State Consumer Disputes Redressal Commission
Dr. D. Rama Rao, S/O Narayana Rao, Aged 53 ... vs Pendyala Thirumala, W/O Saraiah, Aged ... on 12 March, 2012
P.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD
FA 878/2009
against CC 80/2006 on the file
of the District Consumer Forum , Warangal.
Between
:
Dr.
D. Rama Rao, S/o Narayana Rao, aged 53 years,
Occ : Medical Practitioner ( Neuro
Psychiatrist )
R/o
C/o Sai Prashanthi
Clinic, Revenue Colony,
Hanamkonda, Warangal Disrict. .. Appellant/opposite
party
And
Pendyala Thirumala,
W/o Saraiah, aged 32 years,
Occ ; Fish Business, R/o H. No.
7-205, Gopalapur
Village
Hanamkonda Mandal,
presently residing at
Hasanpathy Village & mandal,
Warangal District .. respondent/complainant
Counsel
for the Appellant : Smt. K. Sheshrajyama
Counsel
for the Respondent : Mr.
Gopi Rajesh
FA 899/2009
against CC 80/2006 on the file
of the District Consumer Forum , Warangal.
Between
:
Pendyala Thirumala,
W/o Saraiah, aged 32 years,
Occ ; Fish Business, R/o H. No.
7-205, Gopalapur
Village
Hanmakonda Mandal,
presently residing at
Hasanpathy Village & mandal,
Warangal District .. Appellant /complainant
And
Dr.
D. Rama Rao, S/o Narayana Rao, aged 53 years,
Occ : Medical Practitioner ( Neuro
Psychiatrist )
R/o Sai
Prashanthi Clinic, Revenue Colony,
Hanmakonda, Warangal Disrict. .. Respondent
/opposite party
Counsel
for the Appellant : Mr. Gopi
Rajesh
Counsel
for the Respondent :
Smt. K. Sheshrajyama
Coram
;
Sri R. Lakshminarasimha Rao Honble Member
And Sri T. Ashok Kumar .. Honble Member Monday, the Twelfth Day of March Two Thousand Twelve Oral Order : ( As per Sri T. Ashok Kumar , Honble Member ) ****
1. These appeal and cross appeal are filed by unsuccessful OP and dissatisfied complainant against the order dt.
2906.2009 in CC 80/2006 on the file of the District Consumer Forum, Warangal, where under, OP was directed to pay an amount of Rs.one lakh compensation to the complainant along with interest @ 7.5% PA 21.7.2006 till realization and also costs of Rs.500/- in a case of medical negligence . For convenience sake, the parties as arrayed in the complaint are referred to as under :
2. The brief facts of the complaint in CC 80/2006 are as under :
In the month February, 2001 the complainant was suffering from head ache continuously therefore on 05-02-01 she approached the Opposite Party who is a Neuro Psychiatrist for treatment. After conducting all the examinations, tests the Opposite Party prescribed the medicines and also sold the same from his own medical shop. As directed by the Opposite Party, the complainant continued to approach him for treatment and the Opposite Party was prescribing the medicine by changing the same from one to another continuously, but she could get any relief. In continuation of the said treatment for about 2 years and due to wrong diagnosis, improper and defective medicines prescribed and provided to the complainant, day to day her health condition was badly affected and her total body was affected with swelling due to which she became abnormal fat and her total body became double of her previous structure during December, 2004. on account of treatment provided by the Opposite Party by changing one medicine to another, swelling of body decreased, but her total body became black like a coal. Due to wrong prescription and providing wrong medicines the health condition of the complainant was badly affected. She was suffering from burning sensation and hot breath was coming out from nose, mouth, and ears continuously. After observing the abnormal and serious health condition of the complainant, the Opposite Party realized for his improper treatment and had taken the complainant to Dr.V.Ramesh, Skin Specialist, Skin hospital, Hanamkonda, Dr,Ramchander Dharak, Skin Specialist, Warangal, Dr.B.V.Mallikarjun, Eye Specialist, Warangal, Dr.Sharath Babu, Eye specialist, Warangal for which the complainant incurred expenditure. Under their treatment the complainants body recovered but she is suffering from pains and heat in the body. Due to hot breath from mouth, nose, eyes and ears, her life became hell and it is unbearable with her health condition, due to which she is unable to attend even her personal works. On account of her ill health condition of the complainant, her husband not only neglected her but deserted her leaving her to her fate. As such the complainant left to her parents house. Her parents are old aged, and unable to maintain themselves, and the complainant became additional burden to them, and hence the complaint claiming Rs.5,00,000/-towards damages, deficiency of service on the part of the Opposite Party. She spent Rs.80,000/-for treatment and medicines provided by the Opposite Party and she promised to pay the said amount of Rs.80,000/- but paid only Rs.10,500/- and did not pay the remaining amount. The complainant approached the District Collector, Warangal the same was referred to DMHO, Warangal, who appointed Dr.G.S.Narsimhan, Opposite Party DTT Warangal to enquire into the matter and the said doctor has referred the complainant to Indian Medical Association, Warangal. And she was sent to MGM hospital, Warangal where Dr.B.Mohan Rao, examined her and submitted his report stating that there is no negligence on the part of the Opposite Party and that the defect is in medicine used by the complainant and it was so reported to protect colleague doctor. The Opposite Party treated the complainant by prescribing and selling the said medicines and all the said acts amounts to deficiency of service on the part of the Opposite Party and hence the complaint.
