State Consumer Disputes Redressal Commission
Mehraj Medicos vs Rashti Mittal And Others on 21 April, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1) First Appeal No.72 of 2014
Date of institution : 22.01.2014
Reserved on : 06.04.2017
Date of decision : 21.04.2017
Mehraj Medicos, near Civil Hospital, Rampura Phul, through its
Proprietor Sh. Vijay Kumar S/o Sh. Amar Nath R/o Aggarwal
Colony, Rampura Phul.
....Appellant/Opposite Party No.1
Versus
1. Rashti Mittal, minor, S/o Sh. Vipin Kumar S/o Krishan Lal,
R/o Jawahar Nagar, Rampura Phul, Tehsil Phul, District
Bathinda, through his natural guardian and next friend Sh.
Vipin Kumar, father.
....Respondent/Complainant
2. Simarpreet Kaur Mann, Medical Officer, Civil Hospital,
Rampura Phul.
3. S.M.O., Civil Hospital, Rampura Phul.
4. M/s Ashoka Sales Corporation, Aggarwal Market, 1st Floor,
Bathinda, through its Authorized Representative.
5. Keen Health Care Private Limited, B-2, Snehadri Appt.
Shreyas Tekra, Ambawali, Ahmedabad-380015, through its
Authorized Signatory/M.D.
6. United India Insurance Company Ltd., 54, Janpath,
Cannaught Place, New Delhi, through its M.D. Insurance
Company of opposite party No.2, through its Branch Office
at Bathinda.
....Respondents/Opposite Parties No.2 to 6
First Appeal No.72 of 2014 2
2) First Appeal No.110 of 2014
Date of institution : 05.02.2014
Date of Reserve 06.04.2017
Date of decision : 21.04.2017
Dr. Simarpreet Kaur Mann, Medical Officer, Civil Hospital,
Rampura Phul, District Bathinda.
....Appellant/Opposite Party No.2
Versus
1. Rashti Mittal, minor, S/o Sh. Vipin Kumar S/o Krishan Lal,
R/o Jawahar Nagar, Rampura Phul, Tehsil Phul, District
Bathinda, through his natural guardian and next friend Sh.
Vipin Kumar, father.
....Respondent/Complainant
2. Mehraj Medicos, near Civil Hospital, Rampura Phul, through
its Proprietor Sh. Vijay Kumar S/o Sh. Amar Nath R/o
Aggarwal Colony, Rampura Phul.
3. S.M.O., Civil Hospital, Rampura Phul, District Bathinda.
4. M/s Ashoka Sales Corporation, Aggarwal Market, 1st Floor,
Bathinda, through its Authorized Representative.
5. Keen Health Care Private Limited, B-2, Snehadari Appt.
Shreyas Tekra, Ambawali, Ahmedabad-380015, through its
Authorized Signatory/M.D.
6. United India Insurance Company Ltd., 54, Janpath,
Cannaught Place, New Delhi, through its M.D. Insurance
Company of opposite party No.2, through its Branch Office
at Bathinda.
....Respondents/Opposite Parties No.1,3 to 6
3) First Appeal No.134 of 2014
Date of institution : 13.02.2014
Date of Reserve 06.04.2017
Date of decision : 21.04.2017
First Appeal No.72 of 2014 3
M/s Ashoka Sales Corporation, Aggarwal Market, 1st Floor,
Bathinda, through its Authorized Representative Sh. Ashok
Kumar.
....Appellant/Opposite Party No.4
Versus
1. Rashti Mittal, minor, S/o Sh. Vipin Kumar S/o Krishan Lal,
R/o Jawahar Nagar, Rampura Phul, Tehsil Phul, District
Bathinda, through his natural guardian and next friend Sh.
Vipin Kumar, father.
....Respondent/Complainant
2. Merhraj Medicos, near Civil Hospital, Rampura Phul, through
its Proprietor Sh. Vijay Kumar S/o Sh. Amar Nath R/o
Aggarwal Colony, Rampura Phul.
3. Simarpreet Kaur Mann, Medical Officer, Civil Hospital,
Rampura Phul.
4. S.M.O., Civil Hospital, Rampura Phul.
5. Keen Health Care Private Limited, B-2, Snehadri Appt.
Shreyas Tekra, Ambawali, Ahmedabad-380015, through its
Authorized Signatory/M.D.
