Kerala

StateCommission

A/09/612

Dr.A.P.Philip - Complainant(s)

Versus

Tata Motors Ltd. - Opp.Party(s)

V.S.Bhasurendran Nair

09 Apr 2010

ORDER

First Appeal No. A/09/612
(Arisen out of Order Dated 29/05/2009 in Case No. CC 209/08 of District Idukki)
1. Dr.A.P.PhilipKerala ...........Appellant(s)

Versus
1. Tata Motors Ltd.Kerala ...........Respondent(s)

BEFORE :
HONORABLE JUSTICE SHRI.K.R.UDAYABHANU PRESIDENT
PRESENT :

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ORDER

 

it was prescribed on 30.7.02.  But that medicine was purchased by the complainant only on 31.7.02.  According to PW3 the owner of the medical shop is 250 ft away from the clinic of the opposite party. If that be so the medicine prescribed on 30.7.02 ought to have been purchased on 30.7.02 itself.  But A2 bill is dated 31.7.02. More over,  the medicine sold by  A2 bill is by name Torospar.  It is come out in evidence that Novospar and Torospar different brand names of one and the same medicine.  More over, Ext.A6 admission record and A7 Doctors record issued from Nisa hospital would show that the medicine administered by the complainant was Norspan.  So, the ailment if any suffered by the complainant could be due to conception of Norspan instead of Novospar of Torospar. So it is too much on the part of the complainant to find fault with the opposite party.  These discrepancies regarding the medicine prescribed, the medicine purchased by A2 bill and the medicine consumed as per A6 and A7 records would create genuine doubt about the case of the complainant.
          The complainant as got a case that due to  conception of the medicine prescribed  by the opposite party, the complainant suffered difficulties and that his Kidney and Lever became week.   But there is no evidence on record to show that the Kidney and Lever became week due to conception of medicine prescribed by the opposite party Dr.Balakrishnan had been their serious disease  effecting the Lever and Kidney of the complainant he should not prefer NisaHospital situated at Bandiyodu. According to the complainant he was treated at NisaHospital by PW2 Dr.V.K.Mohammed. It is come out in evidence that PW2 Dr.V.K.Mohammed is having only his basic qualification of M.B.B.S degree. It is also come out in evidence that there was no facility in NisaHospital to conduct test and other investigations for repairing the damage to Kidney or Lever. In  such a situation, the complainant ought not have preferred the treatment of PW2 Dr.V.K.Mohammed. It is admitted by the complainant  that Bandiyodu and  Mangalore are having equal distance from Kunjathoor  where the complainant was residing at the relevant time. It is admitted that at Mangalore there are well equipped hospitals. Had the complainant was in such critical stage adversely affecting his Lever and Kidney he would have gone to such a hospital in Mangalore. The fat that the complainant approached PW2 at NisaHospital would create genuine doubt about the bonafidy on the part of the complainant. It is to be noted that another consumer complaint was filed by one M.Yusuf  against the appellant/opposite party Dr.M.K.Balakrishnan by filing a complaint as OP.90/03. In the aforesaid complaint also the complainant therein was treated by the opposite party Dr.M.K.Balakrishnan and the disease got aggravated and he was also taken to the Nisa hospital where the complainant therein was treated by PW2 Dr.V.K.Muhammed. In  the aforesaid complaint in OP.90/03 also the very same Doctor was examined. So this circumstance would also create genuine doubt about the genuineness and correctness of the case put forward by the complainant. It would in turn support the case of the opposite party that a false complaint has been filed against him at the instance of sum persons  who are on inimical terms with the opposite party. A suggestion was put to PW2 Dr.V.K.Muhammed that he is giving false evidence  against the opposite party at the instance o Dr.Khaer for the purpose of harassing the opposite party. But, the Forum below has not considered all these circumstances while evaluating the evidence of PWs 1, 2  and 3 and also the documentary evidence available on records
          The forum below has also gone wrong in comparing the disputed signature of the opposite party in A1 prescription with that of the admitted signature of the opposite party in A10 document.  It was not just or fare on the part of the Forum below in comparing the disputed signature of the opposite party with his admitted signature and coming to the conclusion that signature in A10 is that of the opposite party.  It is to be noted that high risk is involved in making such a comparison without the assistance of an expert evidence.  It was just and proper on the part of the forum below to get the disputed signature compared with the admitted signature of the opposite party with the aid of an expert in the field. Especially, in the light of the discrepancies and inconsistencies in the oral as well as documentary evidence available on record.
          The complainant in OP 74/03 had also preferred a criminal complaint as CC 185/03 before the Chief Judicial Magistrate, Kasaragod. The said criminal complaint was preferred against the opposite party M.K.Balakrishnan. The opposite party was the accused in the said calendar case 185/03 on the file of the Chief Judicial Magistrate, Kasaragod. The Judgment in that calendar case 185/03 was pronounced on 30th May 2007. The aforesaid criminal case was disposed of after passing of the impugned order in OP.74/03. In the aforesaid judgment the Chief Judicial Magistrate had occasion to consider the service issued by the various authorities in the name of the opposite party M.K.Balakrishnan. It was held in that criminal case that the accused therein M.K.Balakrishnan is competent to practice as a Doctor in Ayurveda and Homoeopathic medicines. It is  competency to practice as a Doctor in Ayurveda and Homoeopathic medicine had been recognized by the competent authorities.  In the aforesaid criminal case Dr.V.K.Muhammed examined as PW2 and the complainant herein was examined as PW1. After a detailed discussion of the evidence on record, the evidence of PWs 1 and 2 therein was disbelieved by the Criminal Court  and the offence alleged against the accused M.K.Balakrishnan was negative and that the accused was acquitted of the  charges level against him. The aforesaid Judgment in calendar case 185/03 would strengthen the case of the appellant/opposite party that the consumer complaint in OP.74/03 was a false complaint filed to wreck vengeances against the opposite party M.K.Balakrishnan. So, this State Commission has no hesitation to set aside the impugned order dated 23/2/05 passed by CDRF, Kasaragod in OP.74/03. The complainant in OP.74/03 has not succeeded in establishing his case that he suffered discomfort and inconvenience on account of the deficiency in service on the part of the opposite party M.K.Balakrishnan. The complainant has also miserably failed in establishing his case as alleged against the appellant/opposite party M.K.Balakrishnan. So these points are found in favour of the appellant/opposite party.    
 In the result the appeal is allowed. The impugned order dated 23.2.05 passed by CDRF, Kasaragod is set aside. No order as to costs.
s/L
         
PRONOUNCED :
Dated : 09 April 2010

[HONORABLE JUSTICE SHRI.K.R.UDAYABHANU]PRESIDENT