State Consumer Disputes Redressal Commission
Dileshwar Verma vs Sona Bai on 12 December, 2024
Appeal Nos. : Dileshwar Verma Vs. Sona Bai Date of Pronouncement:
FA/24/87 12/12/2024
Dileshwar Verma Vs. Balakdas Markande
FA/24/88
FA/24/89 Dileshwar Verma Vs. Radheshyam Verma
AFR / NAFR
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
IN ALL THREE APPEALS :
Date of Institution: 16/02/2024
Date of Final Hearing: 28/11/2024
Date of Pronouncement: 12/12/2024
APPEAL No.- FA/24/87
IN THE MATTER OF :
Dileshwar Verma S/o. Shri Khorbahra Ram Verma,
R/o. Vill. Kopedih, P.S.- Tumdibode,
Dist. RAJNANDGAON (C.G.) ... O.P./Appellant
Through: Shri Sudeep Johri, Advocate
Vs.
Sona Bai W/o. Late Vedram Verma,
R/o. Laxmi Para, Nandini Road,
Near Durga Mandir, Jamul, Ward No.4, Bhilai,
Dist. DURG (CG) ... Complainant/Respondent
Through: Shri Rajesh Verma, Advocate
APPEAL No.- FA/24/88
IN THE MATTER OF :
Dileshwar Verma S/o. Shri Khorbahra Ram Verma,
R/o. Vill. Kopedih, P.S.- Tumdibode,
Dist. RAJNANDGAON (C.G.) ... O.P./Appellant
Through: Shri Sudeep Johri, Advocate
Vs.
Balakdas Markande, S/o. Prem Das Markande,
R/o. Vill. Saltikri, P.O. Ruwatala,
P.S. O.P. Mohara, Tah. Dongargarh,
Dist. RAJNANDGAON (CG) ... Complainant/Respondent
Through: Shri Rajesh Verma, Advocate
APPEAL No.- FA/24/89
IN THE MATTER OF :
Dileshwar Verma S/o. Shri Khorbahra Ram Verma,
R/o. Vill. Kopedih, P.S.- Tumdibode,
Dist. RAJNANDGAON (C.G.) ... O.P./Appellant
Through: Shri Sudeep Johri, Advocate
Vs.
Radheshyam Verma, S/o. Late Uderam Verma,
R/o. Vill. Gadadih, Near Hanuman Mandir,
P.O. & Tah. Khairagarh, P.S. Khairagarh,
Dist. RAJNANDGAON (CG) ... Complainant/Respondent
Through: Shri Rajesh Verma, Advocate
CORAM: -
HON'BLE SHRI JUSTICE GAUTAM CHOURDIYA, PRESIDENT
HON'BLE SHRI PRAMOD KUMAR VARMA, MEMBER
PRESENT IN ALL APPEALS: -
Shri Sudeep Johri, Advocate for the appellant.
Shri Rajesh Verma, Advocate for the respondent.
All appeals dismissed. Page 1 of 11
Appeal Nos. : Dileshwar Verma Vs. Sona Bai Date of Pronouncement:
FA/24/87 12/12/2024
Dileshwar Verma Vs. Balakdas Markande
FA/24/88
FA/24/89 Dileshwar Verma Vs. Radheshyam Verma
ORDER
PER: - JUSTICE GAUTAM CHOURDIYA, PRESIDENT This order will govern disposal of all the above three appeals filed under section 41 of the Consumer Protection Act 2019 (hereinafter called "the Act" for short) arising out of separate impugned orders passed by District Consumer Disputes Redressal Commission, Rajnandgaon (hereinafter called "District Commission" for short) by which the District Commission partly allowed the complaints and directed the opposite party / appellant to pay compensation as under : -
Date of Sr. Appeal Complaint The opposite party/ appellant was directed to Impugned No. No. Case No. pay Order 1 FA/24/87 CC/21/119 27.12.2023 Medical expenses of Rs.1,79,990/-, compensation for physical, mental and financial loss Rs.20,000/- and cost of litigation Rs.3,000/-. All above amount was directed to be paid with interest @ 6% p.a. from the date of filing complaint 08.02.2021 till realization. If the opposite party / appellant fails to pay the above amount within 60 days, the interest was directed to be paid @ 9% p.a. from the date of filing complaint 08.02.2021.
