ANKUSH VITHOBA DHOKALE vs ANANT DINKAR BHOSALE

COMPLAINANT is a married young man about 30 years of age. He was owner of an Auto Rickshaw and used to ply the same to earn for his livelihood.

O.Ps. are medical practitioners being husband and wife - both having degrees in Bachelor of Ayurvedic Medicine and Surgery (in short B.A.M.S.) and who have got registered under the Indian Medicine Council Act, 1970 which is Central Statute and the Maharashtra Medical Practitioners'' Act, 1961 (hereinafter referred to as the Central Act and the State Act, respectively for brevity''s sake). At the outset, we wish to state that although the claim herein is based on alleged negligence on the part of O.Ps. in giving treatment to the complainant as medical practitioners, which was accompanied with administering "Voveran" injection, which is Allopathic drug, the complainant, as would be pointed out hereinafter, has also taken up the plea in addition to the said plea raised that O.Ps. in particular O.P. No. 1 being negligent in administering him i.e., the Voveran injection. It is pointed out that, as the O.Ps. were registered medical practitioners of the "Ayurvedic System of Medicine", having qualifications of Bachelor of Ayurvedic Medicine and Surgery (B.A.M.S.) and that being so, O.Ps. were and are not qualified as also authorised to prescribe Allopathic drugs as also were not possessed with the needed skill to treat the complainant with the Allopathic drugs, as done which resulted in causing serious problems to the complainant as disability of permanent nature to his left arm above elbow.

The above plea as raised, which has very wide ramification affecting and concerning all those medical practitioners in this State holding degrees of B.A.M.S. and registered as such under the Central Act and State Act, that the inevitable followed and the Intervenor, named above, viz., B.A.M.S. Graduates'' Association of Maharashtra State, sought intervention in this matter by making an application, with the plea, that the decision of this Commission on the said issue going adverse to the O.Ps. herein, would vitally affect them i.e., all the medical practitioners holding B.A.M.S. degrees and registered as such under the Central Act and State Act, like the O.Ps. herein and, strongly urged and pleaded that they be heard. It was stated by the Intervenor that there are nearly 30 to 32 thousand medical practitioners in the State, registered under the Central Act and State Act, holding B.A.M.S. degrees as that of O.Ps.

THEREFORE, considering the great magnitude and possible repercussion on the Members of the Intervenor, we thought it appropriate, in fairness and in the interest of justice to afford them audience and the President of the Intevenor was allowed to make submissions, who has, placed before us, relevant data, such as, circulars/notifications issued by the State Government, under the State Act and under other ancillary Statutes, including Bombay Drugs Control Act, 1959, Drugs and Cosmetics Act, 1940, etc., curricula prescribed for the B.A.M.S. degree, etc. Reference is also made to a pending writ petition filed in High Court, Mumbai, to counter the plea as aforesaid advanced by and on behalf of the complainant. It was asserted and stressed that it is permissible for B.A.M.S. degree-holders to practise both ayurvedic as well as Allopathic systems of medicine. Before we dwell over the factual matrix of this matter, we wish to state and clarify, at initial stage of this judgment, that, knowing limitations that we have particularly in view of nature of the claim in the consumer dispute herein and the Statutory provisions viz., Consumer Protection Act, 1986, under which this forum is functioning which prescribes procedure to be applied under the Consumer Protection Act, 1986, for resolution of the claim, viz., of summary nature, to ensure speedy disposal of the claim herein, we propose to dilate over the said plea, prima facie to find out whether or not, the O.Ps. are deficient in rendering treatment to the complainant, which is in the context of Consumer Protection Act, 1986, is a kind of service, rendered to the complainant-Consumer within the meaning of Section 2(1)(d)(ii) read with Section 2(1)(o) and Section 2(1)(g) of Consumer Protection Act, 1986. It is, in the context, made clear and distinctly understood, at the outset, that, by recourse to a summary procedure that we have to adhere to, it would not be possible for us, nor even permissible, to probe, consider and decide authoritatively on the efficacy or validity or otherwise of the relevant Statutes, Notifications, directions issued by the concerned authorities, on the subject under the relevant Statutes, regulating the practice of the medical practitioners possessing B.A.M.S. degrees.

WITH a clarificatory prelude as above, we proceed to embank on consideration of the merits of the dispute herein. The complainant, who is a Auto Rickshaw owner and driver, and resident of Kurla, one of the Eastern Suburbs of Greater Mumbai on 29th November, 1996, caught cold, accompanied by headache and fever and, therefore, went to the dispensary of O.Ps., which was also located in said Suburb Kurla, for treatment. The O.P. No. 1 who was present in the dispensary, examined the complainant and treated him by administering "Voveran" injection on his back of left arm above elbow, for which the complainant paid required fees to O.P. No. 1. What followed thereafter and how complainant felt and experienced, can be best understood, as to how he has narrated in paras 3, 4, 5 and 6 of his complaint. "(3) Almost immediately after receiving the injection, the complainant who was accompanied by two of his friends Dada J. Kore and Sitaram Shetty, a social worker, felt his hand below the wrist of left hand drop, and was unable to grasp objects resembling a paralytic condition. On complaining to the opponent the complainant was advised to go home and apply fermentation with hot water to the affected part of left hand.

