State Consumer Disputes Redressal Commission
Shri.Sanjay Gangadhar Chavan, vs Smt.Najma Ramjan Pinjari, on 7 February, 2014
1 F.A.No. :1001/2008
Date of filing:18.08.2008
Date of order:07.02.2014
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO.: 1001 OF 2008
IN COMPLAINT CASE NO. : 462 OF 2007
DISTRICT FORUM : DHULE.
Shri.Sanjay Gangadhar Chavan,
R/o Arvi, Tq. & Dist.Dhule. ...APPELLANT
VERSUS
Smt.Najma Ramjan Pinjari,
R/o Balapur, Tq. & Dist.Dhule. ...RESPONDENT.
Coram : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Mrs.Uma S.Bora, Hon`ble Member.
Present : Adv.Shri.R.S.Gangakhedkar for appellant, None for respondent.
O R A L JUDGMENT (Delivered on 07th February 2014 ) Per Mrs.Uma S.Bora, Hon`ble Member.
1. Shri.Sanjay Gangadhar Chavan appellant herein original respondent challenges in this appeal the judgment and order passed by District Consumer Forum Dhule on 18.7.2008 while partly allowing consumer complaint No.462/2007.
2. The facts in nutshell are as under.
2 F.A.No. :1001/2008Complaint is regarding medical negligence. Smt.Nazma Ramzan Pinjari resident of Balapur, Tq.Dist.Dhule was pregnant and taking treatment from Dr.Sow.Kalpana Shah at Dhule. The date of delivery was given by Dr.Kalpana Shah from 17.9.2007 to 24.09.2007. On 16.09.2007 in the afternoon at 4.00 p.m. there were labour pains to the complainant. Therefore father and brother of complainant approached to the respondent. The respondent visited the house of complainant and checked the complainant and administered the injection of one of Tetanus and second for getting labour pains. At that time father of complainant was informed the respondent that complainant was to be taken to Dhule for the delivery but respondent asked them not to go Dhule as complainant will be delivered the child by normal delivery. Thereafter complainant delivered the child, but due to large baby, outlet contraction was caused and said baby died in the said procedure as respondent gave heavy pressure on the neck of the child. Therefore even after birth child could not breathe properly. Complainant also suffered severe injuries to her vagina and was suffering from heavy bleeding. Therefore opponent himself recommended her to get herself admitted in Dr.Jitendra Bhumare's Hospital at Dhule. Accordingly, complainant was admitted in Shakambari Hospital of Dr.Jitendra Bhumare from 16.9.2007 to 20.9.2007. Complainant was to undergo surgery. Due to said surgery complainant suffered mental agony due to medical negligence caused by opponent and suffering mental shock due to loss of her son. Therefore complainant issued legal notice on 16.10.2007 and claimed compensation for medical negligence. But opponent/appellant replied the said notice with false explanation therefore complainant approached to Forum and claimed compensation of Rs.10 lakhs with 18% interest. Complainant also claimed cost of Rs.20,000/- and compensation for mental agony and physical agony of Rs.80,000/-.
3 F.A.No. :1001/20083. Opponent appeared before the Forum and denied the allegations made in the complaint. It is submitted by opponent that he did not treat the complainant neither he administered any injection. Therefore complainant is not his consumer. It is further submitted by opponent/appellant that complainant did not deposit even a single rupee as fees. In fact complainant herself tried to deliver the child at home. As she was in critical condition, father and brother of complainant approached to him. After considering the critical condition of complainant he immediately advised her to approach Dr.Bhumare at Dhule. It is further submitted by the opponent that he was very well aware that he is not medical practitioner but he is having degree in Electropathy only. Therefore he is not entitled to carry out medical profession. Hence, he did not administer any injection neither prescribed any medicines. Hence he is not liable for any medical negligence as alleged by the complainant.
4. After hearing both the parties District Consumer Forum while allowing complaint relied on video CD which was recorded by brother of complainant. It is relied on the Apex Court's decision in Smt.Rajbeer Kaus -Vs- M/s S.Chokosiri & Company reported in AIR 1988(SC) page 4845 in which Hon'ble Apex Court observed that video recording is treated as evidence. Accordingly District Consumer Forum partly allowed the complaint and directed opponent/appellant to pay Rs.7 lakhs as compensation and Rs.50,000/- for mental agony and Rs.10,000/- for the medical expenses and Rs.1500/- for cost of complaint.
