Poonam Verma vs Ashwin Patel and others
Equivalent Citations: 1996 AIR 2111, 1996 SCC (4) 332 - Bench: Ahmad Saghir S. (J), Kuldip Singh (J) - Citation: 1996 Air 2111 1996 Scc (4) 332 Jt 1996 (5) 1 1996 Scale (4)364

JUDGMENT:
S. Saghir Ahmad

"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 disease 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 Cantury 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 1796, 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 pursued 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 damages 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 administering 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 allopathic 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 for constant and steady deterioration of Pramod Verma's condition, but Respondent No.    2 continued to assure    the appellant    that Pramod Verma would soon recover and there was no need to shift him to a better equipped Hospital. It was, however, in the evening of 14th July, 1992, that Pramod Verma who was already in an unconscious state, was    shifted     to Hinduja Hospital on the advice of Respondent No. 2.

8. Both the Respondents filed separate counter-affidavits in which they denied the allegation of negligence made against them and contended that they had    taken all due     and reasonable care     to cure Mr. Verma or the ailment from which he suffered. They contended that there was no deficiency in service nor was there any negligence on their part.

9. The    exact pleas raised in    defence by Respondent    No.1 which have been set out by the Commission in its judgment under appeal, are given below:

"It has been submitted by opposite party no.    1 that    he has undergone an integrated course of study in both the Homeopathic and Allopathic systems of medicine and was awarded the D.H.M.S. Diploma after his having passed the final examination at the end of a four year course conducted     by the Homeopathic Medical College,    Anand,    Gujarat. Exhibit Annexure R-1 is a copy of the said diploma and it shows that the said diploma had been awarded after the     candidate had been examined    inter     alia    in the

following     subjects:     Anatomy

Physiology, Pathology,    Forensic Medicine,    surgery, Practice of Medicine,    Hygiene, Midwifery and Gynaecology. Opposite party no. 1 has stated in his counter affidavit that during the final year of the study in the Homeopathic     Medical collage, Anand he had been given training in the    Anand Municipal Hospital and also another     private nursing home in Anand for a period of six months. Opposite party no. I was thereafter enrolled     as a Registered Medical     Practitioner in the states of Gujarat and Maharashtra with Registration numbers G649 (Gujarat) and 10197 (Maharashtra). Opposite party no. 1 has denied     the allegations of the complainant that     he    is not qualified, competent and authorised to practice the Allopathic system of Medicine. He has submitted that he used reasonable degree of skill and knowledge in treating the complainant's husband and had taken reasonable degree    of care     of the patient while he     was under his treatment.

It is further submitted by opposite party no.    1 in his counter that after the completion of his studies and obtaining the diploma, he had worked as    Chief Medical Officer at a well known Allopathic clinic by name, Patel Surgical &     Nursing Home, Andheri, Bombay from 1983 to 1990 and he had gained very good experience in examining, diagnosing and treating the patients with complaints     of various types of sickness    and in prescribing necessary Allopathic medicines. It is also submitted by opposite party no. l that late Mr. Pramod Verma and his family had been taking Allopathic treatment from him for the sickness of the members of the family ever since they moved into the colony     about one and     a half years prior to July, 1992 and he had been     functioning as their family physician.

According to opposite party no. 1, Mrs. Poonam Verma came     to his clinic on    the evening of 4th July, 1992 and requested him to see her husband at     her home. Accordingly, opposite party no.1 made a house visit and examined Mr. Pramod Verma in the evening of     4th July, 1992 and on such examination     it was found that     Shri Verma had fever. Thereupon he prescribed :

1) cap. Ampicillin (500 mg.- four times a day)

2) Tab. Paracetamol (500    mg. - 3 times a day)

3) Tab. Diavol (2 times a day) and 4) Tab B. Complex (2 times a day) Opposite party no. 1 has stated that he gave the above treatment as he felt it may be a case of viral fever which was    then very much prevalent in the locality.

