Medical Negligence – Specialist

Extracts from a decision dated 7 May 2013, in the case of Goyal Hospital & Research Centre Pvt. Ltd., Jodhpur & ors, V/s. Kishan Shukla (R.P. No.4023/2011), in which the National Consumer Commission held a doctor liable for Medical Negligence and  held that a doctor must have valid and recognized specialised qualification.  It held that a Doctor should be qualified in the field he professes to practice:

As per Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002 dated 11th March, 2001, the duties and responsibilities of the physician have been notified.

Clause-B Sub-clause 1.1.3 states as under:

“ No person other than a doctor having qualification recognized by Medical Council of India and registered with Medical Council Of India/State Medical Council(s) is allowed to practice Modern System of Medicine or Surgery.”

Similarly, Clause B-1.2.1 states as under:

“ the physician should practice methods healing founded on scientific basis and should not associate professionally with anyone who violates this principle.” 

 Even otherwise, undergoing several trainings, attending workshops in Cardiology did not confer qualification of cardiologist. Hence it is not recognized by MCI or Rajasthan State Medical Council.

“I may now refer the Law on the points relevant to this case, as laid down by Hon’ble Apex court as what constitutes Medical Negligence?  The judgment of Hon’ble Supreme Court in Malay Kumar Ganguly Vs Dr. Sukumar Mukharjee & ors, (2009) SSC 221,III (2009) CPJ 17(SC); wherein it has been observed as follows:

“Even the matter of determining deficiency in medical service, it is now well settled that if representation is made by a doctor that he is a specialist and ultimately turns out that he is not, deficiency in medical services would be presumed.”


Further the Hon’ble Supreme Court in Jacob Mathew V State of Punjab & Anr, (2005) 6 SSC 1= III (2005) CPJ 9 (SC) had concluded that,

“  a professional may be held liable on one of two findings : either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise reasonable competence in given case, the skill which he did possess.”


The full decision is available at the following site:

http://164.100.72.12/ncdrcrep/judgement/00130508153736415RP402311.htm

Settled in Court – Case againt KidZee

Consumer Alert 

This is a very interesting case because I was confident that I would win the appeal. But the State Commission President said Kidzee would drag the Complainant to the Supreme Court and she would not be able to fight the Corporate.

I am thankful to the President of the State Commission and the Advocate for Kidzee for this settlement.

Binoy Gupta

CA – MAR 16 : SETTLED IN COURT

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Housewife gets refund after KidZee franchise flops

A representative of Zee Interactive Learning Systems Ltd., Mumbai, met Kiran Yadav in July 2007. He persuaded her to open a KidZee centre at her Ahmedabad bungalow to earn some income. She entered into a franchise agreement paying Rs. 3.4 lakh. However, residents of Kiran’s society objected to the commercial activity. She asked for a refund and the company responded that the refund process would begin in January 2008. In spite of several reminders, this did not happen. Distressed, she approached CERS and a complaint was filed in the District Forum, Mumbai. The case was fought on behalf of CERS by advocate Dr. Binoy Gupta.

The company (now called ETC Networks Ltd.) contended that most of the amount paid consisted of franchisee fee which was non-refundable as per the agreement. CERS insisted that the agreement was void as Kiran’s society did not permit the centre to be set up. The Forum directed the company to refund Rs. 3.4 lakh to the complainant with interest at 9% and pay Rs. 25,000 towards litigation costs.

The verdict

Aggrieved, the company appealed to the Maharashtra State Commission which suggested that the matter be settled. The two parties arrived at an agreement as per which ETC Networks would pay Kiran Rs. 2 lakh.

Point of law

A franchise contract is void if it cannot be enforced because it is illegal to carry out commercial activity in a residential area