State Consumer Disputes Redressal Commission
Dr Sanjay Anandrao Powar vs Prathmesh Chalu Lohar on 9 June, 2011
BEFORE THE HON BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI First Appeal No. A/10/593 (Arisen out of Order Dated 30/04/2010 in Case No. 79/04 of District Kolhapur) 1. DR SANJAY ANANDRAO POWAR R/O ICHANAL TAL GADHINGLAJ KOLHAPUR MAHARASHTRA ...........Appellant(s) Versus 1. PRATHMESH CHALU LOHAR R/O PERDREWADI TAL AJARA KOLHAPUR MAHARASHTRA ...........Respondent(s) BEFORE: Hon'ble Mr. P.N. Kashalkar PRESIDING MEMBER Hon'ble Mrs. S.P.Lale Member Hon'ble Mr. Dhanraj Khamatkar Member PRESENT: Mr.P B JADHAV, Advocate for the Appellant Mr.Santosh Jagtap, Advocate for the Respondent ORDER
Per Mr.P.N.Kashalkar, Honble Presiding Judicial Member This appeal is filed by the original opponent/doctor against the judgement and award passed by District Consumer Disputes Redressal Forum, Kolhapur in consumer complaint no.79/2004 delivered on 30/04/2010. By the said judgement and award while allowing the complaint partly, forum directed the opponent Dr.Sanjay Anandrao Powar to pay to the complainant a sum of `5 lakhs for compensation and `1000/-
towards cost. As such, this appeal has been filed by the original opponent.
Facts to the extent material may be stated as under:-
Complaint has been filed by Sou.Manisha Chalu Lohar on behalf of Prathmesh @ Yash Chalu Lohar resident of Pidrewadi, Taluka Ajara, District Kolhapur. According to complainant, Prathamesh @ Yash is about 5 years old and as his natural mother she has filed this consumer complaint. She alleged that on 18/07/2003 Prathamesh @ Yash was suffering from cold, cough and fever. Opponent is a B.H.M.S. doctor of Pedrewadi. Opponent visits residence of the patients and gives tablets, etc. On 18/7/2003 she had told Dr.Sanjay Powar about illness of her son for 2-3 days prior to 18/07/2003. His treatment was going on. On 18/07/2003 he gave intra muscular injection to the complainants left buttock.
Immediately thereafter his left leg started giving pain. He could not stand. He sustained disability because of wrong injection given by the doctor. Doctor had assured that within 3-4 days he would be alright. When his condition did not improve, doctor suggested that complainant might be suffering from Arthritis and the complainant Prathamesh @ Yash was taken to Dr.Vijay Lejam of Gadhinglaj and Dr.Dilip Malve, Orthopedic surgeon of Gadhinglaj. They gave some treatment. Ultimately, he was taken to CPR Hospital, Kolhapur. He was admitted in CPR Hospital in Pediatric ward on 06/08/2003. Dr.Mohan Patil gave treatment to her son. On 07/08/2003 complainant was examined for the possibility of polio but it was found that complainant was not suffering from polio. According to complainant because Dr.Powar had given injection on left buttock wrongly, he had suffered disability. To that effect Dr.Mohan Patil has given certificate. Therefore, complainant pleaded that complainant had been given handicap certificate by Civil Surgeon and other doctors under National Surveillance Project and as per that certificate complainant is having disability of 40%. Social Welfare officer of Zilha Parishad has issued disability identity card to the complainant on 20/02/2006. Complainant pleaded that because of wrong injection given by opponent doctor, the complainant has suffered disability of 40% and, therefore, he is entitled to get `15 lakhs as compensation from the opponent. He also claimed `1,000/-
toward cost of the proceeding.
Opponent filed written statement and contested the complaint. According to opponent, complainant is not a consumer and he has not provided any service to the complainant. Complainant has no locus standi to file consumer complaint. He denied that he had ever given any treatment to Prathamesh @ Yash on 18/07/2003. He denied that he had given any injection on 18/07/2003. He denied that he had given any prescription for the said injection to the complainant. He pleaded that complaint has been falsely and fraudulently filed against him to extract monies and, therefore, he pleaded that complaint should be dismissed with compensatory cost of `5000/-.
He also pleaded that he was prosecuted in Criminal Case no.47/04 and he was acquitted by the Criminal Court from the charges levelled against him. He therefore pleaded that complaint should be dismissed with cost.
However, District Forum relying upon the documents and affidavit placed on record by both the parties, was pleased to hold that appellant was guilty of deficiency in service and medical negligence qua the complainant that because he had given wrong injection. He was empowered to give only Homeopathic treatment to the patients but he had given allopathic treatment and, therefore, there was negligence on his part and, as such, he was held guilty for having caused disability of 40% to the complainant and, therefore, District Forum was pleased to hold opponent liable to pay damages of `5 lakhs to the complainant besides `5000/-
as cost of the proceedings. To that effect award has been passed by the District Consumer Disputes Redressal Forum, Kolhapur. Aggrieved by this award, opponent doctor has filed this appeal.