Thereafter on 6th July, 1992, Mrs. Verma called opposite party no. 1 again to see her husband and hence he went to examine Mr. Verma at his house on that day     in the evening. It was found that Shri Verma had mild fever     and since the fever had continued    for the third day, opposite party no. l states that he advised Mr.Verma     to     undergo pathological tests, namely, blood test & urine examination etc. Since enteric fever was prevalent at that time in the locality in    question (Asha Nager) and neighbouring localities     of Bombay,    opposite party no. 1 prescribed Tab. Quintor (500 mg. 2 times a day for 2 days) in the place of Cap. Ampicillin. It is stated    in the counter affidavit that Quintor is a broad-spectrum antibiotic which is active against the broad-spectrum, of gram negative and gram positive bacteria including Enterbacter. According to opposite party no. 1, Mr. Verma thereafter came to his clinic on 8th July,    1992 and on examining him, opposite party no.    1 found that the was not having any fever. Since there was no other complaint also, opposite party no. 1 advised Mr. Verma     to continue the same treatment    for another two days, i.e. upto    10th July, 1992. It is further averred    in the     counter affidavit that on 10th July, 1932 Mr. Pramod     Verma again came to the clinic of    opposite party no. 1, he had no fever but complained of back-ache. Thereupon opposite party no. 1 advised him     to continue the same treatment as before and added a pain killer Tab. Ibuflamor MX 2 times a day for two days . He also gave him an injection Diclonac (3 cc.1 I/M (Intra-Muscular)     to the patient. Subsequently, at about 10.30 p.m.     on the     night    of 11th July, 1992, the complainant requested opposite     party no. 1 to visit her     residence to    see her husband. Opposite     party     no. 1 thereupon went there and    examined late Mr. Verma. It was found that he had again developed mild fever and was complaining of pain in the shoulder. Opposite party no. 1 then prescribed for him Tab. Vovaron 1 twice daily and Tab. Neopan plus Cap. Becosules 1 twice daily in addition to Quintor and Ibuflamor tablets which he was     already taking.     The     Intra-Muscular

injection of Diclonac (3    cc.) was also given     to the     patient. lt is the definite case of Opposite party no. 1 that he once again     advised Mr. verma to     get pathology investigations done for blood count, E.S.R., urine routine and widal test and told him to meet him with the investigation reports.

On the next date    - 12th    of July, 1992 at about 1 p.m. Mrs. Verma came to the residence of opposite party no.    1 and requested him to see Mr. Verma at    their residence. Thereupon    opposite party no. 1 visited Mr. Verma at his home and examined     him.     On    clinical

examination it was found    that he had mild fever and that his blood pressure was 90/70 mm. of Hg. On the patient being asked about the reports of the pathological investigations, opposite party no. l was informed that Mr. Verma had not got    them done. Thereupon opposite party no. 1 advised the complainant to get her     husband admitted    to some physician's nursing home of their choice for examination,     pathological

investigations    and     further

management. It is the    case of opposite party no. 1 that at that time, Mrs.     Verma herself mentioned the name of Dr.    Warty (opposite party no. 2)     and suggested admission of the patient    into his Sanjeevani nursing home saying that she knew     Dr. Warty quite well because she had     earlier been admitted for her delivery     in Dr. (Mrs.) Warty's Maternity Home. Opposite party no. 1 agreed to the said suggestion and gave a medical note setting out the treatment that he has so far been administering to the patient for being shown to Dr. Warty. The complainant's allegation that opposite party no. 1 had prescribed     strong antibiotics without conducting any pathological investigations is    strongly refuted by     opposite party no.     1 as incorrect and untrue. He submitted that on    the contrary    he had

specifically advised the    deceased Mr. Pramod Verma as early as on 6th July, 1992     to undergo pathological tests and on finding that the tests had not been got    done till then this advise was reiterated on the night of 11th July, 1992. But, for reasons best known to himself, Mr. Verma ignored the said suggestion also and     did     not get the investigations done. When     it was found in the after noon    of 12th July. 1992 that the patient was not cooperating in     getting the investigations done, opposite party no. 1 advised the     complainant to get her husband admitted    to some physician's nursing home for pathological investigation and further management     as it    was felt by opposite party no. 1    that it would not    be prudent or correct to proceed with the treatment of the patient without     getting the requisite     pathological

investigation done.

