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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.
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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
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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
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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
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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
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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
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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,
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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
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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
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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.
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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
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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
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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.
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