CASE COMMENTARY
BHANWAR KANWAR v. RK GUPTA AND ANR.
Arjav Sony
Legal Research Intern, Edge Law Partners and Advocates
FACTS
The defendant was a licenced Ayurvedic
practitioner. In this case, the respondent said that he had invented an
effective treatment for epilepsy. In the current instance, the appellant sought
treatment from this practitioner for his four-year-old kid. The medication was
maintained for two years, but the appellant's child's health deteriorated due
to many epileptic seizures. The reply afterwards remarked that Ayurveda is a
sluggish and time-consuming system of healing. After being sent to a certified
neurologist, Dr. Ashok Pangariya, the doctor said that there was no way for the
youngster to recover to normal growth. Later, it was discovered that the
responder was dispensing Allopathic medications under the pretence of Ayurveda.
Thus, a complaint was brought seeking punitive damages on behalf of the mother
and child, who had suffered mental suffering as a result of the practitioner's
deceit.
JUDGES
·
Hon'ble
Mr. Justice Ganpat SinghSinghvi
·
Hon'ble
Mr. Justice Sudhansu Jyoti Mukhopadhaya
ISSUES
·
The first issue was to
identify medical malpractice and the level of damages.
·
The second issue was whether
the advertising was deceptive and engaged in an unfair business practice?
·
The third issue was whether
the respondent has the authorization to provide the medication to the kid?
JUDGEMENT
The court concluded that the respondents
have definitely behaved negligently. In the instance of medical negligence,
medical practitioners are liable because a reasonable standard of care and
expertise is required of a competent and rational medical professional. In
medical instances, the degree of reasonability may be determined by the
following three factors:
In medical instances, the degree of
reasonability may be determined by the following three factors:
i)
Whether to give therapy
ii)
The care provided
during therapy
iii)
Treatment
administration
It should be observed that the medical
respondent is not an assigned medical professional in allopathic medicine, and
so the act's core premise of reasonability fails the Bolam v. Freirn Hospital
Supervisory Board test. The act is not conducted in line with the process
acknowledged by a reasonable and responsible group of medical practitioners,
according to Bolam's Test.
According to Section 2(1)(r) and 2(1)(g)
of the Consumer Protection Act, 1986, the respondents' advertising constitutes
unfair trade conduct and inadequacy in services, respectively, as defined in
Section 2(1)(o) of the Consumer Protection Act.
The deceptive advertising in this case
was published in a newspaper, Jan Satta, on August 8, 1993, and promised
treatment of patients with fits using Ayurvedic medication by Dr. R.K. Gupta,
respondent 1. Sub-section (vi) of Section 2(1) (r) of the Consumer Protection
Act, 1986 states that making a false or misleading representation about the necessity
for, or the usefulness of, any products or services is an unfair commercial
conduct.
This is a shortcoming in service as
described under Section 2(1)(g) of the Consumer Protection Act, 1986. In this
matter, the respondent has a defect and lack of service in the kind and manner
in which the drug was provided fraudulently.
The respondents in this case are
accountable for the losses caused to the appellant and the child, as stated by
the National Commission and the Supreme Court. To compensate the applicant and
the kid, the National Commission awarded him a sum of 5 lakhs. In its ruling,
the Supreme Court correctly points out that the compensation must be increased.
The court emphasises that the
respondents must compensate.
In the current instance, the respondent
is an Ayurvedacharchya with a degree in Ayurvedic Medicine. This does not,
however, qualify him to apply for registration or practise in the area of
allopathic medicine. However, a glaring contradiction to this contention, which
comes into play in this case, is a letter from the Secretary of the Medical
Education Department of the Uttar Pradesh Government, which states that there
will be a strict ombudsman for quacks and unqualified doctors throughout the
state, but also adds that, pursuant to Section 39(1) and 41(2) of the UP Indian
Medical Councils Act, 1939, the State may use allopathic medicines in certain
circumstances.
Dr. R.K. Gupta is not registered with
the Indian Medical Councils under Section 15(2) of the Indian Medical Councils
Act, 1956 for the practise and profession of allopathic medicine. It is
respectfully urged that, on the reading of the case, the respondent
practitioner made no claim to being a medical practitioner and was granted a
vague right to practise and profess Allopathic medicine.
CONCLUSION
The Supreme Court's verdict is per
curium, as it corresponds to fundamental principles of justice. In the current
instance, it is obvious from the facts and circumstances that the respondent's
conduct constituted medical negligence and was not reasonable under the Bolam's
Test as established in Bolam v. Freirn Hospital Management Committee.
The National Commission and the Supreme
Court have both said unequivocally that there was a clear instance of service
insufficiency, which also constitutes an unfair trading conduct. As a result of
this case, it may be concluded that the compensation awarded by the National
Commission is a bare minimum, which contradicts the entire objective of justice
and its applications.
Finally, based on the facts and
circumstances of the current case, it may be determined that the respondent was
not competent to administer the medication to the kid. He was not a registered
practitioner, as required by law, and may therefore be demonstrated to be a
quack in this instance. The simple premise of not contesting the registration
issue demonstrates the same. The Secretary's letter only modifies some existing
standards and guidelines governing the practise and practice of any
Ayurveda/Unani healthcare provider.
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