HOMEOPATHY, is belied from the aforesaid document/extract, which stated that the Laser Comb, being proven hair loss solution, was the first and only home use device cleared by FDA for the promotion of hair growth.
17. The answers to Questions No.51, 52 and 53 given by Dr. Paramjeet Singh Ranu also do not, in any way, support the case of the appellant/Opposite Party. No evidence in support of its claims by the appellant/Opposite Party that it was a super specialty clinic was produced. No affidavits of Dr. Ambika Chaudhary and Dr. Danial Raj, who treated the complainant, were brought on record. No evidence that Dr. Ambika Chaudhary and Dr. Danial Raj, who treated the patient, were super specialist in the stream was brought on record. Copies of the degrees, being allegedly held by the doctors who treated the complainant, were also not placed, on record, to prove that they were well qualified, in the particular stream to treat the complainant. Only affidavit of Dr. Bindu Sharma, Advisor, Homeopathy, was brought in evidence. Relying upon the assurances, given by the appellant/Opposite Party, the complainant continued treatment for complete three years. We find force in the argument of the Counsel for the respondent/complainant, that treatment for continuous three years was taken not only that there was improvement in hair loss, but relying upon the advice of the appellant/Opposite Party, that such a treatment shall take three years. Therefore, the argument of the appellant/Opposite Party that had there been no improvement, the respondent/complainant could discontinue the treatment is devoid of merit. Evidently, the appellant/Opposite party did not have any specialist or super specialist to cure hair loss and its claim to this effect was highly incorrect. There was no improvement in the hair loss and rather the hair loss problem aggravated. Since the complainant was treated by the doctors, who were not super specialists in the science of Tricology (hair loss), the Opposite Party was palpably guilty of medical negligence.
18. The appellant/Opposite Party, as rightly argued by the Counsel for the respondent/complainant, did not have any experts/specialists to treat the patients, having the problem of hair loss. Still, it was publicized that the clinic of the appellant/Opposite Party was “Dr. Batra’s SUPER SPECIALITY HOMEOPATHY’, “Dr. Batras WORLD’S LARGEST CHAIN OF HOMEOPATHY CLINICS” and “Dr. Batra’s MULTISPECIALITY HOMEOPATHY”. Such advertisements could not be given under the Homoeopathic Practitioners Professional Conduct, Etiquette and code of Ethics Regulations 1982. The relevant Regulations 6 and 19 of these Regulations relating to “Advertising” and ‘Exposure of Unethical Conduct’ read as under:-
“6. Advertising
(1) Solicitation of patients directly or indirectly by a practitioner of Homoeopathy either personally or by advertisement in the newspapers, by placards or by the distribution of circular cards or handbills is unethical. A practitioner of Homoeopathy shall not make use of, or permit others to make use of, him or his name as a subject of any form or manner of advertising or publicity through lay channels which shall be of such a character as to invite attention to him or to his professional position or skill or s would ordinarily result in his self-aggrandisement provided that a practitioner of Homoeopathy is permitted formal announcement in press about the following matters, namely:
(i) the starting of the type of practice;
(ii) change of the type of practice;
(iii) change of address;
(iv) temporary absence from duty;
(v) resumption of practice;
(vi) succeeding to another’s practice.
(2) He shall further not advertise himself directly or indirectly through price lists or publicity materials of manufacturing firms or traders with whom he may be connected in any capacity, nor shall he publish cases, operators or letters of thanks from patients in non-professional newspapers or journals provided it shall be permissible for him to publish his name in connection with a prospectus or a director’s or a technical expert’s report.
“19. Exposure of Unethical Conduct
A practitioner of Homoeopathy shall expose, without fear or favour, the incompetent, corrupt, dishonest or unethical conduct on the part of any member of the profession.”
19. Undoubtedly, the District Forum rightly held that the big advertisements in the newspapers and magazines were misguiding and the doctors seemed to be more of salesmen and treated patients as if they were helping them for charity. In fact, the logical inference from such advertisements, which are against the Homoeopathic Practitioners Professional Conduct, Etiquette and code of Ethics Regulations 1982, is that the same were given not to treat the patients but to dupe the consumers/patients. In this view of the matter, the deficiency, in rendering service, and unfair trade practice on the part of the appellant/Opposite Party, was galore, for which, the District Forum rightly directed the appellant/Opposite Party to refund Rs.18,700/- to the complainant. The compensation awarded by the District Forum to the tune of Rs.1 Lac, besides Rs.11,000/- as litigation expenses, also seemed to be adequate and proper.
20. No other point, was urged, by the Counsel for the parties.
21. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
22. For the reasons recorded above, the appeal filed by the appellant/Opposite Party, is dismissed, with no orders as to costs. The impugned order, passed by the District Forum, is upheld.
23. Certified Copies of this order be sent to the parties, free of charge.
24. The file be consigned to Record Room, after completion.
Pronounced.
13th September, 2013.
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
[DEV RAJ]
MEMBER
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STATE COMMISSION
(Appeal No.217 of 2013)
Argued by: Sh. Ashwani Talwar, Advocate for the appellant.
Sh. Sandeep Khunger, Advocate for the respondent.
Dated the 13th day of September, 2013
ORDER
Vide our detailed order of the even date, recorded separately, this appeal filed by the appellant/Opposite Party, has been dismissed, with no order as to costs. The order of the District Forum has been upheld.
(DEV RAJ) MEMBER | (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT |
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