advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, April 9, 2013

UNFAIR TRADE PRACTICE - QUACK DOCTOR = According to the appellant, she came across an advertisement published in a newspaper ‘Jan Satta’ dated 8.8.1993 offering treatment of the patients having fits with Ayurvedi medicine by Dr. R.K. Gupta­ respondent No.1. The advertisement impressed the appellant as the respondent No.1 claimed total cure of fits. The appellant wrote a detailed letter to respondent No.1 about her son’s fits during high fever. In response, respondent No.1 sent a letter dated 23rd November, 1993 assuring that he had specialised treatment for the problem of Prashant by Ayurvedic medicines. despite medicines being given regularly the condition of Prashant started deteriorating day by day and the fits which were occasional and occurred only during the high fever, started occurring even without fever. = he is a quack and guilty of medical negligence, criminal negligence and breach of duty as he was playing with the lives of innocent people without understanding the disease. He was prescribing Allopathic medicines, for which he was not competent to prescribe. It was, inter alia, prayed that direction be issued to respondents to pay a sum of Rs.20 lakhs as compensation; to refund the charges paid by the appellant to the respondents and to reimburse the expenses incurred by the appellant on travelling to Rishikesh and a sum of Rs.10 lakhs for undergoing termination of pregnancy. = The National Commission has already held that respondent No.1 was guilty of unfair trade practice and adopted unfair method and deceptive practice by making false statement orally as well as in writing. In view of the aforesaid finding, we hold that both Prashant and the appellant suffered physical and mental injury due to the misleading advertisement, unfair trade practice and negligence of the respondents. The appellant and Prashant thus are entitled for an enhanced compensation for the injury suffered by them. Further, we find no reason given by the National Commission for deducting 50% of the compensation amount and to deposit the same with the Consumer Legal Aid Account of the Commission. 16. We, accordingly, set aside that part of the order passed by the National Commission and enhance the amount of compensation at Rs.15 lakhs for payment in favour of the appellant with a direction to the respondents to pay the amount to the appellant within three months. The appeal is allowed but there shall be no separate order as to costs.


Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8660 OF 2009
BHANWAR KANWAR ….
APPELLANT
VERSUS
R.K. GUPTA & ANR.  ….RESPONDENTS
J UD G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
This   appeal   has   been   preferred   by   the
complainant­appellant against the order and judgment
dated   29th  January,   2009   passed   by   the   National
Consumer   Disputes   Redressal   Commission,   New   Delhi
(hereinafter   referred   to   as   the   ‘National
Commission’)   in   Original   Petition   No.   234   of   1997
whereby   the   National   Commission   quantified   the
compensation   payable   by   the   respondents   as   Rs.
5,00,000/­   and   directed   respondent   No.1   to   pay   a
consolidated   sum   of   Rs.2,50,000/­   to   the   appellant
and to deposit the remaining amount of Rs.2,50,000/­
in   the   account   of   the   Consumer   Legal   Aid   of   the
National Commission. 
1Page 2
2. The appellant is aggrieved by the said order and
judgment   with   respect   to   the   total   amount   of
compensation granted.   She has also challenged that
part of the order  whereby  Rs.2,50,000/­ out of the
total   compensation   amount   has   been   ordered   to   be
deposited in the account of Consumer Legal Aid of the
National Commission.
3. The   facts   that   lead   the   complainant   to   move
before the National Commission are as follows:
Prashant, son of the appellant born in May 1989
suffered from febrile convulsions during fever at the
age of six months. 
He was taken to nearby Doctor who
after   examining   him   informed   that   the   children   can
get such kind of fits during fever.  
He was treated
by   giving   paracetamol   tablet.  
 Even   after   that
Prashant had high fever he suffered convulsions for
which   he   was   treated   by   one   Dr.   Ashok   Panagariya,
Consultant   Neurologist   and   Associate   Professor   of
Neurology SMS Medical College Hospital, Jaipur and at
All India Medical Sciences, New Delhi.
