Dr. Shailender Dhawan vs Digvijay Advocate & 2 Ors

Ram Surat Ram Maurya, Presiding Member

Heard Mr. Subham Bhalla, Advocate, for the petitioner, Mr. Digvijay, Advocate and Ms. Aakriti Goel, Advocate, for respondent-2.

Above revision petition has been filed against the order of State Consumer Disputes Redressal Commission, Haryana, dated 18.01.2018, passed in First Appeal No.784 of 2016 (arising out of the order of District Consumer Disputes Redressal Forum, Faridabad, dated 15.06.2016 passed in CC No.48 of 2013), whereby District Forum has partly allowed the complaint and directed the petitioner (opposite party-1) to pay Rs.500000/- as the compensation and State Commission has dismissed the appeal.

Mr. Digvijay, Advocate (respondent-1) filed CC/48/2013, for a compensation of Rs.20/- lacs from the petitioner, alleging that during his treatment for skin disease from 12.09.2010 to 18.05.2011, the petitioner administered modern allopathic medicines, although he had degree of “Ayurvedacharya” and had no knowledge/qualification of those medicines; due to which another diseases namely “herpes zoster” and “cataract” had developed to him and his condition had become very critical. The complainant stated that Dr. Shailender Dhawan (the petitioner) was running a skin clinic in the name of “Kayakalp Global Skin Clinic”, at Clinic Site No.5, Sector-17, Market, Faridabad, displaying his name as Senior Consultant and qualification as “Ayurvedacharya, B.A.M.S., M.D. (Alt.Med.). The complainant went to the clinic of the petitioner on 12.09.2010 for treatment of his skin disease. The petitioner examined the complainant and informed that he was suffering from “Active Vitiligo”. The petitioner prescribed (i) Leucocure ointment in morning with sun exposure. (ii) Crolim 0.1% (At bed time on face only). (iii) M-1/93 (at bed time on body), 3 weeks continue, 1 week gap. (iv) Cap. Leucocure 1 Cap. in morning after breakfast, 2 after dinner. (v) Tab. Aromaltas 1 tab. in morning after breakfast, 1 after dinner. (vi) Tab. Precorti 5mg., 3 tab. after breakfast, 3 after dinner on Monday and Tuesday only. (vii) Tab. Dicaris 150 mg. 1 tab on Saturday (N) and 1 tab on Sunday (N) only. The petitioner charged Rs.5000/- and asked to take medicines for three months regularly. As per advice, the complainant took above medicines for three months regularly but no relief was experienced. The complainant then again went to the clinic of the petitioner on 17.12.2010. The petitioner charged Rs.5000/- from the complainant and prescribed (i) Tab. Aromaltas, 1 tab in morning after breakfast, 1 tab after dinner. (ii) Tab Precortil 5 mg. 3 tablets after breakfast, 3 after dinner on Monday and Tuesday only (iiii) Tab. Dicaris 150 mg. 1 tab on Saturday (N) and 1 tab on Sunday (N) only. The petitioner again advised to take above medicines continuously for three months. As per advice, the complainant took above medicines for three months regularly but no relief was experienced. The complainant then again went to the clinic of the petitioner on 19.03.2011. The petitioner charged Rs.8000/- from the complainant and recommended for Blood Test for HB, TLC, DLC, ESR, Platelet counts, Blood sugar, Random SGPT. After examination of test report, he prescribed (i) Leucocure ointment in morning with sun exposure. (ii) Tbis 0.1%  forte/Tacroz 0.1% Forte (At bed time on face only). (iii) Momate ointment MTAZ or Cutizone ointment (at bed time on body), 3 weeks continue, 1 week gap. (iv) Cap. Leucocure 1 Cap. in morning after breakfast, 2 after dinner. (v) Tab. Aromaltas 1 tab. in morning after breakfast, 1 after dinner. (vi) Tab. Dicaris 150 mg. 1 tab on Saturday (N) and 1 tab on Sunday (N) only. (vii) Zempherd 16 mg. Monday (M), Tuesday (M). (viii) Vedashave Lotion. (ix) Vedawave Shampoo/Body wash. (x) Snltop Lotion effect for hair loss (N), medicines and again asked to take it for 3 months with some precautions. The complainant was taking medicines regularly as per prescription. In middle of May, 2011 “herpes zoster’ on his both lips, palate, gums and nose right side, cataract in both the eyes with acute weakness were developed, then he consulted with Dr. Manoj Jain, MBBS DVD Md (skin) on 16.05.2011 at his Vardhman Skin Clinic and Cosmetic Laser Centre, who diagnosed the disease “herpes zoster’. Due to poor condition of the complainant, he was admitted at Sehgal Nursing Home, B-364, Meera Bagh, Outer Ring Road, Delhi, on 16.05.2011 and discharged on 20.05.2011, where he was treated by Dr. Manoj Jain in consultation with Dr. Narin Sehgal, MS (Surg). He continuously took medicines till August, 2011 as prescribed by Dr. Manoj Jain. For cataract, the complainant get treatment from Dr. Ritu Goel MBBS, MS (Ophth) and eye surgeon Dr. A.K. Chadha, MBBS DOMS (Ophth), who operated the cataracts. The complainant spent about Rs.1.5 lacs in his treatment with Dr. Manoj Jain and Rs.50000/- in his treatment of cataracts and suffered professional loss of Rs.5/- lacs during this period. Due to wrong prescription of medicines by the petitioner the complainant faced hazardous condition and threat to his life has been created. The petitioner was “Ayurvedacharya” and did not have knowledge and experience of allopathic medicines.

