CLAIM UNDER SECTION 23(4) OF PUNJAB CONSUMER PROTECTION ACT 2005.
DCO/Authority through DO (H) Sahiwal sent a reference/claim U/s 23(4) of the Punjab Consumer Protection Act 2005 against Khalid Mehmood proprietor "Hanan X-ray Clinic" Mission Chowk, Sahiwal with following allegation. i. Mr. Khalid Mehmood Proprietor is a non-qualified person. ii. No qualified person / radiographer /X -Ray Technician was available at the clinic at the time of visit of DO (health) Sahiwal. iii. Protective measure against radiation has not been adopted as per recommendation of PNRA. iv. There is no reporting facility available at the clinic. v. Services provided are injurious to the public.
2. Khalid Mehmood, the defendant refuted the allegations contained in the claim/reference.
According to him, the claim was time barred, it was based on malafide, claimant had no cause of action, claimant was not a consumer, the control of x-ray centre fell under PNRA, the criminal case about this matter already got registered by the claimant was liable to be dismissed and that he was running x-ray center and not clinic. The defendant, on merits, \submitted that he was running x-ray center with prior permission of PNRA under a valid license. The person employed at x-ray center was also qualified in the field. According to him, he had not violated any provision of law and that he was running his business as per rules/regulation enumerated in Pakistan Nuclear Regulatory Authority ordinance 2001.
2. The parties were directed to produce their respective evidence in support of their respective contentions. The claimant Examined Dr. Shahid Nazir, District Officer, Health, Sahiwal Pw-1. He also produced on record copy of legal notice Ex-P1 and postal receipt Ex-P2.
3. The defendant appeared in witness box as Dw-1. He also examined Imtiyaz Ahamd x-ray technician Dw-2. His documentary evidence comprised of license Ex-D1/1 (two pages), result card of Imtiyaz Dw-2 issued by Punjab Medical Faculty Ex-D2,certificate of the same person issued by Paramedical School Sahiwal Ex-D3 and training certificate radiology department DHQ hospital Sahiwal Ex-D4and copy of FIR Ex-D5.
4. Dr. Shahid Nazir PW-1 in his statement reiterated facts incorporated in his report presented before DCO/Authority. When subjected to cross examination, he admitted that he had not been authorized by any person to visit the x-ray center of defendant. He also admitted that he was not a member of PNRA. He showed ignorance as to whether he had any authority under PNRA Ordinance 2001 to inspect and visit x-ray center of the defendant. He admitted it correct that he did not possess any degree or diploma about the Nuclear Physics, applied sciences and nuclear radiation.
According to him, at the time of inspection of x-ray center of the defendant, no expert person in nuclear science or x-ray radiation had accompanied by him. During cross examination the said doctor could not describe the techniques about the x-ray or radiations.
5. Khalid Mehmood, the defendant stated that he was running Hanan X ray Centre and not Hanan X-ray Clinic. He possessed up to date license about the x-ray center issued by PNRA. According to him, the doctor who had visited his x-ray center was not authorized/competent to check any thing about the x-ray machine. The said witness was subjected to cross examination but nothing favourable to the case of claimant could be brought on record.
6. Imtiyaz Ahmad Dw-2 stated that he had passed a course about Radiography and he being expert in field, was working as assistant at Hanan X-ray Centre. His statement also could not be shattered during cross examination.
7. At the outset, it is made clear that the DCO being Authority as defined in section 2 (b) of the Punjab Consumer Protection Act 2005 was competent to initiate proceedings against the defendant and refer the matter/claim to this court u/s 23 of the Punjab Consumer Protection Act 2005. Therefore, argument on the point that the reference to this court was illegal was devoid of any force.
8. The perusal of evidence available on record would show that the defendant was running Hanan X-ray Center and not clinic. The learned Assistant Director appearing on behalf of the claimant/Authority was confronted with the situation and he had to concede that the defendant was owner of the x-ray center and not clinic. There was cavil to the admitted position that x-ray centers are administratively governed and controlled by PNRA ordinance 2001. U/s 20 of the said Act, the Authority may, on application made to it accompanied by such fee, information and documents, as may be prescribed by regulations, grant an authorization to carry out of such activities as are specified in the authorization for such period as it may specify. Without obtaining a valid license no person can install x-ray machine at any clinic as per section 19 ibid. The Section 29 of the same ordinance provides that any member of the Authority, any officer of the Authority or any other person authorized in that behalf by the Authority may, at all reasonable hours, enters any premises to see as if provisions of ordinance were complied with. The relevant provisions of PNRA ordinance 2001 i.e. Section 1 (b)(f)(n)(p), section 19 (1) and section 29 would show that only PNRA Authority was competent to issue a license to install x-ray center and the person authorized by the Authority constituted under the said Ordinance, could inspect/check/visit x-ray center of the defendant. Therefore it can be said that the Dr. Shahid Nazir had no legal right to enter into premises of Hanan X-ray for purposes of checking. However, bona fides of the said doctor could not be doubted for the reason that he, at relevant time, was working as DO (H) who otherwise was competent to check and inspect the fake clinics and hospitals managed by quack doctors. The said doctor checked the x-ray center of the defendant under bona fide intention. However, the defendant had to face some inconvenience for the said inspection. But the fact remains that the Pw-1 proceeded to act against the defendant under bona fide mistake. It was otherwise fact to be noted that the Pw-1 made the reference to DCO/Authority who was competent to investigate into the matter without issuance notice to the defendant as provided u/s 23 of the Punjab Consumer Protection Act 2005. Simultaneously the DCO could refer the matter to this court for redressal. The DCO/Authority, in good faith forwarded the dispute to this Court for resolution such type of reference could be made by DCO/Authority even without any complaint and on the basis of his personal information.
9. The copy of license for diagnostic Ex-D1 (two pages) issued by PNRA would show that the defendant Khalid Mehmood was authorized to run /install x-ray machine and run x-ray center with name and style " Hanan X-ray Centre 12-12-A Sir Syed Road, Sahiwal his license was valid up to December 31, 2011. The x-ray centre of the defendant was checked on 13-07 2011. At that time the license in view of the defendant for running x-ray centre was valid. The said license, as per condition No. 2 of the license, was renewable. If the defendant was interested to run and continue his x-ray center, he would have applied for renewal of his license already issued in his favour.
10. Mr. Imtiyaz Dw-2 was working in the x-ray center of the defendant as assistant. He too was a qualified person in the field. The result card issued by Punjab Medical Faculty Ex-D2 would show that the said person had qualified the examination in the relevant subject. As per Ex-D3, he also obtained training certificate from Paramedical School Sahiwal. Ex-D4 is training certificate of Radiology Department of DHQ, Hospital Sahiwal. All the three documents would show that Imtiyaz Ahmad was a qualified person to act as technician in x-ray center.
11. Khalid Mehmood Dw-1 clearly and specifically stated that he had observed all due formalities to run x-ray center. During cross examination on the said witness and on Imtiyaz Ahmad Dw-2 they reiterated of fulfillment of pre-requisites of installment of x-ray machine. The claimant could not bring any evidence on record showing that x-ray clinic was being run without observing the requisite formalities as provided in PNRA ordinance 2001.
12. All the observations and findings recorded above have swayed this Court to declare that the claim filed by DCO/Authority is baseless and misconceived. Therefore, same is hereby dismissed leaving the parties to bear their own costs.