MANGALSINH RATANSINH GOHIL vs KANUBHAI HIMATBHAI JOSHI

BY way of this complaint, the complainant has prayed for compensation in the sum of Rs. 5,50,000 on account of loss of vision in both the eyes of his son aged about 1 years as a result of alleged deficiency in service in rendition of medical service on the part of the opponent doctor. It has been alleged by the complainant that he had taken his son to the opponent doctor on 10.8.2001 for treatment of fever. After examining the patient, opponent doctor administered two injections and gave tablets by way of treatment to the complainant''s son. On the next day the complainant found that his son''s one eye had been totally lost in the sense that there was no vision in the said eye. The complainant once again went to the clinic of opponent doctor, where, without examining the patient in any manner, the opponent doctor had applied drops in the eye of the complainant''s son. The complainant has alleged that thereafter his son''s another eye was also damaged. Treatment for a period of 10 to 12 days was taken (the complainant has not stated where the treatment was taken) but as the swelling of the eye had not reduced, the complainant had taken his son once again to the opponent doctor on which occasion the opponent doctor told the complainant to take his son wherever he wanted to take him and get him treated and he was accordingly sent to Tajpur where the complainant was informed that there was no hope for cure of the complainant''s son''s eyes. He was also informed that the patient should be taken to Sayaji Hospital, Vadodara. Accordingly, the complainant saw to his son being admitted to SSG Hospital, Vadodara on 22.8.2001. It has been alleged that concerned doctor of SSG Hospital informed the complainant that vision in both the eyes of the patient was lost and that was on account of reaction of some medicine. The concerned doctor called for the papers of earlier doctors but the opponent doctor got enraged and threatened the complainant and drove him out. Under the circumstances, the complainant was required to approach this Commission for compensation as aforesaid. According to him he had to spend around Rs. 45,000 for the treatment of his son''s eyes. He has also alleged that the opponent is a practitioner of Homoeo medicines and was not permitted to practise Allopathic medicines and, therefore, he having administered injectible treatment as well as treatment of Allopathic tablets, he has followed unfair trade practice in the present case. The complainant tried to settle the matter after service notice to the opponent, who, instead of settling the matter gave false and evasive reply. The complainant is, therefore, required to file the present complaint as aforesaid.

THE opponent doctor has resisted the complaint as per the affidavit in reply Exh. 9. While denying the allegations contained in the complaint, the opponent has asserted that the complaint is not maintainable at law, that this Commission does not have jurisdiction to entertain this complaint as it has been filed for compensation in the sum which is less than the pecuniary limit of Rs. 20,00,000 and above conferred on this Commission under the amended Act 2002 which came into force on 15.3.2003, that the allegations of facts with regard to the complainant having brought his son to the clinic of the opponent for treatment of fever or for that matter any other treatment have been denied while stating true facts. According to the opponent doctor, when the complainant had taken his son for treatment for his eyes, the opponent doctor visualising seriousness of the case suggested for getting the patient treated at the eye hospital at Tajpur. THE complainant did not take his son to the said hospital at Tajpur but got him treated elsewhere. Rest of the allegations made by the complainant have been denied. THE complaint is accordingly sought to be dismissed with compensatory cost. In this complaint the opponent doctor has produced certain documents in the form of copies of police complaint and ''C'' summary as also the reply given by him. The complainant has produced copy of the notice as also copy of the reply given by the opponent. We do not propose to take into consideration the application which was sent by the complainant to the President of this Commission where allegations against Dr. Parul Shah, former Member of Consumer Disputes Redressal Forum, Ahmedabad (Rural) at the relevant point of time have been made, as the same would cut both ways. It is possible that the complainant might have been ill-advised to write such a letter with a view to prejudice this Commission. It is also possible that the concerned member against whom allegations have been made might have indulged in such a practice as alleged in the said letter. As stated above, we do not propose to take into consideration the said letter and we propose to proceed with the matter on merits.