Opposite party no. 1 has submitted that the treatment administered by him to late Pramod Verma was correct in     every respect and there was no negligence, carelessness or deficiency of any kind on his part in relation to the said treatment given to the deceased Shri Verma during the period 4th July, 1992 to 12th July, 1992.

Respondent No.1 was examined on oath by the Commission, which was keen to know his qualifications and experience in Allopathic System of Medicine. His statement was recorded in question - answer form and the relevant questions     and answers given by Respondent No. 1 are set out below: Mr. Raju Ramacnandran,

Advocate for the

Opposite Party No.1:    Dr. Patel, can you briefly describe your educational qualification, the number of years you have put in

practice, your age?

A.     I passed my DHMS degree i.e. Diploma in Homoeopatnic Medicines and Surgery in 1983 and thereafter I jointed in Bombay one Private

Nursing Home.

Hon'ble President:    This DHMS is conducted by? A.     This DHMS is conducted by Gujarat Homeopathic Medical Council and

from 1983 to 1989 I was working as a Chief Medical Officer there.

Hon'ble Pr.     Where?

A.     In Patel Surgical Nursing Home at Bombay.

Hon'ble Pr.     That is your own.

A.     No that is another Patel. He is himself is a Surgeon.

Mr.Y. Krishnan     Is he an Allopathic Surgeon. A.     Yes, he is an Allopathic Surgeon. Upto 1989 I was there, then I

started my private practice and

opened my clinic in 1989 and

another clinic I opened in 1991.

Hon'ble Pr.     Do you practice allopathy or homoeopathy?

A.     Both, I am practising.

Hon'ble Pr.     Are you registered as Allopathic Practitioner?

A.     I am registered with the

Homeopathic Council.

Hon'ble Pr.     How are you entitled to practice allopathy?

A.     As and when required in emergency cases.

Hon'ble Pr.     Are you permitted in the Medical Council's Rules to practice allopathy? A.     In Gujarat it is allowed.

Hon'ble Pr.     Are you allowed in Maharashtra A.     I have not gone through.

Q.     Your age also for the record. A.     I am right now running 35.

Q.     Dr. Patel, in the course of your Homeopathic Studies were you also given instructions in Allopathic

medicines.

A.     Yes.

Q.     For how many years is the

Homeopathic course,

A.     Four years.

Q.     And your instructions in

Allopathic medicines was tor

now long?

A.     That is upto second year when we got the subject of Anatomy.

Q.     When were you working in

Patel Surgical Nursing Home,

you have started your career?

Did you handle Allopathic

cases? Did you prescribe

allopathic medicines.

A.     Yes, in the absence of Dr.

Patel, I have to manage all

the emergency cases including

medicines.

Q.     The decision whether to give Allopathic medicine or

Homeopathic medicine is taken

by you or at the patients

request. .

A.     No, I was taking the

decision."

10. The     counter-affidavit and    the statement of Respondent No.1 recorded by the Commission are self contradictory While in the    couter-affidavit, he stated to have     studied an integrated course in Allopathic and Homeopathic System of Medicine, in his statement on oath, he categorically stated that he     had studied Homoeopathy only    and instructions in Allopathic medicines were given only in the second year when he was    studying Anatomy. Usually, Pharmacology is taught to students after they have learned Physiology and Anatomy. D.H.M.S. Diploma awarded to     Respondent No. 1 though indicates that     he had studied Anatomy,     Physiology, Pathology, Forensic Medicine, Surgery, Practice of Medicine, Hygiene, Midwifery and Gynaecology,     does    not mention Pharmacology relating to Allopathic System of     Medicine to have been taught to him. He appears to have gained some experience (if at all it can be said to be experience) while he worked as Medical Officer in the private    nursing home where he prescribed    Allopathic Medicines also. It is admitted by him that he was not registered as a Medical Practitioner in Allopathy under the     relevant statutory provisions applicable to the State of Maharashtra to which a detailed reference shall be presently made

