R.K. JAIN vs Sunil

THIS appeal is directed against order dated 8.11.1995 passed by District Consumer Disputes Redressal Forum, Dewas (for short ''District Forum'') in Complaint No. 78/94. District Forum vide their impugned order allowed the complaint partially and ordered the appellant to pay Rs. 50,000/- as damages to the respondent in addition to Rs. 150/- as proceeding cost and Rs. 100/- as Advocate''s fee, within two months from 8.11.1995, the date of order .

THE facts of the case in brief are that respondent Sunil is a three-years-old son of Ambaram, who has filed the complaint in the District Forum. Sunil being a minor his father Ambaram is a natural guardian. Respondent father hereafter referred to as complainant throughout the order, stated in his complaint that appellant Doctor is practising in village Amona, Tehsil and District Dewas and runs a clinic by the name of "Nitu Clinic". Complainant further stated that on 18.6.1994, his son Sunil got severly burnt in his thigh, and hence he took him to appellant for treatment. Appellant examined him and gave prescription of medicines and complainant made the payment on 19.6.1984. Complainant did not see any relief to his son and, therefore, took him to the appellant, who gave him two injections, one in the morning and the other in the evening. Even thereafter there was no relief although the treatment continued for one month and appellant continued to give injections for the whole month. Complainant has alleged that due to this treatment, his son became an invalid (xxx) and was not able to walk. Complainant took his son to M.Y. Hospital, Indore and the Doctors after examining him informed the complainant that the child Sunil has become an invalid and no treatment was possible. Complainant further alleged that his son Sunil got "Polio Myelitis" because of the treatment given by appellant particularly the injections. It was emphasized in the complaint that injections given over a month were the main cause of permanent damage. It was further alleged that normally two or three injections were given in the case of infection, but injections given for a month caused the damage. Complainant further stated that he spent about Rs. 10,000/- On his son''s treatment. Now that his son cannot work and earn anything in his life the damages to his son amounts to Rs. 1,00,000/-. Complainant further stated that a legal notice dated 20.7.1994 was given to the appellant whose reply was received on 18.8.1994. However, appellant refused to accept any of the demands made by complainant. Complainant, therefore, prayed for direction to the appellant to pay Rs. 1,10,000/- to the complainant as per details in para 9 of the complaint together with 12% interest per annum till the date of payment. Appellant, who was opposite party in District Forum filed his reply to the complaint on 29.3.1995. In his reply appellant admitted that there were severe burn wound in the thigh of Sunil, when he was brought to the clinic. Appellant stated that after examining the burn wound, he advised the complainant to take his son to the City Hospital in view of the severe burn case. Appellant further stated that complainant, thereafter, repeatedly urged him to treat him. Even then he merely prescribed medicine and a lotion for applying to the wound externally. Appellant, therefore, denied all the allegations and stated emphatically that this was all that he did and prescribed on 18.6.1994 and thereafter he did not give any treatment at all. Appellant also denied receiving any payment on 19.6.1994. Appellant also specifically denied giving injections twice a day. Appellant further denied all and every allegation made in the complaint and, therefore, denied liability to pay the damages claimed. Under the heading ''Special statement'' appellant has stated that he did prescribe medicine and lotion on 18.6.1994 but thereafter complainant never came to him again. He must have purchased medicine from market, but he did not even care to show the medicine purchased by him. Appellant also stated that he did not receive any fees from complainant. Appellant has also stated that complainant lodged a complaint in police station but since police did not take any cognizance hence this false complaint has been lodged. Appellant prayed for dismissal of complaint with Rs. 1,000/- costs. Complaint and its reply were submitted duly verified.

Affidavit on behalf of complainant dated 7.9.1994 has also been filed in District Forum. Another affidavit dated 22.7.1995 has been filed by one Ambaram s/o Narain Singh who has stated that he knows personally that complainant with his son used to go to appellant and that injections were given, one in the morning and other in the evening. Shri Ambaram s/o Narain Singh also stated that even saline was administered. He further stated that Dr. Jain gave 5 or 7 injections before him. Another affidavit dated 30.8.1995 has been filed by Dr. Umesh Agrawal. His qualifications are that he is B. A.M.S. He has stated that he saw Sunil s/o Ambaram in June, 1994 and his examination revealed that Sunil has become invalid (xxx). He has further stated that he was wrongly treated in that he was administered ''Glucose'' and ''Saline'' which was not necessary for the type of burn wound of Sunil. He further stated that disability in the legs has been caused by injections given twice a day. He further stated that this was a case of ''Polio Myelitis''.

