State Consumer Disputes Redressal Commission
Dr. Raj Kumar Garg, Doctor Market, Mandi ... vs Smt. Indrawati Wife Of Shri Ram Chander, ... on 26 September, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.481 of 2008 Date of Institution: 12.02.2008 Date of Decision: 26.09.2012 Dr. Raj Kumar Garg, Doctor Market, Mandi Kalanwali, Tehsil and District Sirsa. Appellant (OP) Versus Smt. Indrawati wife of Shri Ram Chander, resident of Village Hanzira, Tehsil and District Sirsa. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Rohit Goswami, Advocate for appellant. Respondent exparte. O R D E R
Justice R.S. Madan, President:
Challenge in this appeal is to the order dated 25.10.2007 passed by District Consumer Forum, Kurukshetra whereby complaint filed by the respondent-complainant against the appellant-opposite party alleging medical negligence and deficiency in service while treating the complainant, was accepted and following direction was issued:-
we direct the OP-doctor to pay a sum of Rs.50,000/- on these counts in lumpsum with costs of proceedings to the tune of Rs.2200/-. We further direct the OP to make compliance of the present order within a period of six weeks failing which the complainant shall be entitled to invoke the jurisdiction of the Consumer Forum under Section 25 and 27 of the Consumer Protection Act, 1986. We order accordingly.
Complainant had filed complaint before the District Consumer Forum with the averments that she was suffering from some troubles. She visited the hospital of the opposite party alongwith her husband Ram Chander for getting treatment. The opposite party after examining the complainant told that she was having piles trouble and was advised for operation. Complainant took treatment from the opposite party w.e.f. 18.10.2004 to 1.3.2005.
According to the complainant, the opposite party charged Rs.1140/- for the operation of piles and she was operated for removal of the piles. After operation, the complainant suffered from other troubles and for taking treatment, complainants husband brought the complainant to Sharma Nursing Home at Hisar on 4.3.2005 who after examining the complainant told that she (complainant) was required treatment from a higher hospital. Thereafter, the complainant visited the opposite party on 19.10.2004 and 23.10.2004. The husband of the complainant consulted Dr. D.D. Sharma, MBBS, MS and Dr. Sanjay Sharma, MBBS, MS at Sharma Nursing Home, Hisar. It was observed by the aforesaid doctors that in fact the cause of the problem blooding in stood and pain was not piles but the same was due to solitary sessible polys in rectume. Rest of the rectum was normal. Small haemorrihoids were present and therefore, the complainant was to be referred to Jaipur. Thus, the complainant was referred and suggested to remove the haemorrihoids and get tested at Bombay.
As per the advice of the doctor Sharma of Hisar, on 8.3.2005 the complainant was brought to Santokha Durlabhji Memorial Hospital cum Medical Research Institute at Jaipur where she was tested and examined by the doctors/surgeons where she remained under the treatment for several days.
It was told by the doctors that the complainant was not suffering from piles for which she was operated by the opposite party. Thus, according to the complainant, she was operated by the opposite party without any proper treatment, without any proper testing but only for the purpose of earning money by playing with her (complainants) life. Complainant further stated that she spent Rs.40,000/- on her treatment at Hisar and Jaipur which included the amount of purchase of costly medicines, fee paid to the doctors, expenses of testing paid to different laboratories, expenses of special diet, conveyance charges etc. Forced by these circumstances, the complainant invoked the jurisdiction of the District Consumer Forum.
Upon notice, the opposite party did not appear and was proceeded exparte.
In exparte evidence, the complainant tendered evidence.
On appraisal of the pleadings of the complainant supported with evidence, District Forum accepted complaint and issued direction to the opposite party as noticed in the opening para of this order.
Aggrieved against the order of the District Forum, the opposite party has come up in appeal.
Heard.
There is delay of 76 days in filing of the instant appeal the condonation of which has been sought by moving an application. The application is supported with an affidavit of Dr. Raj Kumar Garg-appellant (opposite party). It is stated in the application that the opposite party-Doctor was proceeded exparte by the District Forum without any valid service and thus the delay in filing of the present appeal is due to the reason that the opposite party was not aware about the impugned order.
