V.SATISH KANNIAH vs MS. VIJAYALAXMI M.SULTANPURI

This revision is directed against the order of the State Commission Karnataka dated 05.01.2007 whereby the State Commission allowed the appeal preferred by the respondent complainant, set aside the order of the District Forum and ordered as under: "14. In the result, we pass the following order:

(1) The appeal is allowed. The impugned order is set aside.

(2) The complaint filed by the complainant before the District Forum is allowed in part.

(3) The OP is directed to pay Rs.25,000/- to the complainant within two months from today. In the event if the OP fails to pay the said amount to the complainant within the stipulated period as directed above, the OP shall be liable to pay interest at 12% per annum on the said amount from the date of complaint filed before the District Forum till the date of realisation.

(4) The OP is also directed to pay Rs.2000/- to the complainant towards the costs of these proceedings."

Briefly put the facts relevant for the disposal of the revision petition are that respondent filed a consumer complaint in the District Forum alleging that in September 2000, the complainant approached the opposite party for treatment with complaint of fever. The opposite party prescribed medicine but the fever persisted. The opposite party, therefore, changed the medicine and prescribed lyrocin, ciptotex, licoplex tablets and tone up tonic. It is the case of the complainant that after taking the medicines prescribed by the opposite party, she had an allergic reaction and developed redness and swelling of lips followed by rashes on palm etc. As a consequence, the complainant had to take treatment from Sushruta Nursing Home, Dharwad. According to the complainant, the complication arose due to negligence of the petitioner opposite party.

The petitioner opposite party resisted the complaint. In the written statement, the petitioner pleaded that he is neither a doctor nor he has treated or prescribed any medicine to the complainant. The complaint has been filed with a view to harass the petitioner because the brother of the petitioner declined to sell his house to the father of the complainant.

The District Forum on consideration of the pleadings and evidence did not find merit in the complaint. The complaint was accordingly dismissed.

Being aggrieved of the order of the District Forum, the complainant preferred an appeal and the State Commission vide impugned order came to the conclusion that complainant despite being not even competent to prescribe homeopathy medicines, treated and prescribed medicines to the complainant, which amounts to medical negligence. The State Commission thus set aside the order of the District Forum and allowed the complaint and directed as above.

Learned counsel for the petitioner has contended that impugned order of the State Commission has been passed in utter disregard to the evidence produced by the parties. It is argued that State Commission has failed to appreciate that petitioner is not a doctor nor he is a practicing medicine. There is no evidence on record to prove that petitioner treated the respondent or prescribed any medicine to him. It is further contended that State Commission has failed to appreciate the plea of the complainant that she suffered allergy is also unsubstantiated for the reason that neither the doctor who allegedly treated the complainant for allergy has been examined nor any record of treatment of the complainant at Sushruta Nursing Home is produced. The petitioner has relied upon the judgment of Supreme Court in the matter of Malay kumar Ganguly V. Sukumar Mukherjee and Ors. AIR 2010 SC 1162.

Shri S.K.Sharma, Advocate for the respondent on the contrary has argued in support of the impugned order.

The question which requires consideration in this revision petition is whether or not the petitioner was practicing medicine at the relevant time? In this regard, it is relevant to note that alongwith list of documents dated 24.05.2007, the petitioner has filed translated copies of affidavits of Virupaxi s/o Ningappa Hadpad and Basavraj s/o Mallappa Chandanmatti. The above noted persons in their affidavits have categorically stated that the petitioner Dr. Satish is running a dispensary and people from surrounding village go to consult the petitioner. From the aforesaid affidavits, it is amply proved on record that petitioner is a practicing medicine and running

dispensary at Jaynagar, Dharwad. It is admitted case of the petitioner that he is not a qualified doctor. Thus, it is clear that petitioner is a quack and has been practicing medicine. The copy of the affidavit of the complainant is also available on record. On perusal of the affidavit, it is evident that complainant has fully supported the allegations in the complaint. Thus, it is proved on record that petitioner despite being not qualified, treated and prescribed allopathic medicines to the complainant as a result of which the complainant suffered allergy. The aforesaid act of the complainant obviously can be termed as medical negligence amounting to deficiency in service. Therefore, I do not find any fault with the order of the State Commission allowing the appeal against the dismissal of complaint and awarding compensation to the tune of Rs.25,000/- to the complainant besides litigation cost of Rs.2000/-. The judgment relied upon by the petitioner is based upon its peculiar facts and is not applicable to the facts of this case.

In view of the discussion above, petitioner has failed to show any material irregularity or jurisdictional error in the impugned order which may call for interference in exercise of revisional jurisdiction. Revision petition is, therefore, dismissed.