11. It will be seen that Respondent    No. 1 had all along treated Pramod    Verma under Allopathic System     prescribing Allopathic Medicines though he     himself was registered as Medical Practitioner with the    Gujarat Homeopathic Medical Council as he had studied Homoeopathy     for 4    years in the medical College     at Anand and had, thereafter, obtained a Diploma in Homeopathic Medicine and Surgery. If, therefore, he had    not studied Allopathy     and had not    pursued     the prescribed course in Allopathy     nor had he obtained     any degree or diploma in Allopathy from any recognised Medical College, could     he prescribe     and administer allopathic medicines, is the question which is to be answered in this appeal with the connected question whether this will amount to actionable negligence.

12. The decision of this Court in Indian Medical Association vs. B.P. Shantha (1995) 6 SCC 651, has settled the dispute regarding applicability     of the     Act to     persons engaged in medical profession either as private practitioners or as Government Doctors working     in Hospitals     or Govt. Dispensaries. It is also settled that     a patient who is a 'consumer within the meaning of the Act has to be awarded compensation for loss or injury suffered by    him due to negligence of the Doctor by applying the same tests as are applied in an action for damages for negligence. .

13. Negligence    as a tort is the breach of a duty caused by omission to do something which a reasonable man would     do. or doing something which a prudent and reasonable man would not do. (See : Blyth vs. Birmingham Waterworks Co. (1856) 11 Ex 781; Bridges vs. Directors, etc. of N.L. Be. (1873-74) LR 7 HR 213; Governor-General in Council vs. Mt. Saliman (1948) ILR 27 Pat. 207; Winfield and Jolowicz on Tort).

14. The definition involves the following constituents: (1) a legal duty to exercise due care; (2) breach of the duty; and

(3) consequential damages.

15. The breach of duty may be occasioned either by not doing something which     a reasonable man, under a given set of circumstances would do, or, by doing     some act which a reasonable prudent man would not do.

16. So far as persons     engaged in Medical Profession     are concerned, it may be stated that every person who enters into the profession, undertakes to bring to the exercise of it, a reasonable degree of care and skill. It is true that a Doctor    or a Suregon    does not undertake that he    will positively cure a patient nor. does he undertake to use the highest possible degree of skills as    there may be persons more learned and skilled than himself, but he definitely undertakes to use a fair, reasonable and competent degree of skill. This implied undertaking constitutes the real test, which will also be clear from     a study and analysis of the judgment in Bolam vs. Friern Hospital Management Committee. (1957) 2 All ER 118, in which, McNair, J., while addressing the jury summed up the law as under : The test is the standard     of the ordinary skilled man exercising and professing     to have that     special skill. A man need     not possess the highest expert skill; it    is well established law     that     it is sufficient     if he exercises the ordinary skill of an    ordinary competent     man exercising that particular art. In the case of a medical man, negligence means failure to     act in     accordance with the standards     of reasonably competent medical    men at the time. There may    be one or more perfectly proper standards, and     if he conforms with one of these proper standards,     then     he is not negligent.

17. This decision has    since been approved by the House of Lords in Whitehouse vs. Jordon (1981)     1 All    ER 267 (HL); Maynard vs. West Midlands Regional Health Authority (1985) 1 All ER 635 (HL); Sidaway vs. Bathlem Royal Hospital (1995) 1 All ER 643 (HL); Chin Keo vs. Govt. of Malaysia (1967) 1 WLR 813 (PC).

18. The     test pointed out by McNair, J. covers the liability of a Doctor in     respect of his diagnosis, his liability to warn the patients of the risk inherent in the treatment and his liability in respect of the treatment.

