BHUNESH KUMAR BHATNAGAR vs DHAPA DEVI

THESE two appeals arising out of the consolidated order of the D.F., Dausa dated 23.9.1997 deciding two separate complaints bearing Nos. 447/1996 and 448/1996 involve common facts. THESE are, therefore, disposed of by this consolidated order.2. The relevant facts are these,Appeal No. 2393/1997 (Complaint No. 447/1996)Smt. Dhapa Devi, respondent had filed her complaint under Section 12 of the C.P. Act, 1986 (the Act) against the appellants alleging that she had consulted the appellants in connection with her eye trouble and the appellants had advised her to get her eyes operated. The appellants charged a sum of Rs. 1,300/- from her and operated her eyes but damaged the same leading to blindness. In support of her version she had relied upon her own affidavit and the affidavit of her son Kalyan. A prescription slip from a doctor of the Government Hospital dated 30.4.1997 was also produced.Appeal No. 2394/1997 (Complaint No. 448/1996)

IN this case Smt. Rangi Bai, complainant-respondent made similar accusation against the appellants. She averred in her complaint that the appellants had charged a fee of Rs. 2,600/- for operating her left eye but even after the operation pain was still there in her eye and led to blindness of both of her eyes. She supported her version by filing her own affidavit and the affidavit of her son Prahlad. In common, both the complainants had alleged that Mukesh Kumar @ Bhunesh Kumar appellant had carried on the operation on their eyes. It was also alleged that Dr. S.N. Bhatnagar, appellant, was running his eye-hospital under the name of Bhatnagar Eye Hospital at Lalsot, District Dausa though neither of them was a qualified doctor to conduct surgical eye-operation. Each of them claimed compensation for mental agony at Rs. 1,00,000/- and cost of litigation at Rs. 3,000/- besides the refund of the amounts paid by them by way of appellants fee.

In their joint replies filed in both the complainants the appellants, who are son and father respectively, emphatically denied that the two ladies had ever visited their hospital, paid any fees to them and they even operated their eyes. They affirmatively asserted that Dr. S.N. Bhatnagar appellant was a well qualified and experienced Vaid duly registered as such under Section 32(1) of the Rajasthan Deshiya Chikatsya Adhiniyam, 1953 and duly qualified to perform surgery according to Ayurvedic System of surgery. In support of such version the appellants, apart from relying upon their own affidavits, relied upon the affidavits of S/Shri Manjit Khan, Rashid Khan, Habib Khan who were successfully cured by the appellants for their eye trouble. In their affidavits the appellants deposed that Dr. S.N. Bhatnagar appellant runs his Bhatnagar Eye Hospital at Lalsot in a rented shop and that Mukesh @ Bhauvnesh appellant was still a student learning Ayurvedic System of treatment and residing in his native town Chomu, District Jaipur. In documentary evidence they produced the relevant extract from the Rajasthan Deshiya Chikatsya Adhiniyam, 1953, certificates issued by the Board of Indian Medicine, Rajasthan, Hindi Sahitya Sammelan, Prayag declaring Dr. S.N. Bhatnagar as successful examinee of the Examinations held by the above named examining body in Sambat 2032 and 2034, the mark-sheets issued by the said Examining Body at Allahabad and a certificate issued by the Government of Rajasthan on 15.7.1981 declaring Dr. S.N. Bhatnagar to be a duly registered medical practitioner for treatment of the patients having eye-troubles. Copy of the order of the Civil Judge (J.D.), Bundi dated 19.7.1982 in suit No. 89/1982 staying the operation of the order of the Chief Medical Officer, Bundi whereby Dr. S.N. Bhatnagar had been restrained from performing eye-operations and copies of the statements of witnesses recorded in that suit, besides C.M.O. Bundis letter dated 15.4.1982 authorising Dr. S.N. Bhatnagar appellant to perform eye-operations during the period from 16.4.1982 to 25.4.1982 and a number of other similar documents were filed.

IN his combined order the learned D.F. though observed that there was no evidence on the point that the two complainants had paid Rs. 1,300/- and Rs. 2,600/- to the appellants yet at the same time held that the two ladies had no cause to file false complaints against the appellants, had they not performed operation of their eyes for consideration. The D.F. accordingly held that the two appellants had rendered deficient services to the two complainants. It, therefore, required the two appellants to pay a sum of Rs. 25,000/- as compensation for mental agony, Rs. 400/- as cost of litigation to each of them besides refunding the amounts of Rs. 1,300/- and Rs. 2,600/- to Smt. Dhapa Devi and Rangi Bari complainants respectively. It is noted that when these appeals were called for hearing on 4.6.1998, Mr. Suresh Chandra Sharma, the learned Counsel for the respondent-complainants produced in the course of his arguments certain prescription slips allegedly issued by Mukesh @ Bhauvnesh Kumar appellant to the two complainants. The Bench thereupon ordered that specimen hand writing of Shri Mukesh @ Bhauvnesh be obtained for comparing the same with the handwriting in the slips. Thereafter although specimen signatures and handwriting of Bhauvnesh appellants were obtained but thereafter neither the complainants nor any Counsel for them and on their behalf appeared before the Commission. The prescription slips, which were shown to the Bench on 4.6.1999 were also not placed on the record of either of the appeals. It may be observed that the so-called prescription slips, represented to have been issued by Mukesh @ Bhauvnesh Kumar appellant had not been produced before the D.F. by either of the complainants.