AN affidavit on behalf of appellant was filed on 3.11.1995. Perusal of order sheet of 3.11.1995 shows that an application on behalf of opposite party (appellant in this case) was filed by his Counsel to give time to file affidavit on behalf of opposite party who could not be present because of death in his relations. This application was rejected by District Forum, because the case was pending for long time. However, the same order sheet dated 3.11.1995 shows that affidavit of Dr. H.K. Jain, opposite party was accepted and a copy was given to the Counsel of complainant. In this affidavit, appellant has reiterated what he had stated in his reply. In addition he has stated that he does not admit patient as indoor patient in his clinic as there is no space for it. He further stated that he did not take any fees for the treatment given nor did he ever administer any injections. He has further stated that Dr. Agrawal has filed an affidavit on account of professional jealousy. He asserted again that he did not see the patient (Sunil) after 18.6.1994. District Forum in their impugned order held that appellant (opposite party) treated the son of complainant from 9.6.1994 to 19.6.1994 and also received Rs. 630/- for treatment. District Forum also held that complainant''s son was administered Saline and Glucose and was given antibiotic injection twice a day. District Forum considered the version of appellant about not giving any injection nor receiving any fee as unreliable on the ground that such a thing cannot be considered correct or reliable in these days (para 5 of the order). District Forum therefore passed the impugned order referred in para 1 above.

IN the memorandum of appeal, the appellant has stated that District forum has passed the impugned order more on conjectures rather than facts placed before them. IN para 5 of the order the District Forum has considered the affidavit of appellant as unreliable on merely their own conjecture that such things were not possible these days. Appellant has further pointed out that there was no proof to draw any nexus between the treatment given and ''Polio Myelitis'' which Sunil was found to be suffering from in M.Y. Hospital. It was further stated that one bill of Rs. 630/ - is no proof of prolonged treatment of one month and injections twice a day. Appellant also cited several decisions in support of his appeal. Appellant also produced a book "Butterworths Medical Dictionary" (Second Edition), Editor in Chief, Macdonald Critchley for our perusal concerning Poliomyelitis. We heard both the parties and we have also perused the record of the case. Complainant has alleged that his son developed Poliomyelitis because of the wrong treatment and negligence of the opposite party (Doctor Jain). In all cases concerning medical profession, this Commission has taken a consistent view that they are to be decided as per the law laid down by the decision of the Supreme Court in the case of Indian Medical Association v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC)=National Commission and Supreme Court on Consumer Cases 1986-1995 (1569) (NS). In this case the Hon''ble Supreme Court has identified the type of cases which can be agitated before Consumer FORA. Also in this judgment the development of case law relating to medical profession vis-a-vis consumers as developed in England and else where during past five decades has also been noticed and relied upon while dealing with allegations of negligence of a doctor in his treatment. Several legal lunanaries of England have made important conservations in their judgments. Some of these observations clearly indicate what the Courts should keep in mind while deciding such cases. Lord Clyde in a Scottish case Hunter v. Hanlay, (1955) SLT P. 213, observed : "The true test for establishing negligence in diagnosis or treatment on the part of a Doctor is whether he has proved to be guilty of such failure as no Doctor of ordinary skill would be guilty of acting with ordinary care."

Nearer home, in an unreported judgment in Amlia Flounders v. Dr. Clement Perreira, 1947 OCJ Appeal No. 27 of 1974, Chhagla Ag. C.J. and Bhagwati, J. observed : "The law on the subject is really not in dispute. The plaintiff has to establish first that there had been a want of competent care and skill on the part of the defendant to such an extent as to lead to bad result. The plaintiff has also to establish the necessary connection between the negligence of the defendant and the ultimate death of the plaintiff''s son."

(Law of Consumer Protection by Dr. Gurbux Singh 1990, Bharat Law Publication, Jaipur - p. 55). In the above case large number of experts were examined in regard to the treatment given by the Doctor and it was held that Doctor was not negligent. Tendolkar, J. who confirmed the original judgment observed that actions for negligence in India are to be determined according to the principles of English Common Law. Dozens of other authorities can be quoted to settle the law regarding negligence. Basic and fundamental point that emerges is that for proving negligence by a Doctor the plaintiff has to give proof to establish the allegations and expert evidence will be necessary from a Doctor in the same field of medicine.

