Dr. S.M. Kantikar, Member:-
1. In this revision petition being filed against the order passed by Madhya Pradesh State Consumer Disputes, Redressal Commission, Bhopal (hereinafter State Commission) in Appeal Number 1925/2009.
Brief facts in case:
The respondent/complainants elder son Dilip (deceased) about 22 years was suffering from fever that was treated by the petitioner/respondent (OP) Dr. Alok Kumar who resides in the same colony. Petitioner gave injection to the deceased who was on empty stomach. He objected for injection but the doctor advised that the medicine will not affect even if he is empty stomach. After the injection Dilip was unconscious with precipitation and immediately taken to Government Hospital, Khirkiya where he was declared dead. The Police Complaint was lodged and FIR No.246/06 was registered under Section 304(A) in Khirkiya Police Station. A post-mortem report says that the cause of the death was due to wrong injection. The grievance of the complainant is that Dr. Alok is not an allopathic doctor and is only a Ayurveda doctor and therefore he had no business to administer allopathic treatment, therefore a complaint was filed before the District Consumer Disputes Redressal Forum, Harda (herein District Forum) with Complaint No.11/2008 for compensation of Rs.20 lakh towards death of complaints young son.
2. In the defence doctor submitted that he did not administer the allopathic treatment but prescribed only Ayurvedic medicines and never engage himself in use of injection. He also denied that he has not treated Dilip but the entire story was built to implicate him falsely. He was however, admitted that a criminal case is pending against him.
3. The Forum has also taken into account that during investigations injection syringe and other allopathic medicines were seized from the possession of the doctor. The list shows that he was in possession of 17 different allopathic medicines for which he had offered no account. A mark of injection was also found in the post-mortem examination.
4. The District Forum held the OP responsible for negligence and awarded Rs.1,80,000/- as damages and Rs.10,000/- for mental agony.
5. Aggrieved by this order the OP filed an Appeal No.1925/2009 before State Commission.
6. The State Commission heard both the parties and considering the evidence on record disposed of the appeal by modifying the order of District Forum and œdirected the appellant to pay Rs.1,80,000/- to the complainant towards compensation on account of death of Dilip due to his faulty treatment and the Allopathic treatment for which he was not authorized. The amount of Rs.10,000/- awarded separately for mental agony is set aside. Rs.2,000/- awarded as cost is maintained?.
7. Hence, this revision petition filed against the order State Commission.
8. We heard the Counsel of petitioner who reiterated that petitioner has not treated the deceased Dilip and there was no negligence. On perusal of affidavits of both parties it is clear that OP had administered the injection containing allopathic medicine for fever. The fact that during high fever an injection was given which resulted in immediate death of Dilip establishes sufficient nexus between the act of the doctor and result as death. He cannot escape from his liability to pay compensation to the complainant for having caused the death to his son.
9. After the death post-mortem was conducted in CHS, Khirkiya by Dr. R. Omkar on dated 30.11.2006 at 11.30 a.m.; who opined the cause of death as follows:
œIn my opinion mode of death of cardio-respiratory arrest. Cause of which Anaphylactic Shock. History of injection given by private Doctor. Time passes since death within 3 hours?. While inspecting the dead body in their report, which is clear explanation, that injection mark over L.T. Kip. In this way the opinion of doctor is that the death of Dilip is by failing respiratory system, which corroborates Anaphylactic Shock.
10. During the research inspecting officer has seized some medicine before the panch following medicines were found lying in the clinic of Dr. Alok Kumar, Heera College Road, Khirkiya. In presence of the Panch 1 Lagayat, 42 medicines syringe, etc., has been seized:
| No. | Medicine | Vol. | Qty. |
| 1. | Xylocaine 2% | 30ml | 1 |
| 2. | Ranitidine | 10ml | 1 |
| 3. | Larioago | 5ml | 1 |
| 4. | Optivetal | 3ml | 9 |
| 5. | Ranitidine | 2ml | 2 |
| 6. | Ulain | 10ml | 3 |
| 7. | G.R.A. | 10ml | 1 |
| 8. | Diasin | 1ml | 2 |
| 9. | lvedol | 2ml | 1 |
| 10. | Gyardem | 1ml | 2 |
| 11. | Aercigwsuc | 1ml | 5 |
| 12. | Acidox | 1ml | 2 |
| 13. | Dicron | 1ml | 2 |
| 14. | Aercopile | 1ml | 1 |
| 15. | Nevron | 1ml | 10 |
| 16. | Vomikind | 10ml | 4 |
| 17. | Decatrolin 50 Inj. | 1ml |
11. That he professes as a physician regarding Ayurvedic medicines injections of allopathic drugs have been seized on 30.10.2006 from the clinic of respondent. This document was not rebutted on behalf of respondent; so much so that there was no defence in regard. The post-mortem report clearly mentioned the Injection needle prick mark on Lt. hip and cause of death as Anaphylactic shock. Considering the above facts we are in opinion that, Dr. Alok Kumar who has treated complainants son Deepak and applied allopathic injection with careless and negligent manner resulted in instant death of Dilip; it is also deficiency in service.
