State Consumer Disputes Redressal Commission
Radheshyam Malviya vs Ramratan Malviya on 22 October, 2021
M.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)
APPEAL NO. 416/2012
Radhey Shyam Malviya
S/o Shri Udaji Balai,
R/o Mali Mohalla,
Pipaliya Kulmi,
Tahasil Jeerapur,
District Rajgarh (Biaora) (M.P.) ... Appellant
Vs.
Ramratan Malviya
S/o Shri Nanuram Balai,
R/o Mali Mohallah,
Pipaliya Kulmi,
Tahasil Jeerapur
District Rajgharh (Biaora) (M.P.) ... Respondent
BEFORE;
HON'BLE SHRI JUSTICE SHANTANU KEMKAR, PRESIDENT
HON'BLE DR. MONIKA MALIK, MEMBER.
COUNSEL FOR THE PARTIES:
SHRI SURESH INDOREKAR, LEARNED COUNSEL FOR APPELLANT.
SHRI J.S. PARMAR, LEARNED COUNSEL FOR RESPONDENT.
ORDER
( 22.10.2021 ) The following order of the Bench was delivered by Dr. Monika Malik, Member.
: 2 :This appeal by the opposite party/appellant is directed against the order dated 16.1.2012, passed by the District Consumer Disputes Redressal Commission, Rajgarh (for short 'the District Commission'), in complaint case No.53/11, whereby the complaint filed by the complainant/respondent has been partly allowed and the opposite party is directed to pay a sum of Rs.1,50,000/- to the complainant, on account of mental harassment caused due to medical negligence, within a period of 30 days, failing which interest @ 10% per annum has been imposed on the aforesaid amount. Cost of Rs.1,000/- has also been awarded to the complainant.
2. The complainant, who is a resident of Gram Pipaliya Kulmi had alleged that the complainant reported stomach ache along with fever on 24.9.10, regarding which he approached the opposite party. The opposite party wrongly administered an injection in his hand. The hand of the complainant become numb and subsequently, three of his fingers were got amputated. Alleging medical negligence on party of the opposite party, he filed a complaint before the District Commission, seeking relief.
3. The opposite party resisted the complaint stating that neither he had prescribed any medicine to the complainant, nor any injection was administered by him. The complainant has not been able to prove that the opposite party had treated him after taking any consultation charges. The complaint being not substantiated with any evidence, deserves to be dismissed.
4. Heard. Perused the record.
: 3 :5. Learned counsel for the opposite party/appellant argued that it has been incorrectly held by the District Commission that the opposite party had treated the complainant and had administered certain injections. The complainant has been able to produce only certain prescription, which is there in record of the District Commission. On top of that prescription name of R.S. Malviya is mentioned. This alone does not prove that Radhe Shyam Malviya has written this prescription, since it does even not bear the signatures of opposite party/appellant. Even the owner of the Agrawal Medical store has denied of printing any such prescription pad in name of the opposite party/appellant. In the absence of any substantial evidence, the District Commission has wrongly arrived at the conclusion that the opposite party/appellant has been deficient in service in performing his duty. On the contrary, fact of the matter is that the complainant had approached the opposite party on 24.9.10 and had asked him to administer the medicines, as prescribed in the said prescription, which the opposite party refused. The opposite party/appellant is nowhere deficient in service, since he did not treat the appellant/complainant.
6. Learned counsel for respondent/complainant argued that he had approached the opposite party/appellant on 24.9.10. He prescribed him certain medicines and asked to get the medicines from Agrawal Medical Store. The appellant had administered the medicine on right hand of the complainant/ respondent, following which he observed numbness and tingling sensation. The complainant had immediately : 4 : complained to the opposite party in this regard but he kept on prescribing medicines, giving false assurance regarding recovery, for nearly one month. When the problem persisted the complainant/respondent approached Machalpur Hospital on 23.10.10, Dr. Suresh Kumar Jain on 24.10.10 and Dr. Sanjay Porwal on 28.10.10. On 7.12.10 he approached a doctor at Ujjain, who advised respondent regarding amputation of his fingers. On 22.12.10, he approached Verma Union Hospital, where he was told that if his fingers are not amputated, his entire right hand will decompose. Consequently, three fingers of his right hand were amputated. The opposite party/appellant was careless and negligent in performing his duty due to which the respondent/complainant suffered for nearly five months. Therefore, the impugned order, which has been passed by the District Commission, in this regard is just and proper and this appeal filed by the opposite party deserves to be dismissed.
7. On careful perusal of the record and impugned order, we find that the opposite party/appellant has categorically denied of writing any prescription and prescribing any medicines to the complainant/respondent. Exhibit C-1, is a prescription in the record of the District Commission, which bears name of R.S. Malviya. It is placed by the complainant/respondent, in order to substantiate that the opposite party/appellant had treated him and had administered injection in his right arm.
8. The complainant/respondent in order to support his submissions has placed on record affidavits of witnesses Kailash Chand Lodha (Annexure CW-2) and Ramprasad : 5 : Malviya (Annexure CW-3). We find that District Commission has made an observation that Exhibit C-1 is proved to be the prescription of R.S. Malivya, in the light of evidence of above two witnesses. On the other hand, the opposite party/appellant has not been able to substantiate his submissions by leading any evidence.
9. The District Commission, in our opinion has rightly held that the opposite party/appellant ought to have adduced any evidence with regard to his submission that he is not the same R.S. Malviya, whose name is mentioned on top of the prescription, which is placed on record by the respondent/ complainant. In the absence of any such evidence, it appears merely bald statement on part of the appellant that Exhibit C-1 is not his prescription and he had not prescribed those medicines to the respondent/complainant. In a weird manner the opposite party/appellant in his reply has gone further and commented that if the injection is wrongly administered, then there happens reaction in the entire body, when he should not be concerned to comment, if he is unaware regarding facts of the case.
10. Also the affidavit of Ram Gopal S/o Pannalal Agrawal, proprietor of Agrawal Medical Store situated in Gram Pipaliya Kulmi (put forward by the appellant/opposite party along with an application under Order 41 Rule 27 of the Civil Procedure Code, in support of his submission) stating that no prescription note was supplied by him to any person, cannot be relied upon. Such statement was never made before the District : 6 : Commission. This affidavit dated 22.2.12 is prepared after passing of the impugned order.
11. The complainant suffered gangrene in the distal 3rd, 4th and 5th digital arteries of his right arm, which is evident from various other treatment papers available in the record of the District Commission (there is specific mention regarding history of taking injection in his right arm) and it is categorically alleged that it was due to wrongly administered injection in his arm by the opposite party/appellant.
12. In view of the foregoing discussion, we reach a conclusion that the District Commission has rightly arrived at a proper conclusion and has, therefore, passed the impugned order, which in our opinion does not suffer from any illegality or infirmity. We, therefore, affirm the impugned order.
13. In the result, this appeal fails and is hereby dismissed. However, no order as to costs.
(JUSTICE SHANTANU KEMKAR) (DR. MONIKA MALIK)
PRESIDENT MEMBER
Mercy