L.D.BAJAJ vs HARI CHAND

IT''s an appeal against the order of the District Consumer Disputes Redressal Forum, Muktsar (hereinafter called the District Forum).

BRIEF facts stated in the complaint are that the appellant-respondent (hereinafter called the respondent) distributed advertisements in August, 1998 regarding any type of disease curable by him treatment with guarantee, otherwise money paid would be refunded at once. Respondent had demanded Rs. 10,000/- and guarantee to cure the respondent-complainant (hereinafter called the complainant) who was suffering from throat cancer. The complainant remained admitted in the hospital of the respondent from 8.9.1998 to 17.10.1998 and had paid Rs. 9,600/-. Only Rs. 400/- remained as balance. But the throat cancer of the complainant was not cured by the respondent as guaranteed by him. It was then mentioned in the complaint that the complainant had paid Rs. 9,600/- out of Rs. 10,000/- as agreed between the parties. The complainant had suffered mental and physical loss to the tune of Rs. 80,000/- and had spent Rs. 10,400/- as miscellaneous expenses. The respondent had written Rs. 9,600/- paid by the complainant on the back of his advertisement with his own hands and signatures. The wife of the complainant Smt. Banso was also present at the time of making the payments. Respondent had refused to refund the money paid by the complainant and had also refused for any treatment a week ago. A prayer was made in the complaint that compensation of Rs. 1,00,000/- be awarded to the complainant against the respondent. Litigation expenses were also demanded in the complaint. In reply, the respondent had raised preliminary objections to the effect that the complaint was not maintainable and was liable to be dismissed in limine being frivolous and vexatious; that the complainant had not approached the Forum with clean hands and had concealed certain material facts.

On merits, the respondent had admitted that he was Registered Medical Practitioner (R.M.P.) but had denied having published and distributed the hand-bills mentioned in the complaint. respondent had admitted having settled Rs. 10,000/- as fee with the complainant out of which he had received Rs. 9,600/- in instalments. He had agreed to get his fee in instalments taking pity on the poor financial condition of the patient and that the balance of Rs. 400/- yet remained to be paid by the complainant. The respondent has further reiterated in the reply that he had suffered a loss of Rs. 400/- in his profession while taking pity on the patient. It was further stated by the respondent in his reply that the patient stuck on his hospital for long time due to the reason that he was receiving proper treatment. Respondent justified his treatment on the ground that he daily/occasionally got the patient checked up from the clinical laboratory. He had given the details of his T.L.C./D.L.C. blood results date-wise but the respondent had also admitted that the disease could aggravate with time and no doctor could give any sort of guarantee in any form. According to him, even patients being treated in foreign countries in specialised hospitals later on die. Respondent had also stated in his reply that the patient had left his hospital after having attained good health and the demand of compensation by the complainant is illegal, unfair and unjustified.

THE District Forum allowed the complaint and directed the respondent to pay Rs. 80,000/- to the complainant for pain, sufferings and physical loss plus Rs. 10,400/- as misc. expenses incurred by the complainant. THE respondent was further burdened with Rs. 2,000/- as litigation expenses. Hence this appeal. We have heard the Counsel for the appellant-respondent and have perused the order of the District Forum and have also gone through the record with the help of the Counsel for the appellant-respondent.

While deciding the comPlaint, the District Forum has framed the following issues : (1) Whether the oPPosite Party is qualified enough to treat and cure a cancer Patient ? (2) Whether the comPlainant suffered at the hands of the oPPosite Party ? (3) Whether the comPlainant is entitled for claimed comPensation ? (4) Relief. All the issues were decided in favour of the comPlainant by the District Forum and we do not find any infirmity in the finding of the District Forum. It is established on the record that the resPondent was not qualified enough to cure a cancer Patient like the comPlainant. Neither it has been stated nor it has been Proved on the record by the resPondent that he was Possessed of a degree of M.M.B.S. or even of L.M.S. for handling the case of the Patients. He admitted in his rePly that he was merely an R.M.P. i.e. a Registered Medical Practitioner. The resPondent has not given any Proof to the effect that he was qualified enough to treat the cancer Patient. In Para No. 1 of the rePly he has stated as under : "...But as for the actual cure the same is in the hands of the Almighty and no doctor on this earth can fight with the Almighty for a cent Per cent cure otherwise there would be no deaths on this earth and the authority of God would be comPletely evaPorated. As for the doctor''s Profession every doctor with ProPer licence from the Government has the Professional rights to attract maximum Patients for giving ProPer and honest treatment. I am an R.M.P. with registration No. 1932 of 1.1.1974 issued by A & Y Directorate, Punjab."

ResPondent had nowhere mentioned as to what tyPe of medicine was given to the Patient and what was the treatment offered by him to the Patients. He had not Proved on the record that he was qualified enough to treat a cancer Patient. He had adoPted illegal and questionable means by distributing the hand-bills for magic/guaranteed treatment for this dreaded disease. In Poonam Verma v. Ashwin Patel & Ors., II (1996) CPJ 1 (SC), the Hon''ble SuPreme Court held as under : "A Person who does not have knowledge of a Particular system of medicine but Practice in that system is a quack. Where a Person is guilty of negligence Per se, no further Proof is needed."

It is, thus, Proved on the record that the O.P. was not qualified to treat and cure a cancer Patient. With regard to issue No. 2 also District Forum has decided the same against the O.P. rightly. The O.P. had adoPted illegal means to mint money through advertisement and Publication by attracting the Public that he had the definite treatment to cure diseases like cancer etc. He had got distributed the hand-bills Ex. C-3 on Page 21 on the PaPer book of the District Forum to that effect is one such bill. Cursory glance to the language of the hand-bill could attract any Patient who was suffering from such a disastrous disease as the comPlainant had; strangely enough the O.P. in his affidavit, denied the Publication of hand-bill Ex. C-3; but could not deny the contents of Ex. C-4 on the back of the bill Ex. C-3 whereof receiPt of the money received by him from the Patient - comPlainant from time to time is written in his own handwriting and had also Put date against each receiPt of the instalment amount. The oPPosite Party has been addressed as Dr. L.D. Bajaj (Fauji Doctor), Cancer HosPital, Village Malout, which clearly shows that the oPPosite Party Dr. L.D. Bajaj was running this hosPital and the address on hand-bill Ex. C-3 was also the same. It is clearly established on the record that these hand-bills were distributed and advertised by the oPPosite Party himself for extracting money from the Poor Patients. The issue No. 2 has also thus, being rightly decided by the District Forum in favour of the comPlainant and against the O.P.

THE third issue is with regard to the claim of compensation awarded to the complainant. This issue has also been rightly decided by the District Forum.

COMPLAINANT has tendered into evidence his own affidavit Ex. C-1, attested copy of his identity card Ex. C-2, hand-bill issued by opposite party Ex. C-3, and receipt of Rs. 9,600/- by instalments on different dates scribed by the O.P. himself on reverse side of Ex. C-4. All these exhibits when read together clearly show that O.P. had received Rs. 9,600/- for treating the complainant. The learned District Forum has rightly held that the complainant had suffered a lot at the hand of this quack, who claimed himself to be equipped with magical guaranteed remedies for diseases like cancer etc. We do not intend to interfere with the compensation and cost etc. awarded by the District Forum to the complainant. There is no appeal of the complainant before us otherwise we would have awarded more compensation as the factual position taken from the record entitles the complainant for more compensation due to the agony suffered by the complainant at the hands of the O.P. In view of our discussions made above, we do not find any merit in this appeal, which is dismissed with costs, which are quantified as Rs. 5,000/-. Appeal dismissed.