The Honble Supreme Court has asserted that practicing medicine in violation of the law constitutes negligence per se. the Honble Supreme Courts judgment in Poonam Verma v. Ashwini Patel case, has taken into consideration of the decision of Privy Council in the year 1937, reported as (1937) 1 MLJ 197.
In this case, the Honble Supreme Court made an attempt to discuss the application of the doctrine œSIC UTERE LEO UT ALIENUM NON LAEDAS? in the practice of medicine. A person is held liable at law for the consequence of his negligence this means œso use your own that you harm anothers? (AIR 1996 SC 2111).
12. Cross practice where a homeopath or an Ayurveda uses allopathic drug and vice versa is now illegal. In the same case of Poonam Verma v. Aswin Patel, II (1996) CPJ 1 (SC) = II (1996) CLT 1 (SC) = AIR 1996 SC 2111, the Honble Supreme Court has given a definition of a quack a œA person who does not have knowledge of a particular system of medicine but practices in that system is a Quack and a mere pretender to medical knowledge or to put it differently a charlatan.? The same was reaffirmed by Supreme Court in Civil Appeal No.3541 of 2002 in Martin F DSouza v. Mohd. Ishfaq, I (2009) CPJ 32 (SC) = II (2009) SLT 20 = 157 (2009) DLT 391 (SC) and it was held that œa professional may be held liable for negligence on the ground that he did not possess of the requisite skill which he professes to have, thus a doctor who has qualification in Ayurvedic, Unani or homeopathic medicine will be liable if he prescribes allopathic treatment¦¦¦..?
13. This Commission also held the Ayurveda doctor negligent by the judgment in Revision Petition No.887/2012 in Dr. R.R. Singh v. Pratibha P. Gamre, II (2012) CPJ 534 (SC), by commenting as œA doctor is not supposed to play with the lives of people for his personal gain? and that the conduct of the Ayurveda practitioner œSmacks of Negligence?. Therefore, the petitioner (OP) is guilty of medical negligence causing death of young boy Dilip. The OP is liable for this wrong.
14. It is pertinent to note that on 17.1.2013 this petition was dismissed as withdrawn. Thereafter petitioner filed an interim application therein submitted that, œthe commission directed the Counsel to withdraw the petition or else you have to face heavy cost but the Counsel humbly prayed at the end and submitted to at least hear the application in the interest of justice. Hence, the Honble Commission directed to move an application for that.?
15. Hence, the attitude of petitioner shows the unnecessary protraction of case. We did not find any cogent reason for which the State Commission set aside Rs.10,000/- awarded separately for mental agony by District Forum. To decide quantum of compensation we rely upon the recent judgment of Honble Supreme Court in Bhavan Kumar v. R.K. Gupta and another, Civil Appeal No.8660 of 2009, dated 5.4.2013, the Honble Supreme Court enhanced the compensation to 15 lakh.
16. The petitioner herein should be liable for medical negligence, mental agony and protraction of case. The complainant lost his young son who had bright future.
Accordingly, we dismiss present revision petition by restoring the order of District Forum. The petitioner is directed to pay Rs.1,80,000/- to the complainant towards compensation and Rs.10,000/- for mental agony and Rs.2,000/- as cost as per order of District Forum. The petitioner is just playing with precious human life hence, we further impose punitive cost of Rs.5,00,000/- which is to be paid to complainant as per the guidelines of Honble Supreme Court in the case mentioned above. Petitioner should comply this order within 60 days otherwise it will carry interest at the rate of 9% till its recovery.