BHANWAR KANWAR vs R.K. Gupta And Anr. (Dr.)

COMPLAINT was filed, inter alia, alleging that Prashant, son of the complainant was born in May, 1989. At the age of six months during fever Prashant had febrile convulsions. So, he was taken to a nearby doctor who after examining him, told that children do get such kind of fits during fever and he treated him by giving paracetamol. Thereafter also as and when Prashant had high fever, he suffered convulsions for which he had been treated by Dr. Ashok Panagariya, Consultant Neurologist and Associate Professor of Neurology, SMS Medical College Hospital, Jaipur and at All India Institute of Medical Sciences, New Delhi. It was stated that the complainant came across an advertisement published in Jan Satta dated 8.8.1993 offering treatment of the patients having fits with Ayurvedic medicine by OP No. 1. Impressed by the claim made by opposite party No. 1, the complainant wrote a detailed letter to opposite party No. 1 about her son''s fits during high fever. In response thereto, OP No. 1 sent a letter dated 23.11.1993 assuring that he had specialized treatment for the problem of Prashant by Ayurvedic medicines and he advised the complainant to bring him before 15.12.1993. Accordingly, complainant and her husband along with Prashant visited OP No. 2 clinic run by OP No. 1 at Rishikesh on 21.2.1994. Prashant was registered vide registration No. 7955 dated 21.2.1994. Complainant was made to pay Rs. 2,150 towards consultancy charges and the cost of medicines for one year vide cash memo No. 61 dated 21.2.1994 by OP No. 1. OP No. 1 told the complainant that the medicines given were the combination of hundreds of herbs. OP No. 1 also gave a printed circular. Complainant started giving medicines to Prashant regularly in the hope that he will be cured. It was alleged that despite medicines being given regularly the condition of Prashant started deteriorating day by day. Fits which were occasional and occurred only during high fever, started occurring even without fever. On being informed of the condition of Prashant the OP No. 1 intimated that the medicines being Ayurvedic had slow effect. He instructed the complainant to regularly administer the medicines. OP No. 1 sent medicines through V.P.P. On condition of Prashant continuing to deteriorate, the complainant sent a fax dated 18.6.1995 to OP No. 1. In response thereto, the OP No. 1 sent fax advising to continue the medicines as before. Thereafter another communication was sent to OP No. 1. In response whereof the OP No.1 sent a letter on 30.9.1995 re -assuring that the line of treatment was correct and he advised the complainant to bring Prashant for check up and also the left over medicines. Complainant along with Prashant again visited the clinic at Rishikesh to consult OP No. 1 in October, 1995. After examining Prashant, OP No. 1 gave medicines for which he charged Rs. 1,500. Complainant was given black and thick white tablets to be administered to Prashant. In the fax dated 20.6.1995, OP No. 1 advised to continue with the treatment for 3 years. It was stated that the fits became more frequent and for longer durations. On 14.11.1995, complainant contacted OP No. 1 on telephone and during discussion, OP No. 1 told the complainant not to worry and assured her to send more powerful medicines. Thereafter, OP No. 1 sent white coloured small tablets with a letter dated 14.11.1995, on 16.11.1995. During the period from February 1994 to October 1996, complainant did not contact Dr. Ashok Pangariya. Since the condition of Prashant worsened, the complainant again consulted Dr. Ashok Pangariya on 28.10.1996 who told that there was no hope of the child becoming normal and he will not grow as a normal child. On making inquiry it was revealed that the small white tablets was ''Selgin''. This medicine is not meant for children. It was stated that OP No. 1 was passing off Allopathic medicines as Ayurvedic medicines. He is a quack and is guilty of criminal negligence. Prashant would never be able to support himself. Due to his physical condition the complainant was advised to undergo termination of pregnancy. It was, inter alia, prayed that direction be issued to pay Rs. 20.00 lakh as compensation, to refund the charges paid to the OPs and to reimburse the expenses incurred on travelling to Rishikesh against the OPs. Direction was further sought to be made to pay Rs. 10.00 lakh for undergoing medical termination of pregnancy by the complainant.

BY the order dated 7.4.2007, case was set ex parte and postponed to 16.8.2007 for argument. Copy of this order was sent to OP No. 1 on jail address through the Jail Superintendent, Dehradun where OP No. 1 was allegedly confined as also on the address mentioned in the complaint. On 16.8.2007 case was postponed to 27.9.2007 and on that date to 24.10.2007. On that date, it was postponed to 5.12.2007. On that date Mr. A. Rathore, Adv. put in appearance on behalf of the opposite parties and sought time to file written version. Four weeks'' time was allowed subject to payment of cost. On 16.4.2008, on payment of cost the written version was allowed to be taken on file.