THIS Commission has taken a consistent view that a fault of technical nature has to be proved by the testimony of an expert in that field., We shall now examine the evidence on record in this case in the context of above principles. In the present case, the complainant has stated in his complaint that his son Sunil aged 3 got severe burn in his thigh and hence he took him to the opposite party (Doctor) on 18.6.1994 and the opposite party prescribed some medicine on 18.6.1994. He further stated that he made payment of Rs. 630/- for medicine to the Doctor on 19.6.1994. As evidence he has produced two prescriptions joined together of 18.6.1994 and 19.6.1994. Perusal of above prescriptions reveal that prescription of 19.6.1994 shows medicines for treatment from 9.6.1994 to 19.6.1994 totalling Rs. 630/-. THIS total has been arrived at by the. addition of figures against which name of medicines has not been written. By his own admission on affidavit, the complainant took his son to the Doctor (opposite party) on 18.6.1994. It is therefore not understandable as to how the same Doctor can receive Rs. 630/- as charges for medicines for treatment between 9.6.1994 to 19.6.1994. It is not possible to agree that a Doctor can receive any money for treatment 9 days before he ever saw the patient. THIS evidence is therefore not ever worth the paper on which it is written. It is also interesting to note that entire case is set up on the basis of this alleged prescription. If anything this prescription only proves what the opposite party has stated in his reply that opposite party never saw the complainant after 19th again.

AS stated by us the allegation of alleged wrong treatment has to be established by the complainant. For this purpose the complainant has filed an affidavit of Dr. Umesh Kumar Agrawal. Dr. Agrawal''s qualifications as per his affidavit is B.A.M.S. He is therefore not competent to give expert evidence about injections and their wrong results. Also by his qualifications he cannot be treated as an expert as per recent judgment of Supreme Court about Doctors qualified in Ayurvedic medicine giving allopathic medicine. We therefore find that complainant has .failed hopelessly to prove his allegations about alleged wrong treatment. We also find it very strange that complainant after producing a bill for Rs. 630/- (which is doubtful) states in his complaint of spending Rs. 10,000/- on treatment and still got away without even a comment about it from District Forum. We shall now examine whether complainant has been able to establish any nexus between alleged wrong treatment and ''Folio Myelitis'' which his son has developed due to which he is unable to move about. As mentioned by us in para 7, appellant has produced "Butterworths Medical Dictionary by Macdonald Critchley" for our reference. In this book on page 1347 Poliomyelitis has been defined as follows : "An acute inflammation of the anterior horn cells of the spinal cord due to an enterovirus infection. The great majority of cases in an unprotected population are due to polioviruses (Syn. acute anterior poliomyelitis, infantile paralysis). A flaccid paralysis of the limbs served by the damaged lower motor neurons may result, though paralysis is an uncommon sequel of infection with the virus which often does not progress beyond the cells of the gut. There is no specific treatment, other than supportive, and there is some recovery of function following reduction in the reactive oedema in the central nervous system. Adequate protection can be provided by immunization. There are two forms of vaccine : live attenuated virus (Sabin type) and formalized inactivated virus (Salk type). Bulbar poliomyelitis. Poliomyelitis with involvement of the brain-stem nuclei giving rise to progressive bulbar paralysis, respiratory and vasomotor failure."

Above definition shows that it is caused by virus. There is no indication of wrong injection, injecting any virus into the body. Complainant has failed to furnish any evidence oral or documentary to demonstrate that virus was introduced by wrong treatment. Dr. Agrawal''s testimony is not reliable nor can it be treated as a testimony of an expert, because he is only B.A.M.S. Even the prescription or Bed Head Sheet of M. Y. Hospital does not give indication of this nature. There is no affidavit of any Orthopaedic expert. We therefore hold that complainant has failed to establish any nexus between Poliomyelitis and the treatment allegedly given by appellant.

In the above circumstances, the order of District Forum does not appear to be based on the evidence before them. The findings of District Forum are therefore erroneous and we do not agree with it. Judgment also shows lack of application of mind. Consequently, the order deserves to be set-aside.

IN result, the appeal succeeds and is allowed. Order dated 8.11.1995 of District Forum, Dewas is hereby set aside. No order as to costs. Appeal allowed.