PRESENT
Complainant by Adv. Shri. Bhosekar present.
Opponent 1 & 2 by Adv. Arun Mishra present.
ORDER
(Per- Mr. S. D. MADAKE, Hon’ble President.)
1. The complainant filed this complaint for deficiency in service against opponents u/s.12 of Consumer Protection Act,1986.
2. The complainant stated that he approached to opponent no.1 hospital on 25/04/2014 for check up due to swollen of tooth and weakness. The opponent no.1 obtained blood for examination and directed him to come on the same day.
3. The complainant stated that opponent no.1 gave reports of examination and told that reports are prepared by opponent no.2. The complainant stated that opponent no.1 uttered following words-
| | “The complainant has been detected with malaria, the complainant has very platelets. The complainant should be admitted with the opposite party opponent no.1 immediately and complainant's life is in danger condition”. | |
4. The complainant alleged that instead of admitting in hospital as suggested by opponent no.1, he approached Dr.D.Y.Patil hospital, Nerul, New Mumbai on 25/04/2014 at 11.15 p.m. The blood was taken for examination and report dated 26/04/2014 shows the complainant's health was good and he has no malaria infection.
5. The complainant stated that Dr.D.Y.Patil hospital obtained blood of complainant on 27/04/2014 for cross verification and the report dated 28/04/2014 shows the same result.
6. The complainant stated that opponent no.1 took his blood and sent to opponent no.2 with malafide intention and prepared by them false and fabricated report for wrongful gain. He was mentally shocked due to conduct of both opponents. He met both of them regarding the above act, however, both of them threatened him with dire consequences.
7. The complainant sent notice to the opponents through Advocate on 09/05/2014 which was replied falsely on 07/06/2014 by both of them. The complainant has demanded receipt of fees paid to opponent no.1, but he denied to do so.
8. The complainant prayed for compensation for mental agony and physical harassment to the amount of Rs.15,00,000/- and prayed for injunction restraining both of the opponents from carrying medical practice.
9. The opponent parties filed written version and denied all the adverse allegations made in various paras of complaint. It is submitted that complainant did not visit the opponent's nursing home at any point of time and they have issued any blood report nor did refer him to respondent no.2.
10. The opponent no.2 stated that report submitted by complainant is forged and fabricated and same report was never issued through his diagnostic center.
11. The opponent no.2 stated that complainant visited diagnostic center for blood checking and opponent no.1 had never referred him for the same nor did opponent no.1 sent blood of any patient on 25/04/2014 for examination.
12. The opponent nos.1 and 2 pleaded ignorance relating to treatment of the complainant in Dr.D.Y.Patil hospital. It is alleged that opponent no.2 never issued false report, but prescribed correct report with the help of expert and proper examination.
13. The complainant has filed false case to extract illegal sum against both opponents under the pretext of false blood report. They shall file expert opinion to show that there was no wrong on their part. They are not liable to pay any amount and complaint is liable to be dismissed with costs as per Sec.26 of C.P.A. 1986.
14. The complainant filed affidavit, visiting card, reports, notice and reply of notice. The opponents filed on record affidavit, copy of documents, list of persons who attended hospital, wedding card. Both sides filed evidence affidavit and written argument on record.
15. The opposite party no.2 admitted complainant visited on the date referred and the reply was given to him, which was prepared by experts. The opponent no.2 thus admitted that he had given the report of blood examination. It is a specific case of complainant that he approached opponent no.1 for treatment as he was suffering from swollen and weakness. The complainant has produced on record the visiting card of opponent no.1.
16. The opponent no.1 has denied to have given any treatment to complainant and produced on record the wedding card and register of hospital to show that, on the date mentioned, he was not present in the hospital and complainant did not visit the hospital on the date stated by complainant. However, the report furnished after examination by opponent no.2 clearly shows that complainant was referred by opponent no.1. It is difficult to imagine that a doctor would refer any person for investigation without the said person is first approached towards him for treatment.
17. On careful perusal of the report, it is evident that only complainant has filed report on record and there is no other report. In case the above report is fabricated and false according to opponent no.2 and he specifically admitted that he has given report based on expert opinion, it was necessary on the part of opponent to produce on record the said report to show that report filed by complainant was a false document.
18. The complainant has given detailed facts of the incident which we found to be logical and true. We do not agree with the theory stated by opponents. The complainant has stated on oath that amount was paid to opponent no.1 as consideration, however the receipt was not given though demanded by him.
19. In view of the facts and circumstances referred above we hold that complainant was subjected to inconvenience and mental agony due to unfair trade practice adopted by both opponents. The complainant was harassed due to improper advice on the basis of report which lateron found to false. We hold that both opponents are guilty for deficiency in service and they have not followed professional ethics.
20. The medical service is covered by the definition of service under Consumer Protection Act,1986. The principal object of medical profession is to render service to humanity with full respect for the dignity of the profession and man. The doctor should not exaggerate nor minimize the gravity of patient's condition. He must act with utmost care and caution and owes a duty to disclose immediately to the patient of facts relating to his ailment and possible cure. The service which the medical profession renders to human being is probably the noblest of all.
21. We found that both opponents failed to give proper opinion regarding complainant's ailment when admittedly blood was investigated and report was prepared by opponent no.2. The opponents were under an obligation to explain with cogent evidence that they acted in good faith for the welfare of complainant, particularly when they allege that report produced on record is false and fabricated document.
22. During the pendancy of complaint, application was filed for injunction restraining opponents from practice, which was not considered. The Indian Medical Council under Medical Council Act,1956 deals with cases of professional misconduct. The Dentists Act 1948 empowers Dental Council to prescribe code of conduct as well as ethics for dentist. The said application was rejected by this forum.
23. The another important aspect is that, allegations are made that a false and fabricated documents in the nature of report is filed on record. Both parties have made allegations against other party. Both sides were at liberty to take appropriate steps to substantiate the charge. The opponents have not taken steps though according to them fabricated document was prepared using the letter head of opponent no.2.
24. In the result, considering all facts and circumstances we hold that complainant is entitled for reasonable compensation as per principle laid down under Sec.73 of Contract Act,1872. The complainant was required to be admitted in D.Y.Patil Hospital, Nerual as he was informed that he was suffering from malaria when in fact he was not suffering from the said disease. The report corroborates the said fact. We are of the opinion that complainant is entitled for compensation for mental agony and financial loss together to the amount of Rs.25,000/-. Both the opponents shall pay Rs.12,500/- each to complainant. In view of peculiar facts, we are of the view that both parties shall bear their own costs.
25. In the result, we pass the following order.
ORDER
1. complaint No.134/2014 is partly allowed.
2. Opponent no.1 and opponent no.2 shall pay Rs.12,500/-(Rs.twelve
thousand, five hundred only) each total Rs.25,000/-(Rupees twenty five
thousand only) with interest at the rate of Rs.9% p.a. from the date of the
filing of complaint.
3. No order as to costs.
4.Copy of this order sent to both parties.