4. According to the appellant, she came across an
advertisement   published   in   a   newspaper   ‘Jan   Satta’
dated   8.8.1993   offering   treatment   of   the   patients
2Page 3
having fits with Ayurvedi medicine by Dr. R.K. Gupta­
respondent   No.1.   The   advertisement   impressed   the
appellant as the respondent No.1 claimed total cure
of   fits.   The   appellant   wrote   a   detailed   letter   to
respondent   No.1   about   her   son’s   fits   during   high
fever.     In response, respondent No.1 sent a letter
dated   23rd  November,   1993   assuring   that   he   had
specialised treatment for the problem of Prashant by
Ayurvedic   medicines.  
He   advised   the   appellant   to
bring her son Prashant in his Clinic. Accordingly, on
21st  February,   1994   the   appellant   and   her   husband
along   with   Prashant   visited   respondent   No.2­Neeraj
Clinic   Pvt.   Ltd.,   run   by   respondent   No.1   at
Rishikesh.  Prashant was registered vide Registration
No.7955 dated 21.2.1994.   The appellant was made to
pay   Rs.2,150/­   towards   consultancy   charges   and   the
cost of medicines for one year vide Cash Memo No.61
dated 21.2.1994 by respondent No.1. She was told by
respondent   No.1   that   medicines   given   were   the
combination   of   hundreds   of   herbs.     Respondent   No.1
also handed over a printed circular to the appellant
who started thereafter giving medicines to Prashant
regularly in the hope that he will be cured. It was
3Page 4
alleged that despite medicines being given regularly
the condition of Prashant started deteriorating day
by   day   and   the   fits   which   were   occasional   and
occurred   only   during   the   high   fever,   started
occurring even without fever.  
5. On being informed of the condition of Prashant
respondent   No.1   intimated   that   the   medicine   being
Ayurvedic   had   slow   effect.     He   instructed   the
appellant   to   regularly   administer   the   medicines.
Respondent No.1 sent medicine through VPP. On seeing
condition of Prashant getting deteriorated again, the
appellant   sent   a   fax   dated   18th  June,   1995   to
respondent No.1 and in response thereto, respondent
No.1 sent fax advising to continue the medicines as
before.     Thereafter another communication was sent
to   respondent   No.1,   in   response   whereof   respondent
No.1 sent a letter on 30.9.1995 reassuring that the
line   of   treatment   was   correct   and   he   advised   the
appellant to bring Prashant for check up and also the
left   over   medicines.     The   appellant   along   with
Prashant   again   visited   the   Clinic   at   Rishikesh   to
consult   respondent   No.1   in   October,   1995.   After
examining Prashant respondent No.1 gave medicines for
4Page 5
which he charged Rs.1500/­.  The appellant was given
black  and thick white  tables to be administered to
Prashant.  In the fax dated 20.6.1995 respondent No.1
advised the appellant to continue with the treatment
for   3   years.     Meanwhile,   the   fits   became   more
frequent and for longer durations.
On 14th November,
1995,   the   appellant   contacted   respondent   No.1   over
telephone and during discussion, respondent No.1 told
the appellant not to worry and assured her to send
more powerful medicines.  Thereafter, respondent No.2
sent   white   coloured   tables   with   a   letter   dated
14.11.1995. During the period from February 1994 to
October 1996 the appellant did not contact Dr. Ashok
Pangariya.  However, since the condition of Prashant
worsened   the   appellant   again   consulted   Dr.   Ashok
Pangariya   on   28th  October,   1996   who   told   her   that
there was no hope of the child becoming normal and he
will not grow as a normal child. To ensure the family
tree growing, the complainant wanted to have another
child, but due to her physical and mental condition
and total preoccupation with Prashant she was advised
to   undergo   medical   termination   of   pregnancy.     On
making   enquiry   as   to   the   nature   of   medicines
5Page 6
prescribed   by   respondent   no.1   to   Prashant   it   was
revealed   that   the   small   white   tablets   were   Selgin
which is not meant for children.  It is alleged that
respondent No.1 was passing off Allopathic medicines
as Ayurvedic medicines. It is further alleged that he
is a quack and guilty of medical negligence, criminal
negligence and breach of duty as he was playing with
the   lives   of   innocent   people   without   understanding
the disease. He was prescribing Allopathic medicines,
for which he was not competent to prescribe.  