(4) When the fermentation with hot water did not improve the dropping and paralytic condition of left hand, the complainant returned to the opponents'' dispensary to report within half hour. After injection was administered. The opponents both assured the complainant that his affected hand will be set right and the opponents also promised to compensate the complainant Rs. 150/- per day for the loss of his livelihood which depended on driving his Auto Rickshaw which he was unable to drive since his left hand was disabled.

(5) On the third day i.e. 2.12.1996 when there was no improvement whatsoever in the functioning of the left hand, the opponent No. 2 recommended and accompanied the complainant to Dr. Praful W. Lokhande, M.D. (Bom), Consulting Physician who recorded in his expert opinion dated 2.12.1996, weakness and dropping of left wrist "after giving injection Voveran on (L) shoulder". Complainant was advised to undergo physiotherapy and orthopedic opinion. Copy of expert opinion dated 2.12.1996 is annexed hereto and marked Exhibit-B.

(6) On the same day i.e. 2.12.1996 the opponent No. 2 recommended and accompanied complainant to Dr. Vasant J. Ajgaonkar, M.S. (Orth), Orthopedic Surgeon who in his expert opinion dated 2.12.1996 opined "Post Injection Radial N. Palsy (L) side" for which he advised "Cock-up splint, Tab. Neiurobin, Tab. Betnasol, electric stimulation for muscles supplied by radial nerve on (L) wrist and Electromyography (EMG) and nerve conduction (NC) studies after 3 weeks.". Also stated against observation on 19.12.1996-''No recovery so far'' advised EMG and NC studies. Copy of expert opinion of Dr. Ajgaonkar dated 2.12.1999 is annexed hereto and marked Exhibit-C."

THE complainant then proceeds to state as how he was required to follow up by approaching the O.Ps. and consulting various Experts as suggested and recommended by the O.Ps. viz., Dr. V.J. Ajgaonkar, Orthopedic Surgeon, Dr. V.G. Panchal, Neuro Surgeon, Dr. R.K. Patha, another Orthopadic Surgeon, Dr. R.C. Hansoti, Cardiologist, Dr. Mrs. P.U. Shah, Professor of Neurology of K.E.M. Hospital, with no improvement. He has referred to and relied upon the relevant record of such consultations and opinions expressed.

AS the conditions of the complainant continued without any improvement, then he got himself examined for evaluation for disability at All India Institute of Physical Medicine and Rehabilitation, a Government Institute, which certified that disability of the left arm of the complainant was permanent exceeding 40% and as such unfit to drive Auto. He was, therefore, left with no alternative but to surrender his Auto permit and dispose of idle Rickshaw--the only source of his livelihood. According to the complainant, his net earning per month from Rickshaw used to be Rs. 3,000/- per month and on that basis, has claimed a sum of Rs. 10,60,000/- as loss, plus Rs. 2,00,000/- for mental trauma and suffering.

In support of the claim, the complainant has made available the medical record referred to above, primarily, reports of various experts, Auto permit, disability certificate, printed instructions of the pharmaceutical company manufacturing Voveran injection, affidavits of his friends and a doctor.

THE core issue raised and to be noted is that printed prescription instructions of the pharmaceutical company being manufacturer of Voveran injection clearly specifies the method of administering the said injunction by "deep intro-gluteal injection". Whereas, in the case herein, the same was given in the arm and not by deep intro-gluteal injection, which according to the complainant led to permanently incapacitating his left arm. To sum up, deficiency/negligence alleged. (i) O.Ps. not being qualified possessing requisite skill and knowledge to prescribe and treat with Allopathic drugs; and (ii) O.Ps. being negligent in administering the Voveran injection on the wrong part of the body, contrary to the specific prescription instructions.

Now let us see the defence put forth by and on behalf of O.Ps.

