Tamil Nadu

StateCommission

FA/442/2011

DR. T.K. NARAYANAN - Complainant(s)

Versus

p. GANESH - Opp.Party(s)

SAMPATH KUMAR

31 Mar 2015

ORDER

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

BEFORE        HON’BLE THIRU JUSTICE R. REGUPATHI        PRESIDENT

                        THIRU.A.K.ANNAMALAI                          JUDICIAL MEMBER 

                        TMT. P. BAKIYAVATHI                                                 MEMBER

                                                      F.A.NO. 442/2011 & F.A.651/2012

                                 (As against the order in CC No.20/2005 dated 22.4.2010,

                                                      DCDRF, Chennai(North)

                                    Dated this the  31^st  day of MARCH, 2015

F.A.NO. 442/2011

 

Dr. T.K.Narayanan

Accupuncture Doctor

S/o T.S.Kuppuswamy

New No.19H/old No.8H

Siva Shakthi Flats,

New Colony 1^st street,

Adambakkam, Chennai 600 088                 ..Appellant/1^st opp.party

                                            Vs

1.P.Ganesh

Plot No.23/108,

Sri Ayyappa Nagar

First Main Road,

Chennai – 92                                         ..1^st Respondent/complainant

 

2. M/s Kumaran Hospital Pvt. Ltd,

Rep.by its Managing Director,

Mr. Palaniswamy,

214, E.V.R. Periyar Salai,

(P.H.Road), Kilpauk

Chennai 600 010                                    ..2^nd Respondent/2^nd opp.party

 

Counsel for the Appellant/1^st opp.party   : M/s Sampath kumar Associates

For the 1^st Respondent/complainant        :  party in person

For 2^nd Respondent/2^nd opp.party                 : Called absent

 

F.A.651/2012

P.Ganesh

Plot No.23/108,

Sri Ayyappa Nagar

First Main Road,

Chennai – 92                                   ..Appellant/complainant

                                        Vs

1. Dr. T.K.Narayanan

Accupuncture Doctor

S/o T.S.Kuppuswamy

New No.19H/old No.8H

Siva Shakthi Flats,

New Colony 1^st street,

Adambakkam, Chennai 600 088            .. 1^st Respondent/1^st opp.party

 

2. M/s Kumaran Hospital Pvt. Ltd,

Rep.by its Managing Director,

Mr. Palaniswamy,

214, E.V.R. Periyar Salai,

(P.H.Road), Kilpauk

Chennai 600 010                                    ..2^nd Respondent/2^nd opp.party

 

For the Appellant/complainant                       : M/s S. Vijay Anand

Counsel for the 1^st Respondent/ 1^st opp.party  : M/s Sampath kumar

                                                                     Associates

For the 2^nd Respondent                                  : Dispensed with

 

 

The Appellant/1^st Respondent is the complainant. The District Forum allowed the complaint. Against the said order, the Appellant/complainant filed this appeal praying to set aside the order of the District Forum in CC.No. 20/2005, dated 22.4.2010.   

          This appeal coming before us for hearing finally on 18.2.2015 upon hearing the arguments on both side, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following common order. 

                                 COMMON ORDER

THIRU.A.K.ANNAMALAI,  JUDICIAL MEMBER

1.       The 1^st opposite party is the appellant in FA.No.442/2011

2.        The complainant is the appellant in FA No.651/2012

3.     The complainant filed a complaint alleging medical negligence and deficiency in service against the opposite parties 1 and 2 in giving acupuncture treatment and claimed for compensation for Rs. 4,00,000/-and for cost.  

  

4.         The opposite parties 1 and 2 denying the allegations contended that the complainant had undergone acupuncture treatment only in part with the 1^st opposite party against the advice of for doctors and paid only 50% of the amount and the 2^nd opposite party contended having no knowledge of treatment given by the 1^st opposite party to the complainant except to have the role that they given room in their hospital for rent to the 1^st opposite party and the 1^st opposite party having mis-used their documents in giving such treatment.

         

5.         On the basis of both side material and after en enquiry, the District Forum came to the conclusion that there was negligence and deficiency in service to the complainant by opposite parties 1 and 2 and directed both the parties to furnish lab test result and x-ray report of the complainant within one week time  the date of receipt of the order and further directed the 1^st opposite party to pay a sum of Rs.24,000/- to the complainant towards compensation for mental agony and including Rs.4000/- as cost and directed the 2^nd opposite party to pay Rs. 12,000/- to the complainant as compensation including Rs.2000/- as cost within six  weeks from the date of order.