6. United India Insurance Company Ltd., 54, Janpath,
Cannaught Place, New Delhi, through its M.D. Insurance
Company of opposite party No.2, through its Branch Office
at Bathinda.
....Respondents/Opposite Parties No.1,2,3,5 & 6
First Appeals against the order dated
25.11.2013 of the District Consumer
Disputes Redressal Forum, Bathinda.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Harcharan Singh Guram, Member.
Present:-
For the appellant : None
For respondent No.1 : None
For respondent No.2 : None
For respondents No.3-5 : Ex parte
For respondent No.6 : Sh. Munish Goel, Advocate.
First Appeal No.72 of 2014 4
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT
This order shall dispose of the above mentioned three First Appeals, filed by opposite parties No.1, 2 & 4 separately against the order dated 25.11.2013 passed by District Consumer Disputes Redressal Forum, Bathinda (in short, "the District Forum"), whereby the complaint filed by the complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), was allowed against opposite parties No.1 to 5 and was dismissed against opposite party No.6. The following directions were issued to opposite parties No.1 to 5:
i) Opposite party No.1 was directed to pay ₹2,00,000/-, as compensation, along with cost of ₹10,000/-;
ii) Opposite party No.2 was directed to pay ₹50,000/-, along with cost of ₹2,000/-;
iii) Opposite party No.3 was directed to pay cost of ₹1,000/-, as already awarded, vide order dated 21.11.2013, and also to pay ₹2,000/- as compensation; and
iv) Opposite parties No.4 & 5 were directed to pay ₹50,000/-, along with cost of ₹5,000/-.
The order was to be complied within 45 days of the receipt of copy of the same, failing which they were held liable to pay interest at the rate of 9% per annum on the compensation amounts till realization.
2. The facts are taken from F.A. No.72 of 2014.
3. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
First Appeal No.72 of 2014 5
4. Brief facts, as averred in the complaint, are that the complainant was admitted in Civil Hospital, Rampura Phul on 05.05.2011 for treatment of enteric fever and was treated by opposite party No.2-Dr. Simarpreet Kaur Mann. Opposite party No.2, after examining the complainant, prescribed the injections of 'Pantokin' and 'Zulfi' and directed his father to purchase the same from opposite party No.1. Accordingly, his father purchased two 'Pantokin' injections having batch No.9-MO-871, along with other medicines i.e. Zulfi (1 gm.), one bottle R.L. and four syringes from opposite party No.1, vide bill No.6293 dated 06.05.2011. However, opposite party No.1 intentionally mentioned the number of injections 'Pantokin' as 23 each, though only two injections of 'Pantokin' and 'Zulfi' (1 gm.) were purchased. It also intentionally mentioned the Batch No.1172, in place of original Batch No.9-MO-
871. The purchased injections and medicines were handed over to opposite party No.2; who, out of two 'Pantokin' injections, injected the one to the complainant, without verifying the genuineness of the same. Immediately after injecting of the said 'Pantokin' injection, the condition of the complainant started deteriorating. This fact was brought to the notice of opposite party No.2, who advised to wait and watch and assured that his condition would improve. However, the condition of the complainant did not improve and he remained in the said hospital till 15.05.2011 and was discharged on that date. Since the condition of the complainant was not stable, so he was brought to Civil Hospital, First Appeal No.72 of 2014 6 Bathinda, where after diagnosis, he was found to be suffering from Enteric Hepatitis. After some improvement in his health, he was discharged on 21.05.2011. However, as the complainant was not fully cured, so he was taken to GTB Hospital, Ludhiana on 14.06.2011, where he remained under treatment upto 17.06.2011. Thereafter, he was taken to Goyal Children Hospital, Rampura Phul on 12.07.2011. Even then, the condition of the complainant did not improve and Dr. Goyal referred him to PGI, Chandigarh. He was examined in Emergency Ward of PGI, Chandigarh on 12.07.2011 and in OPD on 13.07.2011. Number of tests were conducted on both the dates and medicines were prescribed. He was again taken to PGI on 20.07.2011 and medicines for two months were prescribed. However, the complainant continued to take the medicines, prescribed by the PGI, for about three months. The complainant had to undergo medication and mental agony for more than six months from 06.05.2011 onwards, besides undergoing several tests and treatment at several hospitals, due to injecting expired injection by opposite party No.2, which was sold by opposite party No.1. The said injections were manufactured/marketed by opposite party No.5 and were sold to opposite party No.1, through distributor opposite party No.4. The act and conduct of the opposite parties amounted to deficiency in service and unfair trade practice, due to which the complainant suffered mental agony and pain. Accordingly, he approached the District Forum, seeking the directions to them to pay ₹4,00,000/-, First Appeal No.72 of 2014 7 on account of expenses incurred on medicines, conveyance used for taking him to various hospitals and on account of mental agony and pain suffered by him; and to pay ₹20,000/-, towards litigation expenses.