AS far as O.P. No. 2 is concerned, who is also a doctor with B.A.M.S. degree, as stated, is wife of O.P. No. 1 and also practises with her husband O.P. No. 1. She has by and large adopted the written say of O.P. No. 1, and has stated that she had not played any role in giving treatment to the complainant, on the day in question, nor the complainant has attributed any role to her in giving him treatment, and as such, she has been improperly and unnecessarily dragged in these proceedings. On eligibility and qualification to practise in Allopathy system of medicine, she adopts and supports written statement of her husband O.P. No. 1. O.P. No. 1''s defence- (i) He admits having treated the complainant as stated, but denies being negligent in giving him treatment as alleged. He denies the case of the complainant that he does not possess qualification and skill to practise Allopathy system of medicine as alleged. (ii) According to O.P. No. 1, he exercised needed standard of care and caution while treating the complainant and administering the said injection and denies being negligent or otherwise in that process. In para 3 of his affidavit, this is how he explains about administration of injection-

"He had high fever and certain other connected ailments. I physically examined him and decided to administer injection. I asked him whether he was allergic or had any other prior complications to which he replied in the negative. I told him that it would be easier and better to take injection on gluteal region but the complainant insisted that injection should be given on the hand and, therefore, I gave him the injection on the left arm of the side where ordinarily injections are given. I took all necessary precautions, which are taken by any doctor namely checking for the area of muscle, applying spirit and giving the injection. This is the formal area where injections are given. When the complainant visited me on that day he had come alone. At the time of giving injection and thereafter the complainant did not make any grievance concerning any adverse effects of the injection."

(iii) As regards his qualification and skill, etc. he asserts that he and his wife O.P. No. 2 have been registered in integrated system of medicine, with the Maharashtra Medical Council under Maharashtra Medical Practitioners'' Act, 1961, read with Indian Medicines Council Act, 1970 and has made available Certification of Registration to that effect. In support he refers to the Government Resolution issued by the Government of Maharashtra on 25th November, 1992, in exercise of power vested under Maharashtra Medical Practitioner''s Act, 1961, the relevant text of which reads-

"The Government of Maharashtra hereby directs that the Ayurvedic practitioners enrolled on the State Register of Practitioners of Indian Medicine holding qualification specified in parts A, B and A-1 of the Schedule appended to the said Act, shall be eligible to practise the modern system of medicine, which is known as Allopathic System of Medicine, to the extent of the training they received in the system."

(iv) The claim of compensation, quantum, extent of desirability, etc. have also been disputed.

Following points would arise for consideration. (i) Whether complainant proves O.Ps. being deficient in rendering him services of medical treatment? (ii) If answer to above point No. (i) is in affirmative, the amount of compensation he is entitled to? (iii) Relief in general.

OUR findings on the above points are as under: Point No. (i) : Yes, only as far as O.P. No. 1 is concerned and O.P. No. 2 stands exonerated. Point Nos. (ii) and (iii) : As per final order.

BEFORE we embark on consideration of the above points, in the light of material made available before us, by the parties in support of their rival pleas, pleadings of the parties and the position of law, it is thought appropriate to notice the evidence/material made available by the respective parties. On behalf of complainant- (i) Besides pleadings as averred in the complaint, he has filed his affidavit in support thereof. (ii) He has also filed supporting joint affidavits of- (i) Shri S. Seetharam, (ii) Shri Dada J. Kore, who accompanied the complainant on 29th November, 1996, when he visited the dispensary of O.Ps., (iii) Dr. R.C. Hansoti- qualified Cardiologist and Consulting physician, (iv) Disability certificate issued by the concerned authority, (v) Literature in respect of drugs, etc., (vi) Medical Reports of experts to whom complainant consulted-Dr. Lokhande, Dr. Ajgaonkar, Dr. Panchal, Dr. Pathak, and Dr. Shah of K.E.M. Hospital, referred to in the complaint.

On behalf of O.Ps. (i) Pleadings filed by the O.Ps.-written statements accompanied with affidavits. (ii) Proceedings in Writ Petition No. 453 of 1997 filed by National Integrated Medical Association and others before High Court, Mumbai. (iii) Certificates of registration as medical practitioners from the concerned Authorities. On behalf of Intervenor-B.A.M.S. Graduates'' Association, Maharashtra State- As stated Intervenors named in the cause title of this judgment is the registered Association of the Medical Practitioners, having B.A.M.S. Degrees, who sought their intervention and who have also made available various circulars, issued by the Government and Medical Councils, Government G.Rs. and Notifications, Curricula of the B.A.M.S. Degree Course, opinions rendered by the Hon''ble Mr. Chandrachud, Ex-chief Justice of Supreme Court and Mr. Apte, Ex-Addl. Advocate General of the State, with regard to the position and extent of B.A.M.S. Degree course and eligibility of medical practitioners having degree in B.A.M.S. to practise in Allopathic medicine, in the light of statutory provisions and judicial pronouncements, etc.

