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SUPREME
COURT CASES

   

RIGHT TO PRACTICE TO PRACTICE ALLOPATHY

• Dr.
  Mukhtiar Chand & Ors. v. The State
  of Punjab & Ors.: AIR 1999, SC 468
  
   
  
  In 1999 the Supreme Court in Dr.
  Mukhtiar Chand v. State of Punjab has
  held that Ayurvedic vaids and Unani
  hakims cannot practice allopathic
  medicine unless such right is
  conferred by State Law. The position
  with regard to medical practitioners
  of Indian medicine holding degrees in
  integrated courses is that:- if any
  State Act recognises their
  qualification as sufficient for
  registration in the State Medical
  register, the prohibition from them
  practicing allopathic medicine
  contained in Section 15 (2) (b) of the
  Indian Medical Council Act, 1956 will
  not apply. 
  
     
  
  So far there is no provision in the
  State Acts viz. Bombay Medical
  Practitioners Act, 1938 or the
  Maharashtra Medical Practitioners Act
  under which the right to practice any
  system of medicine is conferred on
  practitioners of Indian medicine
  registered under those Acts.
  Definition of Indian Medicine under
  the Indian Medicine Central Council
  Act, 1970 means system of Indian
  Medicine commonly known as Ashtang
  Ayurveda, Siddha or Unani Tibb whether
  supplemented or not by such modern
  advances as the Central Council may
  declare by notification from time to
  time.
  
    
  
  The definition, however, enables such
  practitioners of Indian Medicine to
  make use of modern advances in various
  sciences such as Radiology, ECG, Blood
  picture report etc. for the purpose of
  practicing their own system. The flip
  side of this judgment is that
  practitioners of other systems of
  medicine cannot practice allopathic
  system of medicine unless a State Law
  permits it. By analogy, allopathic
  practitioners also cannot prescribe
  drugs belonging to another system of
  medicine unless permitted by a State
  Law. As abundant precaution allopathic
  practitioners should only prescribe
  drugs from their own system of
  medicine -the judgment of Poonam Verma
  vs. Dr. Ashwin Patel.
  
      

HIGH
COURT CASES

    

PROFESSIONAL HAZARD RESULTING IN HARM
TO DOCTOR

• Suraj
  Mal Chhajer v. State and others the
  Rajasthan High Court (AIR 1999 Raj.
  82)
  
     
  
  In Suraj Mal Chhajer v. State and
  others the Rajasthan High Court (AIR
  1999 Raj. 82) awarded interim
  compensation to the father of a
  deceased resident doctor who died due
  to contracting Hepatitis-B while in
  service. An Inquiry Committee had
  given a report in which it had stated
  that, “She might not have
  contracted the disease, had she been
  vaccinated earlier against Hepatitis-B
  and adopted other preventive measures,
  such as using disposable syringes,
  needles, gloves, aprons, etc. There
  may be a lapse in the availability of
  these above mentioned preventive
  measures.”
  
       

• Naved
  Ahmed V. Dr. Rakesh Kacker
  
  I(2000)CPJ 201 S C DRC, UP
  
    
  
  Consumer Protection Act, 1986-Section
  2(1)(C)-Complaint-Medical Negligence-Crimal
  case pending Defense if disclosed
  would prejudice defense in criminal
  case-Proceedings before Commission
  cannot  continue Complaint-Case
  stayed till disposal of criminal case.
  
   
  
  Held: If the Opposite party is
  directed to file a written statement
  then naturally his defense which
  he has to take before the Criminal
  Court which is pending ,prejudice will
  be caused to him. No doubt the
  finding arrived at by the Criminal
  Court are not binding on the Civil
  Court, but even thenone has to
  judge the matter in the light of the
  right available to an accused not to disclose
  him defense in a Criminal Court before
  the completion of the prosecution
  evidence. The defense by the
  accused is disclosed at the time of
  his statement under Section 311 of the Criminal
  Procedure Code and thereafter in the
  evidence which he may lead in defense
  of his case. These two statements
  of the accused are recorded after
  completion of the prosecution
  evidence. Before that the accused
  cannot be compelled to disclose his
  defense even though he may put suggestions
  to the witness of the prosecution
  during the course of cross-examination
  which may indicate the defense which
  the accused is going to take. It is
  unto the accused to disclose his defense
  during the course of cross-examination
  of the prosecution witnesses or not
  but he cannot be compelled to do
  so.
  
       
  
  therefore, it will be expedient in the
  in the interest of justice to stay the
  proceedings of this case till the
  criminal case us decided.
  
