TMT. PANJALI vs S.JAMUNA LOKANATHAN

THIRU Justice E.J. Bellie, President-The 1st complainant is the wife of the 2nd complainant. On 22.10.1994 the 1st complainant developed pain in the stomach. Since the opposite party was running a clinic nearby the residence of the complainant, the 1st complainant approached the opposite party immediately for treatment. Now it is the case of the complainants that the opposite party told the 1st complainant that she was at the stage of 2 months of pregnancy and that had to be terminated to get relief of the pain in the stomach. The 1st complainant was not aware of the fact that the opposite party was not a qualified Doctor but was only a Para Medical Personnel and that she did not have either the knowledge or the equipments necessary to terminate a pregnancy. The 1st complainant surrendered herself to the dictates of the opposite party. After 3 hours bed rest at the clinic the opposite party discharged the 1st complainant stating that the exercise of termination of pregnancy was over. The complainant paid a sum of Rs. 300/- as fees to the opposite party. After returning to her house, the 1st complainant started excruciating pain in the abdomen and she was not able either to eat anything or even to pass urine. When her husband went to the clinic of the opposite party and explained that she was profusely bleeding and that she was literally going through hell, the opposite party cajoled him that for 3 days the condition of the 1st complainant would continue to be so. However, as requested by the 2nd complainant the opposite party prescribed some medicines which was administered. The condition of the 1st complainant grew worse day by day. The 1st complainant went to one Dr. Indira Chowdappa at Pallavaram and at the suggestion of that Doctor ultra sound scan was taken on 28.10.1994. On seeing the scan report that Doctor told the complainants that : the uterus and intestines had been badly damaged due to the mis-management of the opposite party and that an emergent operation had to be performed on the 1st complainant. The 1st complainant got admitted in Raju Hospitals on 31.10.1994. On 1.11.1994 an emergency operation was performed and her uterus and a portion of the damaged intestine were removed. For this the complainant had incurred a total expenditure of Rs. 33,000/-. The 1st complainant has not yet come back to her original state of health. A police report was given against the opposite party but it was of no avail. A legal notice also was sent to the opposite party but there was no response. It was because of the deficiency in service on the part of the opposite party the complainant suffered physically and financially. On these grounds the complaint has been filed for payment of Rs. 33,000/- being the expenses incurred by the complainants on account of the deficiency in service on the part of the opposite party and also a sum of Rs. 5,00,000/- as compensation for physical and mental pain.

THE opposite party in her written version contends that she is a Private Medical Practitioner (P.M.P.) in the modern allopathic system of medicine covered by the Proceedings- No. V.11016/3/82-ME(P) dated 8.7.1986 of the Government of India, Ministry of Health and Family Welfare, Department of Health, New Delhi. THE opposite party is also a member of the Private Medical Practitioners Association of India (Regd.), Tamil Nadu Branch under Certificate No. 2500 dated 26.9.1990, and as on date, has about 11 years of experience in the said field. It is then contended that the 1st complainant came to the opposite party on 21.10.1994 with the complaint of stomach pain and the opposite party prescribed certain medicines including an injection for the said pain. But at no point of time the opposite party said anything about pregnancy or its termination. The opposite party acted well within her limits and no termination of her pregnancy whatsoever was performed by her. The opposite party had only prescribed medicine in the normal course of the treatment of the 1st complainant for stomach pain. Since the police had not taken any action upon the complaint given by the complainants she had not chosen to send any reply to the legal notice.

The point that arises for consideration is whether there was any deficiency in service on the part of the opposite party and if so what relief can be granted to the complainants.