19. This Court in Dr. Laxman    Balakrishna Joshi vs.     Dr. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128, laid down that a Doctor when consulted by a     patient owes    him certain duties, namely,     (a) a duty of     care in deciding whether to undertake the case; (b) a duty of care in deciding    what treatment to    give; and (c) a duty of care in     the administration of that treatment. A breach of any of these duties gives a     cause    of action for     negligence to     the patient.

20. The principles were reiterated in A.S.. Mittal vs. State of U.P.     AIR 1989 SC 1570, in which wide extracts from that judgment were made and approved.

21. It is in the light of the above principles that it is to be seen     now whether there was     a breach of duty of care on the part of Respondent No. 1 in the process of treatment of Pramod Verma.

22. Respondent    No. l,    at the relevant time, was practicing at Bombay and admittedly he was also registered under the Bombay    Homoeopathic Practitioners Act, 1959, in which, 'Homoeopathy' has been defined under Section 2(8) as under : "Homoeopathy means the Homoeopathic System of Medicine and includes the use Of Biochemic remedies."

23. 'Practitioner' has been defined in Section 2(12) while 'Registered Practitioner' is    defined     in section 2(16). 'Recognised Medical Qualification, according     to Section (14A) means any of     the medical     qualifications     in Homoeopathy, included in the Second or Third Schedule to the Homoeopathy Central Council Act, 1973.

24. Registration Of Practitioners is dealt with in Chapter IV of the Act. Section 20 provides that the Registrar shall prepare     and     maintain a    register of    Homoeopathic Practitioners for the State of Maharashtra in accordance with the provisions of     the Act. The particulars which are required to be entered     in this register and    the persons possessing requisite qualifications, whose names would be entered therein, are indicated in other Sub-sections of this Section.

25. Sub-section 12 (a) of Section 20 provides as under: "Every registered practitioner shall be given a     certificate of registration in the form prescribed by     rules     and    shall    practice

Homoeopathy only.     The registered practitioner shall display the certificate of registration, in a conspicuous place in his dispensary, clinic or place of practice."

26. On    registration, a     person gets the right to practice. This Section also provides that it shall be lawful for such person    to use, after     his name, the words     "Registered Homoeopathic Practitioner" in full to indicate that his name has been entered in the register under the Act.

27. Under Section 23. the Maharashtra Council of Homoeopathy has been given the power to remove the name of     any registered practitioner if he is found guilty of     any misconduct. Explanation appended to Section 23(1) defines misconduct, inter alia, as any conduct Which is infamous in relation to the profession.

28. The     rights of Registered Practitioners are indicated in Section 28 which is quoted below: "28. Notwithstanding anything in any law for the time being in force -

(i) the     expression    "legally

qualified medical    practitioner" or "duly     qualified     medical

practitioner" or any word importing a person recognised by law as a medical practitioner or member of the medical profession shall, in all Acts of the Legislature in the State of Maharashtra and     in all Central Acts (in their application to the State of Maharashtra)in so far as such Acts     relate to any matters specified    in List II or List III in the Seventh Schedule to the Constitution of India, include a    practitioner whose name is entered in     the resister under this Act;

(ii) a certificate required by any Act from any medical practitioner or medical     officer Shall    be valid if such certificate has been signed by a practitioner     whose    name is entered in     the register under this Act;

(iii) a practitioner- whose name is entered in     the register shall be eligible to hold any appointment as physician or other medical officer in     any Homoeopathic dispensary, hospital or infirmary supported by or receiving a grant from the State Government     and treating    patients according     to the Homoeopathic system of medicine or in any public establishment, body or institution dealing with such system of medicine;

(iv) every     registered practitioner shall be exempt, if he so desires, from serving on an inquest under the Code    of Criminal Procedure, 1973.

29. The     scheme of the Act, therefore, indicates that a person gets the right    to practice in Homoeopathy on being registered as a Medical Practitioner. The certificate of registration issued to such practitioner requires him to practice in HOMOEOPATHY ONLY as is clear from the words 'AND SHALL PRACTICE    HOMOEOPATHY ONLY' used in Sub-section 12(a) of Section 20. Apart from the     right    to practice, other rights which become immediately available to    a person on registration of     his name are indicated in Section 28 which, inter alia, includes right to treat patients according to the Homoeopathic System of Medicine.

