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2006 DIGILAW 611 (CHH)

RAHUL TRIVEDI v. SHASHANK GUPTA

2006-12-30

R.S.AWASTHI, V.K.AGARWAL, VEENA MISRA

body2006
ORDER V.K. Agarwal, President :- 1. This appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 9.11.2004 in Complaint No.37/04 by District Consumer Disputes Redressal Forum, Raipur (hereinafter called the “District Forum” for short), dismissing he complaint. 2. It was averred by the complainant Vijay Kumar Trivedi that he had some health problems and he suffered from lack of appetite etc. He therefore approached the respondent, who was associate professor of medicine in Pt. Jawaharlal Nehru Medical College, Raipur. It was averred that the respondent after examining the complainant, prescribed medicines for 15 days with direction that he should come for further treatment, thereafter. Since, the complainant did not respond to the treatment and his condition did not improve, he reported the matter to the respondent, upon which the latter directed that blood test, ECG and X-ray chest, be undertaken by the complainant. The complainant further averred that though he continued to take treatment as prescribed by the respondent Doctor but instead of his condition improving, it continued to deteriorate. 3. It was further averred by the complainant, that thereafter the complainant, on the advice of his relatives, got his Haemoglobin checked and the same was found to be 7 mg. The complainant averred that since the Haemoglobin was very low, he intimated the respondent doctor about it. The respondent prescribed some medicines and told the relatives of the complainant, that the complainant was physically alright, but requires some Psychiatric treatment. The respondent also adviced the complainant to consult some Psychiatrist. The complainant further averred that the respondent doctor treated him carelessly due to which his condition continued to deteriorate. 4. Further averments of the complainant were that on 9.9.03 the complainant suffered from vomiting, he consulted Dr. P.S. Deshpande, who adviced him to stop the medicines prescribed by respondent doctor and directed the complainant to get his blood tested and bring the report. The complainant thereafter had his blood tested on 6.09.03 and had given the blood test report to Dr. Deshpande. Dr. Deshpande thereafter referred the complainant to Dr. Shubha Dubey for treatment. The complainant further averred that, Dr. Shubha Dubey on examination, told the complainant that both his kidneys were damaged and advised dialysis and blood transfusion. The complainant thereafter had his blood tested on 6.09.03 and had given the blood test report to Dr. Deshpande. Dr. Deshpande thereafter referred the complainant to Dr. Shubha Dubey for treatment. The complainant further averred that, Dr. Shubha Dubey on examination, told the complainant that both his kidneys were damaged and advised dialysis and blood transfusion. The complainant thus averred that on account of negligence and carelessness of respondent doctor, his kidneys were damaged and therefore he sent a legal notice dated 18.11.03 to the respondent doctor claiming compensation. Since there was no response from the respondent doctor, the complainant preferred the complaint in the District Forum and claimed therein total compensation of Rs. 18,00,000/-. 5. The respondent resisted the complaint and denied the allegations of negligence levelled against him. The averments of the respondent doctor regarding treatment given to the complainant stated in brief are: (i) That the complainant first came to him on 22.03.02 with the complaint of loss of appetite for about 2½ months. He also complained of coughing. It was averred by the respondent that the complainant and his family member were taking treatment from him for the last 10 yrs. (ii) It was also averred that the complainant's wife had informed the respondent on phone that the complainant also suffered from some sexual problems (erectile disfunction), which the complainant may not disclose to the respondent. The respondent prescribed medicines for 10 days including anti-depression and mild antibiotics, and advised the complainant to come thereafter for further treatment. (iii) Thereafter the complainant appeared after 10 days on 2.04.02 before the respondent. The respondent/doctor again prescribed him medicines for 10 days. On 8.04.02, the complainant was also advised to take mild antibiotics because the complainant complained of throat infection. (iv) On 13.04.02, the complainant again appeared before the respondent doctor and intimated him that he was suffering from fever. It was further averred by respondent that the complainant also intimated the respondent that the complainant was also examined by some other doctor, who had diagnosed that the complainant was suffering from Hepatitis and that he is taking herbal medicines on the advice of the said other doctor. (v) It was further averred by the respondent that the, complainant's wife also, on telephone intimated the respondent, that her husband i.e. the complainant was taking herbal medicines. (v) It was further averred by the respondent that the, complainant's wife also, on telephone intimated the respondent, that her husband i.e. the complainant was taking herbal medicines. The fact as above was also mentioned by the respondent in his prescription. In view of above complaints and circumstances, the respondent considered it proper to advice the complainant to undergo Pathological tests and therefore, Pathological tests including X-ray chest was advised. From the said X -ray report it was noticed that there, vas “Infiltration in left lower zone” which indicated that the complainant