Inderjeet vs Raj Bahadur Singh

V.K. Jain, J

The case of the petitioner/complainant is that his daughter, late Renu, aged about 2 ½ years at the relevant time suffered from cough, cold and fever and was taken to the respondent for treatment. The respondent gave two doses of medicine to the child. Since her condition deteriorated, she was again taken to the respondent who administered an injection to the child and again gave two doses of medicine to her. However, the condition of the child deteriorated further and she expired on the same day. She was taken to LNJP Hospital where she was declared dead. An FIR at the concerned Police Station was lodged under Section 304A of IPC on the same day. A Post Mortem on the dead body of the child was conducted on 27.2.2011. The Post Mortem report which is available on page 137 of the paper-book, would show that injection mark was found on her body. The Viscera of the child was preserved and sent to the laboratory for chemical examination. The chemical examination of Viscera confirmed that Gentamycin injection had been administered to the child and that she being hyper sensitive to Gentamycin, had died on account of the said reaction.

The complainant/petitioner who is the father of the child approached the concerned District Forum by way of a consumer complaint seeking compensation to the extent of Rs.9 lakhs alongwith damages.

The complaint was resisted by the respondent who in his written version flatly denied having given any medicine to the child. He categorically stated in the written version filed by him that neither the complainant nor his wife or any family member had ever visited his clinic nor had he given any medicine to the complainant or any of his family member including the deceased child, namely, Renu. He also alleged that the claim had been filed with a view to extort money from him, he being a worker of Bahujan Samaj Party.

He also stated in his written version that he was running an Ayurvedic Clinic and was not prescribing allopathic medicines nor was he giving any injection to any patient.

The District Forum vide its order dated 2.4.2008 directed the respondent to pay a sum of Rs.2 lakh as compensation to the complainant alongwith interest @ 9% p.a. from the date of death of the child and Rs.5,000/- towards cost of litigation.

Being aggrieved from the order passed by the District Forum, the respondent approached the concerned State Commission by way of an appeal. Vide impugned order dated 15.11.2011, the State Commission allowed the appeal and consequently dismissed the consumer complaint. Being aggrieved, the petitioner/ complainant is before this Commission.

Since the learned counsel for the respondent was not present when this matter was called in the morning, he was given an opportunity to contact his Advocate and call him. He came back after sometime and stated that his mobile phone was not working and, therefore, he was unable to contact his Advocate. He was asked to give the office address of the Advocate but he claimed that he did not know the office address of the Advocate. He was then asked to contact his Advocate using the mobile phone of the learned counsel for the petitioner. After sometime, he came back and informed that the number available with him was not the correct number of his Advocate. It would be pertinent to note here that when the respondent was in the first instance asked to contact his Advocate, he did not claim that he did not have the correct phone number of the Advocate. It, therefore, appears to me that the respondent is deliberately avoiding the disposal of this revision petition which is pending for the last seven years, the same having been instituted way back in July, 2012. The consumer complaint of course was instituted in the year 2006. Thus, a consumer complaint instituted more than 13 years ago has not seen conclusion till today. Therefore, I am not inclined to adjourn the matter and have heard the respondent who has argued his matter in person.

The State Commission allowed the appeal filed by the respondent on the ground that there was no proof of the Gentamycin injection having been given by the respondent to the child. It is not in dispute that Gentamycin injection had been given to the deceased child. The Post Mortem report and Viscera report are sufficient to prove the administration of Gentamycin injection to the child. The only question would be as to whether the Gentamycin injection was given by the respondent or by some other person. Though the respondent has vaguely alleged in the written version that the consumer complaint was instituted against him for political reasons he being a member of Bahujan Samaj Party, there is no evidence of any political enmity between the complainant and the respondent. The complainant is not even a political worker. The respondent has failed to explain as to why the complainant who is father of the deceased child was inimical to him on account of the alleged political reasons. Therefore, there could be no reason for the petitioner/complainant to implicate the respondent in a false case and institute a false consumer complaint against him if Gentamycin injection to the child was given by someone other than the respondent. Had the injection been given by someone other than the respondent, the petitioner being father of the child would in the normal course of conduct would have a grievance against the person responsible for the death of his child and not against an innocent person.

As noted earlier in the written version filed by him, the respondent pleaded that neither the complainant nor his wife or any family member had ever visited his clinic nor had he given any medicine to the complainant/petitioner or any member of his family including the deceased child, namely, Renu. However, at the time of arguments before this Commission, his submission is that he had given only oral medicine but had not administered any injection to the child. When asked as to what medicine he has given to the child, the respondent submits that he had given an Ayurvedic medicine, namely, "Zorina" to the child. The aforesaid oral submission of the respondent is contrary to the written version filed by him where he categorically denied having given any medicine at all to the child. The aforesaid conduct of the respondent is by itself indicative of his being the person who administered Gentamycin injection to the child.

It is not the case of the respondent that he was not practicing at all, his case being that he was practising in Ayurveda and was not prescribing Allopathic medicines. However, letter dated 11.1.2002 sent by Central Council of Indian Medicine, New Delhi to the concerned SHO would show that the respondent is not at all entitled to practice and does not hold any recognized medical qualification. The said letter to the extent it is relevant, reads as under:-

"With reference to your letter dated 27.11.2001 (received on 11.1.2001) on the subject mentioned above, I am directed to inform you that for practice in Indian Medicine a person must be holder of any recognized Medical qualification under the Indian Medicine Central Council Act, 1970.

However, on perusal of the Registration Certificate enclosed with your letter it has been observed that Shri Raj Bahadur Singh S/o Shri Bhavani Singh is a holder of Vaidya Visharad qualification awarded by Hindi Sahitya Sammelan, Prayag in 1976 and registered with Bihar State Council on the basis of the said qualification. In this connection, it is further informed that Vaidya Visharad qualification awarded by Hindi Sahitya Sammelan, Prayag is included in the Second Schedule to the IMCC Act, 1970 from 1931 to 1967 and hence recognized for the said period only.

In view of the above, it is clear that Shri Raj Bahadur Singh S/o Shri Bhawani Singh is not holder of any recognized medical qualification hence he is not entitled to do practice."

It is thus evident that the respondent was not entitled to practice at all, he being ineligible to practise even in Ayurveda.

For the reasons stated hereinabove, I hold that the respondent was negligent in rendering services to the child of the complainant he having given Gentamycin injection without being qualified to give the said injection to the child and without even testing the child for the possible reaction to the aforesaid injection. Therefore, the order passed by the State Commission cannot be sustained.

Coming to the quantum of compensation, I find that the compensation awarded by the District Forum to the complainant was rather meager. Probably, the District Forum had gone by the financial status of the complainant instead of going by the gravity of the negligence on the part of the respondent. Such an approach cannot be approved. However, considering that no appeal by the petitioner was preferred against the order of the District Forum, it may not be appropriate for me to award a higher compensation at this stage.

For the reasons stated hereinabove, the order passed by the State Commission is set aside and the order passed by the District Forum is consequently restored. The revision petition stands disposed of accordingly.