THE learned Counsel for the appellants emphatically urged that not only Dr. S.N. Bhatnagar, appellant was a well qualified medical professional duly authorised by the competent authorities concerned to perform eye operations as well besides treating eye-troubles of the patients according to the Ayurvedic System of treatment, but also that there was absolutely no iota of reliable evidence of the record of the two complaints to hold that the two complainants had ever hired the services of the appellants for consideration for performing eye-operations and performed such operations and in doing that they had in any manner rendered deficient services to either of the two complainants. It was also vehemently urged that the present proceedings against the appellants were nothing but the handi-work of their rivals in profession at Lalsot and Chomu. After having closely examined the material available on the record of the two complaints before the D.F. as also of the two appeals before us, we find ourselves in agreement with the learned Counsel. Insofar as the competence, qualification and experience of the appellants for treatment of eye diseases by medicines and surgical operation is concerned the documents referred to above go to establish that Dr. S.N. Bhatnagar, appellant, was registered medical practitioner duly authorised to treat patients of various diseases including those pertaining to eyes by following Ayurvedic system of treatment. Mukesh @ Bhauvnesh Bhatnagar, appellant was still simply a student at the relevant time and appears to be visiting his fathers hospital at Lalsot, District Dausa, as and when he used to go to Lalsot from his native town Chomu in District Jaipur. Trouble and difficulty in the way of Dr. S.N. Bhatnagars treatment of patients by Ayurvedic system of treatment on the basis of qualification and authority obtained by him from Hindi Sahitya Sammelan, Allahabad appears to have arisen by the decision of the Board of Medicines, Rajasthan to consider the cancellation of the registration of the holders of the qualifications of Vaid Visharad and Ayurved Ratna, (as also had been acquired by Dr. S.N. Bhatnagar appellant in this case) on the basis of non-inclusion of such qualification in the second schedule to Indian Medicines Central Council Act, 1970, and also not recognised by the Rajasthan Medicines Act, 1953. It was in the course of such thinking of the concerned authorities that C.M.O., Bundi who had at an earlier stage, permitted Dr. S.N. Bhatnagar to carry on eye operations as per Ayurvedic System of treatment had later on restrained him to do so. It was such order of the Chief Medical Officer, Bundi that was challenged by Dr. S.N. Bhatnagar through Civil Suit No. 13 of 1994, Vaid Satya Narain v. C.M.O., Bundi, filed in the Court of Civil Judge (Junior Division) Lakheri, District Bundi and ad interim injunction was granted by the Civil Court in favour of the appellant. At an earlier occasion too Dr. S.N. Bhatnagar appears to have faced similar situation and had to file Civil Suit No. 94 of 1989 Vaid Satya Narain v. C.M.O., Bundi in the Court of Munsif and Judicial Magistrate, 1st Class, Court No. 1, Bundi. It is in such background that versions of the cases in the two complaints are required to be appreciated.

IT is evident that in both the complaints, the two complainants had simply relied upon their own depositions and the depositions made by their sons, Kalyan and Prahlad, in their respective affidavits. As against it the appellants had produced the affidavits of certain persons who had deposed in their affidavits to have been successfully cured by Dr. S.N. Bhatnagar for their eye-troubles. The complainants appear to have tried to support their version againt Mukesh @ Bhauvnesh appellant by producing the photostat copy of a prescription slip, allegedly, issued by the said appellant. IT has been pointedly observed at an earlier part of this order that whereas Mukesh @ Bhauvnesh appellant had given the specimen of his signatures and handwriting in compliance of the order of this Commission, the respondent-complainants did not even produce the original prescription slip, photo copy whereof was represented to have been produced before the D.F. Under such circumstances it was not legally and factually correct on the part of the D.F. to hold that Mukesh @ Bhauvnesh appellant had treated the respondents for their eye trouble.

APART from the above, there is no evidence on record to indicate as to how the appellants had damaged the eyes of the two ladies, if they be assumed to have ever hired the services of the appellants. The respondents alleged to have received treatment at the Government Hospital. The prescription slips issued by the Government Hospital do not give any indication that the ladies had consulted any doctor before reaching the Government Hospital and that their eyes were ever operated upon by such private doctors. In fact the very relationship of hirer of services and provider of service for consideration is not proved existing between the parties in these two cases. In view of the above discussion we hold that it was not proved in either of the two cases that the respondents had ever hired the services of the appellants for consideration and the appellants had rendered deficient services to them. That being so the impugned combined order of the District Forum, governing the disposal of the two complaints cannot be sustained in law and on facts.

In the result, the impugned orders in both the appeals are set aside and appeals allowed. Consequently the respective complaints by the respondents are dismissed with cost on parties throughout. Appeals allowed.