The parties have filed their respective affidavits and they have also been cross-examined in this matter. At the outset we may note that the present complaint has been filed on 11.3.2003 i.e., prior to amendment Act 2002 having come into force. Hence, the defence of lack of pecuniary jurisdiction in this Commission will not hold good. The case of the complainant rests on allegations of facts without being supported by any documentary evidence. There is no reference note. There is no case paper. There is no prescription note. We have, therefore, necessarily to appreciate the facts of the case as have been alleged by the complainant and as have been countered by the opponent doctor. The main plank of the complainant''s case is that he had taken his son to the opponent doctor for treatment of fever on 10.8.2001 and the opponent doctor gave two injections and medicines in tablet form which according to the complainant adversely reacted on one eye of his son. He has not set out particulars of dates when he went to the opponent doctor for followup treatment. Only date which we notice from the complaint is 22.8.2001 when according to him he had taken his son to Sayaji Hospital. In the copy of the complaint showing date as 2001, the complainant has made allegation without setting out dates when he had taken his son for treatment to the opponent doctor. He has stated that he has taken his son to the doctor who was known to him before 15 days before he gave complaint to the police. He has adhered to the allegations of fact with regard to opponent doctor having given injectible treatment coupled with treatment of tablets. One of the eyes of his son had swelling. When he had taken his son to the opponent doctor once again, treatment of eye-drops was given and he was advised that he should take his son to Tajpur. Notice was also given to the opponent on 21.9.2002 with the same type of allegation of deficiency in service and unfair trade practice. Copy of the reply given by the opponent doctor on 25.9.2002 would indicate that the patient was taken to the clinic run by the opponent as well as his brother Dr. Bhupendra S. Joshi with pre-existing disease of eye and the opponent and his brother had referred the patient to Eye Hospital at Tajpur, Panchahals. The opponent has also averred that the complainant went to S.S.G. Hospital at Baroda instead of Eye Hospital at Tajpur. Upon making inquiry from the treating doctors, opponent came to know that the patient had Kerotomalacia, a disease which occurs due to vitamin A deficiency and malnutrition. At later point of time, the child was sent at Food and Nutrition Department for treatment. It has also been asserted that the disease would occur in males and particularly at the age of around 1 year.

DR. Dulari Venibhai Modi from SSG Hospital has been examined at Exhs. 13/A and 23 in reply to the summons issued from this Commission. We will take ourselves to that evidence little later. For the present we will deal with what the complainant deposed in his cross-examination at Exh. 21. He has admitted that he had taken his son on 10.8.2001 for treatment of his son''s eyes and on that occasion tablet and eye-drops were given. He corrected and deposed that eye-drops were administered in the opponent''s clinic itself. He has further deposed that observing the condition of the patient, the opponent suggested for taking him to Eye Hospital at Tajpur. In our considered opinion this admission on the part of the complainant would falsify his entire case set out in the complaint. It also appears that no reference document was given to him for taking his son to SSG Hospital, Vadodara, from Eye Hospital, Tajpur. He admitted that his son was admitted as indoor patient at SSG Hospital Vadodara and was treated there for around 45 days. He thus admitted that he did not have any written evidence to substantiate his allegation that he had spent around Rs. 45,000 for the treatment of his son. In reply to the question whether he gave complaint before the police alleging that he had taken his son for treatment of fever he deposed that he did not give such complaint but he gave complaint alleging that he had taken his son for treatment of his eyes. He was then confronted with regard to what he stated before the police and it transpires that he has stated that he had taken his son for treatment of his eyes to the opponent doctor. He had referred the patient to the Eye Hospital at Tajpur after examining the eyes. The doctor did not administer any treatment to his son. He told the doctor that he did not have enough money to go to the Eye Hospital at Tajpur and the doctor should make arrangements for the money. There was exchange of words between the two for around an hour and then he had left the opponent''s clinic. In our considered opinion, this oral evidence on the part of the complainant runs counter to what he has stated in the complaint. This is apart from the fact that the complaint is not supported by any documentary evidence as stated above. However, the matter does not end here. The ''C'' summary report which we have gone through as also other evidence of the opponent doctor would clearly fortify the defence which has been set up by the opponent doctor. We need not repeat the same. What is important to be noticed is that on one hand the complainant has not produced any expert evidence to show that his son''s eyesight was lost on account of any reaction due to alleged administration of injections and/or tablets from the side of the opponent doctor. On the other hand, evidence of DR. Dulari Venilal Modi from SSG Hospital at Vadodara proving her certificate issued to the Investigating Officer would indicate that the patient was admitted to hospital on 22.8.2001 and was treated up to 4.10.2001 in the paediatric department of the hospital. The patient had suffered from Grade III deficiency of nutrition and pus was oozing out from the right ear. There were ulcers in the cornea of both eyes on account of Vitamin A deficiency and the illness of the child was on account of insufficient nutrition and deficiency of Vitamin A and not on account of any reaction from any medicine. This document appears at Exh. 15. In view of lack of evidence to support the complainant''s case entirely based on oral allegations of facts and on account of positive evidence to support the defence as stated above, we have no alternative except to pass following order: ORDER This complaint is dismissed, with no order as to costs. Complaint dismissed.