State Consumer Disputes Redressal Commission
P.D. Joseph vs Dr. N.D. Mohandas on 20 July, 2011
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. 174/2006 (Arisen out of Order Dated 17/01/2006 in Case No. 124/2004 of District Kottayam) 1. P.D.Joseph Pottangayil (H),Kumaranalloor PO,Kottayam BEFORE: SRI.M.K.ABDULLA SONA PRESIDING MEMBER For the Appellant: For the Respondent: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 174/06
JUDGMENT DATED: 20.07.2011
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI. M.K. ABDULLA SONA : MEMBER
APPELLANT
P.D. Joseph
Pottangayil (H),
Kumaranalloor P.O., Kottayam
(Rep. by Adv. Sri.S. Reghukumar)
Vs
RESPONDENTS
1. Dr. N.D. Mohandas
Asst. Professor, Psychiatry,
Medical College Hospital, Alappuzha.
(Anjanam (H), Gurumandiram Road,
Gandhinagar P.O., Kottayam).
2. Dr. E.K. Kuruvilla, Psychiatrist,
S.H. Hospital, Painkulam, Thodupuzha.
3. S.H. Hospital, Painkulam,
Thodupuzha.
(Rep. by Adv. M.C. Suresh)
JUDGMENT
SHRI. M.K. ABDULLA SONA: MEMBER The appellant is the complainant who prefers this appeal from the order passed by the CDRF Kottayam in O.P. No.124/2004 dated 17-1-2006. The respondents are the opposite parties in the above mentioned case. The appellant prefers this appeal under the order of the dismissal of the complainant. Which filed by the complainant before the forum below.
2. In short, the complainant have the case that he and his wife Sucy, Alias, Latha mole were residing together as husband and wife for 23 years and in the relationship they have 2 children named Vinod and Vineeth aged 22 years and 20 years respectively.
The appellant is doing various types of business including financial business. While so his wife Sucy developed some Psychartic problem and she took her house of the 1st opposite party on 9-2-2003. He told the problems of Sucy to the 1st opposite party doctor and paid for @ . 200/- as consultation fee. The 1st opposite party after medical examination of Sucy, prescribed certain medicines for Sucy and advised to come after 1 week for the review. On 17-2-2003 the complainant again with wife visited the first opposite party, for review check up. Then the first opposite party advised prolonged treatment for Sucy and asked them to consult the 2nd opposite party at the third opposite party hospital at Thodupuzha, where the second opposite party is working there as a Psychiatrist. The 1st opposite party has the reference letter also in a sealed cover to the second opposite party on the above date. Then and so the complainant gave @ 200/- as consultation fee on 8-2-2003. The complainant and of his wife to gone to the 2nd opposite party at 3rd opposite party hospital and gave the reference letter. After reading the letter, the 2nd opposite party asked him whether he has Jose Devasia and from when he started suspicion hearing thus, the complainant got frightened and tried to go away from there. On reading the letter, the 2nd opposite party threatened the complainant and abused him and his henchmen caught hold of him forcibly and made him to lie on a cot. Sucy and his son were standing at that time. An injection was given to the complainant. The complainant regained his consciousness after a long time and that time he knew that he was fully naked and when he asked for his clothes. They given him a small piece of cloth. On wearing the piece of clothes, they told him to go to the next room. In the meantime Sucy and her son had gone from the hospital. When the complainant entered in to the room and one man abused him and beaten on his face. From 18th to 20th ,the complainant was kept with other mental patients in a room and given injections and medicines were administrated forcibly. On 26-2-2003 Sucy and son came to the hospital with some others to meet him. The complainant with broken heart cried for help and begged them to release him from that hell. When the complainant told that he was so worried about the cheque cases pending with Ettumanoor Courts and his non - appearance might have resulted in the dismissal of the cases filed by him. They decided to release him from that hospital. When then complainant took his wife to the hospital of the 3rd opposite party, he had Rs.13,589.50/- with him. But this amount was taken away by the 2nd opposite party and the employees of the 3rd opposite party. As a result of the deficiency in service and unfair trade practice on the part of the opposite parties. The complainant had become a laughing stock in front of his neighbours. He has under gone mental agony and harassment. Without having any mental disorder, the complainant had to under go forcible medical treatment at third opposite party. He has loosed about 3 lakhs of rupees in his financial business due to the wrongful confinement in the hospital by the 2nd opposite party. The opposite parties are liable to compensate for the loss sustained and suffered medical agony. Hence the complaint was filed the complaint for compensation of Rs.14, 15, 600/- under various heads with interest and also for costs to be realized from the opposite parties.