5. Upon notice, opposite parties No.1 to 3 appeared before the District Forum. Opposite party No.1 filed reply to the complaint, taking legal objections that the complaint is not maintainable in the present form and the complainant has no locus standi or cause of action to file the same. He has not approached the District Forum with clean hands and has suppressed the material facts from the District Forum. There is no deficiency in service or unfair trade practice on the part of opposite party No.1. The complainant is not a consumer and the District Forum has no jurisdiction to entertain and try the complaint. On merits, it was pleaded that opposite party No.1 sold two 'Pantokin' injections, having batch No.D-0172, vide cash memo No.6293 dated 06.05.2011. The batch number of the injections was duly mentioned in the cash memo. The MRP of each injection was ₹61/- and opposite party No.1, after giving discount of 20%, sold the said two injections for ₹100/-. It was denied that said injections, having batch No.9-MO-871, were sold by it or that the number of injections was mentioned as 23 each. The visible figure '3' in fact is 'inj.' and not '3'. From the bill, it is clear that the batch no. of the injections was D-172. The complainant remained admitted in Civil Hospital, Rampura upto 13.05.2011 and his father First Appeal No.72 of 2014 8 is alleged to have purchased only two injections of 'Pantokin' against cash memo No.6293 dated 06.05.2011, but the doctor might have continued the same treatment on subsequent dates after 07.05.2011 also. Opposite party No.2 injected the said injection to the complainant, after verifying the date of manufacture, date of expiry etc. It also denied the sale of expired 'Pantokin' injections by it and further pleaded that the condition of the complainant did not deteriorate, due to injecting of above said injection. Other allegations of the complaint were also denied and dismissal of the complaint.
6. Opposite party No.2 filed separate reply to the complaint, raising similar preliminary objections, as taken by opposite party No.1, in addition to that the complaint is misconceived, groundless and vexatious. The same is not supported by any medical expert opinion. On merits, it was pleaded that the complainant was admitted in Civil Hospital, Rampura Phul on 05.05.2011, vide CR No.1613, for treatment of Enteric Fever, and opposite party No.2 after examining him in detail, prescribed injections 'Pantokin" and 'Zulfi'. The said injection was administered on 06.05.2011 by a third year trainee nursing student, under the guidance of nursing staff, Sarabjit Kaur, after duly checking the expiry date. At that time, opposite party No.2 was in Emergency Ward, accompanied by nursing staff, Sarabjit Kaur, as is evident by her statement given to the SMO. The patient was improving under the treatment of opposite party First Appeal No.72 of 2014 9 No.2 and no note of any untoward incidence or worsening of his condition is evident, as per the Bed Head Ticket and he was discharged in satisfactory condition on 11.05.2011. Thereafter, the patient went to several hospitals and, as such, the doctor-patient relationship was lost, for which opposite party No.2 cannot be termed negligent. It was denied that the injection, so administered on 06.05.2011, was expired one. It was further pleaded that the matter was examined by the District Drug Inspector. Sarabjit Kaur, Staff Nurse, duly checked the expiry date of the said injection, before injecting the same to the complainant. The medical record does not show deteriorated condition of the complainant and he remained under treatment of opposite party No.2 for another six days. The record of CHC, Bathinda also does not mention that the patient was serious. It was further pleaded that opposite party No.2 treated the complainant with due diligence, prudence and with due care and caution, by using highest degree of skill. All other allegations of the complaint were denied and it was prayed that the complaint be dismissed with costs.
