BHANWAR KANWARversusR.K. GUPTA & ANR.

                     [2013] 3 S.C.R. 151


                    BHANWAR KANWAR                                A
                              v.
                      R.K. GUPTA & ANR.
               (Civil Appeal No. 8660 of 2009)
                       APRIL 5, 2013
                                                                  B
          [G.S. SINGHVI AND SUDHANSU JYOTI
                  MUKHOPADHAYA, JJ.]

      Consumer Protection Act, 1986 - s.14(1)(f) - Medical
 treatment - Deceit - Appellant's son suffering from              C
 convulsions/fits- Respondent no.1, an Ayurvedic practitioner,
 had claimed through advertisement that he had total cure for
 such convulsions/fits - Allegation of deceptive practice by
 respondent no. 1 - that he administered Allopathic medicines
 passing them off as ayurvedic medicines - Held: The              D
 respondents relied on a letter dated 24th February, 2003
·issued by the Medical Education Department, Government
 of U.P. to suggest that the Aurvedic/Unani Practitioners
 practicing. Ayurvedic System are also authorised to use
 allopathic medicines under U.P. Indian Medical Council Act,      E
 1939 - However, since the incident and treatment as alleged
 by the appellant relate to the period 1994 to 1997, therefore,
 letter dated 24th February, 2003 is of no avail to the
 respondents - Respondent No. 1 was guilty of unfair trade
 practice and adopted unfair method and deceptive practice        F
 by making false statement orally as well as in writing - Both
 the child and his mother (appellant) suffered physical and
 mental injury due to the misleading advertisement, unfair
 trade practice and negligence of the respondents - Appellant
 and the child thus entitled for enhanced com11ensation for the   G
 injury suffered by them - Since no reason given by the
 National Commission for deducting 50% of the compensation
 amount and to deposit the same with the Consumer Legal Aid
 Account of the Commission that part of the order passed by
                             151                                  H
    152     SUPREME COURT REPORTS             [2013] 3 S.C.R.

A the National Commission is set aside - Amount of
    compensation enhanced from Rs.5 lakhs (as directed by the
    National Commission) to Rs. 15 lakhs with direction to the
    respondents to pay the amount to the appellant.

      The appellant's son suffered from convulsions/fits.
8
  Respondent no.1, an Ayurvedic practitioner, had claimed
  through advertisement that he had total cure for such
  convulsions/fits. The appellant approached respondent
  No.1 for treatment of her son. Respondent no.1
  prescribed medicines and for considerable time period,
C the appellant got her son treated from respondent no.1.
  The condition of the child, however, only deteriorated
  despite respondent no.1 's re-assurance that the line of
  treatment was correct. Later, when a Consultant
  Neurologist was consulted, he opined that there was no
D hope of the child growing up as a normal person.

       The appellant lodged complaint before the consumer
  commission alleging that respondent No.1 was passing
  off Allopathic medicines as Ayurvedic medicines and that
E he was prescribing Allopathic medicines, for which he
  was not competent to prescribe. It was further alleged
  that respondent no.1 was a quack and guilty of medical
  negligence, criminal negligence and breach of duty as he
  was playing with the lives of innocent people without
F understanding the disease. It was, inter alia, prayed that
  direction be issued to respondents to pay a sum of Rs.20
  lakhs as compensation; to refund the charges paid by
  the appellant to the respondents and to reimburse
  expenses incurred by the appellant in course of the
G treatment.
       So far as entitlement of respondent No.1 to prescribe
  allopathic medicine is concerned, the respondents relied
  on a letter dated 24th February, 2003 issued by the
  Secretary, Medical Education Department, Government of
H U.P. to suggest that the Aurvedic/Unani Practitioners
     BHANWAR KANWAR v. R.K. GUPTA & ANR.                153

practicing Ayurvedic System are also authorised to use        A
allopathic medicines under U.P. Indian Medical Council
Act, 1939.