 

 6.         Aggrieved by the impugned order, the 1^st opposite party alone has come forward with an appeal contending that the District Forum allowed the complaint without taking into consideration of various documents relied upon by the 1^st opposite party and having his practice in acupuncture with valid materials and the complainant not proved that the 1^st opposite party had given wrong treatment which caused trouble or further treatment with any medical expert evidence and thereby the appeal is to be allowed.

 

7.           The complainant also not satisfied with the award against the opposite parties 1 and 2 had come forward with the appeal in F.A.651/2012. Eventhough, against the opposite parties 1 and 2 initially, subsequently the appeal against the 2^nd opposite party was dispensed with and hence the appeal lies as on today only against the 1^st opposite party. The complainant/appellant contended that the District Forum has not considered the quantum of compensation regarding 1^st opposite parties’ deficiency caused various trouble to the complainant and the 1^st opposite party had also move before the Civil court for recovery of money from the complainant which caused valuable loss of time, money expensive etc, to the complainant and thereby the compensation to be enhanced to Rs.4,00,000/- from Rs. 24,000/-and the appeal is to be allowed accordingly.

 

8.       In the course of enquiry in the appeal, the complainant had filed additional documents which are marked as Ex.A.29 to A.37 in FA 651/2012 and on the side of the 1^st opposite party also the additional documents are marked as Ex.B.28 to Ex.B.30 in FA 442/2011.  

 

9.         We have heard both the appeal in common since both the appeals arised from one and the same order passed in CC 20/2005 dated 22.4.2010 by the District Forum Chennai (North), after taking both the appeals together for hearing and the common order being passed.

 

10.          We have heard both side arguments, contentions and perused the materials including the additional documents relied upon by either side.

 

11.         It is the case of the complainant that the 1^st opposite party having served as acupuncture practitioner under the 2^nd opposite party’s hospital given treatment for the complaint of headache and leg pain by way of acupuncture treatment to be given in 40 course of sitting for the  payment of Rs.6400/-, entire cost of which the complainant paid Rs.3200/- Apart from X-ray and lab test fee separately and he had undergone 23 sittings and having not satisfied with the treatment and there is no betterment was felt the improvement of his condition, but aggravated  pain and gave side  effects shivering, body pain and dis-continued of the treatment requesting for lab test and x-ray report. For corrective treatment which were not given and subsequently had allopathic treatment and got by spending some more money and therefore filed a consumer complaint against the opposite parties 1 and 2.

 

12.        The 1^st opposite party having denied the allegations contended that he had given treatment for complainant by mode of acupuncture therapy in which he is qualified as alternative medicine therapy obtained diploma in magneto therapy and also obtained degree  namely Doctorate of Acupuncture from the open international university Srilankan in the year 1998 and also obtained Ph.D. in Hydro Theraphy and the opposite party was  practicing alternative medical practice in the field of Acupuncture at Avadi and was having a very good practice by earning the goodwill of his practice. Knowing the efficiency of this opposite party M/s Kumaran Hospital Pvt Ltd. Kilpauk. Chennai made him to join the hospital. He employed an assistant and later he dismissed him due to mis-understanding, because of that assistant began to harass him and made paper publication with malicious statement about the 1^st opposite party which are highly mischievous.

 

13.      The Hon’ble High Court by its order dated 24.7.2000 in W.P. No. 12322/2000 was pleased to direct the police and the government authorities not to harass the 1^st opposite party or his parents. Since the complainant had not undergone entire sittings had only 30 sittings and he was cured considerable extent instead of continuing the treatment, the complainant dis-continued the same abruptly and there after proceeded with legal process. The complainant mainly relied upon to prove that the 1^st opposite party was not a qualified doctor and having suspicion as an acupuncturist by disputing the decree issued by the open International university of Sri Lanka, on the basis of paper publication under Ex.A.5 and Sri Lanka High Commissioner’s letter under Ex.A.9 in which they have stated that the open university of Srilanka does not award the degree named by the complainant and the universities grants Commissioner recognized the degree certificate issued only by the established universities under University Act and the open International university at Colombo is not affiliated institution by the UGC and also relied upon the police action taken against the 1^st opposite party for which the 1^st opposite party availed direction from the High court not to harass him by police authority as per the documents of Ex.B.2 and relying upon various Government of India circulars and reply obtained under RTI Act under Ex.A.24 to Ex.A.29 and thereby tried to establish that the 1^st opposite party is not a qualified doctor and thereby treatment cannot be considered having any value rendered alleging deficiency, for as the qualification of the 1^st opposite party, concerned that he relied upon under Ex.B.1, course certificates given by open international university for the course of doctorate of acupuncture given in 1998 and also relied upon various letters and messages relating to the conferences of alternative medicines relating to the message and letters of various Srilankan dignitaries including President, M.Ps etc., under Ex.B.12 to B.18 in which they have hailed and congratulated for the conference and praising the system of medicines and the services for the past 40 years and thereby the 1^st opposite party established the course undergone and the certificate issued by the open international university, Srilanka is not a Bogus one.