We now take up each of the points as above for consideration. Point No. (i) : The same reads as-Whether complainant proves O.Ps. being deficient in rendering him services of medical treatment. From the rival contentions raised on the said point, by the parties, two aspects would arise therefrom. (a) O.Ps. being negligent as medical practitioner, in administering "Voveran" injection at the wrong place on his body, i.e., on his left arm and not by "deep intra gluteal injection" into the gluteal muscle of the buttock and hip. (b) O.Ps. are registered medical practitioners of the Ayurvedic system of medicine having qualification of Bachelor of Ayurvedic medicine, and as such were not authorised to administer Allopathic drugs, as done, as they were not possessed with the necessary skill.

Now turning to the point (i)(a) above, it is undisputed position that on 29th November, 1996 the complainant was treated by O.P. No. 1, by administering "Voveran" injection at his back of left arm above elbow. O.P. No. 1 in para 5 of his affidavit in reply has also admitted the said fact.

HOWEVER, it is the case of the complainant that as per prescription instructions, in a form of printed literature of the Manufacturing Pharmaceutical Company M/s. Novartis India Ltd., mode and location of the part of the body, prescribed for administering the said injection is "by deep intra gluteal injection", which means an injection to be given into the gluteal muscle of the buttock and hip. In support, the complainant has made available Extract of Volume No. 5, Number 8 of monthly Index of Medical Specialities, issued by MIMS India, New Delhi, which prescribes "1-2 times daily by deep intra gluteal injection". It be noted that Dr. R.C. Hansoti, who is a qualified Cardiologist and Consulting Physician in his affidavit dated 24th March, 1998, which is relied upon by the complainant, has stated and explained, which we reproduced as it appears therein- I say that the interpretation of expression "by deep - intra gluteal injection" means an injection given into the gluteal muscle of the buttock and hip. This supports what is appearing in prescription instructions noticed above. It is further relevant to note that even O.P. No. 1, in his written say (affidavit) in para 5 states (we reproduced relevant part). "I physically examined him and decided to administer an injection. I asked him whether he was allergic or had any other prior complications to which he replied in the negative. I had told him that it would be easier to take injection on the gluteal region but the complainant insisted that the injection should be given on the hand and, therefore, I gave him the injection on the left arm on the side where ordinarily injections are given."

THIS part of the say O.P. No. 1 clearly indicates that he was aware of the fact as to what prescription instructions of "Voveran" injection required, mode as also location of the body. It clearly further shows that, notwithstanding he gave injection to the complainant on his left arm, which got affected very soon after its administering, resulting paralytic condition, which the expert doctors, referred to above, have opined as "Radical palsy (L) side". All these experts have examined the complainant, it is relevant to note, very shortly after O.P. No. 1 administered the injection. What is more, as complainant has stated that shortly on the very day he felt the said symptoms and went to consult to O.Ps., which shows close proximity in the sequence of events. It is also pertinent to note that O.P. No. 1 has not assigned there being any other possibility of the reaction as experienced by the complainant. In the context, reference needs to be made to the relevant extract from treaties on the subject, referred to by the parties in particular "Human Anatomy-Regional and Applied Limb and Thorax, by Dr. B.D. Chaurasia, Deptt. of Anatomy, Medical College, Gwalior. "Applied Anatomy-The radial nerve is very commonly damaged in the region of the radial (Spiral) groove. The common causes of injury are (i) intramuscular injections in the arm (triceps), (ii) sleeping in an arm-chair with the limb hanging by the side of the chair (Saturday night palsy) or even the pressure by a crutch (crutch paralysis) and (iii) fractures of the shaft of humerus. This results in the weakness or loss of power of the extension at the wrist (wrist drop) and sensory loss over a narrow strip on back of the forearm, and lateral side of the dorsum of the hand."

The same elaborates about damage to the radial nerve and causes, which resemble to that as happened in the case herein resulting in the weakness or loss of power of the extension at the wrist (wrist drop) and sensory loss over a narrow strip. That the complainant, as the result suffered permanent disability, is adequately supported by the disability certificate (being Exhibit-J to the complaint) issued by the Director, All India Institute of Physical Medicine and Rehabilitation, Ministry of Health and Family Welfare, Government of India, dated 13th March, 1997, which certifies "Post injection radical palsy" and further certifies that complainant''s disability "exceeds 40% not fit to drive". The complainant was examined in the said institution on 13th March, i.e., nearly 3 months after administering injection.

IT, therefore, clearly spells out that all these developments are post-injection and as such having close nexus to injection.