5. Dissatisfied with the judgment and order the original opponent came in appeal.
4 F.A.No. :1001/20086. Adv.Shri.R.S.Gangakhedkar appeared for appellant/opponent. However, respondent Nazma Pinjari as well as her counsel Shri.V.P.Raje were absent on the date of final hearing. Adv.Gangakhedkar submitted written notes of argument. It is submitted by Adv.Gangakhedkar that immediately after getting copy of complaint appellant filed his say denying all the averments and contention raised in the complaint. It is submitted by Adv.Gangakhedkar that appellant had already stopped his practice of Electropathy five years prior to the incident. Therefore he is not concerned with the said medical negligence. It is further submitted by Adv.Gangakhedkar that there is no a single piece of evidence to show child died because of wrong treatment given by the appellant. District Consumer Forum ought to have considered that pernnieal tear is result of rapid sketching of perineum due to rapid delivery of the head during uttering contraction precipitale labour and delivery of the after commy head in breach. It is submitted by Adv.Gangakhedkar that video recording or video CD is inadmissible in evidence and cannot be taken into consideration for want of necessary proof in accordance with the provision of Evidence Act. It is submitted by Adv.Gangakhedkar that as per expert report of District Civil Surgeon of Dhule, Dr.Kalpana Shah had advised complainant to go for caesarean but with a view to avoid caesarean she approached to opponent and therefore due to negligence on the part of complainant herself, she sustained such loss. It is therefore submitted by Adv.Gangakhedkar that when complainant herself was negligent and because of said error or wrong approach she suffered loss. Incident of death of child was happened due to some physical condition of complainant, for that reason appellant is not liable. In fact there is no evidence to show that appellant committed medical negligence due to which complainant suffered financial and mental agony. Hence appeal be allowed by quashing and setting aside the impugned judgment and order.
5 F.A.No. :1001/20087. We thus heard submission made by learned counsel for the appellant/opponent. We have had no opportunity to hear submission of respondent/org.complainant. We perused the papers. It is fact that complainant approached to appellant as she was suffering from labour pains from 16.9.2007. On perusal of record we find that appellant was holding degree of Bachelor of Electropathy Medicine and Surgery. As per the decision of Hon'ble High Court, Mumbai in Writ Petition No.129/96 the degree holder of Electropathy are allowed to practice Electropathy or Electro Theropy. But degree holder of Electropathy cannot practice as medical practitioner or doctor. Even they cannot use the word 'Dr.' before their name. In our view when appellant himself admitted that he is degree holder of Electropathy Medico only he ought not to have visited the house of complainant. At the most he should have advised complainant to approach to any other gynac doctor in Balapur. Appellant himself visited the house of complainant and tried to conduct delivery. It is submitted by appellant that he had not get single rupee as fees from the complainant but appellant replied to the notice of complainant. In that reply he specifically mentioned that he has obtained Rs.120/- of fees. While referring the complainant to Dr.Bhumare he wrote one letter. In that letter also he mentioned Dr.Chavan before his name which is not permissible. The report of civil surgeon also clearly mentioned that as untrained doctor tried to conduct delivery of complainant , complainant suffered physical agony and mental agony as she lost her child. It has also come on record that due to such medical negligence of appellant/opponent complainant was constrained to undergo surgery and for that surgery she was required to spend huge amount. In our view appellant is liable for medical negligence on the ground that he is holding degree of Electropathy and he has tried to perform child delivery. In that respect we relying on Poonam Verma - Vs- Ashwin Patel & Others reported in AIR 1996(SC) 2111. We are reproducing the findings of the Apex Court recorded in said matter.
6 F.A.No. :1001/2008Negligence as tort is the breach of duty caused by omission to do something which reasonable man would do or doing something which a prudent and reasonable man would not do. Negligence involves;
i) Legal duty to exercise due care,
ii) Breach of duty,
iii) Consequential damages.
In the present case appellant is Electropathy degree holder. Therefore it is held by Apex Court that the significance of mutual exclusion is relevant in as much as the right to practice in any particular system of medicine is dependent upon registration which is permissible only if qualification and that too, recognized qualification is possessed by a person in that system. Therefore the law under which respondent doctor in the instant case was registered as medical practitioner required him to practice in Homeopathy only. He was under a statutory duty not to enter the field of any other system of medicine as admittedly to be précised.
8. It seems that in the present case if appellant though having degree of Electropathy he did not have right to conduct delivery of the child. He trespassed into prohibited field and was liable to be prosecuted. His conduct amounted actionable negligence. A person who does not have knowledge of a particular system of medicine but practices in that system is a Quack and a mere pretender to medical knowledge or skill, or to put it differently a charlatan.
9. While considering facts and evidence of the present case we found that appellant is guilty and liable for medical negligence. District Consumer Forum rightly considered the facts and circumstances while 7 F.A.No. :1001/2008 allowing complaint. Order of Forum is not suffering from any illegality or infirmity. Hence, O R D E R
1. Appeal is dismissed.
2. No order as to cost.
3. Copies of the order be sent to both the parties.
Sd/- Sd/- Uma S.Bora S.M.Shembole, Member Presiding Judicial Member Mane