3. OP filed counter opposing the claim of the complainant and denying the allegations made in the complaint and disputing the claim that in the month November, 2004 the complainant approached him depression with somatisation and that she prescribed the Carbamazepine medicine for the said depression with somatization and headache. The said drug is one of the more commonly prescribed medicines in Neuro Psychiatric practice. As per the literature the said tablets are likely to have side effect of skin rash and ,merely because due to said medicine complainant suffered from skin rash, no conclusion can be drawn that prescribing of the said medicine was either improper or that there was no proper diagnosis and thus he prayed to dismiss the complaint.
4. The complainant has filed her evidence affidavit reiterating her case as set out in the complaint and two more affidavits filed on her behalf.
Ex. A1 to A16 were marked on her behalf and OP did not file evidence and documents on his behalf.
5. Having heard both sides and considering the evidence on record, the District Forum allowed the complaint in part awarding compensation of Rs.one lakh with interest @ 7.5% etc. one month time was granted for compliance.
6. Feeling aggrieved with the said order OP filed FA 878/2009 and mainly contended that orders under Appeal are not sustainable either in law or on facts and that the District Forum erred in ignoring ex A49 to A52 and that enquiry report and findings of MGM hospital, Warangal discloses that there was no negligence on the part of OP in treating the complainant but still the District Forum held that there was deficiency in service on the part of OP and that it was further contended that there is no dependable evidence on record to show that the complainant purchased medicines from his shop and that in fact he has no medical shop and therefore the orders under Appeal are not sustainable. The dissatisfied complainant filed FA 899/2009 for enhancement of compensation contending that even though the District Forum found that OP rendered deficiency in service in treating her medically awarded only Rs.one lakh compensation which is meagre and thus prayed to enhance compensation.
7. Heard both sides with reference to their respective contentions in detail.
8. Now the point for consideration is whether the order of the District Forum is sustainable ?
9. The case of the complainant is that the OP medical practitioner treated her in negligent manner by prescribing and selling the medicines which had adverse side effects and thereby he became stout and that on account of it she has been suffering from pains and heat in the body and that on account of it her husband deserted her and that her life became miserable due to deficiency in service on the part of the and hence she is entitled for Rs.5 lakhs compensation and that even though there is evidence on record in her favour the District Forum awarded only Rs.one lakh compensation which is quite inadequate. Where as the contention of the OP is that there was no negligence or deficiency in service on the part of the OP in treating the complainant and that on the representation made by the complainant to the District Collector, Warangle the matter was referred DMHO, Warangal and one Dr. G. S. Narasimham , PO DTT, Warangal was appointed as Inquiry officer to enquire into the matter and that report that to him and that the said doctor referred the complainant to MGM Hospital, Warangal, where she was examined and that after examination he reported that there was no negligence on the part of the OP in treating the complainant and in spite of such evidence on record District Forum did not appreciate the same and decided the matter against the OP which is liable to be set aside.
In a decision reported in ( 2010) 3 SCC 480 between Kusum Sharma and others Vs. Batra Hospital and Medical Research Centre and others, it was held that the doctor would be liable only where his conduct falls below that of a reasonably competent medical practitioner and that divergence of opinion with other doctors not by itself sufficient to infer negligence. It was also held in the said decision that Page 506 para 18 I to XI. In a decision reported in (2009) 7 SCC 130 between CP Srikumar (DR. MS. Artho) Vs. S. Ramanujam it was held that onus of proving medical negligence lies on the complainant and that mere averment in the complaint is not evidenced and that the complaint to be proved with by cogent evidence. The said aspects to be kept in mind in dealing with this case.
The complainant deposed in her evidence affidavit the case set out by her in the complaint and she also examined PWs. 2 and 3. it is true that OP did not file any evidence affidavit and the same is no ground to discord his case put forth in the counter. In the evidence on record, supports its version the same can be based to believe his version and it is not necessary that he should file his avoidance affidavit reliably.
Therefore the contention of the complainant in the said context could not be appreciated, it is much more so, when the onus is on her to prove the case with legal and dependable evidence. There is no dispute that the complainant has made a representation to the District Collector, Warganl alleging the said deficiency in service narrated by her in the complaint and evidence affidavit and that in turn the District collector referred the matter to DMHO, Warangal.