NOW it would be necessary to consider the justification or rather feeble defence set forth by the O.P. No. 1 to the effect that he administered the injection on the left arm of the complainant on his insistence, despite his giving necessary implication as per Injection Prescription, noticed above. In the sequence of events, the same appears to be an invention on the part of O.P. No. 1 as a device at belated stage, which is not borne out from any record. More so when, as O.P. No. 1 puts it, that he was aware of the fact that Prescription Instructions of the said injection specified the location of the body, and as a Medical Practitioner, knowing inherent risk of change of location of the injection, that O.P. No. 1, a Medical Practitioner would deviate from the Prescription Instructions. If he had done so, then the same would be, on face of it, gross act of misconduct by the Medical Practitioner and as such would certainly constitute deficiency in service, within the meaning of Section 2(1)(g) of Consumer Protection Act, 1986. We conclude that in the light of our discussion as aforesaid and on proper analysis and appraisal of the materials placed before us in the matter herein, by the parties, referred to hereinabove, that there is gross failure on the part O.P. No. 1 to exercise care and proper precautions while administering Voveran Injection to the complainant contrary to Prescriptions Instructions as also established practice in that respect and as such there is breach of duty on his (i.e., O.P. No. 1''s) part occasioned by not administering the said Injection in accordance with the Prescription Instructions which he was bound to do in the circumstances and as was expected, even in normal course, a reasonable prudent man would do.

As facts clearly prove that O.P. No. 1 administered Voveran Injection to the complainant on his left arm contrary to the Prescription Instructions, which clearly amounts to failure in his duty of care in the administration of that treatment.

WE are fortified with our above conclusion from the ratio of the judgment of the Privy Council in the case of Antonio Dias Caldeira v. Frederick Augustus, reported in 1936 All ER (Annotated) Vol. 1 page 540, in which Their Lordships upheld the findings of the lower Court in a case where the case was based on negligence on the part of the employee viz., Nurse of the Hospital in administering quinine injection for treatment on Malaria on the child patient in the right buttock, when, it was proved, that a Nurse travelled beyond the safe area for injection and the quinine injured the sciatic nerve of the patient, rendering him permanently disabled and in an action for tort based on negligence, the Lower Court held the Hospital negligent victoriously for negligence of its employee and awarded compensation to the victim and Their Lordships of Privy Council, in appeal, upheld the said finding confirming findings of the Lower Court that travelling beyond the safe area of administering injection constituted negligence. The next decision on the point is directly in the Consumer Disputes filed under Consumer Protection Act, 1986, based on the facts similar to as obtained in the matter herein as also as obtained in the case of Privy Council (supra). The same is in the case of A.M. Mathew v. The Director, Karuna Hospital & Ors., reported in I (1998) CPJ page 476 of Kerala State Commission. Facts in this case show that Paracetamol injection administered by the staff member of the Hospital on the buttock of the victim patient, which ruptured in his sciatic nerve Palsy in left leg, rendering him disabled and cause of Palsy was due to the fact that injection needle entered into the sciatic nerve of the patient, as a result of the negligence of the Nurse of the Hospital. The District Forum allowed the claim for damages holding that there was negligence on the part of the Hospital employee while administering injection on the child patient and the State Commission, in the Appeal by the Hospital, upheld the findings of the District Forum, rejecting defence of the O.Ps. of accidental trauma. It is noticed that State Commission has followed the view of the National Commission rendered in the case of Harjot Ahluwalia (Minor) through his parents v. Spring Medows Hospital & Ors., II (1997) CPJ 98 (NC).

NOW, we take up a second limb of contention advanced by and on behalf of the complainant in support of his case of deficiency in services by the O.Ps. At the outset, we wish to state that as far as O.P. No. 2 is concerned, we do not find any material made available by the complainant in support of his grievances of deficiency in services and that being so, O.P. No. 2 has to be exonerated and complaint against O.P. No. 2 has to be dismissed. The precise contention raised by and on behalf of the complainant is to the effect that O.Ps. were not qualified as also possessed requisite skill and knowledge to practise and treat the patient with Allopathic Medicine and further having not authorised to practise Allopathic Medicine by administering Voveran Injection by O.P. No. 1 upon the complainant which was undisputedly Allopathic Medicine, being without authority would constitute deficiency.

IN support of the contention, reference was made to the provisions as contained in (i) The Maharashtra Medical Council Act, 1965, (ii) The Maharashtra Medical Practitioners Act, 1961, (iii) The INdian Medical Council Act, 1956 and Medical INdian Act, 1965, (iv) Drugs and Cosmetics Rules, 1945 framed under Drugs & Cosmetics Act, 1940. Reliance is also placed on the decisions of the Supreme Court in the case of Dr. Mukhtiar Chand and Ors. v. State of Punjab & Ors., reported in VIII (1998) SLT 204=JT (1998) (7) SC page 78 corresponding to [AIR 1999 (SC) page 468] and Poonam Verma v. Ashwin Patel & Ors. reported in II (1996) CPJ 1 (SC)=Volume of National Commission and Supreme Court on Consumer Cases 1986-96 page 2250.