2 FA/24/88 CC/21/118 27.12.2023 Medical expenses of Rs.2,08,931/-, compensation for physical, mental and financial loss Rs.20,000/- and cost of litigation Rs.3,000/-. All above amount was directed to be paid with interest @ 6% p.a. from the date of filing complaint 08.02.2021 till realization. If the opposite party / appellant fails to pay the above amount within 60 days, the interest was directed to be paid @ 9% p.a. from the date of filing complaint 08.02.2021.
3 FA/24/89 CC/21/120 27.12.2023 Medical expenses of Rs.2,000/-, compensation for physical, mental and financial loss Rs.10,000/- and cost of litigation Rs.3,000/-. All above amount was directed to be paid with interest @ 6% p.a. from the date of filing complaint 08.02.2021 till realization. If the opposite party / appellant fails to pay the above amount within 60 days, the interest was directed to be paid @ 9% p.a. from the date of filing complaint 08.02.2021.
Feeling aggrieved the opposite party in all the three complaints have come up before us by way of these appeals. As all these appeals involve similar question of law and facts they are being decided by way of All appeals dismissed. Page 2 of 11 Appeal Nos. : Dileshwar Verma Vs. Sona Bai Date of Pronouncement:
FA/24/87 12/12/2024
Dileshwar Verma Vs. Balakdas Markande
FA/24/88
FA/24/89 Dileshwar Verma Vs. Radheshyam Verma
this common order and for the purpose of convenience the facts of Appeal No.FA/24/87 are being considered in this common order.
2. The complainant/respondent Smt. Sona Bai went to the opposite party/appellant at Kopedih for treatment of knee pain in the month of August 2019. The opposite party/respondent administered injection locally in the affected area but within 2-3 days of injection, the knee got infected and filled with pus. Looking to the infection the complainant/respondent went to Suraj Nursing Home, Kohka, Bhilai (C.G.) on 04.09.2019 for proper treatment, where she was treated till 19.09.2019, from 30.09.2019 to 02.10.2019 and is continue till date, in which she has spent Rs 6,00,000/-. Due to severe infection and wound in the knee, she is unable to do any work. It was alleged that whatever treatment was given by the opposite party/appellant was wrong and improper for which he is solely responsible, regarding which the complainant/ respondent complained to the Police Station Tumdibod in which crime under section 308, 420 of the IPC and section 3 & 12 of the Chhattisgarh Rajya Uphcharya Grih Tatha Rogopchar Sambandhi Sthapnayen Anugyapan Adhiniyam 2010 was registered vide FIR No.62/2020. It was further averred that the aforesaid acts of the opposite party / appellant comes in the category of deficiency in service and unfair trade practice. Advocate notice through registered post was sent on 07.09.2020 which was replied on 19.09.2020 with fabricated and false statement. Thereafter, alleging deficiency in service and unfair trade practice complaint was filed against the appellant herein seeking relief of payment of compensation of Rs.6,00,000/- (Six Lacs) with interest @ 18% p.a., compensation towards financial, mental and physical loss Rs.1,00,000/- (One Lac) and cost of litigation Rs.10,000/- (Ten Thousand).
All appeals dismissed. Page 3 of 11 Appeal Nos. : Dileshwar Verma Vs. Sona Bai Date of Pronouncement:
FA/24/87 12/12/2024
Dileshwar Verma Vs. Balakdas Markande
FA/24/88
FA/24/89 Dileshwar Verma Vs. Radheshyam Verma
3. The opposite party / appellant in his written version denied the allegations of deficiency in service and unfair trade practice and averred that the complaint is not maintainable as it has been filed on the basis of false, fabricated and imaginary grounds. It was further averred that in August 2019 old women with some persons came to him with complaints of pain in her waist, arms and legs, weakness and feeling of frequent dizziness. Upon which opposite party / appellant advised for sugar test and other tests on good faith. But he neither did any treatment nor the complainant/ respondent came to the opposite party / appellant for any such treatment. Allegation of administering any injection was specifically denied. It was further averred that he is certified Medical Professional by Council of RMP Bhopal (M.P.) vide Registration No.47371 dated 29.06.1995. It was specifically denied that any treatment of the complainant / appellant was done by him or any fee was received, hence he does not come in the category of service provider nor has committed any unfair trade practice. It was prayed that the complaint, filed on the false, fabricated and imaginary grounds be dismissed with cost.