While dealing with the application for condonation of delay, it is not disputed that the delay cannot be condoned on the ground of equity and generosity, but at the same time it is to be taken into consideration that in case of any legal infirmity is committed by the District Consumer Forum while passing the impugned order which is apparent on record, the same cannot be allowed to continue as it would amount to no order in the eyes of law.
Reference is made to the observation made by the Honble Supreme wherein it has been held that when the substantial justice and technical approach are pitted against each other, the former has to be performed. It has further been held that the words Sufficient Cause have to be interpreted to advance the cause of justice. The Honble Apex Court in case cited as State of Nagaland Vs. Lipok A.O. and others, 2005(3) SCC 752 has held as under:-
11.What constitutes sufficient cause cannot be held down by hard and fast rules. In New India Assurance Co. Ltd. Vs. Shanti Misra (1975)(2) SCC (840) this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law.
The expression sufficient cause should receive a liberal construction. In Brij Inder Singh Vs. Kanshi Ram (ILR) (1918) 45 Cal. 94 (PC) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari (AIR 1969 SC 575) a Bench of three-Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
In the instant case the District Consumer Forum has passed the impugned order without appreciating the facts of the case and therefore, we think it a fit case to condone the delay. Hence, the delay of 76 days in filing of the present appeal is condoned.
On behalf of the appellant it is contended that Dr. Raj Kumar Garg is B.A.M.S. doctor and therefore is qualified to give Ayurvedic medicines. In this case, the appellant-opposite party had treated the complainant with Ksharsutra which is an Ayurvedic treatment for the piles and not Allopathy treatment. Learned counsel for the appellant has further argued that qualified BAMS Doctors are also authorised to prescribe the Allopathic medicines and therefore the finding of the District Forum that the opposite party was not authorised to treat the complainant, is not sustainable in the eyes of law. in support of his argument learned counsel for the appellant has referred to the notification dated 30.10.1996 Annexure A-5, reproduced as under:-
CENTRAL COUNCIL OF INDIAN MEDICINE INSTITUTIONAL AREA, JANAKPURI, NEW DELHI-110058 No.8-5/95-Ay-(MM) Dated:
30.10.96 NOTIFICATION As per provision under Section 2(1) of the Indian Medicine Central Council Act, 1970 (48 of 1970) hereby Central Council of Indian Medicine Notifies that Institutionally qualified practitioners of Indian Systems of Medicine (Ayurved, Siddha & Unani) are eligible to practice Indian Systems of Medicine and Modern Medicine including Surgery, Gynaecology and Obstetrics based on their training and teaching which are included in the syllabi of via courses of ISM prescribed by Central Council of Indian Medicine after approval of the Govt. of India.
The meaning of the word Modern Medicine (Advances) means advances made in various branches of Modern Scientific medicine, clinical, non-clinical bio-science also technological innovations made from time to time and notify that the courses and curriculum conducted and recognized by the Central Council of Indian Medicine are supplemented with much modern advances.
Further it is clarified that the rights of practitioners of Indian Systems of Medicine of Medicine to practice modern scientific system of Medicine (Allopathic Medicine) are protected under Section 17(3) (b) of Indian Medicine Central Council Act, 1970.
R.K. JAIN Registrar-cum-Secretary Central Council of Indian Medicines We find force in the contention raised on behalf of the appellant. The aforesaid notification has made it clear that the opposite party is authorised to give allopathic treatment though he is a BAMS. No expert evidence has been produced by the complainant that any wrong medicine was prescribed to the patient by the opposite party. Hence, the conclusion arrived at by the District Forum against the appellant-opposite party is not sustainable in the eyes of law and the impugned order cannot sustain.
For the reasons recorded above, this appeal is accepted, impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.25,000/-
deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 26.09.2012 President B.M. Bedi Judicial Member