was suffering from Tuberculosis. Therefore, the respondent advised the complainant and prescribed anti-tubercular treatment from 140402. (vi) According to the averments of the respondent, after 12 days, he started Tubercular treatment as above; the temperature of complainant, which was on account of Tuberculosis became normal, and the complainant reported to the respondent that his appetite has also improved. The above facts were noted by the respondent doctor in the prescription dated 25.04.02. The complainant however complained of pain in the frontal portion of chest and left forearm and left leg. However, the blood pressure and other clinical examination by respondent doctor disclosed no abnormality. He lice the respondent advised the complainant to continue anti-tubercular medicines prescribed by the respondent. (vii) On 16.05.02, the complainant reported that there was .improvement to the extent of 75% in the health condition of the complainant which was so mentioned by the respondent in the prescription of the complainant, of that date. Though the complainant complained of swelling in the leg, however, his clinical examination did not disclose any swelling. However, as a measure of caution, respondent doctor prescribed medicines-tablet Bidurat- Land Bestonil syrup for cough and advised that X-ray chest and blood test, be got done after a month. (viii) (a) The respondent doctor further averred that as per prescriptions produced by the complainant, he appeared before respondent doctor on 8.07.02 after 16.05.02. However, according to the respondent, the complainant possibly also appeared before him, in the intervening period between 16.05.02 to 8.07.02. However, the prescriptions for the said period possibly have not been produced by complainant. (b) On 8.07.02, respondent doctor found that there was improvement in the lungs as was disclosed from the X-ray report, and his weight had also increased. However, according to the respondent, the complainant possibly also appeared before him, in the intervening period between 16.05.02 to 8.07.02. However, the prescriptions for the said period possibly have not been produced by complainant. (b) On 8.07.02, respondent doctor found that there was improvement in the lungs as was disclosed from the X-ray report, and his weight had also increased. ESR reading also showed improvement as it has reduced from 125 to 40, indicating that the disease of the complainant was diminishing. It was noted by the respondent in his prescription dt. 8.07.02 that the complainant had stopped taking medicines for 10 days. However, respondent doctor advised the complainant to restart taking anti-tubercular medicines as also medicines prescribed for improvement in his Haemoglobin. The complainant was advised to come after 2 months. (ix) The respondent averred that the complainant did not appear before him after 2 months on 8.09.02 as advised by the respondent; and he appeared much later on 4.10.02. The complainant did not complain of any physical ailment or suffering therefore, respondent advised the complainant to continue taking anti-tubercular medicines and medicines for Anaemia for next 2 months. The complainant was also advised to get X-ray chest and Pathological test of blood for Haemoglobin and ESR. (x) The complainant though was advised to appear on 4.12.02 but he did not appear on that date and appeared again belatedly before the respondent on 13.01.03. He complained of Nausea for the last 15 days. The respondent on examination of complainant found that his liver was enlarged. Though the complainant was advised to get X-ray chest and blood test; but no reports were produced by the complainant before the respondent. The respondent advised the complainant to stop anti-tubercular medicines, because the course thereof was over and the respondent prescribed some medicines for the complaint of Nausea etc. to be taken for 15 days. The complainant was asked to come after 15 days for further treatment. (xi) The complainant again did not follow the advice and instead of coming to the respondent on 28.01.03, came to the respondent much belatedly on 13.03.03. He complained of loss of appetite and body ache. The respondent advised the complainant to get blood test for blood sugar and prescribed some Antedepressant medicines to be taken for a month. (xii) The complainant thereafter appears before the respondent doctor on 28.03.03. He complained of loss of appetite and body ache. The respondent advised the complainant to get blood test for blood sugar and prescribed some Antedepressant medicines to be taken for a month. (xii) The complainant thereafter appears before the respondent doctor on 28.03.03. However, he did not mention any specific physical. problem upon which he was advised to continue the medicines for another 10 days. (xiii) (a) The complainant did not come to the respondent after 10 days as advised, but approached him much later on 13.05.03. He also brought his blood Serum Albumin report; though the respondent had never advised for examination of Serum Albumin to the complainant. According to the averments of the respondent, the report as above shows that the complainant was taking treatment from some other doctor without the knowledge and permission of the respondent. (b) The respondent doctor on 13.05.03 also noticed that the liver of the complainant has been enlarged; and therefore prescribed the medicines for the treatment of his liver and for general improvement in his health. (xiv) The complainant came to the respondent doctor on 27.05.03 and informed that there was improvement in his health. However, the complainant complained of constipation and weakness, upon which respondent prescribed him medicines to be taken for a month. (xv) The complainant for the last came to the respondent on 31.05.03 and complained of Unilateral Oedema in the leg. The respondent doctor therefore keeping the possibility of Filaria prescribed antifilarial medicines to the complainant. 