ISHWARDAS LEKHRAJ RAMCHANDANI Vs. P J BUCH

JUDGEMENT

(1.) 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. .

(2.) 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.

(3.) 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 Sec.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.