State Consumer Disputes Redressal Commission
Sri Biswanath Pandey vs Dr. Toder Mal Tiwari on 13 May, 2013
DRAFT State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO.FA/32/2011 (Arising out of order dated 14/12/10 in Case No.58/S/2009 of District Consumer Disputes Redressal Forum, Siliguri) DATE OF FILING:17/01/11 DATE OF FINAL ORDER:13/05/13 APPELLANT : Sri Biswanath Pandey Village-Binnaguri P.S. Banarhat District-Jalpaiguri RESPONDENTS : 1) Dr. Toder Mal Tiwari 2) Dr. A. Tiwari Both are of C/o-Tiwari Medical Store Piles Treatment Centre Opposite to Kanchanjanga Stadium Gate No.5, Tilak Road Hakimpara, Siliguri District-Darjeeling Residing at Panjabi Para Near Upkar Medical Hall Behind Amar Garage Siliguri, Darjeeling BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Sri S. Coari HONBLE MEMBER : Smt. M. Roy FOR THE APPELLANT : Mr. Prabir Basu Ld. Advocate FOR THE RESPONDENTS : Mr. K. C. Garg Ld. Advocate : O R D E R :
HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT This appeal is directed against the judgment and order passed by Learned District Forum, Siliguri in case no.58/S/2009 dismissing thereby the complaint of medical negligence and/or deficiency in service.
The case of the appellant/complainant, in short, is that the OP Nos.1 and 2 are doctors who claimed themselves to be the specialists for treatment of piles, fissure and fistula. The complainant had been suffering from physical discomfort at his anal canal and, as such, he went to the clinic of the OPs on 03/09/08.
The OPs told the complainant that he was suffering from piles. Without any investigation the diagnosis was made and the OPs pushed an ayurvedic injection in the anal canal and thereby charged Rs.1,600/- for this along with the consultation charges. The OPs were not the expert in colostomy and even then they gave scelotherapy and had gone beyond the point of their skill where no consent of the complainant was obtained before pushing the injection. The complainant thereafter felt severe pain in the anal canal and went to the clinic of the OPs where no attention was given to him. On 15/01/09 he went to the clinic of Dr. A. K. Gupta, Siliguri where the complainant was advised with certain tests and, accordingly, on 16/01/09 the complainant went to the clinic of Dr. A. K. Agarwal at Sunrise Nursing Home, Siliguri. The histopathological examination and other tests were done there and from the report of the histopathological examination it revealed that the complainant was suffering from rectal tumour and it was not a case of piles. The complainant was treated at Sunrise Nursing Home, Siliguri from 15/01/09 to 29/01/09. The complainant after some time developed severe pain in his anal canal and went to Mahavir Cancer Sansthan at Patna where it was detected that it was a case of advanced stage of cancer in his anal canal and was treated there from 30/01/09 to 11/02/09 with scientific investigations. The complainant was advised for treatment at Tata Memorial Cancer Hospital at Mumbai. Accordingly, the complainant had gone to Lilavati Hospital & Research Centre, Mumbai where a major operation was done on 08/06/09. The complainant remained admitted there from 02/06/09 to 08/06/09.
The complainant has filed the documents in support of his claim. The complainants financial condition worsened due to expensive treatment and he suffered loss in his business. The OPs having neither skill nor any qualification to diagnose the complainants suffering pushed injection in the anal canal and caused his further suffering.
The complainant incurred the expenditure of about Rs.5 lakh. For the said reasons, the complainant filed the case before the Learned District Forum.
The OPs filed W.V. separately denying all the material allegations raised in the complaint. It has been contended that the complaint petition was based on misrepresentation and suppression of material facts. The documents filed by the complainant were manufactured for the purpose of the present case. It has been averred that the OPs are qualified ayurvedic doctors. The OPs have denied and disputed the sanctity, truthfulness and authenticity of all so called prescriptions/bills/receipts filed by the complainant. None of the OPs was ever found to have rendered service against consideration, nor had any occasion, nor was there any negligence or unfair trade practice in the instant case. It has been averred that there was no such incident of pushing any injection in the anal canal.
It has been submitted by the Learned Counsel for the appellant that without conducting proper investigation as to the ailment suffered by the complainant, the OPs diagnosed the ailment as piles and pushed one ayurvedic injection in the anal canal of the complainant. It is contended that immediately after pushing of such injection by the respondents there was severe pain and other discomfort in the anal canal of the appellant/complainant and after consulting the allopathic doctors and undergoing different tests it revealed that it was not a case of piles, but a case of cancer for which he was treated at Lilavati Hospital at Mumbai. It is submitted that pushing one ayurvedic injection without proper investigation itself shows that there was negligence and deficiency in service on the part of the respondents. It is contended that the Learned District Forum did not consider the case from its proper perspective and dismissed the complaint. It is submitted that there was receipt showing payment of charges for pushing injection and consultation fees to the tune of Rs.1,600/-. In this connection the Learned Counsel has referred to the decisions reported in 2011 (3) CPR 86 (NC) [Dr. Mangla L. Paradkar & Anr. Vs. Shailendra Singh S/o Shri Raghuraj Singh]; IV (2004) CPJ 40 (SC) [Smt. Savita Garg Vs. The Director, National Heart Institute].