 

14.          Even though the regulation and restriction of practice of the same in Tamil Nadu with the same and on perusal of those documents, these contention of the 1^st opposite party cannot be brushed aside and since the 1^st opposite party also by way of additional documents before this commission under Ex.B.28 to B.30 established that even though the police people try to harass him on the basis of his Assistant’s false complaint for which the Hon’ble High Court has injected them by way of writ not to harass him and to proceed against the 1^st opposite party legally in accordance with the law and as per the direction under Ex.B.28, B.29, the Inspector of police, Avadi police station had given certificate and that the 1^st opposite party has not come to any adverse remarks during the period September 1975 to 2001 as per the records in F-1 Avadi police station. From this certificate that the complainant as per the written version having own clinic at Avadi in the name of acupuncture medical centre and was practicing there and it would also elicited that the 2^nd opposite party Corporate Hospital having permitted him in their hospital premises to practice acupuncture and thereby the 1^st opposite party prescribed the prescription for x-ray, lab test, etc., as per Ex.A.1  and A.2 and under Ex.A.13. The circular of the Government of India dated 25.11.2003 it is stated that after the recommendation of the committee regarding the recommendation of various traditional systems of medicines pointed out as follows:-

 

        “The committee has however recommended that such a practice as a acupuncture as magno-therapy as qualified as modem therapy could be allowed by the practitioner/Registered practitioner or for properly trained for personnel”,  from this letter and other materials, it is no where proved that the practice of acupuncture mode of therapy was prohibited or regulated with any Rules of Tamil Nadu and in those circumstances the qualification of the 1^st opposite party cannot be considered to be a  quake. But it is decided that deficiency in service for giving treatment to the complainant when he was under the practice in 2^nd opposite party’s hospital.

 

15.       It is the admitted case of both side that the complainant had to undergo 40 sittings for his complaint of leg pain and head ache for which it is alleged by the complainant, he had undergone 23 sittings and the 1^st opposite party alleged that he had undergone 30 sittings and however it is clear that the complainant abruptly left the further course of sitting alleging that the side effects of shivering and body pain occurred and he had subsequent treatment which cured his ailments, for which he relied upon Ex.A.13, copy of corrective treatment.  On perusal of Ex.A.13, it is no where stated that he had the symptom of allergy or other complications only because of the wrong treatment or improper treatment given by the 1^st opposite party and further the materials under Ex.A.13, would go to show that he had a history of leg pain and right side headache from 10 years ago, he did not disclose any significant abnormality and in the scan report taken for sinuses, it was suggested the post-operative changes and bi-lateral natural sinuses, these all are go to show that the complainant had already having defects in his leg and sinus problem and the subsequent treatment alleged to have been taken under Ex.A.13, would only disclose the mode of treatment and not even to prove that the ailments are not cured only because of wrong treatment by the 1^st opposite party.

 

16.        The District Forum, in its order simply observed that the 1^st opposite party or not obtained and possess the valid degree in acupuncture, on the basis of documents produced by the complainant under Ex.A.5, Ex.A.6 to A.9  not believing the contention of the 1^st opposite party and without taking into consideration of non- production of any expert evidence, materials to prove that the treatment given by the 1^st opposite party was erroneous came to the conclusion that there was deficiency of service on the part of the opposite party. Further it is an admitted case of both side that the complainant was sued by 1^st opposite party for non-payment of alleged dues to be paid for the treatment even before the Small Causes Court under Ex.A.22 and on perusal of the same, it is seen the 1^st opposite party claimed the balance amount of Rs. 3200/- for the treatment given which was dismissed by the court on the ground that the complainant had not undergone the entire course of treatment and the dispute relating to the number of sittings undergone was not established and thereby it is clear that the complainant had also not come forward with clean hands in filing the consumer complaint.