POINT : The allegation of the complainant that the opposite party was not a qualified Medical Practitioner but she was having a clinic calling herself as a Para Medical Personnel is not in dispute. The case of the complainants is that on 22.10.1994 the 1st complainant went to the opposite party for treatment for stomach pain; the opposite party told her that she was at the stage of 2 months of pregnancy and that had to be terminated to get relief of the pain; and the complainant surrendered herself to the dictates of the opposite party and after 3 hours of bed rest in the clinic the opposite party discharged the 1st complainant stating that the exercise of termination of pregnancy was over. The definite case of the opposite party is that she had only prescribed medicine and injection for stomach pain complained of by the 1st complainant and she never said that the 1st complainant was pregnant and nor did she do any operation of termination of pregnancy. It is interesting to note here that the complainants have never said in the complaint that the 1st complainant was operated upon, but they would only state that the opposite party after 3 hours of bed rest told her that the exercise of termination of pregnancy was over. It is further according to the complainants that they were not aware that the 1st complainant was pregnant at all. Even from these pleadings it would appear difficult to believe that the opposite party did any operation. According to the complainants the Doctors in the Raju Hospital where she was operated upon on 1.11.1994 told her that even without any symptom of pregnancy the opposite party had chosen to perform the exercise of termination of pregnancy. But no Doctor of that Raju Hospital has been examined. According to the complainants, earlier on 28.10.1994 they went to one Dr. Indira Chowdappa at Pallavaram and on her suggestion an Ultra Sound Scan was taken, and on seeing the report of the scan centre that Doctor told the complainants that the uterus and the intestine had been badly damaged due to mis-management of the opposite party and that an emergent operation had to be performed. Even this Doctor Indira Chowdappa has not been examined. The 1st complainant examined herself as P.W. 1 and the opposite party examined herself as R.W. 1. While according to the complainants, the 1st complainant went to the opposite party on 22.10.1994 for stomach pain, the opposite party would contend that the 1st complainant came to her for stomach pain even on 21.10.1994. The date given by the opposite party appears to be true even from the prescriptions given by the opposite party which had been filed by the complainants themselves. Of those prescriptions which have been marked as Ex. A1 series two of them clearly bear the date 21.10.1994. Therefore, even with regard to the date of the treatment, for the reason best known to themselves, they do not come forth with true facts. The opposite party in her evidence has stated that for stomach pain she had given injection and prescribed medicines for skin irritation. She had even mentioned the names of the medicines she had prescribed and she has also stated which one of those medicines she prescribed for which one of the complainants. She unequivocally repudiated the suggestion that she had given the injection and prescribed medicines only for termination of pregnancy. As against this assertive evidence of the opposite party, as stated supra the complainants have not examined either Dr. Indira Chowdappa, who according to the complainants had stated that the Uterus and Intestine of the 1st complainant had been badly damaged due to the mismanagement of the opposite party or any of the Doctors from Raju Hospital, who according to the complainants had told them that without any symptom of pregnancy the opposite party had chosen to perform the exercise of termination of pregnancy. The complainants have filed Ex. A2 as Ultra Sound Scan Report, Ex. A3 as prescriptions, Ex. A4 as Report, and Ex. A5 as Certificate issued by Raju Hospitals, Ex. A6 as his to Pathology Report issued by Dr. Mallikarjun, Ex. A7 as Discharge Summary issued by the Raju Hospitals, Ex. A8 series as receipts issued by Raju Hospitals Private Limited, and also Exs. A9 series as cash bills issued by the various pharmacies. But as stated above Dr. Indira Chowdappa has not been examined nor any Doctor from Raju Hospitals has been examined. No reason therefore has been given and similarly no one has been examined to prove the issuance of the said cash bills and receipts. Unless these documents are proved by the persons who are said to have issued them and the opposite party is given an opportunity to cross examine them, no credibility can be given to them. Thus considering, we find that the allegation that the opposite party had performed the operation of pregnancy termination and on account of that the complainant suffered stands unproved. It is stated that the complainants sent a legal notice Ex. A13 dated 17.12.1994 to the opposite party and to that there was no reply. But before then the complainants had given a Police Report Ex. A11 dated 12.12.1994 and nothing had happened on that. The opposite party states that because there was no action against her on the Police Report, she thought that no reply need be sent to the Legal Notice. This explanation given by opposite party cannot be said to be irrelevant or far-fetched. Even otherwise sending a legal notice and not replying for that alone will not prove the case of the complainant. It is then pleaded on behalf of the complainants that admittedly the opposite party was not a qualified Medical Practitioner, but she had called herself as Private Medical Practitioner and had a Clinic and admittedly she had given injections and prescriptions, and this would itself show that there was deficiency in service on the part of the opposite party. But it has not been proved by the complainants by letting in any contra evidence while the opposite party as RW 1 has categorically stated that the injections and medicines were given by her for stomach pain, that the said injections and medicines could not have been given for stomach pain but should have been given for operation stating that there was pregnancy, and on account of that the complainants had suffered. Therefore there is no question of deficiency in service on the part of the opposite party and there is no question of the opposite party being liable to pay any compensation. The learned Counsel appearing for the complainant cited a decision of the Supreme Court in Poonam Verma v. Ashwin Patel & Ors., II (1996) CPJ 1 (SC), and argued that s per that decision a person practising in a system of medicine of which he had no knowledge itself is per se negligence. In that case a patient went to a Homoeopathic Doctor but that Doctor gave the patient Allopathic treatment and on account of that Allopathic treatment the patient died. It was held that a Homoeopathic Doctor giving an Allopathic treatment without knowledge in that system was per se negligence. But in our case (we have definitely found above that the complainants failed to prove that the treatment given by the opposite party was wrong and on account of that the complainants suffered. Therefore, the said Supreme Court judgment will be of no assistance to the complainants.