We heard submissions of Mr.P.B.Jadhav-Advocate for the appellant and Mr.Santosh Jagtap-Advocate for the respondent.
Counsel for the appellant brought to our notice the fact that in the consumer complaint filed, the complainant pleaded that complainant was having disability in the left leg, however, medical certificate showed that there was disability of right leg and to that effect Civil Surgeon, Medical officer and RMO Kolhapur have issued the certificates. So this is a major lacuna found in the complainants case.
We have carefully gone through the complaint. In the complaint it has been mentioned that Dr.Powar had given him injection on 18/07/2003 on the left buttock. It was intra muscular injection and within few minutes his left leg started giving pain. He could not stand and, therefore, he was taken to various doctors and, ultimately, he was treated at CPR Hospital at Kolhapur. If we peruse the certificate relied upon by the complainant, it will reveal that there is disability of 40% on right lower limb. So the case pleaded in the complaint is in respect of injection having been given to Prathamesh @ Yash on the left buttock but disability or handicap certificate shows that Prathamesh @ Yash Chalu Lohar is having disability on the right lower limb and it was 40%. On this count alone the medical negligence case put forth by the respondent will have to be discarded in toto. Counsel for the appellant rightly submitted that there was no single piece of document or evidence to show that Dr.Powar had given injection wrongly on the left buttock of the respondent. We have gone through the papers filed along with the complaint. Papers filed along with the complaint include one complaint lodged in Ajara police station on 13/10/2003. Then there is a report of Civil Surgeon, C.P.R.Hospital, Kolhapur addressed to Police Inspector, Ajara police station, District Kolhapur. But he was not having personal knowledge about the treatment given by the appellant to the respondent and he relied upon the report of Dr.Mohan Patil Class I Medical officer who had treated complainant in CPR Hospital. Dr.Mohan Patils letter to RMO, CPR Hospital, Kolhapur is dated 19/11/200. In the said letter he mentioned that patient was diagnosed as Traumatic Neuritis and had occurred because of wrong injection given to left buttock of the child and child developed difficulty in walking immediately after injection was given. Child was tested for polio but it was not a case of polio. It was the case of Traumatic Neuritis and he was discharged on 14/08/2003. The question is whether it is clearly proved that the appellant had given the said injection to the child and we are having no evidence on record to show that it was the appellant who had given any injection of the nature alleged by respondent. Basically, appellant is a Homeopathic doctor and he has flatly denied having given any injection intra muscular on the left buttock of the complainant. If at all he had given any injection wrongly, then his left leg should have been affected but what we are seeing as per report of Civil Surgeon and other doctors is that the child was handicap to the extent of 40% and it was disability on the right lower leg, which is contrary to the case made out by the complainant in his complaint. When disability certificate showed that the patient was suffering from right leg disability, the complaint as filed by the respondent in the District Consumer Disputes Redressal Forum was absolutely a complaint which ought to have been thrown by the District Consumer Disputes Redressal Forum on this count itself. So based on wrong pleading which was not matched up by the perfect medical certificate, Forum has awarded compensation of `5 lakhs to the respondent for no fault of the appellant herein. Thus, virtually no documents worth the name are produced by respondent before the District Consumer Disputes Redressal Forum to show that Dr.Sanjay Powar had prescribed certain injection. He had directed complainant to procure that injection and then he had given that injection to Prathamesh @ Yash Chalu Lohar. This being so, we are of the view that there is no medical negligence of any kind proved on the part of appellant herein and the case was erroneously decided by the Ld. District Consumer Disputes Redressal Forum to give favourable verdict to the respondent. In the circumstances, we are inclined to allow this appeal to quash and set aside the order passed by the District Consumer Disputes Redressal Forum.
It is also pertinent to note that the appellant herein was also prosecuted on the report of the complainant before the Ld.Magistrate Kolhapur, who was pleased to acquit Dr.Sanjay Powar from the offence charged under section 336 and 338 of the Indian Penal Code by Judicial Magistrate First Class, Ajara, District Kolhapur in summary criminal case no.47/04 dated 28/06/2007. In the totality of the circumstances, we are finding that there was no negligence proved against the appellant herein of any kind and, therefore, this appeal will have to be allowed to quash the award passed by the District Consumer Disputes Redressal Forum. Hence the following order:-
ORDER Appeal is allowed.
Impugned judgement and award passed by the District Consumer Disputes Redressal Forum, Kolhapur is quashed and set aside.
Consumer complaint no.79/2004 stands dismissed.
Parties are left to bear their own costs.
Inform the parties accordingly.
Dated 9th June, 2011.
[Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mrs. S.P.Lale] Member [Hon'ble Mr. Dhanraj Khamatkar] Member Ms.