         

• K.E. RAJESH
  v. PRESIDENT, DISTRICT CO-OPERATIVE HOSPITAL
  
  
  III
  (2000) CPJ 354
  
     
  
  Consumer
  Protection Act, 1986 – Section 15 – Appeal – Kerala Co-operative
  Societies Act
  – Sections 69(1) and 70 – Medical Negligence – Complainant
  treated in Co-operative Hospital – Complainant treated in
  Co-operative Hospital – Complaint filed alleging medical
  negligence – District Forum 
  dismissed complaint is barred under Section 69(1) of
  Kerala Co-operative Societies Act – Appeal – Complainant not a
  member of Society – Case of medical negligence does not acquire
  character of “business” of Society – Complaint is
  maintainable.
  
   
  
  Held:
  Here the complainant is not a member of the Society. Unless it
  is shown, the case of negligence in treatment by the doctors of
  a cooperative hospital could acquire the character of
  “business” mentioned in Section 69(1), a dispute
  touching the said business cannot fall within the scope of
  Section 69(1) so as to require the same to be referred to the
  Registrar for adjudication. Undoubtedly medical negligence
  involves adjudication of the question whether the doctor
  attended the patient with the care and diligence expected of
  him. It will involve the question whether hospital was equipped
  for attending the ailment of the patient. This involves both
  legal and factual questions and, therefore, normally such
  questions cannot be treated to have been intended to be dealt
  with by Registrar of Cooperative Society.
  
   
  
  Held
  further: Having noted that a wide interpretation cannot be given
  to the word “dispute” in Section 69(1) of the Kerala
  Cooperative Societies Act, in the context of the aforesaid
  judicial pronouncements, it has to be helm that the dispute of
  the nature in question would not fall within the scope of
  Section 69(1). Now it becomes necessary to advert to Section
  70(1) (b) of the Act which gives power to the Registrar to
  transfer matter for disposal to any person who has been invested
  by the Government with power in that behalf. 
  When the Registrar cannot deal with a matter, in such
  matters has to be transferred it to competent person who is
  invested with powers in that behalf. Admittedly there is no such
  person appointed or is invested with such powers to adjudicate
  matters relating to medical negligence. Even assuming such
  course is open to the Registrar; the “dispute” should
  be one which could take in a matter like medical negligence. As
  already seen the word “dispute” in the context has to
  be held to have been used only to get a restricted meaning to
  take in only such matter can resolve. And “business”
  could means only actual trading or other similar business
  activity when the Society is authorized to enter into.
  Therefore, one cannot say that the matter involving question of
  medical negligence death with by the Registrar of Co-operative
  Societies so that Section 69(1) of the Act; therefore, the said
  section cannot be made applicable.
  
   
  
  Result:
  Appeal allowed.
  
   
  
  ORDER
  
   
  
  Mr.
  Justice L. Manoharan, President – Complainant in O.P. 1153/98 on
  the file of the Consumer Disputes Redressal Forum, Thrissur is
  the appellant. Complainant alleged before the 
  District Forum that he was admitted in the first opposite
  party-hospital for treatment, he underwent surgery in July, 1997
  and the surgery was performed by the second opposite party.
  After the surgery he had severe pain. When he complained to the
  second opposite party, he was disappear by exercise. Inspite of
  exercise for a long period, the defect did not disappear. So he
  had to undergo another surgery. He is a manual worker; his
  endeavour to work and earn for his living is affected by the
  negligent treatment  imparted
  by the opposite parties. Therefore, he wanted a direction to the
  opposite parties to pay compensation. Version was filed. The
  District Forum proceeded to hear the complainant’s Counsel and
  the respondent. On hearing them the District Forum dismissed the
  complain holding that under Section 69 of Kerala Cooperative
  Societies Act (for short, the Act) the complaint is not
  maintainable before the Forum. The said dismissal is challenged
  in this appeal.
  
   
  
  2. 
  Learned Counsel for the appellant urged, the view taken
  by the District Forum that the complaint is not maintainable
  fore it in view of Section 69 (1) of Kerala Co-operative
  Societies Act is not correct with due regard to the nature of
  the dispute involved. It is urged by the learned Counsel for the
  complainant that dispute touching the business of the Society
  should be one connected with actual business or such other
  matter and it cannot include a case of medical negligence.
  Reliance was also made by the learned Counsel on the decision of
  Supreme Court reported in AIR 1969 
  SC 1320, Deccan Merchants Co-operative Bank Ltd.v.M/s.
  Dalichand Jugraj Jain & Ors. Reliance was also made by the
  learned Counsel on the decision of the Supreme 
  Court in 1995 (3) CPR 412= III(1995) CPJ 1 (SC), Indian
  Medical Association v. V.P. Santha & Anr., wherein the
  Supreme Court went into the question of jurisdiction of the
  Commission and forum to deal with the case of medical negligence
  and held that these FOR A constituted under the Consumer
  Protection Act have got legal background and, therefore, they
  are competent to adjudicate upon the said issues. This decision
  is relied on in support of his argument as to competency of
  Forum to adjudicate the matter.
  