IN the joint written version, it was alleged that OP No. 1 is a registered medical practitioner. He received Ayurvedacharya degree on 31.12.1984. He established OP No. 2 clinic in 1991. It was alleged that the complainant approached OP No. 1 via mails and thereafter she visited him at OP No. 2 clinic for treatment of her son''s seizures. After examination of complainant''s son the OP No. 1 prescribed medicines, namely, Phenobarbitone or Phenobarbital and Wafera. Phenobarbitone/ Phenobarbital is an allopathic medicine and is the favourite drug for treatment of epilepsy patients. Medicine code A1 Wafera is an Ayurvedic medicine and is a brain tonic. It was denied that medicine ''Selgin'' was prescribed. It was stated that the complainant failed to administer the medicines as prescribed by OP No. 1. She consulted various other doctors simultaneously for treatment of her son. Complainant got her son treated by Dr. Ashok Panagariya and also at AIIMS. It was asserted that the treatment given by OP No. 1 was the proper treatment for epilepsy. Reference was made to World Health Organisation''s Training Manual for Community Based Physicians on Treatment of Generalised Tonio -clonic Seizures. It was asserted that Prashant could not have developed mental retardation due to the intake of Phenobarbitone/Phenobarbital and Wafera. It was further alleged that the medicines prescribed by OP No. 1 being Ayurvedic take their own time before showing signs of recovery. Liability to pay the compensation, etc. claimed by the complainant was emphatically denied. Submission advanced by Mr. Rajeev Sharma for the complainant was that the son of complainant was treated by giving Allopathic medicines by OP No. 1 and as OP No. 1 was possessing only Ayurvedacharya degree he was incompetent to use Allopathic medicines. Use of Allopathic medicines caused the mental retardation of Prashant. As part of the submission, he submitted that the representation made throughout by OP No. 1 was that he treated the patients through Ayurveda system of medicines which was false. OP No. 1 gave medicines for longer periods and that too without examining Prashant. Therefore, OP No. 1 was not only negligent/ deficient in service but was guilty of unfair trade practice also within the meaning of Consumer Protection Act, 1986 (for short the Act). On the other hand, it was urged out by Mr. A. Rathore for the OPs that OP No 1 was competent to use allopathic medicines. In support of the submission, attention was invited to the letter dated 24.2.2003 sent by Jagjit Singh, the then Secretary, UP. Government, Medical Education Department to all Medical Officers, UP, Medical Education Department -II. Mr. Rathore controverted that for the present condition of Prashant, the OP No. 1 is in any way responsible. It may be stated that pursuant to the order dated 5.3.2004, tablets contained in two packets made available by the complainant were sent to Shri Ram Institute for Industrial Research, New Delhi for ascertaining their chemical component. These tablets were stated to have been given by the OPs for treatment of Prashant. Three tests results, all dated 7.4.2004 of the said Institute are placed at pages 419, 420 and 421 on Part -II file. These would show that white coloured tablet was an Allopathic medicine identified as Phenobarbitone while pink coloured tablet was also an Allopathic medicine identified as Phenytoin sodium. Dark brown coloured round globules could not be identified as an allopathic medicine. Thus, the said two reports support the case of the complainant that Prashant was being treated by giving Allopathic medicines. Moreover, in para No. 2 of the preliminary objection of written version, the OP No. 1 has admitted that Prashant was given Phenobarbitone and Phenobarbital. Copy of the degree, Exh. R -1 and copy of the certificate, Exh. R -2 filed along with the affidavit of evidence of OP No. 1 would show that OP No. 1 was possessing the degree of Ayurvedacharya and was registered with the Indian Medical Council, U.P. (Board of Ayurvedic and Unani, Tibbi System of Medicine, U.P.) since 1984. Aforesaid letter dated 24.2.2003 which is material, omitting immaterial portion, reads thus: "Sub: To stop activities of harassment and suppression of Integrated Medical Practitioners in the State. Sir, I have been directed to state that it is known that the job of Registering Ayurvedic/Unani Practitioners is done by U.P. Indian Medical Council. In the State Ayurvedic/ Unani Practitioners practising Ayurvedic System are authorized to use Allopathic medicines under UP Indian Medical Council Act, 1939, Sections 39(1) and 41(2) and they hold the same rights as that of allopathic practitioners. Hon''ble High Court has directed to take action against quacks who are registered nowhere. Accordingly, it has been decided that if during any such harassment any of the Registered Ayurvedic/Unani Practitioner produces the Registration Certificate then no action should be taken against him. Therefore, the above orders are to be complied strictly."

