SALAM TULLAH vs LAL BAHADUR

The brief facts relevant in both the revision petitions are these. Shri. Shiv Dhan''s wife Nagina and daughter Sonkeshi and Shri. Lal Bahadur''s mother Surshati were treated for gastro by Dr. Kazi, alias Salamatullah (the OP). The OP continuously gave Glucose to all the three patients when, on the night falling between 6/7 September, 1998, all three of them passed away. Alleging that it was negligence and deficiency in the medical treatment by Dr. Kazi, both the complainants, Shri. Shiv Dhan and Shri Lal Bahadur filed two separate complaints bearing complaint No. 381 of 1998 and Complaint No. 382 of 1998, respectively, against Dr. Kazi Salamatullah (the OP) before District Forum, Kushi Nagar (UP). The complainants also filed a criminal case under Section 304-A/323 I.P.C against OP.

Dr. Kazi submitted before the District Forum that there was an argument between the doctor and Shiv Dhan, as Shiv Dhan had taken the bicycle of the doctor. The opposite party has not supported his reply/objections with any affidavit.

The District Forum relying on the assertion of complainant, held that Dr. Kazi was a Jhola Chhap doctor, without any valid medical degree and gave more Glucose which lead to the death of said three persons. On 22.7.1999, the District Forum allowed both the complaints and Shiv Dhan was awarded Rs. 2 lacs as compensation for the death of his wife and daughter, while Lal Bahadur, was awarded Rs.1 lac for the death of his mother.

Against the orders of District Forum, the OP preferred two separate first appeals bearing No 2339/99 and 2340/99, on 30.8.1999 before U.P. State Consumer Disputes Redressal Commission, Lucknow. The State commission dismissed both the appeals by an impugned order, on 5.5.2014.

Aggrieved by the impugned order of State Commission, the OP filed the abovesaid two revision petitions, before this Commission on 30.07.2014.

At the admission stage, we have heard the learned counsel for the petitioners. He submitted that the complainant filed a complaint with mala fide intention because there was hot exchange between the petitioner and the complainant, Shiv Dhan, who took the bicycle of the petitioner without permission. The counsel submitted that, the OP had not treated any member from the family of the complainants, hence the three patients were not consumers, the complainants did not file any proof as receipt of money. The lower fora failed to appreciate this legal point; thereby consumer complaints were not maintainable. The counsel further submitted that based on same facts, both the Complainants had also filed a criminal case bearing No. 351 of 1998 under Section 304-A/323 I.P.C. at police station Ram Kola, which is pending. Therefore, counsel further argued that as per law, there cannot be parallel proceedings in two different courts, based on the same facts, incidence and time. Therefore, District Forum had no jurisdiction to entertain and adjudicate the complaints. It was further submitted that on enquiry by Medical Officer of Primary Health Centre (PHC), Ram Kola, it was found that the mother of the complainant died due to epidemic and because of consumption of contaminated food i. e. small fish, therefore there was no connection between the death of the family members of the complainants and that of the treatment rendered by OP.

We are not impressed upon by the submissions made by the counsel for petitioner. Regarding the story of bicycle, it has no relevance in this case. The Consumer Protection Act 1986 is an additional remedy to the consumers, therefore, in this case, the complainants are not barred to seek the redressal through Consumer Forum. It should be borne in mind that most of the rural population in our country, is devoid of medical facilities, under such circumstances, it is surprising to note that the OP/doctor took technical ground that the complainants did not produce payment receipt, therefore, he has not treated anybody from complainants'' family. We have also perused the epidemic inquiry report, which mentions that the deaths were due to natural cause, but OP did not produce any affidavit of the concerned Health Officer to prove his contention. We cannot ignore the fact that the death of three innocent patients was due to administration of IV fluids by the OP. There was no proper monitoring or diagnosis in those cases. The OP should have referred those cases to nearest Primary Health Centre or any government hospital, immediately. The OP indulged in misadventure. Therefore, we hold the OP/petitioner negligent. Moreover, OP was not qualified to do the medical profession. There is nothing on record about the qualification, experience of OP in this regard. We put reliance upon the decision by Hon''ble Apex Court in Poonam Verma Vs . Ashwin Patel (1996 (4) SCC 332), wherein it has been held that it is negligence, if an unqualified person treats a patient.

On the basis of foregoing discussion, we dismiss both the revision petitions and direct the OP to comply with the order of State Commission within 90 days from the date of receipt of copy of this order, otherwise, it will carry interest @9% per annum, till its realization.