7. Opposite party No.3 adopted the reply filed by opposite party No.2, as per the statement by its counsel before the District Forum on 07.05.2013.
8. Opposite parties No.4 to 6 did not appear before the District Forum, despite their service and were proceeded against ex parte.
First Appeal No.72 of 2014 10
9. The parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint against opposite parties No.1 to 5 and dismissed the same against opposite party No.6, vide impugned order. Hence, these appeals.
10. We have heard learned counsel for respondent No.6/opposite party No.6, as none appeared on behalf of respondents No.1 & 2, whereas respondents No.3 to 5 were proceeded against ex parte. We have also carefully gone through the records of the case as well as the written arguments already submitted on behalf of opposite parties No.1, 2 & 4.
11. In the written arguments submitted on behalf of opposite party No.1 in F.A. No.72 of 2014, it was contended that opposite party No.1 sold the medicines and injections "Pantokin" and "Zulfi", as per the prescription slip, vide bill No.6293 dated 06.05.2011, and the same had been administered by the staff of the hospital, after verifying the manufacturing and expiry date thereof. It did not sell any injection having batch No.9-MO-871. Batch No.D-0172 is mentioned in bill, Ex.C-4, and, as such, the question of giving wrong injection and mentioning wrong batch number does not arise. Moreover, there is no reference in Bed Head Ticket, Ex.OP-2/5, with regard to deterioration of condition of the complainant. The father of the complainant had purchased the medicines from other shops also, including Red Cross Society and First Appeal No.72 of 2014 11 there is possibility of the injected injection from those shops. As per the report of the Drug Inspector, Bathinda, Ex.OP-1/18, on checking no drug (Inj. Pantokin) B.No.9-MO-871 was found stocking in the firm and no purchase bill was found in the form of drug in question. It was further contended that that the annual stock statements of the distributor were not appreciated by the District Forum. There is no deficiency in service on the part of opposite party No.1. It was, thus, contended that the District Forum has passed the impugned order, without appreciating the evidence on the record, and the same is liable to be set aside, by way of allowing the appeal filed by opposite party No.1 i.e. F.A. No.72 of 2014.
12. In the written arguments submitted on behalf of opposite party No.2 in F.A. No.110 of 2014, it was contended that opposite party No.2 is not employed for any personal gains. In the present case, the treatment was availed at the Civil Hospital, where only token money was charged for the purpose of registration and no separate fee was charged by the doctor for treating the patient. Thus, the complainant does not fall within the definition of 'consumer, as defined in the Act. In this regard, he relied upon Major Singh v. State of Punjab IV (2014) CPJ 622 (NC). It was further contended in the written arguments that the complainant was admitted in Civil Hospital, Rampura Phul, on 05.05.2011, vide CR No.1613, for treatment of enteric fever. Opposite party No.2 prescribed the injections 'Pantokin' and 'Zulfi', First Appeal No.72 of 2014 12 which were purchased by the father of the complainant, vide bill No.6293 dated 06.05.2011. An inquiry was conducted and it was found that opposite party No.2 was not at fault in any manner. In fact, the said injection was injected to the complainant by a third year trainee under the supervision of Nursing Staff, Sarabjit Kaur, and opposite party No.2 was in emergency ward at the relevant time. Before injecting the said injection, its particulars were duly checked by Nurse, Sarabjit Kaur. The condition of the complainant did not deteriorate and rather was improved and he could eat food by ingesting through mouth, without vomiting, as is evident from notings made on the chart of the complainant, Ex.OP-2/5, and other documents placed on the record. It was further contended therein that the complainant also visited several hospitals, after his discharge from Civil Hospital, Rampura Phul, against the advice of opposite party No.2, which led to loss of patient-doctor relationship between them. In these circumstances, opposite party No.2 cannot be held liable in any manner and the liability has been wrongly fastened upon her by the District Forum. Hence, it was contended that the appeal filed by opposite party No.2 (F.A. No.110 of 2014) be allowed and the impugned order be set aside.
