DEEPESH KUMAR KUSHWAHA & 2 ORS. vs DR. GOPAL NARAYAN AWTE

The main controversy swirls around the question, "whether, a "quack", who has no knowledge of medicine and is not even a qualified BAMS, is empowered to administer any allopathic medicine or injections?". Is it not an inkling towards his negligence?.

Having lost the cases before both the fora below, the respondent has filed the present revision petition for quashing the orders rendered by the fora below, wherein the fora below awarded Rs.20,000/- in favour of the patient, Deepesh Kumar Khushwaha, and against OP1. However, the complainants in their complaint have claimed a sum of Rs.19,90,000/- with interest @ 12% p.a., and Rs. 10,000/- as legal expenses. The complainants have filed the second revision petition for enhancement of amount. This order shall decide the above-detailed two revision petitions which arise out of the same impugned order dated 16.03.2012, rendered by the State Commission.

Sh. Deepesh Kumar Kushwaha, complainant No.,1, the patient, is the son of Smt. Sangeeta Kushwaha, complainant No.2. and Premshankar Kushwaha, Complainant No.3. Complainant Nos. 2& 3 are labourers. On 15.07.2006, Deepesh Kumar Kushwaha fell sick. He was taken to Dr. Gopal Narain Awte, OP-1. OP1 gave some medicines and asked him to come after some time. The complainants went to the OP1 on 17.07.2006, when again, some medicines were prescribed. The patient was repeatedly taken to OP1 till 29.07.2006. The OP1 kept on giving medicines and injections but the complainant''s condition kept deteriorating. The prescription prescribed by OP1 runs as follows :-

" Case : M.P. Patron Fever

Rx

Recochin syp - 10ml/tds

Pyrestral syp - 1 tsf/tds

Inj. Pyregesic 1 ml I/M

Back page 2

Inj. Dexamethasone 1ml

I/M

Case for hospital

Sd of treating doctor

Sign of Dr. Gopal N. Awte".

Thereafter, the patient was taken to Dr. Ravi Sharma, who immediately, informed them to take him to a higher centre. There, they again contacted the doctor who gave another injection due to which the patient became unconscious. It is alleged that, thereafter, the OP gave Rs. 12,000/- and requested the parents of the patient not to make any complaint. On 29.07.2006, the patient was admitted at St. Joseph Hospital, Hoshangabad, in a serious condition. He was treated there, till 04.08.2006, but due to lack of finances, he had to be discharged. The school of the patient collected Rs. 10,403/- for him, after which, further treatment was done. He was later treated at Hamida Hospital and Bombay Hospital, Indore, wherein it transpired that the patient had Japanese Encephalitis for which treatment would continue life-long. According to the complainant, due to wrong diagnosis and wrong treatment of malaria, the mental condition of the patient deteriorated and he has become mentally challenged.

The defence set up by the OP1 is this. He admits that he gave treatment for malaria on the basis of the blood report. He submits that there was no error in the diagnosis, the pathology centre, OP2 is liable. He did not take any money from the complainants but prescribed medicines and injections. He contends that after 19.07.2006, he was not in Sahogpur, but had gone to Gujarat and did not tre Zat the child after 19.07.2006. It is alleged that he had been brought in this case to extract money and there was no negligence on his part.

The learned counsel for OP vehemently argued that the complainants reside in a remote village. There are no medical facilities in that area. The OP is a B.Sc simpliciter. He does not hold the degree of BAMS. The OP has a certificate of Ayurveda doctor, there is no nexus between the medicine given by him and the above said disease. He gave the medicine(s), as per the report received from Guru Pathology Lab, OP2.

Counsel for the OP has cited an authority of the State Commission reported in Dr. H.K. Jain Vs. Sunil, 1999 (3) CPR 504. In this case, the State Commission has held that for proving negligence by a doctor, the complainant has to prove the allegations and expert evidence in the same field.