ON the behalf of the O.Ps. as also Intervenor, reference is made and reliance is placed to the pending proceedings in the Writ Petition No. 453/1997 on the file of the Hon''ble High Court, Mumbai filed by the National Integrated Medical Association against State Government and other Authorities, curricula set up by the concerned Authority for a Degree course of B.A.M.S. as also question papers for the examination. Opinions given by the Hon''ble Mr. Y.V. Chandrachud, former Chief Justice of India on the point in question as also opinion given by Mr. B.P. Apte, then Additional Advocate General of State Maharashtra, Circulars issued by the Medical Education and Drug Department of the Maharashtra Government dated 25th November, 1992, etc.. Upon this point there is a good deal of deliberation and extensive submissions made by the learned Advocates of the parties as also by Dr. Kailash Goud, President of B.A.M.S. Graduate''s Association, the Intervenor.

To appreciate the rival contentions, it is necessary to state that necessary provisions have been made in the Maharashtra Medical Practitioners Act, 1961 and the Maharashtra Medical Council Act, 1965 (Both State Statutes), as far as State of Maharashtra is concerned. The Act known as Maharashtra Medical Practitioners Act, 1961 (hereinafter referred to as ''1961 Act'') has been enacted with the aim and object as it appears in the preamble of the Act as- "An Act to regulate the qualifications and to provide for the registration of practitioner of the Ayurvedic [Siddha] and Unani Systems of Medicine with a view to encourage the study and spread of such systems, and to make certain provisions relating to medical practitioners generally, in the State of Maharashtra; and for that purpose to consolidate and amend the law relating thereto. WHEREAS, it is expedient to regulate the qualifications and to provide for the registration of practitioners of the Ayurvedic [Siddha] and Unani Systems of Medicine, with a view to encourage the study and spread of such systems, and to make certain provisions relating to medical practitioners generally, in the State of Maharashtra; and for that purpose to consolidate and amend the law relating thereto; It is hereby enacted in the Twelfth Year of Republic of India."

[Emphasis added]. Whereas, Maharastra Medical Council Act, 1965 (hereinafter referred to as ''1965 Act'') has been enacted with the object as it appears in the preamble as- "An Act to unify, consolidate and make better provision in the law regulating the registration of persons practising modern scientific medicine in the State of Maharashtra. WHEREAS, it is expedient to unify, consolidate and make better provision in the law regulating the registration of persons practising modern scientific medicine in the State of Maharashtra and to provide for matters connected therewith: It is hereby enacted in the Sixteenth Year of the Republic of India."

From the reproduced portion as above, it would be noticed that the 1961 Act dealt with the qualification and registration of the Practitioners of Ayurvedic System of Medicine under which the opposite parties herein would fall and 1965 Act dealt with the Practitioners of Scientific Medicine which is commonly known as Allopathic System of Medicine.

PRECISE reference was also made to the provisions of the Indian Medical Council Act, 1956 and the Indian Medicine Central Council Act, 1970 in which the provisions have been made by the Central Government, which to some extent appears to be in conformity with the State Statutes and certain provisions as such are overlapping. All these Statutes define Registered Medical Practitioners as also provide for qualification for registration of the names in the Register to be maintained thereunder. Section 29(1)(fa) of 1961 Act, defined Indian Medicine as under: "(fa) ''Indian Medicine'' means the system of Indian Medicine commonly known as Ashtang Ayurvedic or Siddha or Unani or Unani Tibb, whether supplemented or not by such modern advances as the Central Council from time-to-time XLV-by notification may declare under Clause(e) of Sub-section (1) of Section 2 of the III of Indian Medicine Central Council Act, 1970." In this respect reference is required to be made to two Circulars/Notifications being dated 25th November, 1992 issued by Maharashtra Government and dated 30th October, 1996 issued by the Central Council of Indian Medicine. The Maharashtra Government has issued the said Circulars/Notifications which have been made available, inter alia provides as under: "Notification dated 25.11.1992-In exercise of the powers conferred by the proviso to Section 33, read with Clause (fa) of Section 2 of the Maharashtra Medical Practitioners Act, 1961 (Mah. XXVIII of 1961) (hereinafter referred to as "the said Act''), the Government of Maharashtra hereby directs that the Ayurvedic Practitioners enrolled on the State Register of Practitioners of Indian Medicine holding qualification specified in Parts A, B and A-1 of the Schedule appended to the said Act, shall be eligible to practise the modern system of medicine which is known as Allopathic system of medicine, to the extent of the training they received in that system."

[Emphasis supplied]. "Notification dated 30.11.1996-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 practise Indian Systems of Medicine and Modern Medicine including Surgery, Gynecology 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-sciences as also technological innovations made from time-to-time and notify that the courses and curriculum conducted and recognised by the Central Council of Indian Medicine are supplemented with such modern advances. Further, it is clarified that the rights of practitioners of Indian Systems of Medicine to practise modern scientific system of medicine (Allopathic Medicine) are protected under Section 17(3)(D) of Indian Medicine Central Council Act, 1970."