13. In the written arguments submitted on behalf of opposite party No.4 in F.A. No.134 of 2014, it was vehemently contended that father of the complainant purchased the prescribed medicines, vide Bill No.6293 dated 06.05.2011 Ex.C-4 from opposite party No.1, in which injection 'Pantokin' having batch First Appeal No.72 of 2014 13 No.D-172 has been specifically mentioned. The appellant/opposite party No.4 is a distributor and had sold the "Pantokin" injection, having batch No.D-0172 only to opposite party No.1 and, thus, question of purchase of 'Pantokin' injection, having batch No.9- MO-871, from opposite party No.1 does not arise at all. Even otherwise, it never sold 'Pantokin' injection, having batch No.9- MO-871 to opposite party No.1. He further contended that the complainant had purchased the medicines and injections from Govt. Dispensary, run by Red Cross Society at Civil Hospital, Rampura Phul, vide bills Ex.C-80 and Ex.C-81, wherein no batch number and no manufacturer's name is mentioned. The District Forum failed to appreciate the bills Ex.OP-1/2 to Ex.OP-1/7, issued by opposite party No.4 to opposite party No.1, for the purchase of medicines and injections. In those bills, there is no mention of "Pantokin" injection having batch No.9-MO-871. Even as per, the Annual Stock Statement for the period 01.04.2010 to 31.03.2011 Ex.OP-1/9, opposite party No.4 sold 'Pantokin' injection, having batch No.D-172, to opposite party No.1 and no such 'Pantokin' injection, having batch No.9-MO-871 is mentioned therein. Moreover, the father of the complainant also purchased medicines and injections from Shiva Medicos, Verma Medicos, Rampura Phul as well as Red Cross Store, Rampura Phul and, thus, there is possibility of purchasing the alleged injection by him from those medical stores. In all these circumstances, when the alleged injection was not sold by opposite party No.4 to opposite First Appeal No.72 of 2014 14 party No.1, from whom the father of complainant has allegedly purchased the same, then opposite party No.4 cannot be held liable in any manner. There is no deficiency in service on its part. It was, thus, contended that the impugned order be set aside, by allowing the appeal filed by the appellant/opposite party No.4.
14. We have given thoughtful consideration to the respective contentions of the parties and perused the record.
15. First of all, we intend to decide the preliminary objection raised by opposite party No.2 that the complainant does not falls under the definition of the "consumer", as per the Act, as no fee was charged at Civil Hospital, Rampura Phul and the entire treatment was provided to him free of costs.
16. The "consumer" is defined, under Section 2 (1) (d) of the Act, as under:
"Consumer" means any person who, --
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and First Appeal No.72 of 2014 15 includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes.
Explanation.-- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment.
17. A bare perusal of the above said definition of "consumer", shows that a consumer means any person, who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose. When such service, as referred to above, is availed, then the complainant certainly falls under the definition of "consumer". The definition of "consumer" is wide enough to include a patient, who merely promised to pay the treatment charges to the hospital.
First Appeal No.72 of 2014 16
18. Hon'ble Supreme Court in Smt. Savita Garg v. The Director, National Heart Institute 2004 (10) CPSC 1031 while dealing with the issue of free of charge as well as paid treatment, held in Para No.14 as under:-
14. Therefore, as per the English decisions also the distinction of 'contract of service' and 'contract for service', in both the contingencies the courts have taken the view that the hospital is responsible for the acts of their permanent staff as well as staff whose services are temporarily requisitioned for the treatment of the patients. Therefore, the distinction which is sought to be pressed into service so ably by learned counsel cannot absolve the hospital or the institute as it is responsible for the acts of its treating doctors who are on the panel and whose services are requisitioned from time to time by the hospital looking to the nature of the diseases. The hospital or the institute is responsible and no distinction could be made between the two classes of persons i.e. the treating doctor who was on the staff of the hospital and the nursing staff and the doctors whose services were temporarily taken for treatment of the patients.