And that one Dr. G. S. Narasimham PODTT, Warangal was appointed as Enquiry officer to inquire into the matter and submit report to the District Collector and accordingly the said doctor referred the complaint to MGM hospital , Warangal and she was examined there. Ex. A 52 which is marked by the complainant itself is a letter dt. 5.6.2006 addressed by the District Collector, Warangal to the District Medical and Health Officer, Warangal and the said document discloses that the complainant was treated for headache by Dr. D. Rama Rao, Neuro Psychiatry and that when she took tablets from doctors medical shop she was effected with reaction and caused side effects to her eyes and skin and that her petition was referred to IMA State Secretary who has examined the her cazse fo side effects and reported that there is no negligence on the part of the said doctor but the tablets purchased from his medical shop caused her Ophthalmologic problems and skin irritation problem for which she suffered and spent a thousand of rupees to regain her heath but in vain and in such circumstances the District Collector requested the DMHO to explain any possibilities against fling a case on the Pharmacist for selling spurious tablets so that the grievance of the petitioner can be redressed. The said document reveals that there was no negligence on the part of the OP in treating the complainant and when the complainant herself filed the said document she cannot question her authenticity and certainly the said document is a self harming document marked by the complainant. In such circumstances, her self serving evidence that there was no negligence on the part of the OP in treating her is not useful for her. In the cross examination, PW. 1 complainant deposed that no other doctor gave any opinion that prescriptions and diagnoses made by the OP in respect of herself are not proper. she also admitted that in Ex.
A51 and A52 it is mentioned that there is no negligence on the part of OP for treatment prescribed by him and that she did not send the tablets purchased for analysis to find out whether they are of substandard quality of course he added that tablets were given to the OP but there is no dependable evidence in the said context. She categorically admitted that either in her complaint or in her evidence she did not get it mentioned that the tablets were returned to the Op. therefore no impotence need to be given to her statement aforesaid. She admitted that except the medical bills she did not file any documentary proof to show that op is the owner of the medical shop. It is also her version hat she did not file her medical bills. In such circumstances it is not desirable to believe her version that OP was the owner of the medical shop also.
Therefore her evidence in the said context also could not be appreciated. It is also not deposited that she did not show that the tablets purchased by her to anyone the expert doctor to show that those are all substandard one. PW. 2 deposed in the chief examination that she did not say the reason for coming redness of her skin and that there are many reasons for redness coming to the skin. He denied the suggestion made by the complainant that after using tablets that there was possibility of coming redness to the skin. He also deposed that there are so many reasons for coming redness to the skin and that there is no possibility for skin coming from red to block after using tablets. According to him there are incidents causing skin disease due to Carbouetal in one in two lakhs. in the cross examination also he deposed that market name of drug is called as Carbouetal but generic name is carbomazapile and that it is not a prohibited drug and that it is commonly used to physic patients. He further deposied that after Ex. A21 that after he subsequent visits to him she came without skin disease. But complained burning sensation and that he examined her and found that there was no burning sensation and that there was no evidence of skin disease. According to him in medical book, Harrmhon text book of medicine it is mentioned there will be reaction by user of the drug one in two lakhs and that usually it will be used for physique patient and it is effective drug and that he did not find out or come to conclusion that the reddish in skin of her came to her because of improper diagnosis and treatment by other doctor prior to her examination. The said aspects spoken to by PW. 2 are against to the contentions of the complainants that OP doctor treated her in a negligent manner.
10. There remains the evidence of PW.3 and he deposed about Ex. A51 letter aforesaid addressed by DMHO to District Collector, Warangal, that one Narasimhan was appointed as Enquiry officer to conduct enquiry for which there is no dispute. His evidence that if reaction occurred to any person after using the carbotal the symptoms of disease or like that in Ex. A69 is not useful for the complainant because cross examination of the said doctor was deferred at request of both side counsel and subsequently he was not subjected for any cross examination and therefore his evidence is not useful for the complainant. More over, there are no dependable circumstances from his evidence that OP doctor treated the complainant in a negligent manner and that it amounts to deficiency in service on the part of the OP. As rightly contended by the OP it is not for him to prove that he does not own medical shop or that the medicines used by the complainant were not sold by him and in the said context the opinion of the District Forum that when OP denied that the shop does not belong to him he has to adduce evidence could not be appreciated. There is no dependable evidence on record to say that OP is owner of the said medical shop and that he told spurious tablets to the complainant. There is no dependable evidence from the complainant side that the tablets prescribed by the OP for her ailment were supplied by the OP or purchased from his medical shop. Merely because the medical shop is situated in the hospital premises it does not mean that the OP is the owner of the said medical shop. There is no dispute that the complainant was prescribed Carbamazepine a medicine for depression and somatization including headache. In view of the above discussion and as none of the requirements envisaged in the said 2010 SCC 480 were established by the complainant, we are of the opinion that the impugned order is not sustainable either in law or on facts and therefore the same is liable to be set aside. Consequently the complaint is liable to be dismissed. In view of the above discussion and finding, appeal filed by OP in FA 878/2009 is liable to be allowed and the impugned order is liable to be set aside and when it is so the appeal in FA 899/2009 filed by the complainant for enhancement of the complainant is liable to be dismissed.
11. In the result, the appeal in FA 878/2009 filed by OP is allowed setting aside the impugned order passed by the District Forum and consequently the complaint stands dismissed. Further, the appeal in FA 899/2009 filed by the complainant is dismissed. Parties shall bear their own costs through out.
MEMBER MEMBER DATED : 12.03.2012.