IN the result, therefore, the complaint is dismissed. However, there will be no order as to costs. DISSENTING ORDER Pulavar V.S. Kandasamy, Member-I am sorry that I do not agree with the majority order. 9. The facts of this case, in general, are given in the majority order. 10. Briefly, the case of the complainants, who are the wife and husband, is that they went to the opposite party for getting treatment for the stomach pain of the 1st complainant. The opposite party is stated to be Dr. Mrs. Jamuna Loganathan, and she has been running a clinic by name Swathi Clinic. 11. After examining the 1st complainant, the opposite party observed that the 1st complainant was pregnant for two months and her pregnancy had to be terminated to get rid of the pain in her stomach. For this purpose, the opposite party gave treatment to the 1st complainant for the termination of pregnancy and the opposite party also prescribed a number of scheduled allopathic drugs, including broad spectrum of anti-biotic and also administered STYPTOCHROME INjection. The opposite party received payment from the complainants for the treatment given to the 1st complainant. 12. After the treatment was given by the opposite party, the 1st complainant started bleeding and-experienced excruciating pain. When the opposite party was informed subsequently of the continuous bleeding and pain to the 1st complainant, the opposite party simply stated that it would be like that only for a few days and then it would become alright. The opposite party again prescribed allopathic drugs, strong anti-biotic and administered the same injection which was given earlier to the 1st complainant. 13. Unable to bear the excessive pain and finding that the bleeding did not stop by the medicines, and injections given by the opposite party the complainants approached Dr. INdira Chowdappa on 28.10.1994 and, on her suggestion, an ultra sound scan was taken. The Ultra Sound Scan report revealed that the 1st complainant''s uterus was ruptured and a portion other intestine also was damaged due to the treatment given earlier by the opposite party, resulting in profuse bleeding and pain. Hence, an emergency operation was performed in Raju Hospitals on 1.11.1994 on the 1st complainant and the ruptured uterus and a part of her damaged intestine were removed to save her life. For this, the complainants had incurred an expenditure of Rs. 33,000/-. On account of this, the complainant had suffered permanent physical injury and mental agony and financial loss in addition to the fact that her health condition had been impaired. The complainants have, therefore, filed this complaint, seeking directions to the opposite party to pay a sum of Rs. 33,000/- being the expenses incurred for an emergency operation in the Raju Hospitals, for purchase of the medicines and for taking ultra sound scan. A sum of Rs. 5,00,000/- is claimed as compensation for the rupture of the uterus, and damage to a part of her intestines. IN support of their case and claim, documentary evidence have been filed as Exs. A4 to A14. 14. The opposite party has claimed that she prescribed Allopathic medicines and administered injections, mentioned by the complainants and she did not attempt termination of pregnancy and so she resisted the claim of the complainants. 15. The question for consideration is whether the opposite party has committed deficiency in service and whether the complainants are entitled for compensation. 16. It is conceded that the opposite party has not studied Allopathy and she has not pursued the prescribed course in Allopathy and has not obtained any degree or diploma in Allopathy from any recognised Medical College. Thus, she does not possess the requisite qualification and she is not enrolled as a Medical Practitioner on State Medical Register. Therefore, she was under statutory duty not to enter the field of medicine, as admittedly, she was not qualified in any system of medicine. 17. Even so, she has been practising Allopathic medicine at her will and pleasure by putting up the name board as shown below : Dr. Mrs. S. JAMUNA LOKANATHAN, P.M.P. Regd. No. 2500 SWATHI CLINIC. The so called Regd. No. 2500 in no way connected with her Registration as Medical Practitioner. It is only a device to lure the unsophisticated and ignorant public. IN the course of her oral testimony, the opposite party conceded that she had studied only upto S.S.L.C. and she is not even a Para Medical Personnal. 