[Emphasis supplied]

BY combined reading of both these Circulars/Notifications, which have been heavily relied upon by the O.Ps. as also by the Intervenor that under the Statute, Government of Maharashtra and the Central Council of Indian Medicine have issued the said notifications permitting the Practitioners of Indian System of Medicine to practise in Modern Scientific System of Medicine (Allopathic Medicine). It would thus be noticed that as per definition of Indian Medicine as provided in Sub-section (fa) of Section 2 of 1961, Act, Asthan Aurvedic is included in the said definition. It is to be stated that in the Writ Petition pending in the Hon''ble High Court, Mumbai being No. 453 of 1997, it is clarified that the said issue is for consideration of Hon''ble High Court has already issued an interim stay whereby force and effect of the two Circulars/Notifications above has been kept intact. Now coming to two decisions of the Supreme Court, relief upon by and on behalf of the complainant, in Dr. Mukhtiar Chand case and Poonam Verma case (supra) and upon which heavy reliance is placed by and on behalf of the complainant to buttress the point that Medical Practitioners holding B.A.M.S. degrees are not eligible to practise Allopathic Medicine.

REFERRING to Dr. Mukhtiar Chand''s case, it is noticed that the Hon''ble Supreme Court was considering the right to practise by Ayurvedic Vaids and Unani Hakims of Allopathic Medicine and the Hon''ble Supreme Court on referring to various Rules and Notifications issued under the various Statutes, referred to hereinabove, in particular under the Drugs and Cosmetics Act, 1940 held that since there was no right conferred by any State Government, such right was not available to the Ayurvedic Vaids and Unani Hakims. Headnote (C) of the said judgment will make the position clear- "(C) Indian Medical Council Act, (1956), Section 15(2)(b) - Indian Medical Central Council Act, (1970), Section 17(3)(b) - Drugs and Cosmetics Act, (1940), Section 33-Drugs and Cosmetics Rules (1945), Rule 2(ee)(iii)- Allopathic medicine-Right to practise-Ayurvedic Vaids and Unani Hakims cannot practise Allopathic medicine unless such right is conferred by State Law."

[Emphasis supplied] It would thus be noticed that in the said case, i.e., Dr. Mukhtiar Chand case, before the Supreme Court there was no State Notification issued under the Drugs and Cosmetics Act, 1940 as is the case in the State of Maharashtra as noticed hereinabove. In that the Maharashtra Government has issued a Notification being dated 25th November, 1992 and Central Notification being dated 30th October, 1996 referred to hereinabove. That being so, the facts as obtained in the said matter before the Supreme Court and in the matter in hand are distinguishable.

REFERRING to Poonam Verma''s case, the Medical Practitioner concerned in the said case was qualified to practise in Homeopathy System of Medicine only and he was found practising in Allopathic System of Medicine. Facts in the said case clearly show that Homeopathy Practitioners were not authorised to practise Allopathic Medicine at all as is the case in hand, as far as Maharashtra State is concerned. We may further add that the Intervenor''s Association has referred to and relied upon the opinions as renderd by the Hon''ble Justice Mr. Chandrachud, who was former Chief Justice of Supreme Court and Mr. Apte, ex-Additional Advocate General of Maharashtra State already referred to hereinabove and it needs to be stated that both by referring to various provisions of the Statutes and the Rules as also Notifications and the judgment of the Supreme Court in Dr. Mukhtiar Chand''s case, have been pleased to express their views and opinions lending support to the view as we have taken hereinabove in the matter herein.

Mr. Chavan, the learned Counsel for the complainant, however, contended that in the light of principles as laid down by the Hon''ble Supreme Court in Dr. Mukhtiar Chand''s case (supra), the State Legislation would not hold the field or circumvent the principles of Law as laid down by the Supreme Court. He also submitted that two Notifications referred to hereinabove and relied upon by the Intervenor would not survive in view of judgment of the Supreme Court.