     The National Commission held that respondent No.1
having made the false representation was guilty of unfair 8
trade practice but held that in the light of letter dated 24th
February, 2003 respondent No.1 was entitled to prescribe
Allopathic medicines. However, with a view to curb false
representation and to restore faith of the people in
Ayurvedic System the National Commission passed a C
direction under Section 14(1) (f) of the Consumer
Protection Act, 1986 directing the respondents to pay
compensation of Rs.5 lakhs but it ordered to pay only a
sum of Rs.2.50 lakhs to the appellant and to deposit the
rest of the amount of Rs.2.50 lakhs in favour of Consumer
Legal Aid Account of the National Commission.                  D

    In the instant appeal, the appellant-complainant
challenged the quantum of compensation ordered to be
paid in favour of appellant and the part of compensation
ordered to be deposited with Legal Aid. She also raised        E
doubt on the authority of respondent No.1 to prescribe
Allopathic medicines contending that the letter dated 24th
February, 2003 was of no help to respondent No.1 and
could not be given retrospective effect.
                                                               F
    Allowing the appeal, the Court

     HELD: 1. The incident and treatment as alleged by
the appellant relate to the period 1994 to 1997. Therefore;
letter dated 24th February, 2003 is of no avail to the
respondents as the same was not in existence during the G
period of treatment. From the aforesaid letter it is clear that
in connection with some case the High Court of Allahabad
issued direction to take action against the quacks who
were practicing in Allopathic Medicine but not registered
with Medical Council. [Para 13] [160-D; 161-E]                  H
    154       SUPREME COURT REPORTS            [2013) 3 S.C.R.


A        2. The respondent No.1 has nowhere pleaded that
    he was registered with the Medical Council or enrolled in
    the State Medical Register. He has not cited even the
    registration number and no specific plea has been taken
    that he has already been registered with the U.P. State
s   Medical Council. Even the registration number has not
    been mentioned. Merely on the basis of a vague plea;
    the National Commission held that respondent No.1 was
    entitled to practice and prescribe modern Allopathic
    medicine. [Para 14] [161-F-G]
c      3. The National Commission has already held that
  respondent No.1 was guilty of unfair trade practice and
  adopted unfair method and deceptive practice by making
  false statement orally as well as in writing. In view of the
  aforesaid finding, it is held that both the child and the
D appellant suffered physical and mental injury due to the
  misleading advertisement, unfair trade practice and
  negligence of the respondents. The appellant and the
  child thus are entitled for an enhanced compensation for
  the injury suffered by them. Further, no reason has been
E given by the National Commission for deducting 50% of
  the compensation amount and to deposit the same with
  the Consumer Legal Aid Account of the Commission.
  [Para 15] [161-H; 162-A-C]

F       4. Accordingly, that part of the order passed by the
    National Commission is set aside and the amount of
    compensation is enhanced to Rs.15 lakhs for payment In
    favour of the appellant with a direction to the respondents
    to pay the amount to the appellant within three months.
G . [Para 16) [162-C-D]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8660 of 2009.
          From the Judgment & Ord.er dated 29.01.2009 of the
H
     BHANWAR KANWAR v. R.K. GUPTA & ANR.                      155


National Consumer Disputes Redressal Commission, New                 A
Delhi in Original Petition No. 234 of 1997.

     Rajeev Sharma for the Appellant.

     Gaurave Bhargava, Niraj Gupta for the Respondents.
                                                                     B
     The Judgment of the Court was delivered by

     SUDHANSU JYOTI MUKHOPADHAYA, J. 1. This
appeal has been preferred by the complainant-appellant
ag.ainst the order and judgment dated 29th January, 2009 C
passed by the National Consumer Disputes Redressal
Commission, New Delhi (hereinafter referred to as the 'National
Commission') in Original Petition No. 234of1997 whereby the
National Commission quantified the compensation payable by
the respondents as Rs. 5,00,000/- and directed respondent
No.1 to pay a· consolidated sum of Rs.2,50,000/- to the · D
appellant and to deposit the remaining amount of Rs.2,50,000/
- in the account of the Consumer Legal Aid of the National
Commission.