3. The opposite parties entered appearance and filed their written versions inter - alia stating that there was no deficiency of service and unfair trade practice on their part, and the complainant had the problem of serious delusional disorder (Psychiatric illness) and that he required treatment for the same which the 2nd opposite party did at the third opposite party's hospital. The opposite parties hereby denied all the allegation raised in the complainant. The opposite party hence also sought for the dismissal of the complaint as the complaint is not maintainable at all.
4. The evidence consists of the evidence of PW1 (the complainant) and marked documents Exhibits A 1 to A 17 for the part of the complainant. In the part of the opposite parties one witness was examined as DW1 (Sucy) and marked documents Exhibits B1 to B6 for the opposite parties. These are the available evidence.
5. The forum below raised mainly three points for consideration for the consideration of this dispute. They are;
1. Whether there is any deficiency in service on the part of the opposite parties by treated the complainant for mentalillness?
2. Whether there is any negligence in the part of the opposite parties 1 and 2 in treating the petitioner?
3. Reliefs and costs?
6. The forum below discussed the entire evidence adduced by both parties and passed the forum below a considered order. The forum below dismissed the complaint of the complainant in the absence of the positive evidence from the part of the complainant. The complainant has a case that he had no delusional disorder; it is his bound and duty to adduce evidence on his side. It is only his own oral testimony and documents Ext. A1 to A17. His complaint has supported by the witnesses; his mother and sister and neighbors. In the affidavit, his mother and sister; have stated that the complainant had no disease at all. But it is to be noted that the expert has stated through the questionnaire that, the patients was suffering from delusional disorder. On his mental status examination; usually whether groomed and dressed without evidence of gross disintegrations of personality or of daily activities; yet they may seem suspicious hostile. Opposite parties 1 and 2 also have such a case. In such circumstances, no value can be attached to the affidavit of these witnesses. The witness no. 4 of the complainant Anish is their neighbour. His affidavit is fed to substantiable the contention of the complainant that he has not having mental disease. In the affidavit filed by the opposite party affidavit just to help the complainant it is averred that Anish has filed false Affidavit. If the witness No. 4 is not at all relevant in this case, because, he has stated that he was treated in the 3rd opposite party hospital, even though he had no mental disease. The 2nd opposite party in his affidavit has averred that Thomas, was brought to the hospital with the history of a Alcohol Consumption, 5 years back with violent behaviour on examination, and the 2nd opposite party smelt alcohol. That was the circumstance under which Thomas happened to be admitted and treated in the hospital. It clear that averment of this particular witness is of no help to the complainant. The forum below taken a view that the complainant has not been able to prove his case that he was unnecessarily treated by the opposite parties 1 and 2 and denied that he had no psychiatric problem. The avaluable evidence proves that the complainant was given treatment for delusional disorder. The second opposite party has explained the reason that why he came to such a conclusion and treated him. The allegation of the complainant that Rs.13,589.50/- was taken away by the officials. Of the 3rd opposite party is proved to be false, because Sucy, his wife has stated that she was given the money. According to Sucy there is no loss of this money. The complaint has not substantiated his case that he has sustained any monitory loss due to the illegal act of the 1st and the 2nd opposite parties. As complainant has not succeed in proving the case, that no deficiency in service or negligence in treatment can be found against opposite parties. Hence the forum below dismissed the complaint. Thus this appeal prefers from the impugned order passed by the forum below, by the appellant/complainant.