The petitioner filed his written version in the complaint and contested the case. The petitioner stated that the complainant approached him on 12.09.2010 with problem of vitiligo, which was in spreading mode. After examination, the petitioner started oral mini pulse therapy in steroid giving two days steroids with break of five days. The dose of medicine was fully explained to the complainant, total cost of treatment was Rs.3200/- for three months including the consultation fees. It has been denied that Rs.5000/- or Rs.8000/- was charged. So far as herpes zoster infection is concerned, it occurs in a person who is previously infected with chicken pox. The virus used to remain in the nervous ganglion in dormant form, it used to reactivates during immune deficiency, diabetes, stress etc. and transforms as Herpes Zoster. Even long term steroid therapy can give herpes zoster, but with oral mini pulse that means that if doctor gives steroid for two days in a week, then risk of spreading herpes zoster is rare. The allegation of development of cataract due to wrong medication is concerned; it is very rare possibility with oral mini pulse in young age. The patient visited the clinic and was very depressed due to spread of vitiligo disease. White patches on face are psychologically very depressing for the patient. So taking into account of the disease, he was given steroids for nine months which is guidelines in the article of Indian Institute of Medical Science dated 19.03.2011. The blood test HB, TIC, DIC and blood sugar were checked and found to be normal. The petitioner has not committed any negligence in treatment of the complainant. So far as prescribing allopathic medicines is concerned, the petitioner was B.A.M.S. degree holder and entitled to practice in Allopathic System of Medicines/Modern Science. The complaint has been filed on wrong premises and is liable to be dismissed.

District Consumer Disputes Redressal Forum, Faridabad, after hearing the parties, by the impugned order dated 15.06.2016 held that as the petitioner was having B.A.M.S. degree and he was not qualified to prescribe Allopathic Medicines. On these grounds, the complaint was partly allowed and the petitioner was directed to pay lump sum compensation of Rs.500000/- to the complainant. The petitioner challenged the aforesaid order in FA/784/2016. State Consumer Disputes Redressal Commission, Haryana, dismissed the appeal by the order dated 18.01.2018.  Hence, the revision has been filed.

