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1996(4) Supreme 328
SUPREME COURT OF INDIA
Kuldip Singh and S. Saghir Ahmad, JJ.
Poonam Verma -Appellant
versus
Ashwin Patel & Ors. -Respondents
Civil Appeal No. 8856 of 1994
Decided on 10-5-1996
Held : A combined reading of the aforesaid Acts, namely, the Bombay Homoeopathic Practitioners Act, 1959, the Indian Medical Council Act, 1956 and the Maharashtra Medical Council Act, 1965 indicates that a person who is registered under the Bombay Homoeopathic Practitioners Act, 1959 can practice Homoeopathy only and that he cannot be registered under the Indian Medical Council Act, 1956 or under the State Act, namely, the Maharashtra Medical Council Act, 1965, because of the restriction on registration of persons not possessing the requisite qualification. So also, a person possessing the qualification mentioned in the Schedule appended to the Indian Medical Council Act, 1956 or the Maharashtra Medical Council Act, 1965 cannot be registered as a Medical Practitioner under the Bombay Homoeopathic Practitioners Act, 1959, as he does not possess any qualification in Homoeopathic System of Medicine. The significance of mutual exclusion is relevant inasmuch as the right to practice in any particular system of medicine is dependent upon registration which is permissible only if qualification, and that too, recognised qualification, is possessed by a person in that System. (Para 34)
(ii) NEGLIGENCE-Medical Profession-Respondent registered as a Medical Practitioner under Bombay Homoeopathic Practitioners Act-He was under statutory duty not to enter field of any other system of medicine-He having practised in Allopathy without being qualified in that system-His conduct amounted to an actionable negligence-No further proof needed.
Held : Since the law, under which Respondent No. 1 was registered as a Medical Practitioner, required him to practice in Homoeopathy Only, he was under a statutory duty not to enter the field of any other System of Medicine as, admittedly, he was not qualified in the other system, Allopathy, to be precise. He trespassed into a prohibited field and was liable to be prosecuted under Section 15(3) of the Indian Medical Council Act, 1956. His conduct amounted to an actionable negligence. (Para 39)
Further held : Where a person is guilty of Negligence per se, no further proof is needed. However, we may notice that Respondent No. 1 started treatment of Pramod Verma for Viral Fever as it was "very much prevalent in the locality". Subsequently, he treated Pramod Verma for Typhoid Fever since it was "prevalent at that time in the locality in question and neighbouring localities of Bombay". On both the occasions, treatment was given for fever which Respondent No. 1 thought was prevalent in the locality and, therefore, Pramod Verma would also be suffering from that fever. He did not feel it necessary to confirm the diagnosis by pathological tests which would have positively established whether Pramod Verma was suffering from Typhoid Fever. Respondent No. 1 has given out in his statement on oath, recorded by the Commission, that he had advised Blood test and Urine test but Pramod Verma did not get it done. All the prescriptions of Respondent No. 1 have been filed by the appellant but on none of them any advice was written by Respondent No. 1 for Blood or Urine Test. We cannot ignore the usual practice of almost all the Doctors that when they want pathological tests to be done they advise in writing on a prescription setting out all the tests which are required to be done. Admittedly, Respondent No. 1 had not done it in writing. (Para 42)
Consequently held : The sad story had its beginning in the hands of a Quack Allopathic Doctor, namely, Respondent No. 1 who, having not studied Allopathic System of Medicine, treated Mr. Pramod Verma in that System and gave Broad Spectrum Antibiotics with antiphyretics for Viral Fever "which was prevalent" and then for Typhoid Fever "which was also prevalent" together with tablets as also intra-muscular injections of a sodium compound to relieve him of pain without ascertaining the cause for the pain. Since Pramod Verma had already suffered at the hands of Respondent No. 1 and his condition had already been damaged to an unascer-tainable extent before he was shifted to the clinic of Respondent No. 2, we do not, specially in view of the report of the Professors of AIIMS, consider it proper to proceed against Respondent No. 2. (Para 46)
Respondent No. 1, having practised in Allopathy, without being qualified in that system, was guilty of Negligence per se and, therefore, the appeal against him has to be allowed in consonance with the maxim Sic Utere tuo ut alienum non loedas (a person is held liable at law for the con-sequences of his negligence). (Para 47)
