National Consumer Disputes Redressal
Dr. Pankaj vs Taytya on 6 October, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1173 OF 2015 (Against the Order dated 05/08/2014 in Appeal No. 06/2009 of the State Commission Maharastra) 1. DR. PANKAJ MATOSHRI CLINIC,RASHIN TAL-KARJAT, DISTRICT: AHMADNAGAR MAHARASHTRA ...........Petitioner(s) Versus 1. TAYTYA S/O HUSRAO GAWARE, R/O KOKANGAON,TAL KARJAT, DISTRICT: AHMADNAGAR MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT HON'BLE MRS. M. SHREESHA, MEMBER For the Petitioner : Mr. S. K. Singh, Sr. Advocate with Mr. Garud M. V., Advocate For the Respondent :
Dated : 06 Oct 2015 ORDER This Revision Petition by the Opposite Party (hereinafter referred to as "the treating Doctor") is directed against the order, dated -2- 05.08.2014, passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai Circuit Bench at Aurangabad (for short "the State Commission") in First Appeal no.06 of 2009. By the impugned order, the State Commission has affirmed the order, dated 04.08.2012 passed by the District Consumer Disputes Redressal Forum, Ahmedanagar (for short "the District Forum") in original Complaint no.220 of 2002. By the said order, the District Forum had partly accepted the Complaint filed by the Respondent, against the treating Doctor, a practicing Homeopath, and held him negligent and deficient in service for prescribing Allopathic medicines and giving injection to the Respondent. Consequently, the District Forum had directed the treating Doctor to pay to the Respondent/Complainant a sum of Rs.3 Lac towards expenses incurred by him on treatment and medicines; Rs.6,75,000/- as compensation for loss of his left leg and one of the testis; Rs.20,000/- as compensation towards mental agony suffered by him, along with interest @ 10% p.a. from the date of filing of the Complaint till realization and Rs.5,000/- towards cost of litigation.
On 22.06.1999, the Respondent, a 17 years old boy at the relevant time, complaining of high fever, consulted the treating Doctor, running his Homeopathy clinic under the name and style of "Matoshri Clinik" at Village Reshin, District Ahmedabad. On examination, he -3- prescribed certain Allopathic medicines and administered an injection in the gluteal region of the Respondent. On the following day, some swelling and black spot was noticed at the place of injection with severe pain around it. On 24.06.1999, the Respondent again approached the treating Doctor who, after examining him, applied some ointment on the swollen part and referred him for further treatment to Dr. Nazarikar, who further referred him to Dr. S. V. Swami, both practicing medicine at Baramati. He was given some medicines and was referred to Dr. Patki at KEM Hospital, Pune. He was admitted in KEM Hospital on 25.06.1999. Immediately, a surgical procedure was performed to drain out tusciotomy. On further examination it was detected that there was septic and gas gangrene in his left leg, where the injection was administered. To save life, he was advised amputation of the left leg and one of the testis. Accordingly, on 28.06.1999, surgery was performed and Respondent's left leg was amputated and one of the testis was removed.
Alleging negligence on the part of the treating Doctor, the Respondent filed the Complaint before the District Forum, inter alia, praying for a compensation of Rs.18,30,000/- along with litigation expenses. As noted above, the District Forum allowed the Complaint -4- with the aforenoted directions. Being unsuccessful before the State Commission, the treating Doctor is before us in this Revision Petition.
Having heard Mr. A. K. Singh, learned Senior Counsel, appearing for the Petitioner, at some length and perused the documents on record and the medical literature placed before us, we do not find any substance in the petition.
Mr. Singh strenuously urged that the Complainant having failed to produce any expert evidence to prove that the cause for gangrene was the injection given by the treating Doctor, the lower Fora erred in holding that there was negligence or deficiency in service on the part of the treating Doctor. We are unable to agree with the learned Counsel. Apart from the fact that it was never the case of the treating Doctor that after his initial treatment on 22.06.1999, when he gave injection to the Complainant, he was treated for any other ailment which could be the probable cause for gangrene, the real issue for consideration is whether in the first place the treating Doctor, practicing homeopathy was authorized to inject an allopathic medicine?
While candidly admitting that at the relevant time, there were no such guidelines in force, learned Counsel submits that because of the shortage of Doctors in rural areas, it is a common practice that Homeopath doctors do prescribe allopathic medicines as well. It is -5- argued that taking into consideration the prevalent practice the Maharashtra Government has issued a Gazette Notification on 25.06.2014, amending the Maharashtra Homeopathic Practitioner Act and Maharashtra Medical Council Act, 1965. By the said amendment, Section 20 of the Maharashtra Homeopathic Practitioner Act has been amended and the Homeopaths have been permitted to practice Modern Scientific Medicine (Allopathy) in the State to the extent of knowledge received by passing the Certificate Course in Modern Pharmacology approved by the State Government.
It is asserted that since the treating Doctor had passed the certificate course in Modern Pharmacology, approved by the State Government, he was competent to administer the injection and therefore, there was no negligence or deficiency on his part in treating the Complainant.
In our opinion, the said amendment leaves little scope for doubt that prior to its insertion in the statute, practicing homeopaths were not permitted to prescribe Allopathic medicine and therefore, the Petitioner was "deficient" in treating the Complainant with Allopathic medicines and injection, resulting in the amputation of a leg and loss of testis of a 17 years old boy. Further, the concurrent finding by both the Fora below, to the effect that the cause for gangrene -6- was the injection given by the treating Doctor to the Complainant on 22.06.1999, being based on the opinion of one Dr. Ram Murthy, we do not find any Jurisdictional error in the impugned order warranting our interference in Revisional Jurisdiction. Moreover, the Revision Petition is also barred by limitation by 136 days, for which no satisfactory explanation has been furnished, even in the additional affidavit, explaining the said delay.
Consequently, the Revision Petition fails and is dismissed in limine.
......................J D.K. JAIN PRESIDENT ...................... M. SHREESHA MEMBER