7. On this day, this appeal came before this commission for final hearing, both counsels for the appellant/complainant and the respondents/ opposite parties are present, and they argued their own respective cases on the strength of the evidence adduced by both sides before the forum below.
8. The counsel for the appellant argued that the order passed by the district forum is wrong, contrary to law and facts and against the evidence adduced in this case. The forum ought to have found that the opposite parties had colluded with the wife of the complainant / appellant and he forcibly admitted him in the mental hospital for unnecessary treatment. Admittedly the wife of the appellant was taken to the house of the 1st opposite party for medical treatment and situation has a different turn after a 1 week and the appellant have under gone possible medical treatment for an imaginary illness and he also submitted that a doctor have professional ethics will not be done such an Act. The Expert opinion Questionnaire is also in favor of the appellant. The counsel for the appellant argued for the kind interference of this commission in this impugned order passed by the forum below and prayed to remand, back this case to the lower forum again for disposal. At the very same time the counsel for the respondents opposites parties argued that the forum below correctly appreciated the entire evidence adduced by both side and passed legally right order on the basis of the positive evidence. He submitted that the complaint is not genuine. According to the opposite parties the complainant was suffering from mental illness termed as (delusional psychiatric illness material by suicides, homicide and other violences). The opposite parties contended that they have given proper treatment for the mental illness, termed "delusional disorder". The Counsel submitted that the wife of the complainant DW1. Sucy diposed favourable to the opposite parties. From the fact, if the 2nd opposite party diagonised illness like delusional disorder (jealous type) to the complainant which required treatment like in Psychiatric Therapy and meditation. They contended that the complainant was discharged on 26th February 2003. His condition was quite normal and that the very same medicines were also prescribed. He was asked to come after one month for review. But he did not come. There has been no negligence or carelessness on the part of the 2nd opposite party. They strongly contended that the complainant had strong delusions about the illicit relationship of his wife with neighbours and was in a aggravated stage which required treatment. The most remarkable feature of patients for delusional disorder is that their mental status examination will show them to appear quite normal, except for a manifest abnormal delusional system. They may have plan to act on their delusional material by suicide, homicide or other violence. The Counsel appeared for the appellant submitted that a questionnaire was prepared by the Psychiatrist who was the Head of the department of Psychiatry M.C. college, Kottayam, and as per the questionnaire it is clearly proved that the complainant was suffering from delusion medical illness. The Counsel for the respondents he submitted that the opposite parties/ respondents already given proper caring to the complainant and there is no carelessness or negligence from their part. He submitted that the order passed by the forum below strictly accordance with the law and evidence. The version of the complainant cannot be accepted as per law. There is no supporting evidence from his part. There is no scope for the interference in the order passed by the forum below. This order is legally sustainable. Hence he prayed for the dismissal of the appeal with cost.