   
  
  On
  the other hand the learned Counsel for the respondent sought to
  support the view of the District Forum maintaining that even
  assuming that the Registrar of Co-operative Society himself may
  not be able to adjudicate a case of medical negligence, since he
  could transfer such type of dispute to any person who has been
  invested with power by the Government to deal with the same,
  there could be no difficulty for the body constituted under
  Section 70(1) of the Act to deal with the matter. Reference was
  made by the learned Counsel on the decision of this Commission
  in V.Viswanatha Pillai & Anr.v.the Branch Manager, Kottayam
  D.C.B. Ltd. & Anr., 1996(1) CPR 453.
  
   
  
  3. 
  The whole argument of the appellant is based on the
  character and nature of the business. Here the complainant is
  not a member of the Society. Unless it is shown, the case of
  negligence in treatment by the doctors of a co-operative
  hospital could acquire the character of “business”
  mentioned in Section 69(1), a dispute touching the said business
  cannot fall within the scope of Section 69(1) so as to require
  the same to be referred to the Registrar for adjudication.
  Undoubtedly medical negligence involves adjudication of the
  question whether the doctor attended the patient with the care
  and deligence expected of him. It will involve the question
  whether hospital was equipped for attending the ailment of the
  patient. The involves both legal and factual questions and,
  therefore, normally such questions cannot be treated to have
  been intended to be dealt with by Registrar of Cooperative
  Society. The Supreme Court in Deccan Jagraj Jain & Ors.
  (supra), referred to early, interpreted the word ‘business’ in
  Sub-section (1) of Section 91 Maharashtra Co-operative Societies
  Act (32 of 1961) and observed that the said word ‘business’ is
  used in narrower sense and it means the actual trading or other
  similar business activity of the Society which the Society is
  authorized to enter into under the Act, Rules and Bye-laws. In
  Para 23 of the said decision the Supreme Court states one other
  limitation, and interprets the word “dispute” and
  holds, the word “dispute” covers only those disputes
  which are capable of being resolved by the Registrar or his
  nominee. The competency of the Forum to 
  adjudicate cases of medical negligence has been gone into
  by the Supreme Court in the decision in Indian Medical
  Association v. V.P. Santha & Ors. (supra), wherein the
  Supreme Court held that the FOR A are competent and equipped to
  go into the question of medical negligence particularly in the
  context of the fact the President of the Forum since is
  well-versed in law and has judicial or legal experience, they
  are in a position to adjudicate both the legal and factual
  question that could arise in such matters.
  
    
  
  4.  
  Having noted that a wide interpretation cannot be given
  to the word “dispute” in Section 69(1) of the Kerala
  Co-operative Societies Act, in the context of the aforesaid
  judicial pronouncements, it has to be held, that the dispute of
  the nature in question would not fall within the scope of
  Section69(1). Now it becomes necessary to advert to Section
  70(1)(b) of the Act which gives power to the Registrar to
  transfer matter for disposal to any person who has been invested
  by the Government with power in that behalf. When the Registrar
  cannot deal with a matter, in such matters has to be transferred
  it to competent person who is invested with powers in that
  behalf. Admittedly there is no such person appointed or is
  invested with such powers to adjudicate matters relating to
  medical negligence. As already seen the word “dispute” 
  in the context has to be held to have been used only to
  get a restricted meaning to take in only such matter can
  resolve. And “business” could means only actual
  trading or other similar business activity when the Society is
  authorized to enter into. Therefore, one cannot say that the
  matter involving question of medical negligence dealt with by
  the Registrar of Co-operative Societies so that Section 69(1) of
  the Act; therefore, the said section cannot be made applicable.
  
   
  
  5. 
  The decision in 1996(1) CPR 453 (supra) is clearly
  distinguishable. (V.Viswanatha Pillai & Anr.v. The Branch
  Manager, Kottayam D.C.B. Ltd. & Anr.). The same concerns a
  loan transaction we have already noted that the Supreme Court in
  Deccan Mercantile Co-operative Bank v. Dalichand (supra), held
  that the “business” is used in the Co-operative
  Societies Act in a narrower sense and it means the actual
  trading or other similar business activity of the Society.
  Therefore, the said decision cannot be made applicable to a case
  involving medical negligence. When that is the position the
  order passed by the District Forum cannot be supported and the
  same is liable to be set aside and the matters has to be
  remitted to the District Forum for disposal in accordance with
  law.
  
   
  
  6. 
  In the result the appeal is allowed the impugned order is
  set aside and the matter is remitted to the District Forum,
  which shall restore the complaint to file, give opportunity to
  opposite party to file their version and will dispose of in
  accordance with law. There will be no orders as to costs in this
  appeal. Parties shall appear before the District Forum on
  30.12.1999.
  
    
  
  Appeal
  allowed.
  
     
  

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