30. Right to practice in Allopathic System of Medicine as also the right to practice in Ayurvedic or Unani System of Medicine is regulated by separate independent     Central and local Acts. Indian Medical Council Act, 1956 deals, inter alia, with the registration of persons possessing requisite qualifications as Medical Practitioner in Allopathic System as also recognition     of Medical Qualifications     and Examinations by     Universities or Medical Institutions in India.

Section 15 of this Act     provides that     any person possessing any     of the qualifications mentioned in     the Schedule appended to the Act, may apply for the registration of his    name. Sub-sections 2 and 3 of Section 15, which are extremely relevant, are quoted below : "15(21 Save as provided in section 25, no person other than a medical practitioner enrolled on    a State Medical Register-

(a) shall    hold office as physician or surgeon     or any other office (by whatever designation called) in Government or in    any institution maintained     by a    local or other authority;

(b) shall    practice medicine in any State;

(c) shall    be entitled to sign or authenticate a medical or     fitness certificate or     any     other certificate required by any law to be signed    by or authenticated by a duly    qualified     medical

practitioner;

(d) shall     be entitled    to give evidence at any inquest or in any court of law as an expert under section 45     of Indian Evidence Act, 1872 on any matter relating to medicine.

(3) Any    person     who acts in

contravention of any provision of sub-section (2) shall be    punished with imprisonment    for a term which may extend     to one     year,    or with fine which may    extend     to one thousand rupees, or with both."

31. The impact of the above provisions is that no person can practice medicine in any State unless he Possesses     the requisite qualification and    is enrolled as a Medical Practitioner on State Medical Register. The consequences for the breach of these provisions are indicated in Sub-section

3. If a person practices medicine without possessing either the requisite qualification or     enrollment under the Act on any State Medical Register, he becomes liable to be punished with imprisonment or fine or both.

32. Apart from the Central Act mentioned above, there is the Maharashtra Medical Council Act 7 1965 dealing with     the registration of     Medical Practitioners    and recognition of qualification and medical institutions. Section 2     (d) defines 'Medical Practitioner' or 'Practitioner' as under : "Medical Practitioner     or Practitioner means     a person who is engaged in     the practice of modern scientific medicine in any of its branches including surgery and obstetrics, but     not including Veterinary medicine or surgery or the Ayurvedic, Unani, Homoeopathic or Biochemic system of medicine

(emphasis supplied)

33. It    will be     seen that the definition consists of     two distinct parts;     the first part contains the conclusive nature    of phraseology and    the latter part is     the exclusionary part which specifically excludes Homoeopathic or Biochemic System of     Medicine. A register     of Medical Practitioners is to be     maintained in    terms of the mandate contained in Section 16(1) of the Act Under Sub-section (3), a person possessing requisite    qualification and on payment of requisite fee can apply for registration of his name in the aforesaid Register.

34. 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 Counsel Act, 1965 cannot be registered as    a Medical Practitioner under     the Bombay Homeopathic Practitioners Act, 1959, as he does not possesse any qualification in Homoeopatnic 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.

35. It    is true that    in all     the aforesaid     Systems of Medicine, the patient is always a human being. It is also true that Anatomy and    Physiology of every human being all over the world, irrespective of the country, the habitat and the region to which he may belong, is the same. He has the same faculties and same systems. The Central Nervous System, the Cardio-Vascular System, the Digestive and Reproductive systems etc. are similar all over the world. Similarly, Emotions, namely, anger, sorrow, happiness, pain etc. are naturally possessed by every human being.

36. But     merely     because the Anatomy    and Physiology     are similar, it does not mean that a person having studied one System of Medicine can     claim to treat the patient by drugs of another System which he might not have studied at any stage. No doubt, study     of Physiology and Anatomy is common in all    Systems     of Medicines and the students belonging to different Systems of Medicines may be taught physiology and Anatomy together, but so far as the    study of drugs is concerned, the pharmacology of all systems    is entirely different.