18. Right to practise in Allopathic System of Medicine is regulated by the INdian Medical Council Act, 1956. Section 15 of this Act has provided that any person possessing any of the qualifications mentioned in the Schedule appended to the Act, may apply for the registration of his name. Sub-sections (2) and (3) of Section 15, which are extremely relevant, are quoted below : "15(2), Save as provided in Section 25, no person other than a Medical Practitioner enrolled on a State Medical Register- (a) shall hold office as Physician or Surgeon or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority; (b) shall practise medicine in any State; (c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed by or authenticated by a duly qualified Medical Practitioner; (d) shall be-entitled to give evidence at any inquest or in any Court of law as an expert under Section 45 of INdian Evidence Act, 1872 on any matter relating to medicine. (3) Any person who acts in contravention of any provision of Sub-section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both." 19. As the opposite party was not qualified and registered as a Medical Practitioner under any system of medicine and as she was under a statutory duty not to enter the field of medicine, she transgressed into the prohibited field and is liable to be prosecuted under Section 15(3) of the INdian Medical Council Act, 1956, which is reproduced above. The opposite party''s conduct amounted to actionable negligence, as indicated by the Supreme Court in Dr. Laxman Balakrishna Joshi v. Dr. Trimpak Babu Godbole & Anr., AIR 1969 SC 128. Further, the Supreme Court has observed in the case-of Poonam Verma v. Ashwin Patel & Ors., (supra), as under : "A person who has not studied a particular system of medicine and has not qualified in that system but practices in that system is a Quack and a mere pretender to medical knowledge or skill, or to put it differently, a Charlatan" (para 41) The Supreme Court in the same case has held as under : "Where a person is guilty of negligence per se, no further proof is needed." (para 42 ibid) 20. IN the case on hand, the material available on record and the oral testimony recorded make it abundantly clear that the opposite party was practising Allopathic System of Medicine and she administered Allopathic medicines and injections to the 1st complainant. The fact that the opposite party administered scheduled drugs of Allopathic system and administered Allopathic injections such as GARAMYCIN, RIOSTEP, PAYOTIN SOLUTION, STYPTOCHROME INJECTION etc., is part of the record and this fact is conceded by the opposite party herself. 21. IN the course of her oral testimony, the 1st complainant has stated that the opposite party had inserted her hand inside her vagina in the course of testing for the termination of the pregnancy. The crude method adopted by the opposite party to terminate the imaginary pregnancy and the strong Allopathic scheduled drugs and injections administered by the opposite party has resulted in the rupture of the uterus and a part of the intestine of the complainant. This has been revealed by the report of ultra sound scan which was taken immediately after the complainant went to Dr. INdira Chowdappa. 22. It is not in dispute that unable to bear the severe pain in her abdomen and afraid of the continued bleeding the 1st complainant went straight to Dr. INdira Chowdappa for consultation immediately after she was treated by the opposite party. On the suggestion of Dr. INdira Chowdappa, ultra sound scan (Ex. A2) was taken immediately and it revealed rupture of the uterus and damage of a part of the intestine of the complainant due to treatment given to the complainant by the opposite party. IN view of the foregoing, the one and only inescapable conclusion is that the rupture of the uterus and damage of part of the intestine was due to the treatment given by the opposite party to the complainant. It is not the case of the opposite party that the complainant herself had got her uterus ruptured and damaged a part of her intestine for the sake of filing complaint against the opposite party. That would be far-fetched and adding insult to injury. 23. Admittedly, the veracity of the ultra sound scan report (Ex. A2) is not questioned. Similarly, there is nothing to doubt about the bona fide nature of the Report, certificate prescriptions, discharge summary issued by the Raju Hospitals (Exs. A4, A5, A6 and A7). They are the bare statements of facts and they reveal the obvious. When no mala fide is attributed to these reports and Discharge Summary, there is no need to examine the Doctors concerned. The National Commission has consistently held that in the proceedings before the Consumer FORA, hyperbole technicalities should be avoided. 24. IN this connection, it is pertinent to mention that in the legal notice dated 17.12.1994 (Ex. A13), sent to the opposite party on behalf of the complainant, by Registered Post, the entire events in detail, including the emergency treatment undergone by the complainant in the Raju Hospitals were narrated and the opposite party was called upon inter alia to pay a sum of Rs. 33,000/- as expenditure incurred by the complainant for the treatment given in the Raju Hospitals, failing which legal action would be taken for the redressal of grievances. The said legal notice was served on the opposite party (Ex. A14). The opposite party failed to send any reply to the legal notice. This leads to the inescapable and adverse conclusion against the opposite party. The only possible inference is that the opposite party had nothing controvert the contents of the legal notice. 