ORDER

(Per: Mr. D.K. Tyagi, Member):

          This is an appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 23.03.2010 passed by the District Forum, Dehradun in consumer complaint No. 120 of 2006. By the order impugned the District Forum has allowed the consumer complaint and directed the opposite party-appellant to pay a sum of Rs. 2.00 lacs to the complainant. 

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the son of the complainant named Master Shivam, who was about 7½ years in the year 2006, was suffering from Epilepsy. The complainant and her husband-Sh. Ashok Kumar Gupta, went to the clinic of the opposite party on 04.06.2000 at about 11.00 a.m. The opposite party-            Dr. R.K. Gupta inspected the child and gave a dose of medicine to the ailing child and Rs. 2,200/- were deposited with the opposite party.  A patient card was prepared as Patient No. 40345.  The opposite party had said that he is giving doses of medicine for six months and advised to come again after six months alongwith patient card.  In this way, the complainant regularly took medicines from the opposite party since year 2000 at an interval of every six months.  The opposite party was treating complainant’s son since year 2000 up to a period when the opposite party was imprisoned in jail.  In this way, the opposite party charged about Rs. 17,000/- from the complainant. Despite treatment by the opposite party, the condition of complainant’s son deteriorated and he became a mental case.  This fact was apprised by the complainant to the opposite party that her child is still suffering from regular fits of Epilepsy.  The opposite party always assured the complainant to continue treatment and her son shall become alright.  But complainant’s son became so mental and arrogant that he attacked persons with bricks and stones. The complainant has pleaded that the opposite party had administered such type of medicines to earn money that her son is not curable now.  Seeing the condition of a child (complainant’s son), the complainant as well as her husband contacted CMO, Doon Hospital, Dehradun, who has apprised that due to the treatment by the opposite party-Dr. R.K. Gupta, complainant’s son has become mentally handicapped.  The CMO of Doon Hospital has also issued a certificate in favour of complainant’s son Master Shivam regarding his mental disability.  The opposite party has caused economic loss and mental agony to the complainant.  The complainant had sent a legal notice to the opposite party- Dr. R.K. Gupta on 14.11.2005 for compensation, even then the opposite party did not care.  Once the complainant had tried to meet wife of Dr. R.K. Gupta-opposite party, because at that time opposite party was in jail, but wife of opposite party refused to meet her. The cause of action has arisen on 04.06.2000, when the complainant started to take treatment from the opposite party and the treatment of her son is continue till filing of consumer complaint. The complainant has prayed for a compensation of Rs. 15.00 lacs as well as for Rs. 17,000/-, which were spent on treatment.

