BHANWAR KANWAR v. RK GUPTA AND ANR.

 


CASE COMMENTARY

BHANWAR KANWAR v. RK GUPTA AND ANR.

Arjav Sony

Legal Research Intern, Edge Law Partners and Advocates

arjavsony@gmail.com

 

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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