IT was pointed out on behalf of the OPs that the factual position as noticed in this letter was also obtaining during the period Prashant was under the treatment of OP No. 1. Reference to this letter is also made in the order of Apex Court in Criminal Appeal No. 672 of 2006 filed by the State of Uttaranchal against.grant of bail to OP No. 1 by the High Court. Above letter, thus, fully supports the case of OP No. 1 that though he possessed Ayurvedacharya degree but was competent to use Allopathic medicines in the State of U.P.

IN support of the case that it was only because of the treatment given by OP No. 1 that Prashant has become mentally retarded the complainant relied upon the Disability Certificate issued by the Medical Board of Government of Rajasthan, Medical and Health Department dated 10.9.2002 and the medical certificate dated 30.10.2002 issued by Dr. Apporva Proanik, Consultant Neurologist. In the Disability Certificate, Prashant is shown to have severally mentally retarded. Certificate dated 30.10.2002 notices that Prashant is suffering from chronic epilepsy and mental retardation. It has been opined that uncontrolled epilepsy seizures during early childhood for many years could have been the reason for mental retardation. As may be seen from the averments made in the complaint, Prashant who was born sometime in May, 1989, started having febrile convulsions at the age of six months for which he was treated amongst others by Dr. Ashok Pangariya and at AIIMS. He remained under the treatment of OP No.1 for over two years starting from 21.2.1994 After discontinuance of treatment by OP No. 1 he resumed treatment from Dr. Panagariya and was shown to other doctors. Aforesaid two certificates are of the year 2002. Complainant has not led any satisfactory evidence to show that it was only due to the treatment given by OP No. 1 that Prashant had reached the condition as reflected in said two certificates. Relying on the extract from WHO''s Training Manual for Community Based Physicians on Treatment of Generalised Tonic - Clonic Seizures (major fits), the submission advanced by Mr. A. Rathore, Adv. was that Phenobarbital was a drug of choice for treatment of epileptic fits and this medicine is to be used for a longer duration. This manual supports that submission. Phenytoin Sodium is a different salt and is commonly used for treatment of epileptic fits. Further case of the complainant that medicine was prescribed without examining the patient does not seem to be correct as according to the own showing of the complainant Prashant was taken for check -up to OP No. 1 at Rishikesh on 21.2.1994 and in October 1995 and she had failed to take him for check -up on few occasions as desired by OP No. 1. For the foregoing discussion, it is difficult to return the finding that OP No. 1 is solely responsible for the present condition of Prashant.

COMING to the limb of argument referred to above about OP No. 1 being guilty of unfair trade practice, in para No. 5 of the complaint it was alleged that being impressed by the advertisement and interview appearing in the issue of ''Jan Satta'' dated 8.8.1993, the complainant wrote a letter to OP No. 1 about her son''s fits and in response thereto a letter dated 23.11.1993 (Exh. P -4) was received by her. In para No. 6, it was pleaded that the complainant, her husband and Prashant visited OP No. 2 -clinic run by OP No. 1 at Rishikesh on 21.2.1994 and after examining, the OP No. 1 prescribed certain medicines and towards the cost thereof and consultation charges the complainant paid Rs. 2,150 vide cash memo No. 61 dated 21.2.1994 (Exh. P -5). Medicine was for one year. In para No. 7, it was further pleaded that printed circular (Exh. P -6) was given along with the medicines. In para No. 9, it was stated that the complainant received a letter dated 22.4.1994 from OP No. 1 (Exh. P -7). In para No. 10, it was pleaded that despite medicines being given regularly, after initial improvement, the condition of Prashant started deteriorating and he was having fits even without fever. In para No. 13, it was stated that on continuous deterioration of the condition of Prashant the complainant sent a fax dated 18.6.1995 (Exh. P -9) to OP No. 1. In para No. 14, it was alleged that in response to this fax, the complainant received a fax from OP No. 1 (Exh. P -10). Subsequent Paras notice that the complainant was assured by OP No. 1 that Prashant will be cured fully by the medicines prescribed by him. In para No. 18, there is referefence of Prashant''s having become aggressive and mentally retarded. To be noted that in corresponding Paras of joint written version filed by the OPs, there is no denial of the letters/fax messages/cash memo/circular Exhibits P -4 to P -13. Only relevant portions of some of these exhibits need be referred to. Para Nos. 1, 2 and 5 of the letter dated 23.11.1993 (Exh. P -4), which is in vernacular, reads thus: "1. Hum manovagyanik elaj ke saath saath is bimari ke liye ayurvedic padhati se gangajal ko aadhaar mankar (kyunki is me sankro jadi butiyon ka mishran hota hai), vishesh prakar ki dava banate hain.

Hamari dava shuru karne ke baad se hi patient ko turant aaraam ayega. Hamah ayurvedic dava anaya davaon ki bhanti rog ko dabati nahin hai, balki rog ko hamesha ke liye jad se kaat deti hai.