The Learned Counsel for the respondents has submitted that the complainant was advised to come after 10 days, but he did not turn up.
It is contended that the complainant did not follow the advice given in the prescription. It is submitted that there is no evidence regarding pushing of injection by the OPs and in absence of any evidence to that effect the Learned District Forum was justified in dismissing the complaint. It is submitted that there was no adverse finding against the OPs that they treated the complainant wrongly.
We have heard the submission made by both sides and perused the papers on record. The Learned District Forum dismissed the complaint holding that nowhere it has been stated by the complainant that due to pushing of alleged ayurvedic injection it turned to be a case of carcinoma. It was further held that the complainant could not prove that the alleged ayurveedic injection was actually injected to the complainant by the OPs.
The Learned District Forum held that the complainant furnished several documents relating to the treatment upto Lilavati Hospital, but nowhere it was stated by any doctor or any expert that the root of anal cancer was the effect of pushing of ayurvedic injection. It was held that there was no such material was produced by which it could come to the conclusion that wrong treatment was done by the OPs and/or who actually treated the complainant and who actually pushed the injection.
It appears from the Annexure-A that the complainant went to Piles Treatment Centre, Specialist for Piles, Fissure and Fistula. The names of the OPs have been mentioned therein. It shows that the complainant came to the same treatment centre and the nature of ailment was written as piles chronic. The name of the complainant was clearly mentioned in that prescription.
The said prescription is dated 03/09/08. The complainant again came to the said centre on 21/10/08 when some medicines were prescribed. The complainant has also purchased medicines, as advised by the OPs, from Tiwari Medical Centre. The name of the complainant has been mentioned therein. The OPs issued a medical certificate on 03/09/08 to the effect that Mr. Vishwanath Pandey aged about 50 years was under the treatment of that centre for piles and paid Rs.1,600/- only for ayurvedic injection and consultation charges. From the papers as discussed above, it is clear that the complainant visited the treatment centre of the OPs and the ailment was diagnosed as piles chronic.
It is also clear that the OPs received the fees of Rs.1,600/- for ayurvedic injection and consultation charges.
When the OPs realized the fees for injection and consultation charges it is obvious that the injection was pushed at the instance of the OPs. It is immaterial by whom the ayurvedic injection was actually pushed in the anal canal of the complainant. It further appears that vide Annexure A-10 the complainant went to Sunrise Nursing Home Pvt. Ltd. where he was admitted on 15/01/09 and discharged on 29/01/09 and it was detected that there was Adenocarcinoma in the anal canal. From Annexure A-14, that is, the report on Histopathological Examination it appears that the specimen taken showed rectal tumour and the diagnosis was infiltrating moderately differentiated squamous cell carcinoma. The said report is dated 27/01/09. From Annexure A-21 dated 12/05/09 it appears that the complainant had undergone treatment at Mahavir Cancer Sansthan, Patna. From Annexure A-29 issued by Lilavati Hospital, Mumbai it appears that treatment was done and the ailment was diagnosed as Moderately Differentiated Mucin Secreting Adenocarcinoma in a Post Neoadjuvant chemo radiation case of Carcinoma Rectum showing 20% viable tumour cells.
It appears that there was the opinion of an expert, as called for by Learned District Forum vide order no.3 dated 07/08/09.
This is the report dated 10/03/10 signed by Dr. A. N. Sarkar, Associate Professor, Department of Surgery, N.B.M.C.H. The comment made by Dr. Sarkar runs as follows:
In this case, patient presented with piles to Dr. Tiwaris which is sometimes possible in a rectal carcinoma. Name of the patient not mentioned whom Dr. Tiwari injected Scelotherapy. Dr. Tiwari did not mention regarding search of cause of piles which would have been revealed rectal mass or tumour.