9. This commission heard in detail both parties and gone through the entire evidence adduced by both parties and found that the complainant was admitted in the hospital due to some personality or Psychological disorder and behaviour problems. According to the opposite parties the complainant was suffering from mental illness named "delusion". Delusion is a false belief in something which he is not a fact, and which persists even after its falsity has been clearly demonstrated. A normal person can have a delusion, but is capable of correcting it by his reasoning power, by his past experience and by being convinced by others. A secondary delusion arises from some morbid experience. Delusion in insane person is a symptom of decease. It is under the control of emotional but not rational forces. They are found in effective and schizophernic psychoses. " Delusion are not seen in anxiety neurosis and other neurotic illness." (Text book Forensic Medicine Chapter 21 FORENSIC PSYCHIATRY" Page No. 365) On this case we are not seeing any expert psychiatrist or neurologists were examined from both parts as expert witnesses. The available evidence only a questionnaire which prepared by a psychiatrist who was laying in his arm chair. It is also seeing that he was not examined as an expert witness. We are seeing that the complainant alleged deficiency in service on the part of the opposite parties. In the very same time the opposite parties were categorically stated that the complainant was suffering from mental illness "delusion". It cann't be understood that how the forum below taken the evidence of the complainant who suspected as a medical ill person. A medical ill person is incapable to give evidence and his evidence cannot be accepted in positive and conclusively. A medical ill person is exempted from all of his civil liabilities and penal liabilities form the criminal offences. As per the provisions of the Indian Penal code, every persons those who having mentally unsoundness or mental illness who is not liable for the conviction; supposed he found guilty in any offence as per the provisions of any penal law in any offence as per the criminal law. In this case, the forum below simply ignored the provisions of the Mental Health Act 1987. According to the Mental Health Act 1987 passed by the Parliament; stated that a mentally retarded person who is not a mentally ill person. According to the provisions of "The Mental Health Act" no person have the right to give treatment to a mentally ill person and admit him in a hospital without obey the provisions of Mental Health Act 1987. It is an offence which punishable according to the Mental Health Act. All the mentally ill treatment Centers, Nursing Homes, Hospitals shall be taken license from the State Mental Authority. This provisions added in the Act with an object to safe quad the interest and the protection of the human right of the mentally ill person. Before declaring a person as a mental ill person; he want send to a medical board for the close observation and expert report. Such a medical board shall be constituted by eminent psychiatrists and medical neurologist etc. The District court alone contempt to declare a person as a medical ill person, according to The Mental Health Act. Earlier the Lunacy Act was in force but on 1987 Mental Health Act which was passed and repealled the old Lunacy Act. In criminal trials such a suspected person shall be sent to a Medical Board consist of Medical expert to examine and observe that whether such a person is a mental ill person or normal person and whether he is fit for criminal trial or not. Both Criminal Court and Civil Court, are closely observing and examining mentally ill persons before they declared as mental ill person (Their mental status). Then the Concerned Courts are taking a decision about the mental status of a person with due caution and care. If necessary the Courts can examine mentally ill person and the treated doctors or members of the medical boards. The law given due, care and protection to a mentally ill person. Only the Court of law alone competent to declare a person is a mentally ill person or mentally unsound person. The police, hospitals, members of the family of a mentally ill person, media or public etc prohibited to target a suspected mentally ill persons as a mentally unsound person. It barred by the provisions of the Mental Health Act. In this case, the human right of a person is seeing violated. It is too much. It cann't be allowed as per the provisions of the Mental Health Act. It is firstly legally- prove that whether the complainant who was suffering from mental illness like delusion or any other mental illness or not? Then also only consider the point like whether the opposite parties is liable for carelessness and negligence during the course of the treatment. The consumer Protection Act is only permitting to deal with the deficiency in service and unfair trade practice. We direct the forum below to consider above points as per the provisions of the law and evidence.
10. The evidence of the another sister and even neighbours were simply discarded by the forum below. How it is believable that whether the DW2 is the wife of the complainant is an Interested witness or not in the certain circumstance. Forum blindly passed an order without consider the any expert witness. In such a circumstance, the forum below can also be sent the complainant to a medical board for expert report in the circumstance. We decide to interfere in the impugned order passed by the forum below. This order is not at all legally sustainable.
In the result, this appeal is allowed in part and set-aside the order passed by the forum below. This case remanded back to the forum below for fresh disposal after consider and follow the provisions of The Mental Health Act 1987, and given ample opportunities to both sides for adducing expert evidences. The points of the appeal discussed and answered one by one accordingly.
Direct both parties to bear their own expenses of this appeal.
M.K. ABDULLA SONA: MEMBER
M.V. VISWANATHAN : JUDICIAL MEMBER
DA
[ SRI.M.K.ABDULLA SONA] PRESIDING MEMBER