37. an    ailment, if it     is not surgical, is     treated by medicines or drugs. Typhoid Fever, for example, can be treated not only under     Allopathic System of medicine, but also under the Ayurvedic, Unani and Homoeopathic Systems of Medicine by drugs prepared and manufactured    according to their own formulate and pharmacopoeia . Therefore, a person having studied    one particular    System    of Medicine cannot possibly claim    deep and complete knowledge about the drugs of the other System of Medicine.

38. The     bane of Allopathic medicine is that it always has a side-effect. A    warning to this effect     is printed on     the trade label for the use of the person (Doctor) having studied that System of Medicine.

39. 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 particularly as the duty of care indicated by this Court in DR. LAXMAN JOSHI'S CASE (SUPRA) WAS BREACHED BY HIM ON ALL THE THREE COUNTS INDICATED THEREIN.

40. Negligence    has many manifestations - it may be active negligence, collateral    negligence, comparative     negligence, concurrent negligence,     continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence or Negligence per     se, which is defined in    Black's     Law Dictionary as under :

Negligence per se: Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular     surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is     so palpably opposed     to the dictates of common prudence that it can be said without hesitation or doubt that     no careful person would have been     guilty of it. As a general rule, the violation of a public duty, enjoined by    law for the protection    of person or property, so constitutes."

41. A person who does not have knowledge of a particular System of Medicine but     practices in that System is a Quack and a mere pretender to medical knowledge or skill, or to put it differently, a Charlatan.

42. 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 prescripttions 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 prescripttion setting out     all the tests which     are required to be done. Admittedly, Respondent No.1 had     not done it     in writing. He says that he had advised it orally. This cannot be believed as this statement is contrary to the usual code of conduct of medical practitioners.

43. The     condition of Pramod Verma while under treatment of Respondent No.1     deteriorated so much so that he had to be shifted to the private     nursing home of Respondent No.1 and from that nursing home, he was shifted to    the Hinduja Hospital in an unconscious    state where he ultimately breathed his last.

44. On    29th of     November, 1995, the following Order     was passed by us:

"This appeal    is sequel to a

complaint filed by Ms.Poonam Verma, before the National    Consumer Disputes Redressal Commission, New Delhi, (the Commission),    alleging negligence     and     deficiency in service on     the part of two doctors of Bombay, namely, Ashwin Patel and Rajeev M.Warty.    The Commission recorded the statements of both the doctors. Dr. Ashwin Patel as R.W.1 and Dr. Rajeev M.Warty as R.W.3, appeared before the Commission. Dr. Ashwin Patel produced an     Expert, namely, Dr.Jitender V.Patel as R.W.2 in support of his case before the Commission

Dr.Ashwin Patel is admittedly

a Homeopath Physician. It     is also admitted    that    he prescribed

Allopath medicines     to the deceased husband of the complainant. Dr. Rajeev M.     Warty    is an    Allopath Practitioner running a    Nursingh Home in Bombay. Deceased husband of the complainant was admitted in the Nursing where he stayed for two- three days. Finally the    deceased was admitted in Hinduja Hospital, where he passed away within four hours of his admission. No expert was produced by    the complainant before the Commission. The Commission     finally dismissed the complaint by a speaking order.

We are of the view    that in

order to     do complete     justice between the parties,     it is necessary    to have opinion from eminent doctors on the basis of the material which is on the     record. We, therefore, request the Director of the All India Institute of Medical Sciences,     New Delhi to appoint a Board of    doctors/ Specialist in Medicine and other related branches,    to examine the material which is being sent along with this order, regarding the correctness, adequency and other relative aspects of the treatment rendered to the deceased. The Board shall give     its opinion within two weeks of the receipt of this order. Registry to send a copy    of this order to the Director of the All India Institute     of     Medical Sciences, New Delhi, within 2 days along with the following documents: (1) Copies of the Statements of Dr. Ashwin Patel (R.W.1), Dr. Jitender V.Patel (R.W.2) and Dr.R.M.Warty (R.W.3). These documents are at pages 141    to 201     of the record received from the Commission.