3.       The opposite party has filed objections/written statements against the consumer complaint and has pleaded that allegations made by the complainant are wrong and denied.  The answering opposite party is a qualified B.A.M.S. doctor.  He had formerly been Epilepsy (Ayurvedic) Advisor to the Delhi Government.  The answering opposite party had been the Managing Director of Neeraj Clinic Pvt. Ltd. Neeraj Clinic Pvt. Ltd. had been treating patient of Epilepsy using combination therapy of Allopathic and Ayurvedic medicines.  The answering opposite party had been author of a book relating to aforesaid combination therapy.  For dispensing allopathic medicines, Neeraj Clinic Pvt. Ltd. had a team of four M.B.B.S. doctors and five Ayurvedic doctors besides the answering opposite party.  Master Shivam was registered as a patient of Epilepsy with M/s Neeraj Clinic Pvt. Ltd. under patient code No. 40345. A sum of          Rs. 2,200/- was deposited on behalf of Master Shivam towards the registration fee, consultation fee and initial medicines charges. Before enrollment of Master Shivam, his past history was given by his parents.  As per the history record, Master Shivam was born out of Caesarean operation.  Master Shivam, since birth, has been suffering from fits.  At the time of enrollment with the aforesaid clinic, Master Shivam was reported to be aged about 2 years.  He had been getting monthly attacks of Epilepsy which roughly lasted for 5 minutes.  Master Shivam had been under medication before reporting to the aforesaid clinic. Master Shivam had been taking syrup Dilanltin 2ml. once a day and despite the said medication Master Shivam was getting recurring fits.  On the basis of the symptoms given by the parents of Master Shivam, his symptomatic treatment was commenced on 04.06.2000, which continued till 12.05.2001, where after Master Shivam or his parents/guardian never approached the aforesaid clinic or the answering opposite party.  No invasive investigation was prescribed or done during the entire period of treatment, as only symptomatic treatment was given.  Master Shivam was prescribed tablet Epibar 30mg. which is an allopathic medicine alongwith tablet Wefera, which is an Ayurvedic medicine once a day.  Tablet Epibar is an anti-epileptic drug, while tablet Wefera is an Ayurvedic medicine given to improve overall body system. That a sum of Rs. 2,200/- was charged at the time of enrollment.  Subsequently a sum of Rs. 2,772/- was charged for the entire period of treatment, i.e. 04.06.2000 to 12.05.2001 towards costs of medicines.  It is wrong to allege that the treatment of Master Shivam continued until the answering opposite party was illegally arrested.  It is wrong to allege that a sum of Rs. 17,000/- had been received by the answering opposite party towards treatment of Master Shivam.  The complainant is wrong in alleging that the treatment of Master Shivam continued until the illegal arrest of the answering opposite party. The answering opposite party has pleaded that part of the medicines were provided by the aforesaid clinic to Master Shivam, as charity.  It is wrong to allege that Master Shivam could not be cured by the treatment provided by the answering opposite party or that Master Shivam became more mentally sick by the treatment of the answering opposite party.  It is wrong to allege that at any point of time any alleged complaint with regard to deterioration in mental condition of Master Shivam was brought to the notice of the answering opposite party.  It is wrong to allege that any alleged assurance was given to anyone.  Infact the treatment of Epilepsy is a long term treatment.  It lasts for 3 to 5 years or even more.  In some cases, the patient respond early to the medication, while in the other cases the response is delayed. If at any point of time the patient feels dissatisfied with the treatment, he is free to discontinue the treatment.  In case of Master Shivam continuous treatment was not taken. Master Shivam never reported to the aforesaid clinic or the answering opposite party after 12.05.2001.  The complainant is merely trying to attribute her own faults and faults of others upon the answering opposite party.  It would not be out of place to mention that the treatment has to be taken continuously and without break.  This fact was also disclosed to the parents of Master Shivam.  The complainant is wrong in alleging that the treatment given by the answering opposite party deteriorated the condition of Master Shivam or that he started behaving like Lunatic person.  The aforesaid medicines cannot have any such effect.  What transpired after 12.05.2001 is in the personal knowledge of the complainant. The answering opposite party is not responsible for alleged condition of Master Shivam.  No wrong medicines has been prescribed or given to Master Shivam. The answering opposite party has no knowledge as to what treatment was given to Master Shivam after 12.05.2001.  The complainant is herself responsible for the alleged situation and condition. It has not been certified by any doctor that wrong treatment had been given by the answering opposite party.  Master Shivam had been suffering from ailment since birth.  Alleged notice had not been served upon the answering opposite party.  It is wrong to allege that the complainant or Master Shivam ever visited the clinic of the answering opposite party after 12.05.2001. 

4.       The District Forum, on an appreciation of the facts and circumstances of the case, has allowed the consumer complaint vide impugned order dated 23.03.2010 in the above manner. Aggrieved by the said order, the opposite party-appellant has filed the present appeal.

5.       Sh. Anurag Gupta, learned counsel for the appellant as well as Sh. G.R. Nautiyal, learned counsel for respondent appeared. We have heard learned counsel for the parties and have gone through the entire record of the District Forum and perused the material placed on record.

6.       Learned counsel for the appellant has submitted that the findings of the Forum below are against facts, evidence or record and law.  Forum below has not considered the defence of the appellant and has not correctly appreciated the report of the medical expert.  The Forum below has failed to appreciate the literature submitted by the appellant with regard to the ailment in question and the medication/treatment thereof. The Forum below has completely ignored the fact that the child in question had been suffering from the ailment in question since the birth and that he was on medication since before he approached the appellant. The Forum below has not given any finding with regard to the length of treatment and has also not given any finding as to what treatment the child took after he stopped the treatment of the appellant. The finding of the Forum below with regard to potency is against facts and evidence on record. The Forum below has committed a gross illegality and irregularity in ignoring the orders passed by the Hon’ble Supreme Court in the bail matter. The panel of doctors available in Neeraj Clinic Pvt. Ltd. is evident from the orders of the Hon’ble Supreme Court.  No fresh evidence in this regard was required to be filed by the appellant. The Forum below has passed the impugned order without there being any evidence with regard to alleged negligence of the appellant. The finding of the Forum below with regard to applicability of the notification passed by the Government of U.P. before the creation of the State of Uttarakhand is against the provisions of U.P. Reorganization Act.  The Forum below is wrong in holding that the appellant was not qualified for treating the patient of Epilepsy.  The appellant had been the advisor to the Government of Delhi in the field of Epilepsy.  The finding of the Forum below that retardation in mental capacity is another form of mental retardation.  The Forum below has not given any basis or reason for arriving at such conclusion.  It was for the respondent to prove on record that the potency of the tablet given by the appellant was not suitable for the child in question.  The Forum below has committed a gross illegality in placing reliance upon the disability certificate.  The said disability certificate could not have been made the basis for holding the appellant to be negligent.   