It   was,   inter   alia,   prayed   that   direction   be
issued to respondents to pay a sum of Rs.20 lakhs as
compensation;   to   refund   the   charges   paid   by   the
appellant   to   the   respondents   and   to   reimburse   the
expenses incurred by the appellant on travelling to
Rishikesh   and   a   sum   of   Rs.10   lakhs   for   undergoing
termination of pregnancy. 
6. On  notice,  the  respondents  appeared  before  the
National   Commission   and   denied   the   allegation.
According   to   respondent   No.1   he   obtained
Ayurvedacharaya   degree   on   31st  December,   1984   and
established respondent No.2­Clinic in the year 1991.
It   was   accepted   that   the   appellant   approached   the
6Page 7
respondent No.1 for treatment of her son’s seizures.
After   examination   of   the   appellant’s   son   he
prescribed   medicines,   namely,   ‘Phenobarbitone’   or
‘Phenobarbital’ and ‘Wafera’ which are Allopathic as
well as ayurvedic medicines and which are considered
to be an appropriate drug for epilepsy patients. The
Medicine   Code­A1­‘Wafera’   is   an   Ayurvedic   medicine
and   is   a   brain   tonic.   He   denied   that   medicine
‘Selgin’   was   prescribed.     It   was   alleged   that   the
appellant   failed   to   administer   the   medicines   as
prescribed by him. On the other hand, she consulted
various other Doctors simultaneously for treatment of
her son including Dr. Ashok Panagariya and Doctors at
AIIMS.  It was asserted  that the treatment  given to
Prashant, son of the appellant was proper treatment
for epilepsy and Prashant could have developed mental
retardation due to the intake of other medicines. The
Ayurvedic   medicines   take   their   own   time   before
showing signs of recovery and, therefore, there was
slow improvement.
7. So   far   as   entitlement   of   respondent   No.1   to
prescribe   allopathic   medicine   is   concerned,   the
respondents   relied   on  a  letter   dated   24th  February,
7Page 8
2003   issued   by   one   Shri   Jagjit   Singh,   Secretary,
Medical Education Department, Government of U.P. to
suggest   that   the   Aurvedic/Unani   Practitioners
practicing   Ayurvedic   System   are   also   authorised   to
use   allopathic   medicines   under   U.P.   Indian   Medical
Council Act, 1939.
8. The National Commission by its order dated 16th
January, 2003 directed that the medicines be sent to
an   appropriate   laboratory.   By   an   order   dated   5th
March,   2004,   the   medicines   were   sent   to   Shri   Ram
Institute for Industrial Research, New Delhi.  As per
the reports of the said Institute the medicines were
Allopathic medicines, except one which could not be
identified.
9. After hearing the parties and on perusal of the
report submitted by Shri Ram Institute for Industrial
Research Laboratory, the National Commission by the
impugned   judgment   held   that   respondent   No.1   having
made   the   false   representation   was   guilty   of   unfair
trade practice but held that in the light of letter
dated   24th  February,   2003   respondent   No.1   was
entitled   to   prescribe   Allopathic   medicines.   With   a
view   to   curb   such   a   false   representation   and   to
8Page 9
restore faith of the people in Ayurvedic System the
National Commission passed a direction under Section
14(1) (f) of the Consumer Protection Act, 1986 to pay
compensation of Rs.5 lakhs but it ordered to pay only
a   sum   of   Rs.2.50   lakhs   to   the   appellant   and   to
deposit the rest of the amount of Rs.2.50 lakhs in
favour of Consumer Legal Aid Account of the National
Commission.
10. The respondents have not challenged the finding
of   the   National   Commission   to   the   effect   that
respondent No.1 has made false representation and was
guilty of unfair trade practice.
11. In the present case, the learned counsel for the
appellant has challenged the quantum of compensation
ordered   to   be   paid   in   favour   of   appellant   and   the
part   of   compensation   ordered   to   be   deposited   with
Legal   Aid.     She   has   also   raised   doubt   on   the
authority of respondent No.1 to prescribe Allopathic
medicines.   It   was   contended   that   the   letter   dated
24th  February, 2003 is of no help to respondent No.1
and cannot be given retrospective effect.
