Umed Singh Berwal vs SRIPAL

THIS appeal has been filed under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as Act 1986) against the order dated 10.6.2002 passed by the District Consumer Disputes Redressal Forum, Hissar whereby while accepting the complaint filed by Sripal -complainant against the appellant -opposite party, a compensation amount of Rs. 25,000 has been awarded to the complainant along with interest @ 18% per annum with costs of Rs. 1,000, which the appellant is liable to pay within a period of 30 days from the date of order.

THE facts needs to be focussed briefly in order to settle the controversy raised in the present appeal. On 3.11.1996 the complainant felt pain in the back of his body. Thereafter in the company of his brother Ramesh Kumar, he visited the clinic of the appellant located in the village. The appellant had administered the injection in the vein of his left arm. He further assured the complainant that the pain would subside but the complainant continued to suffer from pain. During the night, the complainant again suffered severe pain in his body for which he approached the appellant and informed about it. The complainant also noticed that the nails of the fingers of his left hand had turned bluish. The appellant suggested to him that he should wash his left hand with hot water mixed with salt but the suggested treatment brought no improvement. His condition became serious. Thereafter, he was rushed to Civil Hospital, Hansi and got treatment from Dr. Kuldeep Singh, who referred the case of the complainant to Medical College, Rohtak. The complainant also took the advice from Gigal Devi Charitable Hospital, Hansi and the doctors of that hospital also suggested to the complainant to get the treatment at Rohtak Hospital. On 5.11.1996, he was taken to P.G.I.M.S. Hospital, Rohtak and was admitted. On 6.11.1996 the appellant visited the complainant in the hospital and assured him that he would bear the expenses of his treatment and also paid Rs. 1,800 to him. The complainant remained in the hospital upto 24.11.1996. During this period, the complainant had spent Rs. 15,000 on his treatment at P.G.I.M.S., Rohtak. Thereafter, the complainant continued to get treatment and had to incur another expenditure of Rs. 5,000 as he had to visit Rohtak for regular checkup. He has suffered disability of his left hand because of the injection administered by the appellant. It effected his earning capacity. He has also to support his blind father and mother, who is suffering from asthma. The complainant has also visited the Soni Nursing Home, Hissar for advice where Dr. Soni told him that he has to undergo amputation of his little, ring and middle fingers and artificial fingers would cost him Rs. 50,000. Under these circumstances, the complainant instituted the present complaint seeking compensation amount of Rs. 2 lacs on account of negligence and careless treatment given to him by the appellant and also sought direction to pay Rs. 50,000 for further treatment to be obtained by him. The opposite party contested the claim of the complainant. In the written statement filed, it was pleaded by him that he had never treated the complainant and for that reason he has no knowledge about the illness suffered by the complainant. He further denied that he ever visited the complainant in the Medical College, Rohtak and the story has been put up by the complainant to harass the appellant. Accordingly, prayed that the complaint be dismissed and he be awarded Rs. 10,000 as cost.

THE District Forum on the basis of the pleadings of the parties and evidence adduced on record accepted the complaint and vide order dated 10.6.2002 awarded the compensation noticed earlier. Aggrieved by the said order the present appeal has been filed by the appellant.

WE have heard the learned Counsel representing the appellant at length. None has put in appearance on behalf of the respondent. During the pendency of the complaint, the complainant had produced prescription slip, which according to him was prescribed by the appellant. The complainant has also produced treatment record from P.G.I.M.S. Rohtak, where he remained admitted from 5.11.1996 to 24.11.1996. This record reveals that three fingers of the complainant have been amputated and disability has been determined to the extent of 20% by the General Hospital, Hissar. The learned Counsel for the appellant has submitted that the complainant has not examined any doctor or produced any affidavit of the treating doctor to support the stand taken in the complaint. It was also contended by the learned Counsel for the appellant that no record of the Civil Hospital Hansi or any affidavit of Dr. Kuldeep Singh, M.O. Civil Hospital, Hansi to establish that the complainant was taken to the said hospital, has been produced on record. He has also submitted that according to the complainant he had taken advice from Gigal Devi Charitable Hospital, Hansi, from where the complainant was advised to be taken to P.G.I.M.S. Rohtak. But no record pertaining to the said hospital has been placed on record. He maintained that a cooked up story has been built up by the complainant in order to fasten the liability on the appellant who had never given any treatment to the complainant and even administered any injection to him. It was also submitted by him that the District Forum has not taken into consideration all these aspects and had travelled beyond the evidence on record and made sweeping observations which warrant rejection outrightly. In order to appreciate the submissions made, we may refer to the observation made by the District Forum in the last para of its order, which reads as under: ''The respondent has failed to prove his innocence in the present complaint. Now -a -days it is a routine practice in small villages that some jholla -chhap so -called doctor drag innocent people in their trap with greed and loot them and they have not any prescribed licence from any authorities and the poor villagers have no option but to take treatment from them in the prevailing and compelling circums -tances.''

OBVIOUSLY , there was no occasion for the District Forum to make the above observation because no such material has been placed before the District Forum. No doubt, affidavit of Vijay Kumar besides the affidavit of the complainant, has been taken into consideration, which would only show that the appellant had administered injection to him on 3.11.1996. But the assertion made in their affidavits have been countered by the appellant. Mere production of prescription slip and treatment record of the Medical College, Rohtak, would not be sufficient to establish negligence on the part of the appellant, in administering injection to the complainant as maintained by him. It is well settled that the burden is upon the party accusing a doctor of professional negligence or deficiency in service. In fact, there is no evidence on record as to what type of injection was given to the complainant. There is no evidence to establish as to what drug was administered to him through injection. There is no evidence of expert either that of medical practitioner or a pharmacist to indicate that the drug, which was administered to him through injection, had any adverse effect on the body of the complainant. The complainant was duty -bound to establish that his amputation of three fingers is directly the result of the injection administered to him by the appellant. Therefore, on the basis of evidence adduced on record, it is not established that there is any negligence whatsoever in administering the injection to the complainant, even if his version is accepted despite the denial of the appellant.

IT is clear from the impugned order that above stated circumstances have not been given due consideration and for that reason, the order under appeal cannot be sustained and same is accordingly set aside. For the aforesaid reasons, we accept the appeal and dismiss the complaint. Appeal allowed. -