CDRF Wayanad Civil Station,Kalpetta North consumer case(CC) No. 159/2002
Shajeer
...........Appellant(s)
Vs.
Vaidyer haji
...........Respondent(s)
BEFORE:
1. K GHEEVARGHESE 2. SAJI MATHEW
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
By Sri. K. Gheevarghese, President: The complaint filed under section 12 (a) of the Consumer Protection Act. The brief of the complaint is as follows. The Complainant had been a Student in Vocational Higher Secondary School, Ambalavayal. On 11.02.2001 while playing football he fell down and the thigh bone was broken. The fracture of the bone was realised from X -ray taken from Fathima Hospital, Kalpetta. The hospital authorities demanded to deposit of Rs. 10,000/- for the treatment. The Complainant was not in position to deposit the demanded amount all of a sudden and opted for treatments in the Kalary Marma Chikilsalayam of the Opposite Party. The Opposite Party treated the Complainant as inpatient. At the time of admission the Opposite Party told the Complainant the charge payable for the Opposite Party can be in installments. The treatments of the Complainant as inpatient started on 11.02.2001 and it continued till 15.06.2001. After the continuous treatments for four months the Complainant was sent to his residence and the - 2 - treatment continued there as per the direction given by the Opposite Party. At the region where the fracture effected had severe pain and bulging. The Opposite Party was informed of his difficulties but the Complainant was informed that the swelling and pain due to the fracture will be recovered in course of time. 2. The Complainant was compelled to undergo consultation of Ayurvedic Dr. Vinod Babu and X-ray was taken. The X-ray taken at that time made him know that the bone fracture was not joined properly. The Complainant was advised to consult an Orthopedic Surgeon. On examination of the orthopedic surgeon the Complainant was further informed that the union of the bone was not in the correct position and as a result the leg which is fractured is having the shortage of 3 cm in length and this shortage in length cannot be rectified without any operation for which more than Rs. 25,000/- is to be spent. The Opposite Party treated the Complainant approximately for 9 months and towards the treatment charges medicines and for the room rent collected Rs.20,000/- from the Complainant. Apart from additional purchase of medicines from other shop. The Complainant is handicapped only because of improper treatments of the Opposite Party. The Opposite Party has not technical qualification to treat the patient or having any knowledge in it. The treatment of the Complainant is a deficiency in service the Opposite Party may be directed to give the Complainant Rs.20,000/- the charge levied for treatment and the amount spent for the purchase of medicines Rs.10,000/- is also to be paid back with 18% interest. The Complainant is also entitled for Rs. 1,50,000/- towards the loss and damages. Towards cost Rs.2,500/- and for the further treatment the Opposite Party may be directed to give Rs.25,000/-. 3. The Opposite Party filed version on their appearance. The Complainant is not a consumer and he is not entitled for any relief. The Opposite Party rendered the service not (Contd...... 3) - 3 - receiving any consideration. It is admitted that the Opposite Party was treated from the Marma Chikilsalayam of the Opposite Party for the fracture of the thigh bone. There was no assurance that the fracture could be cured perfectly within the time limit of 2 months. More over there was no demand of the fees in installments for the treatment. What the complainant had given was only the expenses for the purchase of medicines cotton and other palm. The Complainant was undergoing inpatient treatments for a period of 4 months is absolutely false. Apart from that when the Complainant approached the Opposite Party when he had the bulging at the region of the fracture, the Opposite Party sent him back are also false. The allegation of the complainant that the fracture leg has a shortage of 3 cm in length and the Orthopedic Surgeon advised the Complainant that the reunion of the bone is not proper and to rectify the position of the bone through an operation is to be held Rs.25,000/- is needed for the operation are false. The Complainant has not spent Rs.10,000/- for the purchase of the medicine, towards the room rent and other medicines Rs.20,000/- was also spent by the Complainant is nothing but false allegations. The Opposite Party treated the Complainant upon the request of the complainant and his father. The Complainant's father and the Complainant himself showed their willingness and readiness for Marma Chikilsalayam. The treatment will be having effect if the patient of the fractured bone undergo laying keeping the band aid steady from region of hip to angle. The treatment started only after both the Complainant and its father was agreed for it. The Opposite Party reinstated the position of the thigh bone as per the dictums of Marma Chikilsalayam. Whereas the Complainant did not keep on the instructions and directions given by the Opposite Party. On 12.04.2001 the Opposite Party removed band aid tied up in the leg and the Complainant was taken to home by his parents, strict directions were given to the Complainant when discharged by the Opposite Party. The Complainant has not come back to the Opposite Party's treatment place for further treatment. The Opposite Party has no knowledge of the Complainant after the discharge till the notice was received on 08.11.2001. Stating that the (Contd........ 