     2. The appellant is aggrieved by the said order and             E
judgment with respect to the total amount of compensation
granted. She has also challenged that part of the order whereby
Rs.2,50,000/- out of the total compensation amount has been
ordered to be deposited in the account of Consumer Legal Aid
of the National Commission.                                          F
     3. The facts that lead the complainant to move before the
National Commission are as follows:

     Prashant, son of the appellant born in May 1989 suffered
from febrile convulsions during fever at the age of six months.      G
He was taken to nearby Doctor who after examining him
informed that the children can get such kind of fits during fever.
He was treated by giving paracetamol tablet. Even after that
Prashant had high fever he suffered convulsions for which he
was treated by one Dr. Ashok Panagariya, Consultant                  H
    156      SUPREME COURT REPORTS                 [2013] 3 S.C.R.


A Neurologist and Associate Professor of Neurology SMS
  Medical College Hospital, Jaipur and at All India Medical
  Sciences, New Delhi.

          4. According to the appellant, she came across an
    advertisement published in a newspaper 'Jan Satta' dated
8   8.8.1993 offering treatment of the patients having fits with
    Ayurvedi medicine by Dr. R.K. Gupta-respondent No.1. The
    advertisement impressed the appellant as the respondent No.1
    claimed total cure of fits. The appellant wrote a detailed letter
    to respondent No.1 about her son's fits during high fever. In
C   response, respondent No.1 sent a letter dated 23rd November,
    1993 assuring that he had specialised treatment for the
    problem of Prashant by Ayurvedic medicines. He advised the
    appellant to bring her son Prashant in his Clinic. Accordingly,
    on 21st February, 1994 the appellant and her husband along
D   with Prashant visited respondent No.2-Neeraj Clinic Pvt. Ltd.,
    run by respondent No.1 at Rishikesh. Prashant was registered
    vide Registration No. 7955 dated 21.2.1994. The appellant
    was made to pay Rs.2, 150/- towards consultancy charges and
    the cost of medicines for one year vide Cash Memo No.61
E   dated 21.2.1994 by respondent No.1. She was told by
    respondent No.1 that medicines given were the combination
    of hundreds of herbs. Respondent No.1 also handed over a
    printed circular to the appellant who started thereafter giving
    medicines to Prashant regularly in the hope that he will be cured.
F   It was alleged that despite medicines being given regularly the
    condition of Prashant started deteriorating day by day and the
    fits which were occasional and occurred only during the high
    fever, started occurring even without fever.
       5. On being informed of the condition of Prashant
G respondent No.1 intimated that the medicine being Ayurvedic
  had slow effect. He instructed the appellant to regularly
  administer the medicines. Respondent No.1 sent medicine
  through VPP. On seeing condition of Prashant getting
  deteriorated again, the appellant sent a fax dated 18th June,
H
     BHANWAR KANWAR v. R.K. GUPTA & ANR.                     157
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]
 1995 to respondent No.1 and in response thereto, respondent        A
 No.1 sent fax advising to continue the medicines as before.
 Thereafter another communication was sent to respondent
 No.1, in response whereof responder;it No.1 sent a letter on
 30.9.1995 reassuring that the line of treatment was correct and
 he advised the appellant to bring Prashant for check up and        B
 also the left over medicines. The appellant along with Prashant
 again visited the Clinic at Rishikesh to consult respondent No.1
 in October, 1995. After examining Prashant respondent No.1
 gave medicines for which he charged Rs.1500/-. The appellant
was given black and thick white tables to be administered to        c
 Prashant. In the fax dated 20.6.1995 respondent No.1 advised
 the appellant to continue with the treatment for 3 years.
 Meanwhile, the fits became more frequent and for longer
 durations. On 14th November, 1995, the appellant contacted
 respondent No.1 over telephone and during discussion,              D
 respondent No.1 told the appellant not to worry and assured
 her to send more powerful medicines. Thereafter, respondent
 No.2 sent white coloured tables with a letter dated 14.11.1995.
 During the period from February 1994 to October 1996 the
 appellant did not contact Dr. Ashok Pangariya. However, since      E
the condition of Prashant worsened the appellant again
·consulted Dr. Ashok Pangariya on 28th October, 1996 who told
 her that there was no hope of the child becoming normal and
 he will not grow as a normal child. To ensure the family tree
growing, the complainant wanted to have another child, but due
to her physical and mental condition and total preoccupation        F
with Prashant she was advised to undergo medical termination
of pregnancy. On making enquiry as to the nature of medicines
 prescribed by respondent no.1 to Prashant it was revealed that
the small white tablets were Selgin which is not meant for
children. It is alleged that respondent No.1 was passing off        G
Allopathic medicines as Ayurvedic medicines. It is further
alleged that he is a quack and guilty of medical negligence,
criminal negligence and breach of duty as he was playing with
the lives of innocent people without understanding the disease.
                                                                    H
    158      SUPREME COURT REPORTS                [2013] 3 S.C.R.