The counsel for the petitioner relied upon the Notification dated 08.04.2002 issued by Director General Health Services, Haryana in which it has been mentioned that degree holders of Ayurvedacharya (BAMS)/Kamil-e-tib-o-Jarahat (BUMS) and the equivalent qualification including in second schedule to Indian Medicines Central Council Act, 1970 are competent to use modern technology for e.g. Radiology, Ultrasonography, E.C.G. etc. in their clinical practice on the basis of their teachings and training as notified already by Central Council of Indian Medicine Notification No.8-5/97-Ay(MM) dated 31.10.1996.  He further relied upon the Notification of Commissioner & Secretary, Health, Medical Education Ayurveda (ISM) Department, Government of Haryana, dated 12.04.2004 in which it has been mentioned that institutionalized qualified practitioner of Indian System of Indian Medicine (Ayurveda, Siddha & Unani) are eligible to practice Indian Systems of Indian Medicine and Modern Medicine including surgery, Gynaecology and obstetrics based on their training and teaching which are included in the syllabi-of via course of ISM prescribed by Central Council of Indian Medicine after approval of the Government of India. He has further relied upon the Notification dated 22.04.2008 issued by Ministry of Health & Family Welfare, Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy (AYUSH), Government of India dated 22.04.2008 to the same effect. He further relying upon the judgment of Supreme Court in Martin F D’Souza Vs. Mohd. Ishaq, (2009) 3 SCC 1, submitted that for filing a complaint of medical negligence an expert opinion is mandatory. In the present case, no expert opinion was filed, as such, the complaint ought to have been dismissed on this ground alone. He submits that orders of District Forum and State Commission are passed in ignorance of above notifications and liable to be set aside.

I have considered the arguments of the counsel for the parties and examined the record. Supreme Court in a subsequent judgment in V. Kishan Rao Vs. Nikhil Super speciality Hospital and another, (2010) 5 SCC 513, has not accepted the earlier view in Martin F D’Souza Vs. Mohd. Ishaq, (2009) 3 SCC 1 and held that imposing a condition for obtaining an expert opinion for filing a complaint before the Consumer Fora is not required and will defeat or dilute the legislative intent of Consumer Protection Act, 1986.

Law regarding use of allopathic modern medicines by a practitioner of Indian system of Indian medicine (Ayurveda, Siddha & Unani) has been clarified by Supreme Court in Dr. Mukhtiar Chand and Others Vs. State of Punjab and Others, (1998) 7 SCC 579, in which, in paragraph 47 of the judgment, Supreme Court held that a harmonious reading of Section 15 of Medical Council Act, 1956 and Section 17 of Indian Medicine Central Council Act, 1970 leads to the conclusion that there is no scope for a person enrolled in the State Register of Indian Medicine or the Central Register of Indian Medicine to practise modern scientific medicine in any of the branch unless that person is also enrolled on a State Medical Register, within the meaning of 1956 Act.

Therefore, it is clear what is required is not the qualification in Modern Scientific System of Medicine, but a declaration of State Government that person is practicing Modern Scientific System that he is registered  in the Medical Register of that State. The petitioner has filed his Registration Certificate as Annexure-4 to this Revision Petition. A perusal of which shows that the registration of the petitioner was under Punjab Ayurvedic  & Unani Chikkitsha Adhiniyam, 1963.  The petitioner was not registered under the provision of Indian Medical Council Act, 1956. For professional practice, registration by the expert body constituted for that purpose is a prerequisite condition. Although the notifications issued by the Government of India or Government of Haryana a person who is eligible to practice Indian system of Indian medicine, can use allopathic modern medicines on the basis of his learning and training and can be enrolled under Indian Medical Council Act, 1956, but so long as he is not enrolled under Medical Council Act, 1956 he is not entitled to practice in modern medicine. The impugned orders of District Forum and State Commission do not suffer from any illegality.

ORDER

The Revision Petition has no merit and it is dismissed.