4. Learned District Commission found that the opposite party/ appellant without having any medical qualification administered injection in the knee of the complainant, which led to infection and relying upon judgement of Hon‟ble National Commission in Mohar Singh & Anr. Vs. Rajendra @ Raju & Ors., 2015 (2) CPR 77 (NC) held the opposite party/ appellant guilty of medical negligence and accordingly partly allowed the complaint with the direction to the opposite party as aforesaid in paragraph No.1.
5. Final arguments heard and perused the record. We have also gone through the written arguments submitted by learned counsel for the both the parties.
All appeals dismissed. Page 4 of 11 Appeal Nos. : Dileshwar Verma Vs. Sona Bai Date of Pronouncement:
FA/24/87 12/12/2024
Dileshwar Verma Vs. Balakdas Markande
FA/24/88
FA/24/89 Dileshwar Verma Vs. Radheshyam Verma
6. Learned counsel for the appellant / opposite party Shri Sudeep Johri in his written as well as oral arguments has argued before us that the allegations of medical negligence have not been proved by way of producing any expert opinion in view of settled principal of law in V. Kishan Rao Vs. Nikhil Super Speciality Hospital and Anr., (2010) 5 SCC
513. Learned District Commission has also erred in believing the documents filed before Criminal Court which are nothing but part of charge sheet which is yet to be proved and therefore the respondent / complainant cannot be allowed to do forum shopping in view of the settled principal of law in Vijay Kumar Ghai & Ors. Vs. State of West Bengal & Ors. Criminal Appeal No.463/2022 decided on 22.03.2022. Since the charges leveled against the appellant/ opposite party under section 3A & 12 of the Chhattisgarh Rajya Uphcharya Grih Tatha Rogopchar Sambandhi Sthapnayen Anugyapan Adhiniyam 2010 is still pending. Merely the criminal case pending against the appellant/ opposite party does not ipso facto prove that he is guilty.
7. It is also argued that the respondent/ complainant has not mentioned in the complaint nor proved that any amount was paid by her to the appellant / opposite party for the services, therefore there is no relationship of „service provider‟ and „consumer‟ between the appellant/ opposite party and the respondent/ complainant. The appellant‟s learned counsel further argued that the proceedings before Consumer Commission being summary in nature the complaints involving highly disputed questions of facts or the cases involving tortiour acts or criminally like fraud or cheating could not be decided by the Consumer Commission as has been recently laid down by the Hon‟ble Apex Court in The Chairman & Managing Director, City Union Bank Ltd. & Anr. Vs. R. Chandramohan, 2023 LiveLaw (SC) 251.
All appeals dismissed. Page 5 of 11 Appeal Nos. : Dileshwar Verma Vs. Sona Bai Date of Pronouncement:
FA/24/87 12/12/2024
Dileshwar Verma Vs. Balakdas Markande
FA/24/88
FA/24/89 Dileshwar Verma Vs. Radheshyam Verma
8. Learned counsel for the appellant/ opposite party further argued that in medical negligence cases the burden to prove the allegation lies upon the complainant but the respondent / complainant in this case has utterly failed to establish the allegations leveled by her. With these arguments learned counsel for the appellant/ opposite party prayed that the impugned order be set aside on the pretext of legal position.
9. Learned counsel for the respondent / complainant Shri Rajesh Verma has supported the impugned order and reiterating the averments made in the complaint argued that the appellant / opposite party not only gave medical advice but he gave treatment and administered injection also, whereas the Chief Medical and Health Officer has informed the Police that the appellant/ opposite party is not having qualification for providing medical treatment, which amounts to deficiency in service and unfair trade practice. In this regard learned counsel has relied upon order of Hon‟ble National Commission in Mohar Singh (supra). He prayed that the impugned order be affirmed and this appeal be dismissed.
