ISHWARDAS LEKHRAJ RAMCHANDANI vs P.J. BUCH

THE complainant who is English Stenographer in the District and Sessions Court at Junagadh has filed this complaint for recovery of total sum of Rs. 5,10,000/- from the opponent No. 1 who is a Consulting Physician practising at Junagadh and the opponent No. 2, National Insurance Company Limited..

THE case of the complainant briefly stated is as follows: 2.1 THE complainant is working as English Stenographer for the last about 25 years. On October 20, 1992, while on duty, the complainant had high blood pressure and as a result thereof, he suffered facial paralysis and paralysis on right hand. He took treatment of Dr. M.D. Nanavati from October 20 to October 26, 1992. THEreafter, he approached opponent No. 1 and took his treatment from October 27, 1992. Opponent No. 1 is practising as Consulting Physician and Cardiologist at Junagadh for the last about 30 years. It is submitted that so far as facial paralysis was concerned, it completely disappeared within fortnight after the complainant took treatment from opponent No. 1. However, so far as paralysis of right hand was concerned, according to the complainant, the element of weakness remained though there was noticeable improvement. Opponent No. 1 did not advise massage of the right hand or to undergo any exercise or physiotherapy. Opponent No. 1 had prescribed medicines for a period of one month assuring that he would become normal. After one month, when the complainant consulted opponent No. 1 for check up, opponent No. 1 again assured the complainant that he need not worry and that he would become normal within a couple of months. Opponent No. 1 did not advise the complainant to consult Neurophysician/Surgeon or any other specialist. THE complainant has stated that so far as fingers of his right hand were concerned, there was much improvement and he was in a position to do typing work with greater ease and comfort. However, there was no adequate strength in portion of palm/hand adjoining to his wrist and, therefore, he was finding great difficulty in writing both in longhand and shorthand. This affected his functioning as Stenographer. According to the complainant, he took treatment of Opponent No. 1 for a period of about eleven months upto September 22, 1993. He used to visit opponent No. 1 at interval of every month for follow up treatment and during his every visit opponent No. 1 had charged consultation fees without passing any receipt. All that opponent No. 1 did during these visits was to measure the blood pressure and pulse of the complainant and this hardly took five minutes. Everytime opponent No. 1 prescribed the same medicine. However, after a lapse of certain period, the complainant felt that his condition was deteriorating and he was experiencing difficulty in writing with the result that his work suffered. He approached Dr. Chhaya, an Orthopaedic Surgeon at the Government Hospital at Junagadh and Dr. Chhaya told the complainant that the problem which he was facing did not fall within the ambit of his field and that he should continue treatment of Physician. At the request of the complainant, however, he issued certificate to the effect the he had 20% disability of right hand. On September 22, on finding the complainant in a depressed mood, opponent No. 1 prescribed medicines for the depression. THEreafter, according to the complainant, he discontinued treatment of opponent No. 1. According to the complainant, whenever opponent No. 1 checked his blood pressure, it was found to be normal and this fact was recorded on each prescription. 3. THEreafter the complainant consulted specialists and experts in different disciples of medicine. However, there was no improvement or recovery. According to the complainant, he had consulted leading Physicians, Psychiatrist, Neuro-surgeon and even Ayurvedic experts. He also underwent treatment of ''Shivambu'' and Acupressure for considerable period but without any fruitful result. Ultimately, he consulted Dr. H.H. Vasavada, Neuro-Surgeon of Rajkot, who after examining him advised him that his weakness and defect of right hand was incurable and permanent and that he need not consult any doctor for treatment and spend money. Dr. Vasavada also. issued disability certificate. THE complainant has stated that he has every reason to believe that opponent No. 1, with a view to promote his unfair professional practice and in order to extract more money from him by way of consultation fees, unnecessarily prolonged the treatment. His blood pressure was found to be normal and there was no improvement in the weakness of his right hand. Opponent No. 1 everytime prescribed the same medicine i.e., Trinergic without any fruitful outcome. Opponent No. 1, however, continued treatment by giving false promises and assurances about improvement. According to the complainant this amounted to unfair professional practice. THE disability from which he suffers is permanent disability and it is not now curable. However, nothing was done about this disability by opponent No. 1. This suggests negligence, indifference and lack of due medical care and caution on the part of opponent No. 1. Thus, according to the complainant, there was deficiency in service rendered by opponent No. 1. THE complainant gave notices to opponent No 1 in that regard. Opponent No. 1, however, denied the facts stated by the complainant in his reply dated October 28, 1993. On the above grounds, the complainant has prayed for total compensation of Rs. 5,10,000/- together with interest and cost. Opponent No. 1 has, by his reply Exh. 14, resisted the complaint. It is contended that services rendered by him to the complainant do not fall within the definition of "service" as defined under Section 2(1)(o) of the Consumer Protection Act. Services rendered by a doctor to his patient are personal services and such services are specifically excluded from the definition of "service". It is further submitted that the averments made in the complaint do not establish any negligence of whatsoever kind on the part of opponent No. 1 in giving treatment to the complainant. Opponent No. 1 has submitted that he had prescribed medicines as per the requirement of the complainant after examining him. The complainant had suffered cerebro vascular stroke due to which he had facial paralysis coupled with paralysis of the right hand (right hemipersis) and the consequent disability for which the complainant has claimed compensation is a natural process suffered by the complainant and is in no way attributable to any act or omission on the part of opponent No. 1. Therefore, by no stretch of imagination, it could be construed that there was negligence on the part of the opponent. There is no question of negligence or deficiency of service on the part of opponent No. 1. According to the opponent No. 1, the complaint is frivolous, fictitious and malafide.