A   He was prescribing Allopathic medicines, for which he was not
    competent to prescribe.

         It was, inter alia, prayed that direction be issued to
    respondents to pay a sum of Rs.20 lakhs as compensation; to
    refund the charges paid by the appellant to the respondents and
8
    to reimburse the expenses incurred by the appellant on
    travelling to Rishikesh and a sum of Rs.10 lakhs for undergoing
    termination of pregnancy.

         6. On notice, the respondents appeared before the
C   National Commission and denied the allegation. According to
    respondent No.1 he obtained Ayurvedacharaya degree on 31st
    December, 1984 and established respondent No.2-Clinic in the
    year 1991. It was accepted that the appellant approached the
    respondent No.1 for treatment of her son's seizures. After
D   examination of the appellant's son he prescribed medicines,
    namely, 'Phenobarbitone' or 'Phenobarbital' and 'Wafera'
    which are Allopathic as well as ayurvedic medicines and which
    are considered to be an appropriate drug for epilepsy patients.
    The Medicine Code-A1-'Wafera' is an Ayurvedic medicine and
E   is a brain tonic. He denied that medicine 'Selgin' was
    prescribed. It was alleged that the appellant failed to
    administer the medicines as prescribed by him. On the other
    hand, she consulted various other Doctors simultaneously for
    treatment of her son including Dr. Ashok Panagariya and
F   Doctors at AllMS. It was asserted that the treatment given to
    Prashant, son of the appellant was proper treatment for epilepsy
    and Prashant could have developed mental retardation due to
    the intake of other medicines. The Ayurvedic medicines take
    their own time before showing signs of recovery and, therefore,
G   there was slow improvement.

       7. So far as entitlement of respondent No.1 to prescribe
  allopathic medicine is concerned, the respondents relied on a
  letter dated 24th February, 2003 issued by one Shri Jagjit
  Singh, Secretary, Medical Education Department, Government
H of U.P. to suggest that the Aurvedic/Unani Practitioners
     BHANWAR KANWAR v. R.K. GUPTA & ANR.                     159
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]
practicing Ayurvedic System are also authorised to use              A
allopathic medicines under U.P. Indian Medical Council Act,
1939.

     8. The National Commission by its order dated 16th
January, 2003 directed that the medicines be sent to an
appropriate laboratory. By an order dated 5th March, 2004, the      8
medicines were sent to Shri Ram Institute for Industrial
Research, New Delhi. As per the reports of the said Institute
the medicines were Allopathic medicines, except one which
could not be identified.
                                                                    c
     9. After hearing the parties and on perusal of the report
submitted by Shri Ram Institute for Industrial Research
Laboratory, the National Commission by the impugned
judgment held that respondent No.1 having made the false
representation was guilty of unfair trade practice but held that    o
in the light of letter dated 24th February, 2003 respondent No.1
was entitled to prescribe Allopathic medicines. With a view to
curb such a false representation and to restore faith of the
people in Ayurvedic System the National Commission passed
a direction under Section 14(1) (f) of the Consumer Protection      E
Act, 1986 to pay compensation of Rs.5 lakhs but it ordered to
pay only a sum of Rs.2.50 lakhs to the appellant and to ~eposit
the rest of the amount of Rs.2.50 lakhs in favour of Consumer
Legal Aid Account of the National Commission.

     10. The respondents have not challenged the finding of the     F
National Commission to the effect that respondent No.1 has
made false representation and was guilty of unfair trade
practice.