6. Further averments of the respondent doctor are that the complainant did not come to him for treatment, after 31.5.2003. The respondent thus averred that the complainant took treatment from him from 22.03.02 to 31.05.03. It was further averred that the details of treatment as given above are based on the copies of prescriptions produced by the complainant. It was averred that the complainant was properly treated by the respondent doctor and his complaints of Tuberculosis, Hepatitis, Erectile Disfunction etc. got cured. It was averred that the complainant from time to time complained of different ailments which were duly treated by the respondent doctor. It was averred further that the complainant was irregular in taking treatment and had ignored on several counts, the advice of the respondent doctor. got cured. It was averred that the complainant from time to time complained of different ailments which were duly treated by the respondent doctor. It was averred further that the complainant was irregular in taking treatment and had ignored on several counts, the advice of the respondent doctor. It was averred that it is not always necessary or advisable to administer blood, even if the Haemoglobin percentage was found to be 8 mg. It was averred that the complainant suffered from depression also and therefore he was advised to consult Psychiatrist. It was averred by the respondent that the complainant was detected to be suffering from failure of kidney on 5.09.03 as reported by Dr. P.S. Deshpande. It was also averred that the complainant suffered from Chronic Renal Failure as would appear from the prescription dated 10.09.03 of Dr. Shubha Dubey. However, complainant for the last time consulted the respondent doctor on 31.05.03. It was further averred that during the period in which the complainant was under the treatment of respondent doctor, there was no symptom showing renal failure. Thus, according to the respondent, the said ailment relating to kidney did not occur due to or during the period of treatment by the respondent doctor. It was also averred by the respondent, that no medicines prescribed by respondent doctor, could have the effect of causing renal failure. It was denied by the respondent that there was any negligence by the respondent, in the treatment of complainant. 7. The District Forum after consideration of material and evidence placed on record, came to the conclusion that the complainant has not proved that respondent doctor was negligent or deficient in treating the complainant. Accordingly the complaint was dismissed. 8. During the pendency of this appeal, the complainant V.K.Trivedi expired and in his place, his son minor Rahul Trivedi through his grand mother Rekhavati Trivedi as next friend, was substituted as the appellant on the application of the latter. It may further be mentioned here that the wife of the complainant Vijay Kumar Trivedi - Smt. Manisha Trivedi has been impleaded as respondent No.2. It may further be mentioned here that the wife of the complainant Vijay Kumar Trivedi - Smt. Manisha Trivedi has been impleaded as respondent No.2. Smt. Rekhavati Trivedi, the mother of the original complainant Vijay Kumar Trivedi has also filed an application that Manisha Trivedi had left the household of the complainant prior to his death and that the minor Rahul Trivedi is being looked after by his grand mother Rekhavati Trivedi, who is his guardian. 9. Learned counsel for the parties were heard. Record perused. 10. It would appear from the averments in the complaint that the allegations of negligence against the respondent doctor mainly are that the respondent did not care to give blood transfusion to the complainant, despite his Haemoglobin level being low. It was also alleged that on account of negligence and carelessness of the respondent doctor in the treatment of the complainant the kidneys of the complainant got damaged. Therefore, the question of negligence by the respondent doctor will have to be considered in the light of the averments and allegations as above. The primary burden of proving his allegations regarding negligence or deficiency in treatment is on the complainant. 11. From the averments of the parties it would be clear that the complainant Vijay Kumar Trivedi came to respondent doctor for treatment for the first time on 22.03.02. It would further appear that the complainant took treatment from respondent doctor till 31.05:03. The details of treatment have been averred by the respondent doctor in his written version, as are also summarised in para 4 of this order. it would be clear therefrom that the complainant Vijay Kumar Trivedi initially came to the respondent with the complaints of loss of appetite, coughing, for which treatment was prescribed by respondent doctor. The respondent doctor also averred that he was informed on telephone, by the wife of the complainant, that he was suffering from sexual problem (Erectile Disfunction) for which medicines as also anti-depressants were prescribed by the respondent doctor. It also appears that subsequently the complainant was detected to be suffering from Tuberculosis for which the respondent doctor gave him treatment. It further appears that the other complaints of the complainant were treated by the respondent doctor from time to time. It also appears that subsequently the complainant was detected to be suffering from Tuberculosis for which the respondent doctor