10. We have considered the above arguments advanced by both parties and gone through the record as well as the citations relied by them. The first and foremost issue which needs to be considered in this case is whether any amount was paid by the respondent/complainant in lieu of the services availed by her, which is essential to bring a person into the category of 'consumer' and establish a relationship of „consumer‟ and „service provider‟ between two persons. In this regard the respondent/ complainant has not mentioned anything as to how much amount she paid to the appellant/ opposite party for alleged medical services nor any payment receipt has been brought on record. Even before us also during pendency of this appeal opportunity was given to both the parties to show how much amount was paid by the respondent/ complainant against the All appeals dismissed. Page 6 of 11 Appeal Nos. : Dileshwar Verma Vs. Sona Bai Date of Pronouncement:
FA/24/87 12/12/2024
Dileshwar Verma Vs. Balakdas Markande
FA/24/88
FA/24/89 Dileshwar Verma Vs. Radheshyam Verma
alleged medical service in question. Even in the FIR and copy of charge- sheet filed in compliance of direction of this Commission there is not even a whisper regarding payment of any amount to the appellant/ opposite party.
11. At this juncture, it is quite pertinent to reproduce the definition of „consumer‟ as per Section 2 (7) of the Consumer Protection Act 2019 as under : -
"(7) "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 service 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 beneficiary of such service 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 service for any commercial purpose.
Explanation.--For the purposes of this clause,--
(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-
employment;
(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi- level marketing;"
The above Sub-section 2 (7) (ii) clearly envisages that „consumer‟ means a person who hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised. But in the facts of the present case, the respondent / complainant neither stated anything about payment of consideration nor has brought on All appeals dismissed. Page 7 of 11 Appeal Nos. : Dileshwar Verma Vs. Sona Bai Date of Pronouncement:
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Dileshwar Verma Vs. Balakdas Markande
FA/24/88
FA/24/89 Dileshwar Verma Vs. Radheshyam Verma
record any payment receipt of any amount to the appellant/ opposite party.
12. In Civil Surgeon-cum-Chief Superintendent, District Hospital, Rajnandgaon & Anr. Vs. Smt. Varsha Chachlani, Appeal No.A/11/2328 (Appeal No.47/2011), relied by the respondent / complainant, it was observed by this Commission in that case relying upon judgement of Hon‟ble Apex Court in Indian Medical Association Vs. V.P. Shantha & Ors., (1995) 6 SCC 651 that as the Hospital used to collect fee from some of the patients, so the complainant also comes in the category of „consumer‟ and services provided by the Hospital is „service‟ under the Consumer Protection Act 1986.
13. In that case the patient was treated free of cost on the basis of BPL Card and it was found proved that the appellant Hospital, in that case, used to provide free treatment and free examination facilities to the patients, who are BPL cardholders and for other patients they used to charge for treatment as well as examinations. In the facts of the present case the appellant/ opposite party is neither a Hospital nor an Institution where patients can be categorized in free and paid patients. Learned appellant‟s counsel pressed upon this issue that the respondent/ complainant is not a „consumer‟ of the appellant/opposite party on the saying only free advice was given by the appellant / opposite party to the respondent/ complainant to get her sugar level and blood tested along with some other medical examinations but no treatment was given by him to the respondent/ complainant.
14. Looking to the entire evidence available on record a number of people were treated by the appellant / opposite party and he is known as a Doctor in his village. Three persons who are respondent/complainant in these three appeals were also treated by him and this fact proves that all All appeals dismissed. Page 8 of 11 Appeal Nos. : Dileshwar Verma Vs. Sona Bai Date of Pronouncement:
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Dileshwar Verma Vs. Balakdas Markande
FA/24/88
FA/24/89 Dileshwar Verma Vs. Radheshyam Verma
the respondents / complainants were treated by the appellant/ opposite party but due to negligent treatment given by the appellant/ opposite they sustained serious illness as the appellant / opposite party is not qualified Doctor nor have any qualification for treatment under allopath. Looking to the copy of charge-sheet filed before Criminal Court, produced before us at the appellant stage by the respondent/ complainant the appellant/ opposite party is not having any degree or qualification for providing medical treatment, but by profession he is known as Doctor. As per the Arrest Memo of the appellant/ opposite party submitted before us with copy of charge-sheet appellant also disclosed his profession as medical practitioner (MkWDVjh) in paragraph No.11 and his qualification as M.A. Final and he is a Doctor.