     11. In the present case, the learned counsel for the           G
appellant has challenged the quantum of compensation ordered
to be paid in favour of appellant and the part of compensation
ordered to be deposited with Legal Aid. She has also raised
doubt on the authority of respondent No.1 to prescribe
Allopathic medicines. It was contended that the letter dated 24th   H
    160           SUPREME COURT REPORTS            [2013] 3 S.C.R.


A   February, 2003 is of no help to respondent No.1 and cannot
    be given retrospective effect.

       12. Considering these challenges by the appellant and on
  accepting the finding of the National Commission that
  respondent no.1 is guilty of unfair trade practice the questions
B that arise for our consideration are:

           (i)     Whether respondent No. 1 was entitled to practice
                   and prescribe modern Allopathic medicines; and

c          (ii)    What is the amount of compensation to which the
                   appellant is entitled ?

        13. The incident and treatment as alleged by the appellant
  relate to the period 1994 to 1997. Therefore, letter dated 24th
  February, 2003 is of no avail to the respondents as the same
D was not in existence during the period of treatment. The said
  letter dated 24th February, 2003 reads as follows:

                                             "No.726/71-2-2003-15
          From
E         Jagjit Singh
          Secretary, U. P. Government
          Medical Education Department
          To
          All Medical Officers
F         Uttar Pradesh
          Medical Education Department-2
                                 Lucknow: Dated 24 February 2003

           Sub: To stop activities of harassment and suppression
G               of Integrated Medical Practitioners in the State.

          Sir,

          I have been directed to state that it is known that the job
          of Registering Ayurvedic/Unani Practitioners is done by
          U.P. Indian Medical Council. In the State Ayurvedicl
      BHANWAR KANWAR v. R.K. GUPTA & ANR.                      161
       [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     Unani Practitioners practicing Ayurvedic System are               A
     authorized to use allopathic medicines under UP Indian
     Medical Council Act, 1939 Section 39(1) and 41(2) and
     they hold the same rights as that of al/opathic
     practitioners. Hon'ble High Court has directed to take
     action against quacks who are registered nowhere.                 B
     Accordingly it has been decided that if during any such
     harassment any of the Registered Ayurvedic/Unani
     Practitioner produces the Registration Certificate then no
     action should be taken against him.

      Therefore the above orders are to be complied strictly.
                                                                       c
                                                   Yours faithfully,
                                                              Sd/-
                                                      Jagjit Singh
                                                       Secretary"      0

      From the aforesaid letter it is clear that in connection with
 some case the High Court of Allahabad issued direction to take
 action against the quacks who are practicing in Allopathic
 Medicine but not registered with Medic<1I Council.                    E
       14. Learned counsel for the respondents has not brought
  to our notice any Act known as U.P. Indian Medical Council Act,
  1939 but we find that there is an Act known as U.P. Indian
  Medicine Act, 1939. In any case respondent No.1 has nowhere
, pleaded that he was registered with the Medical Council or           F
' enrolled in the State Medical Register. He has not cited even
  the registration number and no specific plea has been taken
  that he has already been registered with the U.P. State Medical
  Council. Even the registration number has not been mentioned.
  Merely on the basis of a vague plea; the National Commission         G
  held that respondent No.1 was entitled to practice and prescribe
  modern Allopathic medicine.
    15. The National Commission has already held that
respondent No.1 was guilty of unfair trade practice and adopted        H
    162      SUPREME COURT REPORTS               [2013J 3 S.C.R.

A unfair method and deceptive practice by making false
  statement orally as well as in writing. In view of the aforesaid
  finding, we hold that both Prashant and the appellant suffered
  physical and mental injury due to the misleading advertisement,
  unfair trade practice and negligence of the respondents. The
B appellant and Prashant thus are entitled for an enhanced
  compensation for the injury suffered by them. Further, we find
  no reason given by the National Commission for deducting
  50% of the compensation amount and to deposit the same with
  the Consumer Legal Aid Account of the Commission.
c       16. We, accordingly, set aside that part of the order
  passed by the National Commission and enhance the amount
  of compensation at Rs.15 lakhs for payment in favour of the
  appellant with a direction to the respondents to pay the amount
  to the appellant within three months. The appeal is allowed but
D there shall be no separate order as to costs.
    B.B.B.                                       Appeal allowed.