(iii) COMPENSATION-Negligence-Medical Profession-Homo-eopathic Practitioner treating patient in Allopathy System-Broad Spectrum Antibiotics given for Viral Fever before a positive diagnosis established-Patient died-Deceased 35 years of age, getting Rs. 5,700/- p.m. as salary-Award of Rs. 3,00,000/- as compensation. (Paras 46, 48 & 49)
(iv) MEDICAL PROFESSION-Negligence-Liability-Patient with fever treated by Respondent 1, a Homoeopathic Practitioner in Allopathic System-No positive diagnosis established-When condition of patient deteriorated, he was shifted to Nursing Home of Respondent No. 2 as an indoor patient-Patient died-Respondent 2 held not liable for act of negligence. (Para 46)
JUDGMENT
S. Saghir Ahmad, J.-"Similia Similibus Curantur" (Like Cures Like) is the basis of a system of therapeutics known popularly as Homoeopathy. It is based on the premise that most effective way to treat disease is to use drugs or other agents that produce the symptoms of the decease in healthy persons. This theory had its origin in or about 460 B.C. when the Greek physician, Hippocrates, noted the similarity between the effect of some drugs and the symptoms of the diseases they seemed to relieve. It was, however, in the late 18th Century that this theory was tested and popularised by German Physician, Christian Friedrich Samuel Hahnemann as a new form of therapeutic treatment after six years test study of scores of drugs on himself and others. Ultimately, in 1976, he published his findings in a leading Medical journal under the caption "On a New Principle for Ascertaining the Curative Power of Drugs" which set in motion a process of continued research in all directions including its Pharmacology with the result that Homoeopathy is taught today as a positive science in various Medical Colleges all over the country.
2. Respondent No. 1 purused a 4 years course in Homoeopathic Medicine and Surgery and after being declared successful in the Examination conducted by the Homoeopathic Medical College, Anand, Gujarat, he was awarded a Diploma in Homoeopathic Medicine and Surgery on the basis of which he was registered as a Medical Practitioner in 1983. Initially, he joined a private nursing home at Bombay where he worked, as he claims, as Chief Medical Officer from 1983 till he opened his own private clinic in 1989 and took up private practice.
3. Pramod Verma, husband of the appellant, was Sales Manager in M/s. Encore Marketing P. Ltd. where the last salary drawn by him is said to be Rs. 5,700/- out of which he maintained his family comprising of himself, his wife and two children besides supporting the aged parents.
4. On 4th of July, 1992, Pramod Verma, who complained of fever was examined at his residence by Respondent No. 1 (Dr. Ashwin Patel) who kept him on allopathic drugs for viral fever up to 6th July, 1992 and, thereafter, for typhoid fever. When condition of Pramod Verma deteriorated, he was shifted to Sanjeevani Maternity and General Nursing Home of Dr. Rajeev Warty (Respondent No. 2) as an indoor patient on 12th July, 1992. This was done on the advice of Respondent No. 1. Verma received treatment there till the evening of 14th July, 1992 when he was transferred to the Hinduja Hospital in an unconscious state where, after about four and a half hour of admission, he died.
5. Appellant thereafter, filed (on 14.8.92) Original Petition No. 184 of 1992 before the National Consumer Disputes Redressal Commission (for short, Commission ), at New Delhi praying for compensation and dama-ges being awarded to her by Respondents 1 and 2 for their negligence and carelessness in treating her husband (Pramod Verma) but the Commission by its judgment and order dated 8.11.1994 dismissed the petition. It is this judgment which is challenged in this appeal.
6. It appears that in the claim lodged before the Commission, it was set out by the appellant that Respondent No. 1 was negligent in administrating strong antibiotics to Pramod Verma initially for the treatment of Viral Fever and subsequently for Typhoid Fever without confirming the diagnosis by Blood Test or Urine Examination. It was also set out that Respondent No. 1 was not qualified or even authorised to practise in Allopathic System of Medicine and prescribe allapathic drugs and, therefore, his lack of expertise in the Allopathic System of Medicine was responsible for deficiency in the treatment administered by him.
7. Negligence imputed to Respondent No. 2 is that Pramod Verma, immediately on his admission in the Nursing Home, was put on intravenous Glucose (Dextrose) drip without ascertaining the level of Blood Sugar by a simple Blood Test. This was said to be primarily responsible
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