gave him treatment. It further appears that the other complaints of the complainant were treated by the respondent doctor from time to time. It was averred by the respondent doctor that the main disease of Tuberculosis was brought under control and the complainant got cured from the treatment as given to him. It would further appear that some Pathological tests including X-ray chest and blood test were advised by respondent doctor and were undertaken by the complainant, on the basis of which the respondent had given medicines to the complainant from time to time. The prescriptions by the respondent doctor are marked as Annexure A-2 to A-7. According to the respondent doctor the treatment given by him to the complainant was proper and the health condition of the complainant improved and the complainant got rid of his ailments including Tuberculosis, by his treatment. 12. It may be noticed here that the complainant has not specifically pleaded or proved that any of the medicines prescribed by the respondent doctor were not as per the standard treatment or had any adverse affect on his health. As noticed earlier, one of the grievance of the complainant was that, though his Haemoglobin was found to be low at 7mg., but the respondent did not advise for blood transfusion. It may be noticed in the above context that, according to the written version as well as written submissions of respondent doctor, it is not always necessary to transfuse blood, merely because Haemoglobin is found to be less. In the above context, the respondent doctor has in his written submissions referred to the statement of Dr . Deshpande who was examined by the complainant as expert witness. In the above context Dr. Deshpande stated that Microcytic Hypochromic Anaemia was caused due to nutritional and iron deficiency. The complainant has not chosen to ask any question from Dr. Deshpande, as to whether in the above condition, blood transfusion ought to have been advised. In the written version filed by the respondent doctor in the District Forum, it was submitted that blood transfusion has to be given on consideration of several factors. He has also stated that he had prescribed the medicines to the complainant for increasing Haemoglobin. 13. Deshpande, as to whether in the above condition, blood transfusion ought to have been advised. In the written version filed by the respondent doctor in the District Forum, it was submitted that blood transfusion has to be given on consideration of several factors. He has also stated that he had prescribed the medicines to the complainant for increasing Haemoglobin. 13. The contentions and submissions, as above, have not been controverted, by the complainant/appellant. In fact Dr. Shubha Dubey examined by the complainant as expert witness has admitted in her statement that the respondent has prescribed to the complainant medicines for fever and Anaemia. The complainant has not placed on record any expert opinion or any other material, to show that blood transfusion was required to be necessarily given to the complainant, and has thus failed to substantiate his allegations against the respondent, in the above regard. Therefore, merely because blood transfusion was not advised to the complainant by the respondent doctor, the same would not amount to negligence or deficiency on the part of the respondent doctor. 14. The next allegation of the complainant was that due to negligence and wrong treatment by the respondent doctor, the complainant suffered failure of kidneys as detected by Dr. P.S. Deshpande and Dr. Smt. Shubha Dubey in September 2003. 15. It may be noticed in the above context that, Dr. P.S. Deshpande in his statement disclosed that the complainant approached him for treatment on 5.09.03. He was suffering from loss of appetite, vomiting and pain in the legs. He advised him to undertake Pathological tests of blood and urine. The said reports disclosed that the complainant suffered from Chronic Renal Failure and Anaemia. The prescription of Dr. Deshpande is exhibit A-1. However, Dr. Deshpande admitted in cross-examination that he cannot say, as to from what point of time the complainant suffered from Chronic Renal Failure. He has also admitted that the medicines prescribed by respondent doctor would not cause renal failure. Similar is the statement of another expert Dr. Smt. Shubha Dubey examined by the complainant. She has also stated that it is not possible to ascertain the duration or time, in which the kidney failure suffered by the complainant, had set in. None of the medicines prescribed by the respondent doctor could cause renal failure. 16. Similar is the statement of another expert Dr. Smt. Shubha Dubey examined by the complainant. She has also stated that it is not possible to ascertain the duration or time, in which the kidney failure suffered by the complainant, had set in. None of the medicines prescribed by the respondent doctor could cause renal failure. 