WE do not wish to express on such submission. The reason being that the limited issue which we are required to consider whether or not there is deficiency on the part of the O.Ps. in presenting Allopathic Medicine as done in the matter herein. The two Notifications referred to hereinabove as also the provisions of the Statutes, referred to hereinabove to which the O.Ps. are subject to, permit and allow Medical Practitioners practising in Ayurvedic Medicine which is called Indian Medicine to prescribe Allopathic Drugs. WE wish to clarify that in the proceedings of the nature with which we are concerned and which we are required to adjudicate by recourse to summary procedure is to probe whether or not there is deficiency on the part of the O.Ps. in the case herein and provisions both under Statutes and Notifications referred to above, would not justify the conclusion against the O.Ps. being deficient in service on this count. WE make it further clear that efficacy and validity of the Notifications of the Government cannot be questioned in the proceedings of such nature nor it would be possible for us to go into the detailed probe thereof. The additional factor is, the issue is already sub juice before the Hon''ble High Court, Mumbai in the Writ Petition filed. We also wish to make reference to the certain material which Intervenors have made available with regard to the curricula of the Degree course of B.A.M.S. From the material made available, it is noticed that the curricula prescribed by the concerned Authority of the State Government to the Degree course of B.A.M.S. is comprehensive which also include Surgery and Modern Medicines which include Ayurvedic Medicine as well. Even the question papers set for the examination also cover those topics, which are applicable to the Degree course for Allopathic system of Medicine Practitioners. This is one more point, which would require to be taken note of.

WE also wish to mention a fact which we are informed by the Intervenor that there are nearly 32,000 Medical Practitioners with B.A.M.S. Degree practising all over the State mostly in the Rural area and interior part of the State and who are catering needs of large population of the State, mostly falling in the Rural area and if they are prevented, very serious and disastrous consequences would follow causing inconvenience and hardship to the people. To sum up, Government of this State has under the powers vested under the Statutes issued Circular/Notifications as noticed earlier recognising the B.A.M.S. Degree holders in Integrated Course being eligible to practise and prescribe Allopathic Medicine. That being so, it is not possible to hold O.Ps. being deficient in services in prescribing Allopathic Medicine namely administering Voveran Injection upon the complainant as a ground of deficiency in services as alleged and we hold accordingly.

SINCE, we have held O.P. No. 1 being deficient in rendering services vis-a-vis administering Voveran Injection contrary to the Prescription Instructions, the complainant succeeds in establishing O.P. No. 1 being deficient because of administering injection on the wrong part of the body of the complainant.

WE have already noticed the consequences that followed in rendering the complainant disabled hereinabove as per Certificate issued by the Competent Authority i.e., by All India Institute of Physical Medicine and Rehabilitation, Mumbai being Exhibit-J to the complaint to the extent of 40% and above. The complainant was a Auto Rickshaw Driver and as result of said disability, which is of permanent nature he has become completely incapacitated from driving Auto Rickshaw which was the only source of earning for him and his family depending upon him.

The complainant has claimed a sum of Rs. 10,60,000/- being loss of livelihood on the basis of earning at Rs. 3,000/- per month and compensation of Rs. 2 lakhs.

AS stated earlier, complainant has suffered disability, which is more than 40% of permanent nature, which rendered him unfit to pursue his vocation of plying Auto Rickshaw for earning livelihood. Inasmuch as he was required to eventually dispose of his Auto Rickshaw. That being so, he has to be suitably compensated and pecuniary loss can only be ascertained by balancing on the one hand to the losses to him of the future pecuniary benefits as also suffering of his members of his family who are dependent upon him. Normally, multiplier method for award of compensation is considered to be ideal method. AS noticed earlier, complainant has assessed his monthly income derived from plying of Auto Rickshaw was Rs. 3,000/- per month. At the date of mishap, age of the complainant was 30 years and taking into consideration the period for which we would have reasonably pursued his some vocation, it would be legitimate to hold that he will be within the range of 20 to 25 years. We have taken into consideration all these facts/situation while assessing the claim of compensation in the matter herein. Taking into consideration the fact/situation as obtained in the matter herein, in our view award of sum of Rs. 3,50,000/- will be fair and reasonable as compensation as he suffered because of deficiency on the part of O.P. No. 1 and a sum of Rs. 50,000/- as compensation for mental agony that he suffered.

WE, therefore, order and direct O.P. No. 1 to pay the aforesaid amount to the complainant under respective heads. As far as O.P. No. 2 is concerned she stands completely exonerated and complaint against her stands dismissed. ORDER 1. It is held O.P. No. 1 being deficient in rendering services to the complainant in administering Voveran Injection on the wrong part of the body contrary to the Prescription Instructions. 2. O.P. No. 1 shall pay a sum of Rs. 3,50,000/- as compensation to the complainant. 3. In addition O.P. No. 1 shall also pay a sum of Rs. 50,000/- to the complainant for mental agony he suffered. 4. O.P. No. 1 shall pay cost of Rs. 10,000/- to the complainant in this proceedings. 5. Complaint against O.P. No. 2 stands dismissed. 6. Copies to be furnished to the parties. 7. We also direct to furnish copy of the order to Dr. Kailash Goud, President of B.A.M.S. Graduates'' Association, Maharashtra State, Mumbai, Intervenor.

Complaint disposed of.