On both, the hospital as the controlling authority is responsible and it cannot take the shelter under the plea that treating physician is not impleaded as a party, the claim petition should be dismissed. In this connection, a reference may be made to a decision of this Court in the case of Indian Medical Association v. V.P. Shantha & ors. There the question had come up before this Court with regard to the provisions of the Consumer Protection Act, 1986 vis-a`-vis the medical profession. This Court has dealt with all aspects of medical profession from every angle and has come to the conclusion that the doctors or the institutes owe a duty to the First Appeal No.72 of 2014 17 patients and they cannot get away in case of lack of care to the patients. Their Lordships have gone to the extent that even if the doctors are rendering services free of charge to the patients in the Government hospitals, the provisions of the Consumer Protection Act will apply since the expenses of running the said hospitals are met by appropriation from the Consolidated Fund which is raised from the taxes paid by the tax payers. Their Lordships have dealt with regard to the definition of "service" given in Section 2(1)(o) of the Consumer Protection Act, 1986, and have observed as follows:
" The service rendered free of charge to patients by doctors/ hospitals whether non-Govt. or Govt. who render free service to poor patients but charge fee for services rendered to other patients would, even though it is free, not be excluded from definition of service in Section 2(1)(o). The Act seeks to protect the interests of consumers as a class. To hold otherwise would mean that the protection of the Act would be available to only those who can afford to pay and such protection would be denied to those who cannot so afford, though they are the people who need the protection more. It is difficult to conceive that the legislature intended to achieve such a result. Another consequence of adopting a construction, which would restrict the protection of the Act to persons who can afford to pay for the services availed by them and deny such protection to those who are not in a position to pay for such services, would be that the standard and quality of services rendered at an establishment would cease to be uniform. It would be of a higher standard and of better quality for persons who are in a position to pay for such service while the standard and quality of such service would be inferior for person who cannot afford to pay for First Appeal No.72 of 2014 18 such service and who avail the service without payment. Such a consequence would defeat the object of the Act. All persons who avail the services by doctors and hospitals who give free service to poor patients but charge fee for others, are required to be treated on the same footing irrespective of the fact that some of them pay for the service and others avail the same free of charge. Most of the doctors and hospitals work on commercial lines and the expenses incurred for providing services free of charge to patients who are not in a position to bear the charges are met out of the income earned by such doctors and hospitals from services rendered to paying patients. The Government hospitals may not be commercial in that sense but on the overall consideration of the objectives and the scheme of the Act it would not be possible to treat the Government hospitals differently. In such a situation the persons belonging to "Poor class" who are provided services free of charge are the beneficiaries of the service which is hired or availed of by the "paying class". Service rendered by the doctors and hospitals who render free service to poor patients and charge fees for others irrespective of the fact that part of the service is rendered free of charge, would nevertheless fall within the ambit of the expression "service" as defined in Section 2(1)(o) of the Act."
19. Identical issue arose in the case of Pravat Kumar Mukherjee Vs. Ruby General Hospital & Ors. II (2005) CPJ 35 (NC); wherein, after discussing the entire law on the subject, the Hon'ble National Commission held that even if no payment is made, still the complainant falls under the definition of the "consumer". The authority relied upon by learned counsel for First Appeal No.72 of 2014 19 opposite party No.2 is distinguishable, as per the observations and law discussed above.
20. In view of the above law, even the persons availing treatment from Government Hospitals free of charge are to be held to be beneficiaries-consumers. As such, the complainant certainly falls within the definition of the "consumer", as defined in the Act, as the treatment undertaken by opposite party No.2 at Civil Hospital, Rampura Phul squarely falls within the definition of "service" as per the definition given in Section 2 (1) (o) of the Act.
21. Now, coming to the merits of the present case, the admitted facts are that the complainant was admitted in Civil Hospital, Rampura Phul on 05.05.2011, where he was treated by opposite party No.2, Dr. Simarpreet Kaur Mann. On her prescription, father of complainant purchased medicines from opposite party No.1. The allegation of the complainant is that his father purchased two injections of 'Pantokin', having batch No.9- MO-871, besides other medicines, vide bill No.6293 dated 06.05.2011 Ex.C-4. Opposite party No.2 injected one of those injections to complainant, without verifying its genuineness; as a result of which the condition of the complainant deteriorated. The further allegation of the complainant is that opposite party No.4, who is distributor, sold the said injection to opposite party No.1 and, thus, opposite party No.4 was also deficient in service.