The Learned District Forum did not take into consideration the report of the said expert. The complainant in Para-3 of his evidence has stated that he had been suffering from piles and without diagnosing the disease properly the OPs pushed an injection in his anal canal claiming the same as ayurvedic injection and charged Rs.1,600/- for this along with their consultation charges and diagnosed the same as a case of piles. In Para-4 of the evidence the complainant has stated that no consent was obtained from him before pushing the ayurvedic injection and no laboratory tests were carried out. In Para-14 of the evidence the complainant has stated that in response to the Learned District Forums advice, the Associate Professor, Dr. A. K. Sarkar, Department of Surgery, N.B.M.C.H. submitted his report on the complaint made against the OPs. The OPs had put questionnaire to the complainant. The question no.25 put to the complainant runs as follows:
I say that on 3.9.09 O.Ps. received Rs.1600/- for Dressing charge etc. when you met after treatment from different Doctors and save and except on 3.9.09 O.Ps. never charged any fee nor gave any treatment that is to say injection.
The reply given by the complainant against question no.25 runs as follows:
In answering the question No.25 the complainant states that the content of the above questionnaires by the o.ps are itself self contradictory as the o.ps in this column voluntarily asserted the fact that on 03/09/08 the o.ps received Rs.1600/- for dressing charges where the question No.16,18.24, the o.ps specifically contended the denial of receiving Rs.1600/- being as charges/fees which also concludes the suggestion that the o.ps plea in the above pretext are made being full of myth and concoction in accordance with the documents being annexed as markA to A-37 in the above case.
In the decision reported in the case of Dr. Mangla L. Paradkar & Anr. Vs. Shailendra Singh S/o Shri Raghuraj Singh (Supra) it has been held that treatment must be based on diagnosis and not on assumption. The Honble National Commission in a decision reported in 2013 (1) CPR 244 (NC) [Yashoda Super Speciality Hospital Vs. Smt. A. Subbalakshmi & Anr.] held that no patient can be treated in a casual manner. Evidently, in the instant case before pushing the ayurvedic injection the OPs did not undertake any investigation so as to make the proper diagnosis of the ailment suffered by the complainant. The expert in his opinion dated 10/03/10 specifically observed that Dr. Tiwari did not mention regarding search of cause of piles which would have revealed rectal mass or tumour. So the omission on the part of the OPs for conducting proper investigation clearly shows deficiency in service. It also speaks of negligence, in as much as, without proper diagnosis, the ayurvedic injection was administered in the anal canal of the complainant which is evident from the receipt granted by the OPs on 03/09/08. In Para-3 of the memo of appeal it has been contended that the respondents being Ayurvedic doctors, treated and prescribed allopathic medicines which was not permissible. On perusal of the papers on record we find that in the prescriptions dated 03/09/08 and 21/10/08 the OPs prescribed allopathic medicines. On this point it has been held by the Honble National Commission in the case reported in 2012 (3) CPR 56 [Dr. R. R. Singh AVV (BOM) Vs. Pratibha P. Gamre] that Ayurvedic Practitioner cannot treat patient in allopathic stream. We are, therefore, of the considered view that the respondents being Ayurvedic doctors prescribed allopathic medicines which are not permissible.
The subsequent treatment sheets and investigation reports from other Nursing Home and finally from Lilavati Hospital, Mumbai, clearly show that the ailment suffered by complainant was different one. The omission on the part of the OPs/respondents in abstaining from undertaking proper investigations and at the same time administering injection in the anal canal are sufficient to prove that there was negligence on the part of the respondents. The doctrine of res ipsa loquitur is squarely applicable in the facts and circumstances of the instant case. It is evident from the materials on record that the cause of ailment was Adenocarcinoma in the anal canal as ascertained by Sunrise Nursing Home in the Histopathological report and, subsequently, at Lilavati Hospital, Mumbai. The fact remains that the so called ayurvedic injection was pushed in the anal canal of the complainant without proper diagnosis by carrying out proper investigation. Under the circumstances, we are of the considered view that the respondents/OPs are liable to pay compensation for the negligence and deficiency in service on their part.
As regards the quantum of compensation it is clear that the appellant/complainant had to go to different medical units and, ultimately, at Lilavati Hospital, Mumbai for undergoing proper treatment.
It is also the consistent case of the appellant/complainant that after the ayurvedic injection was pushed, the complainant had severe pain and other discomfort. Having regard to such circumstances, we think that the compensation of Rs.2,00,000/- (Two Lakhs) and litigation cost of Rs.10,000/- (Ten Thousand) would be just and proper. The Learned District Forum was not justified in dismissing the complaint.
In the result, the appeal succeeds and the same stands allowed. We set aside the impugned judgment and order. The complaint is allowed in part. The respondents/OPs are directed jointly and severally to pay compensation of Rs.2,00,000/- (Two Lakhs) and litigation cost of Rs.10,000/- (Ten Thousand) to the appellant/complainant within 45 days from the date of passing this order failing which the amount will carry interest @ 9% per annum till realization.
MEMBER(SC) MEMBER(L) PRESIDENT