...... Hamari rai hai ki aap aur adhik der na karte hue patient ko lekar aa jaaen. Hamare elaaj se weh bilkul theek ho jayega. Aap bhraspatiwaar ko chodkar kisi bhi din hamare clinic mein aa jaein. Aaapka appointment number ..... hai."

Amount of Rs. 2,150 was received towards the cost of medicines and consultation charges by OP No. 1 vide cash memo (Exh. P -5). Note appended to this cash memo reads thus: "Our medicine has no name as it is prepared by using variety of herbs."

Circular (Exh. P -6) reads thus: "As you were told that this disease is of many types and we make our own Ayurvedic medicines accordingly..... You should not worry about the shape and colour because these Ayurvedic medicines are made by hands so it forms different shape and colour but the magic effect of it will be there in every piece/powder of tablet ...... If during our treatment the patient get fit attack then you should keep patience. After two years patient will get much relief as Ayurvedic medicines show its effect slowly but it will completely uproot the disease......."

Letter dated 22.4.1994 (Exh. P -7) also reads as under: "We have previously written you letters to come over here for check - up but, for reasons best known to you only, you didn''t come ............. One of the several questions which might be in your mind may be that when our patient is not cured by taking prescription of best doctor and taking best medicines then how can you be sure to cure their problem. The answer to this question is very simple. Our medicine has such type of Ayurvedic combination that 95% of patients get immediate relief. To show our genuineness we used to give advertisement in nationalized papers often only to clear doubts that we are successfully treating Epilepsy and not deceiving patients which is found very common now -a -days."

In the fax dated 18.6.1995 (Exh. P -9) the grievance made by the complainant was that Prashant had suffered three fits during two months and the fits which used to come during fever have now started coming without fever despite medicine being given regularly.

IN response to this fax, OP No. 1 sent fax dated 20.6.1995 (Exh. P -11) which in vernacular, reads thus: "Aapka fax mila. Aap patient ko jis prakar se dava de rahein hain ussi prakar regular samay par bina naga ke dete rahein. Dava mein ek time ka bhi naga na karein. Is dava ka aadhaar ayrvedic hai isliye isse poora kaam karne mein samay lagta hai. Teen saal baad dava awashay poora asar karne lagegi. Aaap bilkul pareshaan na hon. Dheere - dheere sab theek ho jayega."

BARE reading of the extracted portions of the said exhibits would show that the representation made throughout by OP No. 1 was that he had been treating Prashant by Ayurvedic system of medicine which stands belied by the two test results dated 7.4.2004 of Sri Ram Institute of Industrial Research, New Delhi as also the own admission made in para No. 2 of the preliminary objection of the joint written statement. Clause ( r) of Sub -section (1) of Section 2 of the Act defines unfair trade practice as under: "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely: (1) the practice of making any statement, whether orally or in writing or by visible representation which - (i) falsely represents that the goods are of a particular standard, quality, quantity, grade, compo -sition, style or model; ........"

OBVIOUSLY , OP No. 1 having made the false representation as noticed above, was guilty of unfair trade practice. It is not in dispute that OP No. 1 had been approaching the people by giving advertisements and interviews published in newspapers and magazines having wide circulation. Hundreds of persons like the complainant having been allured by those advertisements/interviews may have contacted OP No. 1 and received treatment under the belief that they were being treated by Ayurvedic medicines. To curb such a false representation and to ensure that the faith of people in Ayurvedic system of medicine is not eroded, appropriate directions need be passed under Section 14(1)(f) of the Act and for payment of compensation by the OPs. In the facts and circumstances of case, we quantify the amount of compensation payable by the OPs at Rs. 5.00 lakh. Since the complainant was led to believe that her son was being treated by Ayurvedic system of medicine, she having spent money on to and fro journey to Rishikesh and paid towards the cost of medicines and consultation fee to the OPs and she having undergone mental agony during the period her son was under the treatment of OP No. 1, we deem it just and proper that out of the said amount of Rs. 5.00 lakh, she is paid a consolidated amount of Rs. 2.50 lakh. She is separately not entitled to any compensation for alleged termination of pregnancy. Remaining amount of Rs. 2.50 lakh is to be deposited in Consumer Legal Aid Account of this Commission.

FOR the foregoing discussion, complaint is allowed with direction to the OPs to forthwith discontinue to represent either orally or by means of advertisements in newspapers or magazines or in any other form that they treat the patients by Ayurvedic system of medicines. They will pay Rs. 2.50 lakh as compensation to the complainant and deposit amount of Rs. 2.50 lakh in Consumer Legal Aid Account within six weeks from today. OPs will also pay Rs. 30,000 as costs to the complainant. Complaint allowed.