22. Perusal bill No.6293 dated 06.05.2011 Ex.C-4 clearly shows that 'Pantokin' injection, having batch No.D-172 was sold, First Appeal No.72 of 2014 20 besides other medicines. There is no mention of 'Pantokin' injection, having batch No.9-MO-871 in this bill, which was issued by opposite party No.1. Perusal of bills Ex.OP-1/2 to Ex.OP-1/6 shows that opposite party No.4 sold injection 'Pantokin' having batch No.D-0172 to opposite party No.1. There is no mention of injection 'Pantokin' having batch No.9-MO-871 in these bills and, as such, it cannot be said that injection 'Pantokin' having batch No.9-MO-871 was sold by opposite party No.4 to opposite party No.1. Still further, the Annual Stock Statement for the period 01.04.2010 to 31.03.2011, Ex.OP-1/9, shows that opposite party No.4 sold 'Pantokin' injection, having batch No.D-172, to opposite party No.1 and no such 'Pantokin' injection, having batch No.9- MO-871 finds mention in this document. The complainant has, thus, failed to prove that injection 'Pantokin' having batch No.9- MO-871 was ever sold by opposite party No.4 to opposite party No.1, from whom his father allegedly purchased the same. In these circumstances, no liability can be fastened upon opposite party No.4. The complainant has also failed to positively prove his case against opposite party No.4. Even otherwise, there is no direct sale of the alleged injection by opposite party No.4 to the complainant. The District Forum lost sight of all the above facts and evidence and wrongly allowed the complaint against opposite party No.4. The appeal filed by opposite party No.4 (F.A. No.134 of 2014) is liable to be allowed and the impugned order passed against opposite party No.4 is liable to be set aside. First Appeal No.72 of 2014 21
23. Accordingly, the appeal filed by opposite party No.4 (F.A. No.134 of 2014) is allowed and the impugned order passed against it is set aside. Consequently, the complaint filed by the complainant against opposite party No.4 is dismissed.
24. So, far as the liability fastened upon opposite parties No.1 & 2 is concerned, no doubt 'Pantokin' injection, having batch No.D-172, is mentioned in bill Ex.C-4. However, the complainant has also produced the copy of the wrapper of the injection 'Pantokin', having batch No.9-MO-871, wherein the date of manufacturing is mentioned as '10/2009' and date of expiry as '03/2011'. Initially the licence of opposite party No.1 was suspended, vide Ex.C-5, for violation of provision of Rule 65 (3) & 65 (4) of the Drugs and Cosmetics Rules, 1945, and thereafter it was restored. Admittedly, the complainant was suffering from enteric fever and was admitted in Civil Hospital, Rampura Phul on 05.05.2011. The alleged injection was purchased on the prescription of opposite party No.2, vide bill dated 06.05.2011 Ex.C-4. Immediately after administering that injection, the condition of the complainant started deteriorating. Opposite party No.1 has failed to prove any cogent evidence to prove that the alleged expired injection was not sold by it to the father of the complainant. Sometimes it happens that expired medicines are also kept by the chemists and no record is maintained by them in this regard. The above said wrapper at Ex.C-4 clearly proves that the said injection was an expired one. After the initial onus was First Appeal No.72 of 2014 22 discharged by the complainant that the expired injection was sold by opposite party No.1, then the onus shifted upon opposite party No.1 to rebut this allegation of the complainant, but no cogent evidence is forthcoming on the part of opposite party No.1 to prove that the injection 'Pantokin' having batch No.9-MO-871 was not sold by it to the father of the complainant.
25. The stand of opposite party No.2 is that the said injection was injected to the complainant by third year trainee under the guidance of Nurse, Sarabjit Kaur, and opposite party No.2 was in emergency ward at the relevant time. In this respect, it is relevant to mention that when the alleged injection was duly prescribed by opposite party No.2, then she was duty bound to supervise the entire treatment of the complainant and make it sure that the particulars of the purchased injection are duly verified and that the genuine injection is injected to the patient. In the absence of opposite party No.2 at the relevant time, the possibility of giving wrong injection cannot be ruled out, because the above said wrapper clearly shows that the said injection was an expired one. Opposite party No.2 was required to be present, when the said injection was injected to the complainant, in order to avoid any untoward situation, which unfortunately has happened in this case. The administering of expired injection deteriorated the condition of the complainant, as a result of which he had to be admitted in various hospitals; thereby causing mental as well as physical agony to him. After discharge from Civil Hospital, Rampura Phul First Appeal No.72 of 2014 23 on 21.05.2011, his condition did not improve and he took treatment from GTB Hospital, Ludhiana. Thereafter, the complainant was taken to Goyal Children Hospital, Rampura Phul on 12.07.2011, from where he was referred to PGI, Chandigarh. He took treatment at PGI on 12.07.2011, 13.07.2011 and 20.07.2011 and thereafter his condition started improving. The act and conduct of opposite party No.2 clearly amounted to deficiency in service and she has been correctly burdened with compensation and cost.