Instead of touching the heart of the problem, the counsel for the OP just skirted it. The OP had no authority to prescribe any allopathy medicines or injections. Our attention was invited towards the Mandatory Registration under Madhya Pradesh Ayurvigyan Council, Madhya Pradesh Medical Council, which runs as follows :-

" Madhya Pradesh Ayurvigyan Council

Madhya Pradesh Medical Council

(Estb. On 01.04.1996, u/s 3 of M.P. Ayurvigyan Parishad Adhiniyam, 1987)

Seal

Satpuda Bhawan, 2 nd floor

Bhopal, MP, India

Mandatory registration under Madhya Pradesh Ayurvedic, Naturo & Unani Pathy Medical Board / Madhya Pradesh State Homeopathy Council.

Registered Medical Practitioner under Madhya Pradesh Ayurvedic, Naturopathy and Unani Medical Board or under Homeopathy Medical Board having BAMS, BIMS, BUMS, DHMS or BHMS or under any pathy, are not authorised to practice under allopathy medical system.

Hence, in ref. to above subject, all the medically qualified persons are authorised to practice ONLY in their respective pathy.

Sd/-

Registrar

Madhya Pradesh Medical Council, Bhopal".

It is, thus, clear that the OP-1 had given the medicine in violation of the above said notification. The OP-1 has got no respect for law and love for justice. It is not understood, why did not he charge money from the patient, was he related to them, there was no inkling that his hospital is a charitable hospital. His version in this respect, just does not stack up.

Counsel for the complainants has cited an authority passed by this Bench, in RP No. 480/2010, decided on 10.12.2014, titled Harishbhai Shamjibhai & 2 Ors. Vs. D.C. Gohil, wherein it was held, as under : " 10. Recently, the Apex Court in the case of Bhanwar Kanwar Vs. R.K. Gupta and another (2013) 4 SCC 252 has taken the view that wherein unauthorized medical treatment was administered, it amounts to unfair trade practice and administering allopathic medicine by a person who is qualified in Ayurvedic medicine, cannot be approved of the Hon''ble Apex Court on the facts of this case (supra), enhanced the compensation amount from Rs.5 lacs to Rs. 15 lacs. Another judgment of this Commission, in the case Dr. R. R. Singh vs. Pratibha P. Gamre, Revision Petition No. 887 of 2012, decided on 14.5.2012, by the bench of Justice J.M. Malik and Mr. Suresh Chandra, held that the Ayurveda doctor negligent for prescribing allopathic medicines and awarded Rs. 7 lakhs, as compensation.

Therefore, the person who is authorized to practice under Indian Medicine Central Council Act, 1970 is not at all entitled and authorized to prescribe medicines under the Indian Medical Council Act, 1956. We are of considered view that the OP having studied one particular system of medicine, cannot possibly, claim complete knowledge about the drugs of the other system of medicine The transgression into other branches of medicine would tantamount to quackery".

Thus, there is no need of any expert report. The facts of this case speak for themselves. The principle of '' res ipsa loquitor'' will apply for the following reasons. Firstly, the OP-1 had no authority to prescribe the allopathic medicine. He is at liberty, to give his own ayurvedic medicine, as per the Book. He has no authority to trespass into allopathy. Whenever an Allopathic medicine is to be given, it must be sanctioned, verified and seconded by the Allopathic Doctor. The Allopathic Doctor will always take care and will call for all the medical tests. The mere signs of malaria are not enough. The main disease of the patient could not be discovered by this quack.

Secondly, on the basis of the above said Notification, he is not permitted to prescribe the allopathic medicine and lead the gullible consumers, up the garden path.

Thirdly, time is the most important thing. It is well said that "A Stitch In Time, Saves Nine" . He has wasted for about 15 days'' in treating the patient. He should have asked the patient to go to the treating Allopathy doctor and get himself treated properly. The possibility of growing this disease, for such a long time, cannot be ruled out.

A copy of this order be sent to the Secretary, Ministry of Health & Family Welfare, Government of Madhya Pradesh, so that the above said Notification/law may be applied, strictly.

The payment of Rs.20,000/- is just the ''peanuts''. How can the OP learn a lesson by merely paying a sum of Rs.20,000/-?. Consequently, we enhance that amount from Rs.20,000/- to Rs.3,00,000/- and warn the OP-1 not to deal in allopathy medicines, in future. The said amount be paid to the complainant No.3, after deduction of the amount already deposited, within 90 days'' from today, failing which, it will carry interest @ 9% p.a., till its realisation. The revision petitions stand disposed of.