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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8660 OF 2009

BHANWAR KANWAR        ….  APPELLANT

VERSUS

R.K. GUPTA & ANR.      ….RESPONDENTS

J UD G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

This appeal has been preferred by the  

complainant­appellant against the order and judgment  

dated 29th  January, 2009 passed by the National  

Consumer Disputes Redressal Commission, New Delhi  

(hereinafter referred to as the ‘National  

Commission’)  in Original  Petition  No. 234  of 1997  

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 appellant  

and to deposit the remaining amount of Rs.2,50,000/­  

in the account of the Consumer Legal Aid of the  

National Commission.  

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2. The appellant is aggrieved by the said order and  

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.

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.  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 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 8.8.1993 offering treatment of the patients  

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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 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 with Prashant visited respondent No.2­Neeraj  

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  

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. It was  

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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  

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, 1995 to  

respondent No.1 and in response thereto, respondent  

No.1 sent fax advising to continue the medicines as  

before.   Thereafter another communication was sent  

to respondent No.1, in response whereof respondent  

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 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  

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which he charged Rs.1500/­.  The appellant was given  

black and thick white tables to be administered to  

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, 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 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 with Prashant she was advised  

to undergo medical termination of pregnancy.   On  

making enquiry as to the nature of medicines  

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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 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. 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 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  

National Commission and denied the allegation.  

According to respondent No.1 he obtained  

Ayurvedacharaya degree on 31st  December, 1984 and  

established respondent No.2­Clinic in the year 1991.  

It  was accepted  that  the appellant  approached  the  

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respondent No.1 for treatment of her son’s seizures.  

After 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 Code­A1­‘Wafera’ is an Ayurvedic medicine  

and 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 Doctors at  

AIIMS. 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, 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,  

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2003 issued by one Shri Jagjit Singh, Secretary,  

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, 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 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.  

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 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  

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restore faith of the people in Ayurvedic System the  

National Commission passed a direction under Section  

14(1) (f) of the Consumer Protection 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  

deposit 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 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  

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 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  

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Commission that respondent no.1 is guilty of unfair  

trade practice the questions that arise for our  

consideration are:

(i) Whether respondent No.1 was entitled to  

practice and prescribe modern Allopathic  

medicines; and

(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 was not in  

existence during the period of treatment. The said  

letter dated 24th February, 2003 reads as follows:

“No.726/71­2­2003­15

From Jagjit Singh Secretary, U.P. Government Medical Education Department

To All Medical Officers Uttar Pradesh Medical Education Department­2

Lucknow: Dated 24 February 2003

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

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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  Ayurvedic/Unani Practitioners practicing  Ayurvedic System are 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  allopathic practitioners. Hon’ble High Court  has directed to take action against quacks  who are registered nowhere.   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.

Yours faithfully,                                 

Sd/­ Jagjit Singh

     Secretary”

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 Medical Council.  

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  

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any case 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 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.  

15. 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, 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 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  

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compensation amount and to deposit the same with the  

Consumer Legal Aid Account of the Commission.

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 there shall  

be no separate order as to costs.

………..……………………………………………..J.       (G.S. SINGHVI)

……………………………………………………….J.        (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI, APRIL 5, 2013.

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