15. Therefore, it is proved by all cogent evidence that he was in profession of medical practitioner and was giving treatment to the people and he had given treatment to the present respondent/ complainant also. It is also proved by cogent evidence that the respondent/ complainant sustained serious illness due to negligent treatment given by the appellant/ opposite party and had to get treatment from some other Higher Center and expend huge amount in treatment. As per statement given in affidavit by the appellant/ opposite party he only gave free advice and he did not treat the respondent/ complainant but according to the evidence available on record it is clearly proved that he was in profession of medical practitioner and treated people in village area and charge-sheet has been filed against him before Criminal Court also. As per arrest memo he declared himself by profession a Doctor. It is also proved that he is not running any Charitable Trust nor any treatment was given for charity nor any cogent evidence has been given by the appellant/ opposite party to prove that he treated the respondent/ All appeals dismissed. Page 9 of 11 Appeal Nos. : Dileshwar Verma Vs. Sona Bai Date of Pronouncement:
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Dileshwar Verma Vs. Balakdas Markande
FA/24/88
FA/24/89 Dileshwar Verma Vs. Radheshyam Verma
complainant free of cost. Therefore considering the entire facts and circumstances of the case we are of the view that the respondent/ complainant is „consumer‟ of the appellant/ opposite party who treated her without having any medical degree or qualification due to which she had to sustain serious illness and had to bear huge medical expenditure for her treatment in some other Higher Center.
16. From the copy of charge-sheet brought on record it clearly appears that a notice was given by the police to the appellant/ opposite party Dileshwar Verma asking for valid document for doing medical treatment, which was replied by the appellant Dileshwar Verma mentioning therein that ^^esjs ikl fpfdRldh; laca/kh dksbZ Hkh nLrkost ugh gS A**. This note made by the appellant himself in his own handwriting is sufficient to draw inference that he is not a qualified medical professional and not competent to provide medical treatment but even then he administered injections to the respondent/ complainant. This fact itself is sufficient to prove that the appellant/ opposite party committed deficiency in service and gross negligence. In this regard we are fortified with our view by the order of Hon‟ble National Commission in Mohar Singh (supra), relying upon by learned District Commission. In similar set of fact in that case Hon‟ble National Commission in paragraph No.9 of the order held as under : -
"9. However, if a person who has no education in medicine dispenses medicines and administers injection to a sick person that by itself will be a case of gross negligence and deficiency in rendering service, since such a person is not at all equipped with requisite knowledge and expertise to dispense medicines and/or administering injections to a patient brought to him. If persons such as the respondent before us, is allowed to practice medicine, that is likely to jeopardize the health and life of the patients, on account of consumption of a wrong medicine or administration of any injection which may not be suitable for treatment of the ailment from which he is suffering. Such persons pose a great risk to the society particularly illiterate and semi illiterate persons living in villages and remote areas who do not always have access to qualified doctors and government hospitals/dispensaries and, therefore, may, in sheer desperation, approach such self-styled doctors for treatment of the ailments from which they are suffering. Therefore, adequate compensation needs to All appeals dismissed. Page 10 of 11 Appeal Nos. : Dileshwar Verma Vs. Sona Bai Date of Pronouncement:
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Dileshwar Verma Vs. Balakdas Markande
FA/24/88
FA/24/89 Dileshwar Verma Vs. Radheshyam Verma
be awarded in such cases not only with a view to compensate the complainants but also with a view to discourage such persons from engaging into such practices and jeopardizing the health and safety of other persons in the society who may approach them under a belief that they are qualified doctors and, therefore, will be able to treat them for the disease from which they are suffering."
In view of the above order of Hon‟ble National Commission we are of the view that to discourage such persons from engaging into such practices and jeopardizing the health and safety of other persons in the society as well as to compensation the respondent / complainant adequate compensation needs to be awarded, which has been justifiably done by learned District Commission. Therefore, we do not find any reason to interfere with the impugned order, hence the same is affirmed.
17. With the foregoing discussion, we are of the considered view that these appeals have no substance, hence are dismissed. The impugned orders as aforesaid in paragraph No.1 are affirmed. Parties are left to bear their own cost of these appeals. Original of this order be kept in the record of Appeal No.FA/24/87 and a certified copy thereof be placed in the record of Appeal Nos.FA/24/88 & FA/24/89.
(Justice Gautam Chourdiya) (Pramod Kumar Varma)
President Member
/12/2024 /12/2024
Pronounced on: 12th December 2024
All appeals dismissed. Page 11 of 11