(2) Copies     of the     documents from pages 20 to 48 and 121 to 129 of the above said record.

The opinion of the Board of

doctors shall be sent to this Court in sealed cover, with in the period indicated by us.

45. In pursuance of the above Order, Dr. J.N. Pande, Prof. & Head, Deptt. of Medicine, Dr. A.K. Mukhopadhya, Prof. & Head, Deptt. of Lab. Medicine, Dr. K. Prasad, Assoc. Prof. of Neurology,     Dr. Y.K.    Joshi,     Assoc.     Prof.     of Gastroenterology, Dr.     Kamal    Kishore, Assoc. Prof. of Pharmacology and Dr. Shakti Gupta, Asstt. Prof. of Hosp. Admn. of the    All India Institute of Medical Sciences examined the    record    of this case     including all     the prescripttions and they gave the following opinion: "Mr.Parmod     Verma     suffered from fever on the 3rd of July, 1992 and after a brief period of illness of less than 2 weeks he expired on the 15th of    July, 1992 at     Hinduja Hospital. It was felt that material available to the Medical Board, it is not possible to arrive at a definitive     conclusive diagnosis regarding the deceased. It appears most probably that Mr.Verma had an infection leading    to septicemia possibly    on a     background of

hitherto    unrecognized    diabetes

mellitus.     He probably    suffered from    some     intracranial

complications presumably related to infection and died as a consequence thereof. He received the usual treatment     by antipyretics and commonly used antibiotics     in the initial stages of his illness as per the usual practice in patients suffering from fever. Mr.     Verma's illness    however     followed a

fulminant     course     with     rapid deterioration in     his     general condition requiring admission into a     private nursing home and subsequently to a     large    referral hospital.     From     the available

information it appears that the treatment administered to Mr.Verma was in keeping    with the usual practice in the management of such problems. It is unfortunate that Mr. Verma     had rather fulminant course of    his disease and expired before the definitive diagnosis could be established."

46. The     Professors have not been able to give a positive opinion but they do observe that Pramod Verma died before a positive diagnosis could be established. 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 antipyretics 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 unascertainable    extent before he was shifted to the    clinic of Respondent No.2, we do not, specially in iew of    the report of the Professors of AIIMS, consider it proper to proceed against Respondent No.2.

47. But we are of the positive opinion that 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 consequences of his negligence), leaving it to repeat to himself the words of Dr.J.C. Lettsom (On Himself) :

'When people's ill, they comes

to I,

I physics, bleeds, and sweats

em;

Sometimes they live, sometimes

they die.

What's that to I? I lets 'em.'

48. Pramod Verma was 35 years of age and    was getting Rs.5,700/- per    month as salary. He died a young death which has deprived his dependants, namely; the widow, two children and parents, of the monetary benefit they were getting. They are entitled under law to be compensated.

49. For the reasons stated above: (a) The    appeal as against Respondent No.1 is allowed and the judgment of the Commission, to that    extent, is set aside.    The claim of the appellant     is decreed    as against Respondent No.1    for a sum of Rs.3,00,000/- payable to her    within    three months from, today failing which it    shall be recoverable in accordance with law.

(b) Medical Council of India     constituted under the Indian Medical Council Act, 1956 as also the State    Medical     Council under     the Maharashtra Medical Council Act, 1965 to whom a copy of this Judgment shall be sent shall consider     the feasibility of     initiating appropriate action against Respondent    No.1 under Section 15(3) of    the Indian Medical Council Act, 1956 for his having practised in Allopathic System of Medicine without being registered with    the Medical Council of India or the State Medical Council as also without possessing the requisite qualifications . (c) The appellant shall     be entitled to her costs which are quantified at Rs . 30, 000/-