12. Considering   these   challenges   by   the   appellant
and   on   accepting   the   finding   of   the   National
9Page 10
Commission that respondent no.1 is guilty of unfair
trade   practice   the   questions   that   arise   for   our
consideration are:
(i) Whether   respondent   No.1   was   entitled   to
practice   and   prescribe   modern   Allopathic
medicines; and
(ii) What is the amount of compensation to which
the appellant is entitled ?
13. The   incident   and   treatment   as   alleged   by   the
appellant   relate   to   the   period   1994   to   1997.
Therefore, letter dated 24th  February, 2003 is of no
avail   to   the   respondents   as   the   same   was   not   in
existence   during   the   period   of   treatment.   The   said
letter dated 24th February, 2003 reads as follows:
“No.726/71­2­2003­15
From
Jagjit Singh
Secretary, U.P. Government
Medical Education Department
To
All Medical Officers
Uttar Pradesh
Medical Education Department­2
Lucknow: Dated 24 February 2003
Sub: To stop activities of harassment and 
suppression of Integrated Medical 
Practitioners in the State.
10Page 11
Sir,
I   have   been   directed   to   state   that   it   is
known   that   the   job   of   Registering
Ayurvedic/Unani Practitioners is done by U.P.
Indian   Medical   Council.   In   the   State
Ayurvedic/Unani   Practitioners   practicing
Ayurvedic   System   are   authorized   to   use
allopathic  medicines   under  UP  Indian   Medical
Council Act, 1939 Section 39(1) and 41(2) and
they   hold   the   same   rights   as   that   of
allopathic   practitioners.   Hon’ble   High   Court
has   directed   to   take   action   against   quacks
who   are   registered   nowhere.     Accordingly   it
has   been   decided   that   if   during   any   such
harassment   any   of   the   Registered
Ayurvedic/Unani   Practitioner   produces   the
Registration   Certificate   then   no   action
should be taken against him.
Therefore the above orders are to be complied
strictly.
Yours faithfully,
 Sd/­
Jagjit Singh
      Secretary”
From   the   aforesaid   letter   it   is   clear   that   in
connection with some case the High Court of Allahabad
issued   direction   to   take   action   against   the   quacks
who   are   practicing   in   Allopathic   Medicine   but   not
registered with Medical Council. 
14. Learned   counsel   for   the   respondents   has   not
brought to our notice any Act known as U.P. Indian
Medical Council Act, 1939 but we find that there is
an Act known as U.P. Indian Medicine Act, 1939. In
11Page 12
any case respondent No.1 has nowhere pleaded that he
was registered with the Medical Council or enrolled
in the State Medical Register.  
He has not cited even
the registration number and no specific plea has been
taken  that he has already  been registered  with the
U.P.   State   Medical   Council.     
Even   the   registration
number has not been mentioned.   
Merely on the basis
of a vague plea; the National  Commission held that
respondent   No.1   was   entitled   to   practice   and
prescribe modern Allopathic medicine. 
15. The   National   Commission   has   already   held   that
respondent No.1 was guilty of unfair trade practice
and adopted unfair method and deceptive practice by
making false statement orally as well as in writing.
In view of the aforesaid finding, we hold that both
Prashant   and   the   appellant   suffered   physical   and
mental   injury   due   to   the   misleading   advertisement,
unfair   trade   practice   and   negligence   of   the
respondents.    
The   appellant   and   Prashant   thus   are
entitled for an enhanced compensation for the injury
suffered by them. 
Further, we find no reason given by
the   National   Commission   for   deducting   50%   of   the
12Page 13
compensation amount and to deposit the same with the
Consumer Legal Aid Account of the Commission.
16. We,   accordingly,   set   aside   that   part   of   the
order passed by the National Commission and 
enhance
the amount of compensation at Rs.15 lakhs for payment
in favour of the appellant with a direction to the
respondents to pay the amount to the appellant within
three months.  The appeal is allowed but there shall
be no separate order as to costs.
………..……………………………………………..J.
(G.S. SINGHVI)
……………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
APRIL 5, 2013.
13

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.