4) - 4 - Complainant was not completely recovered. The Opposite Party on receipt of the letter, went to the residence of the Complainant. Then it was realized that the Complainant was careless and fell down in the bath room. The fractured bone was shaken due to the fall. There was no complaint from the part of the Complainant for the treatment availed till the date of sending notice. The Complainant launched a petition in Kalpetta Police Station with respect to the treatment and that petition was rejected by the Kalpetta Police. The Opposite Party is well experienced in treatments of Kalary Marma in long run of 25 years. The Opposite Party availed knowledge experience in Kalary Marma treatment from the renowned institution at chelavoor named Shifa Dhawa Khana. For the last 9 months the Opposite Party has been continuing the Marma Chikilsa treatments at Kalpetta in the title Shifa Dhawa Khana. There is no deficiency on the part of the Opposite Party. The hereditary mode of treatment is entirely different from Allopathy method. The instruments and precautions which are bound to be obeyed by the Complainant was not duly done. The Complainant is not entitled for any cost and compensation. The claim of the Complainant of Rs.1,50,000/- towards the loss and damages, for future treatment Rs.25,000/- and other amount claimed by the Complainant are not under any bonafied ground. The complaint is to be dismissed with cost to the Opposite Party. 4. Points in consideration are. 1.Is there any deficiency in service in the treatment given to the Opposite Party?. 2.Relief and cost. 5. Point No.1:- The Complainant is examined as PW1. The contention of the Complainant is that the treatment given by the Opposite Party following indigenous methods resulted malunion of the fracture bone and as a result it led to shortening of the leg's length are false. The Opposite Party has admitted the Complainant and treated the patient to make the fracture bone united. The contention raised by the Opposite Party that there was no assurance on (Contd.....5) - 5 - his part for the reunion of the fracture bone cannot be conceived in limine. The Complainant had been undergoing treatment in the Opposite Parties Shifa Dhawa Khana Kalari Marma Chikilsalayam. The treatment according to the Opposite Party continued for the period of 61 days beginning from 11.02.2001 till 12.4.2001. Whereas the Complainant contented that the treatment had been continuing near about 3 months by the Opposite Party. Regarding treatment given to the Complainant, the Opposite Party has not produced any document. Two experts in medical science are examined to substantiate the contention raised by the Complainant. PW3 is the Doctor who belonged to medical board which issued Ext.A8 to the Complainant. PW3 is an expert in Ayurveda medicine having 19 years in service. According to PW3 he has evaluated the disability of the patient as per the direction. The indigenous treatment can cause complication like malunion at the region. There is no swelling, the extensity of the malunion according to PW4 can be detected only through X-ray. The Opposite Party filed documents Ext.B1 to B12 are marked to substantiate their contention. Ext. B1 is the copy of the order of the Honourable High Court of Kerala in CMB No.14794/99 in OP. No.8899/99. Ext.B2 is the attested copy of the order of the Honourable High Court in OP. No.27727/2000. The Opposite Party one among the petitioners in both petition. In Ext.B2 the Honourable High Court made an interim order for the sale and possession of the Ayurvedic preparations. The Opposite Party had been continuing the method of indigenous treatment for fracture. How ever in the case of the Complainant the fracture bone united wrongly and resulted shortening of the leg. It is further confirmed by the experts who were examined in behalf of the Complainant side. Ext. A3 is the letter issued from Karuna diagnostic and research center. According to it the radiography of the left femur is having old fracture of mid shaft of femur intal with non union with features of over ID and angulation of distal fracture fragments and shortening longitudinal. The Complainant has to undergo surgery if the length of the leg is to be brought in to the original position according to the expert opinion. The Opposite Party has no case that the Complainant got discharged from his (Contd......6) - 6 - treatment immediately after his admission. The treatments of the Complainant continued as admitted by the Opposite Party for 61 days. This also is known to the Opposite Party. The Complainant's length of the leg is shortened in 3 cms due to the indigenous methods. According to the Opposite Party the portion of malunited bone is to be fractured again to rectify it in to the actual position. The experts in Ayurveda and Allopathy treatments conformed that the rectification of the shortening of the leg requires further treatments. The treatment of the Opposite Party in Parambarya Chikilzalaya method caused malunion and the length of the leg shortened. From the above inferences it is considered that the indigenous method of treatments rendered to the Complainant is a deficiency in service and the point No.1 is found accordingly. 6. Point No.2:- The shortage of 3 cm length can be rectified if the complainant is under going a surgery. Any way for further treatment the amount is to be spent by the Complainant and for the same Complainant student has to find out time and more over will be subjected to pain and sufferings. The Complainant has already spend Rs.6,148/- according to Opposite Party including the room rent and medicines. Ext.A7 is the receipt of the amount paid by the Complainant to the Opposite Party. It is also deposed by the Complainant and his father that the Complainant had undergone treatments even after the discharge from the Opposite Parties. The Opposite Party has to be compensated by the Complainant for the pain and suffering that the complainant had to undergo. The Complainants contention is that Rs.20,000/- was collected from him for the indigenous treatments. No documents in that respect is produced by the Complainant. Any way the reasonable amount towards the improper and indigenous treatment is to be given to the Complainant. In the result, the Opposite Party is directed to give the Complainant Rs.8,000/- (Rupees Eight thousand only) towards the medicines and other expenses. For further treatment and (Contd......7) - 7 - towards the compensation the Complainant is to be given Rs.15,000/- (Rupees Fifteen thousand only) and Rs. 1,000/- (Rupees One thousand only) is to be paid to the Complainant towards cost within one month from the date of this order. Pronounced in open Forum on this the 25th day of February 2008.