Opponent No. 1 has admitted that the complainant consulted him after taking treatment from Dr. M.D. Nanavati, one of the Senior Physicians in Junagadh. The complainant was under his treatment as stated by him. However, opponent No. 1 has denied that he told the complainant not to worry and he would become absolutely normal in couple of months. It is stated that Cerebro Vascular Stroke (Transient Ischaemic attack) is something which is extremely serious and there could not be any question of opponent No. 1 having told the complainant that there was no need to worry. It is submitted that even according to the complainant, facial paralysis had disappeared. This, according to opponent No. 1 was due to natural healing process coupled with vigorous medication given to the complainant. It is admitted that weakness of small muscles of right hand as alleged by the complainant did remain. However, such weakness was not attributable to any negligence on the part of opponent No. 1; Opponent No. 1 has also denied that he did not advise the complainant to undertake physiotherapy. In fact, according to opponent No. 1, he had on numerous occasions advised the complainant to undergo exercise and physiotherapy and he was also given various other instructions. The complainant had been advised to come for follow up check ups at monthly intervals so as to verify that there was no further damage caused to the complainant and medication as required and thought fit by opponent No. 1 was prescribed. Opponent No. 1 has stated that lack of improvement in right hand was not due to any act or omission on the part of opponent No. 1 but it was only a natural process. According to the opponent in all cases where there is hemipersis or paralysis, there cannot be complete recovery due to some permanent brain damage caused to the patient. He, therefore, could not have given any false promise to the complainant. Opponent No. 1 has further stated that there is no practice whereby he is required to refer the complainant or any other patient to other doctors. On the above grounds, opponent No. 1 has stated that the complainant is not entitled to compensation of Rs. 5,10,000/- or any other amount. Opponent No. 1 has prayed for dismissal of the complaint with exemplary cost of Rs.10,000/-.

THE contention of the complainant is that opponent No. 1 had indulged in unfair professional practice by giving him prolonged medical treatment although he knew that such treatment was not going to help him. THE complainant was under treatment of opponent No. 1 for about eleven months. During that treatment the complainant has admitted that his facial paralysis disappeared and there was considerable improvement so far as his fingers of right hand were concerned. However, thereafter there was no further improvement in the condition of right hand. He was able to type but he was experiencing difficulty in writing in long or shorthand. Complainant''s own admission shows that medical treatment given to him by opponent No. 1 helped him and there was improvement in his condition. It is true that after certain stage was reached, there was no further improvement in his condition. According to opponent No. 1, there was no improvement because of damage to the complainant''s brain. He has stated that in all cases where there is hemipersis or paralysis there is no complete recovery due to some permanent damage to brain. However, there is nothing on record to establish that opponent No. 1 had any ulterior motive in giving treatment to the complainant for eleven months. THE complainant, it appears, was suffering both physically and mentally. Although his facial paralysis had disappeared, there was no improvement in his right hand after it reached certain stage. According to the complainant, opponent No. 1 was prescribing him same medicine whenever he consulted him. THEre is no evidence to prove that opponent No. 1 was negligent in prescribing the medicine though there were other medicines which he could have prescribed and which would have improved the condition of the complainant. THE complainant was prescribed medicine for depression from which he was suffering. It would thus appear that opponent No. 1 was doing his best to help the complainant to improve his physical and mental condition. However, beyond certain stage, no improvement in the complainant''s condition took place. THE complainant had also consulted other specialists in different disciples of medicine; but nobody could help him. None of the specialists consulted by the complainant has been examined by the complainant. THEre is no evidence supported by Medical Experts to establish that the treatment which opponent No. 1 had given to the complainant was not necessary or proper and that such treatment was given only to recover fees from the complainant. Opponent No. 1, according to the complainant, is a Consultant with thirty years'' standing. Such a Senior Consultant or Physician would not indulge in malpractice or unfair professional practice. But apart from that, as already observed above, there is absolutely no evidence on record besides assertions of the complainant that opponent No. 1 had indulged in unfair professional practice. In our opinion, therefore, the complainant has failed to establish that there was negligence or deficiency of service on the part of opponent No. 1. In the view which we are taking, we do not consider it necessary to assess any compensation for the alleged negligence or deficiency on the part of opponent No. 1. We may mention here that opponent No. 1 is insured with opponent No. 2 Insurance Company and it is, therefore, that opponent No. 2 Insurance Company has been joined as party to this complaint. Since no compensation is payable by opponent No. 1, the question of opponent No. 2 indemnifying him does not arise. In our opinion, this complaint deserves to be dismissed, with cost.

IN the result, we dismiss this complaint and direct the complainant to pay to the opponents Rs. 2,000/- by way of cost of this complaint. Complaint dismissed.