7.       Learned counsel for respondent has submitted that the mental retardation of Master Shivam has been occurred not due to medicine Phenobarbitone, but it occurred due to other reasons.  The brain of a child of two years’ age is delegate and the appellant-Dr. R.K. Gupta administered Phenobarbitone 30mg for entire treatment.  Therefore, Master Shivam become 60% mentally retarded.  There were no sign of mental retardation at the time of commencement of treatment, when CT Scan of the brain of Master Shivam was taken.  Dr. R.K. Gupta had no knowledge regarding treatment of Epilepsy. Treatment of Epilepsy is available only in Allopathy and not in Ayurved.  Only Allopathic doctors know about the exact dose of medicine to be administered such type of patient.  Dr. R.K. Gupta did not take MRI of the patient.  Dr. R.K. Gupta did not maintain record about the treatment of Master Shivam.  Learned counsel for respondent has also filed literature “Maadak Aushdhiya” by Anil Agarwal and also “Oxford Handbook of Clinical Medicine” by Murray Longmore.

8.       We have also gone through the literature filed by the parties.  Barbitone medicine is by-product of Barbicuric Acid, which is a tranquilizer.  This is an anti-epileptic drug and has given in partial Epilepsy, which is given 60-180mg/day to the patient of Epilepsy. Here in this case, the appellant-Dr. R.K. Gupta administered Phenobarbitone 30mg to the patient being a child. In this way, it cannot be said that due to over dose of Phenobarbitone, the child became mentally retarded.  Master Shivam was given a tablet Epibar 30mg, which is an Allopathic medicine alongwith tablet Wefera, which is an Ayurvedic medicine. Tablet Epibar is having a salt of Phenobarbital with 30mg potency, is an anti-epileptic drug, whereas Tablet Wafera is an Ayurvedic medicine given to improve overall body system. Even the District Forum obtained expert report from CMO, District Hospital, Dehradun as well as from District Ayurvedic and Unani Officer, Dehradun.  Panel of doctors submitted report (paper No. 29ka/2 on the District Forum’s record) that mental retardation of Master Shivam is not possible only by Phenobarbitone, but it may be due to other reasons.  In this report, it is also mentioned that side effect of Phenobarbitone only to lower down the I.Q. level of the patient. Similarly, the District Ayurvedic Officer has also given a report (paper No. 29ka/3 on the District Forum’s record) that Tablet Wafera is useful to increase I.Q. level.  In this way, we are not satisfied with the arguments submitted by the learned counsel for respondent.  The appellant is a qualified B.A.M.S. Ayurvedic doctor, running a clinic for treatment of Epileptic patient with a combination of Allopathic and Ayurvedic medicines.  In his hospital, about four Allopathic qualified doctors and 4-5 Ayurvedic doctors are engaged.  According to the respondent, the appellant had treated the patient Master Shivam since 04.06.2000 to a period when he was arrested in some case and was sent to jail on 13.08.2004, but according to the appellant, he treated the patient from 04.06.2000 to 12.05.2001.  There is no record submitted by the respondent before the District Forum or this Commission, whether the appellant actually treated the patient Master Shivam for ailment of Epilepsy from 04.06.2000 to the date when the appellant was arrested by the police. In absence of evidence, we cannot come on the conclusion that Master Shivam was actually treated by the appellant-Dr. R.K. Gupta from the year 2000 to 2004.  Even then, Master Shivam was treated up to the year 2004, then the appellant, who is a qualified doctor and had been Epilepsy (Ayurvedic) Advisor to the Delhi Government, running a clinic with M.B.B.S. and Ayurvedic doctors, had administered medicines Epibar 30mg and Tablet Wafera, which are normally given in such type of ailments to the patient. There is no evidence on record that Phenobarbitone has a side effect on patient and it is a cause of mental retardation.  There is also no evidence on record to show that the appellant had charged Rs. 17,000/- from the parents of Master Shivam.

9.       The District Forum has not properly considered the facts and circumstances of the case and has erred in passing the impugned judgment and order dated 23.03.2010, which is not legally tenable and is liable to be set aside.  Consequently, the appeal deserves to be allowed.

10.     For the reasons aforesaid, the appeal is allowed. Impugned judgment and order dated 23.03.2010 passed by the District Forum, Dehradun is hereby set aside and the consumer complaint No. 120 of 2006 is dismissed. No order as to costs. The amount deposited by the appellant as statutory amount at the time of filing the appeal be released in appellant’s favour.