16. It may further be noticed that admittedly the complainant was last treated by the respondent Doctor on 31.5.2003. The complainant thereafter did not approach him for further treatment. It appears that thereafter he went to Dr. P.S. Deshpande on 5.9.03 i.e. after about more than 3 months after stopping the treatment of respondent Doctor. It would be pertinent to mention here that, though the complainant has averred in his complaint that when he approached Dr. Deshpande, he asked him to immediately stop taking medicines prescribed by the respondent doctor. However, there is not even a whisper, in the statement of Dr. Deshpande, in the above regard. The complainant has not chosen to put any question to Dr. Deshpande with regard to his allegations mentioned above, which shows the falsity of the complainant's aforementioned averment, and shows his tendency to exaggerate and to level false accusations, as already mentioned above, Dr. Deshpande has categorically admitted that it is not possible to ascertain as to from what point of time, the complainant suffered from chronic renal failure detected on examination by Dr. Deshpande and Dr. Smt. Shubha Dubey. Thus, it is clear that though the complainant suffered renal failure as detected on 5.9.03; but, there is no material to disclose that renal failure as above occurred during the period in which the complainant, was treated by the respondent or that kidney failure resulted due to wrong treatment or negligence by the respondent Doctor. Therefore, the contentions of the respondent that renal failure had no correlation with the treatment given by respondent Doctor to the complainant, deserves to be accepted. 17. In the above context, it may also be noticed that according to respondent doctor, the complainant had been taking treatment and consulting other doctors also, during the period he was taking treatment from the respondent doctor. It was also averred by the respondent that the wife of the complainant also informed the respondent doctor that the complainant was taking herbal medicines. It was also averred by the respondent that the wife of the complainant also informed the respondent doctor that the complainant was taking herbal medicines. The above fact has also been recorded by the respondent doctor in his prescription dated 13.4.2002 wherein it was mentioned that the complainant was being treated for hepatitis and was taking herbal medicines. It may further be mentioned in the above reference that the wife of the complainant Smt. Manisha Trivedi, impleaded as respondent No.2 in this appeal, has also filed an affidavit stating that her husband the complainant Vijay Kumar Trivedi had been taking herbal medicines. She also states in her affidavit that she advised her husband-the complainant, to inform the respondent doctor about the herbal medicines he was taking and also to show the medicines to him. She also stated in her affidavit that she had informed respondent doctor about the sexual disorder (erectile disfunction) on phone. She has further stated in her affidavit that during the period of treatment by the respondent, her husband-the complainant was also taking treatment from Dr. Sandeep Pandey and Dr. S.N. Mishra. She further stated in the affidavit that her husband was satisfied with the treatment by the respondent and that he became completely alright by the treatment of respondent doctor; but after 3 months after stopping treatment of respondent doctor, he suddenly started having complaint of vomiting etc. upon which he consulted Dr. Deshpande and Dr. shubha Dubey. 18. Thus the affidavit as above of complainant's wife Smt. Manisha Trivedi corroborates the version of respondent doctor that the complainant was taking herbal medicines and was also consulting and was taking treatment from other doctors without the respondent's knowledge. Dr. Shubha Dubey examined by the complainant admitted in her statement, that some of the herbal medicines may have adverse effect on kidney. Thus possibly the kidneys of the complainant might have been damaged due to some herbal medicines he was taking without the knowledge and prescription of the respondent doctor. Be that as it may, it does not appear that the treatment given by respondent doctor had any adverse effect on the kidneys or resulted in the failure of kidneys of the complainant. 19. Thus, to sum up, it is clear that the respondent treated the complainant from 22.3.2002 to 31.5.2003. Be that as it may, it does not appear that the treatment given by respondent doctor had any adverse effect on the kidneys or resulted in the failure of kidneys of the complainant. 19. Thus, to sum up, it is clear that the respondent treated the complainant from 22.3.2002 to 31.5.2003. The complainant's ailments as reported to the respondent, from time to time, were duly treated by the respondent. There is nothing on record to show that the treatment given by the respondent to the complainant was improper. It also appears that the complainant was not regular and deviated from the advise of the respondent. He also appears to be taking herbal medicines and was also consulting and receiving treatment from other doctors, during the above period, in which he received treatment from respondent. The kidney problem which was detected on 5.9.2003, occurred much later, after the complainant stopped taking treatment from the respondent. There is not material whatsoever, on record to show that the kidney problem as above of the complainant, resulted due to the treatment or medicines prescribed by the respondent. In fact, from the statement of Dr. Deshpande and Dr. Shubha Dubey, examined by the complainant, it would appear that none of the medicines prescribed by the respondent, could result in kidney failure. Thus by the said statements also the allegation of the complainant stands negated. In the foregoing circumstances, renal failure of the complainant, suffered by him, much later after the complainant stopped the treatment of the respondent, could not be attributed to the respondent. 20. Thus, the complainant has failed to prove that there was any negligence of the respondent, in the treatment of the complainant. The finding as above of the District Forum are based on proper appreciation of evidence and circumstances of the case. The said findings are affirmed. In view of above, it is clear that there is no substance in this appeal. It is accordingly dismissed. Impugned order is affirmed. Appeal Dismissed.