 

17.         As far as the additional documents relied upon by the complainant concerned under Ex.A.29 to A.37 is concerned as per Ex.A.34 to A.37 are concerned after passing an award by the District Forum, the complainant filed a Execution Petition in which the 2^nd opposite party having satisfied, the award amount to the complainant and for the other direction of handing over of x-ray, lab report as they are not in the custody for which also there was a settlement between the complainant and 2^nd opposite party, payment of Rs.3000/- was made for the same, it was received by way of cheque by the counsel would also go to show that the complainant in any way, wants to proceed against the opposite parties  and as the documents Ex.A.29 to Ex.A.33 are regarding the medical qualification of the 1^st opposite party under RTI Act.  The complainant obtained the information and this alone not helpful in view of the finding that the complainant has not proved  the deficiency in service  against the 1^st opposite party in giving acupuncture treatment when the 1^st opposite party alleged that unless and until he had undergone the entire course of 40 sittings of treatment for entire cure and as he had not fulfilled and the complainant alleged eventhough he dis-continued of the same for the reason that he had the side effects of shivering, the body pain which are not proved by any valid documents when he had having previous complaints of maligned bone defects and sinus problems as per in own records under Ex.A.13 and since the 2^nd opposite party had already not filed any appeal and having proceeded against the 2^nd opposite party in Execution Application before the District Forum as for as the enhancement of compensation against 1^st opposite party alone is concerned, since we are of the view that the deficiency or negligence on the part of the 1^st opposite party was not established or proved by the complainant and the appeal filed by the 1^st opposite party as to be allowed and thereby the appeal filed by the complainant would automatically became in effective and as for as against 1^st opposite party is concerned is liable to be dismissed for the reasons and discussions as above and thereby we are of the view that the appeal filed by the 1^st opposite party  in FA 442/2011 is deserved to be allowed and the appeal filed by the complainant in FA.651/2012 is liable to be dismissed.

 

         In the result, the appeal filed by the 1^st opposite party/Appellant in FA 442/2011 is allowed by setting aside the order of the District Forum, Chennai (North) in C.C No. 20/2005 dated 22.4.2010 as against the 1^st opposite party only and thereby the complaint against the 1^st opposite party alone is dismissed.      

              

             In the result, the appeal is filed by the complainant in FA 651/2012 against the 1^st opposite party is dismissed in view of the order passed in F.A 442/2011, today.

 

      There will be no order as to costs in both appeals.

 

 

P.BAKIYAVATHI                    A.K.ANNAMALAI                          R.REGUPATHI

   MEMBER                             JUDICIAL MEMBER                          PRESIDENT 

 

                                     ANNEXURE

 

LIST OF ADDL. DOCUMENTS FILED BY THE COMPLAINANT :  (F.A.651/12)

Ex.A.29           9.1.2012    Copy of Appellant’s application under section 7(1)      of RTI Act 2005 along with its enclosures

Ex.A.30        21.1.2012    copy of the police summon under section 160 and        91 Cr.P.C from the Police Inspector Office, T6, Avadi Police Station, Avadi.

Ex.A.31        25.1.2012     copy of Appellant’s fist follow up to RTI Application

Ex.A.32        8.2.2012      copy of the reply for the above RTI Application from the Police Inspector office

Ex.A.33        23.7.2013     copy of the Hindu paper cutting

Ex.A.34        15.6.2010     copy of the letter of Dr.P.Shivakumar, Kumaran Hospitals (p) Ltd. 

Ex.A.35        19.7.2010     Copy of the letter of Mr.S.Vijay Anand

 

Ex.A.36        30.12.2010   copy of the letter of Mr.R.Krishnaswamy 

Ex.A.37        30.12.2010   copy of the letter of Dr. P.Shivakumar

 

 LIST OF ADDL. DOCUMENTS FILED BY THE OPP.PARTY:  (F.A.442/11)

Ex.B.28        20.7.2000     copy of Affidavit filed by the Appellant

Ex.B.29        20.7.2004     copy of police clearance certificate

Ex.B.30        23.3.2001     copy of order passed in W.M.P No. 6040/2001 in

                                        W.P 4266/2001

 

 

P.BAKIYAVATHI                    A.K.ANNAMALAI                          R.REGUPATHI

   MEMBER                             JUDICIAL MEMBER                          PRESIDENT