25. IN the light of the above discussion, it is abundantly clear that the opposite party was not qualified or authorised to practice the Allopathic System of Medicine and her lack of adequate expertise in the Allopathic System of Medicine was responsible for the deficiency, remisness and lack of due care in the treatment given by her to the complainant, resulting in the rupture of the uterus and damage of a part of the intestine. But for the timely medical attendance and an emergency operation conducted in the Raju Hospitals for the removal of the ruptured uterus and damaged intestine, the 1st complainant would have met with her tragic end. 26. It is a widely recognised preposition of law that a person will be guilty of negligence, if he/she undertakes a task which he/she knows or ought to know that he/she is not qualified to perform it. IN this view of the matter, the opposite party had acted rashly, recklessly and with culpable negligence. The consequence must, therefore, lie squarely on her shoulders. 27. The complainant has suffered rupture and removal of her uterus rendering her sterile for life. This is a permanent injury of grave character. A part of her damaged intestine has also been removed causing another permanent injury. IN the case of Smt. R. Lalitha v. M. Jeeva, reported in IX-1992 (2) CPR 409, the State Consumer Disputes Redressal Commission, Tamil Nadu, has stated as under : "It is well settled that the injury itself is one of the heads of damages it involves impairment of bodily integrity. IN Wise v. Kaye, 1962-1-A11-EE-257, seller Lord Justice observed thus : "The first element is the physical injury itself... The physical injury itself has always been a head of claim which justified and required in law, an award of damages according to the extent of gravity and duration of injury." 28. IN West v. Shephard, 1963-2 All-EE-625-H.C., the House of Lords pointed out : "The practice of Courts hitherto has been to treat the bodily injury as a deprivation which in itself entitles the plaintiff to substantiate damages according to his gravity." 29. For the reasons stated above, I am of the positive opinion that the opposite party, having practised in Allopathy, without being qualified in that system, was guilty of negligence per se and, therefore, the complaint against her has to be allowed in consonance with the maxim Sic Were tuout alienum non loed as (a person is held liable at law for the consequences of his/her negligence) and in the light of the ratio laid down by the Supreme Court in the case of Poonam Verma v. Ashwin Patel & Ors. (supra). 30. The 1st complainant, who is young, has suffered rupture and removal of her uterus, rendering her sterile for life. This is a permanent injury of grave character. A part of her intestine has also been-damaged and had to be removed and this is another permanent injury. The complainants are entitled under law to be compensated not only for these physical injuries but also for the mental agony. I am inclined to award a sum of Rs. 1,00,000/- as compensation under this head. The opposite party should also pay to the complainants a sum of Rs. 33,000/- being the expenditure incurred by the complainants for the treatment given to the 1st complainant in the Raju Hospitals to save her from the jaws of death. A sum of Rs. 2,000/- is allowed as costs. Time for payment two months. 31. A copy of this order shall be sent to the Medical Council of INdia, constituted under the INdian Medical Council Act, 1956, as also the State Medical Council to consider the feasibility of initiating appropriate action against the opposite party under Section 15(3) of the INdian Medical Council Act, 1956, for her having practised in Allopathic System of Medicine without being registered with the Medical Council of INdia or the State Medical Council, as also without possessing the requisite qualifications. 32. A copy of this order shall be sent also to the Commissioner of Police, Chennai, to enquire and find out as to why no action was taken on the police complaint lodged by the complainants before the Sub-INspector of Police, Shankar Nagar Police Station, Pammal, Chennai-75, on 12.12.1994 and also to take appropriate action against the police personnel concerned for the lapse, if any, on their part to take action against the opposite party for the blatant violation of law. A copy of the complaint filed by the complainants, before this Commission, shall also be sent to the Commissioner of Police, alongwith a copy of this order. Complaint dismissed.