26. We have reached at the definite opinion that no evidence has been led by opposite parties No.1, 2, 3 & 5 to rebut the evidence led by the complainant. The only reliance has been placed by opposite party No.1 on the report the Drug Inspector, which indicates that no injection "Pantokin", having batch No.9- MO-871 was found during checking its stock. The said report cannot be relied upon, because the Drug Inspector never made any attempt to inquire from the manufacturer, opposite party No.5, about the manufacture/sale of injection "Pantokin", having batch No. 9-MO-871. The said report also cannot be relied upon, as it was conducted on 03.06.2011, whereas the father of the complainant purchased the alleged medicine, vide bill dated 06.05.2011 Ex.C-4. The said report was given after about one month of the sale of the said injection and there was ample time with opposite party No.1 to clear its expired stock. The report of the Drug Inspector is a tainted report, as he has no never tried to First Appeal No.72 of 2014 24 find out the origin of the medicine and never approached the concerned company, the wrapper of which is on record. It appears that just to shield the chemist and others, he had not gone deep into the matter. He has only checked the premises. The possibility of verifying these things after such a long time does not arise. Even the purchase stock register has not been checked to find out that the medicine was ever purchased by opposite party No.1. It is crystal clear from the evidence on record that the injection was supplied to the father of the complainant, the wrapper of which clearly shows the expiry date. So far as the police report is concerned, the same is on the identical lines. The police authorities have not gone deep into the matter. As such, both the reports are tainted and cannot be accepted. In these circumstances, we are constrained to observe that the Drug Inspector and police authorities should have gone deeper into the probe and tried to find out from the manufacturer regarding the sale of injection, the wrapper of which is already on the record, and thereafter should have inquired to whom it was sold and also should have verified the consequential facts.
27. In view of above discussion, we find that the complainant has been successful in proving the negligence and deficiency in service on the part of opposite parties No.1, 2, 3 & 5 beyond any doubt, whereas he failed to prove any deficiency in service on the part of opposite party No.4. The District Forum has correctly fastened the liability upon opposite parties No.1,2, 3 & 5, First Appeal No.72 of 2014 25 after properly appreciating the evidence produced on record by the parties.
28. Accordingly, the appeals i.e. F.A. No.72 of 2014 and F.A. No.110 of 2014, filed by opposite parties No.1 & 2 respectively are dismissed and the impugned order passed against them is affirmed.
29. In F.A. No.72 of 2014, the appellant had deposited a sum of ₹25,000/- at the time of filing of the said appeal. It deposited another sum of ₹1,00,000/-, vide receipt dated 17.02.2014, in compliance of the order dated 31.01.2014 passed by this Commission. Both these amounts, along with interest which has accrued thereon, if any, shall be remitted by the registry to District Forum, after the expiry of 45 days of the sending of certified copy of the order to them. The complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard.
30. In F.A. No.110 of 2014, the appellant had deposited a sum of ₹25,000/- at the time of filing of the said appeal. This amount, along with interest which has accrued thereon, if any, be remitted by the registry to District Forum, after the expiry of 45 days of the sending of certified copy of the order to them. The complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard.
First Appeal No.72 of 2014 26
31. In F.A. No.134 of 2014, the appellant/opposite party No.4 had deposited a sum of ₹25,000/- at the time of filing of the said appeal. This amount, along with interest which has accrued thereon, if any, be remitted by the registry to District Forum, after the expiry of 45 days of the sending of certified copy of the order to them. The appellant/opposite party No.4 may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard.
32. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER April 21, 2017.
(Gurmeet S)