Calcutta High Court (Appellete Side)
Apollo Gleneagles Hospitals Ltd vs Sailendra Chaubey on 15 July, 2013
Author: Asim Kumar Ray
Bench: Asim Kumar Ray
1 2013.
ks C.O. 3297 of 2007
Apollo Gleneagles Hospitals Ltd.
Versus
Sailendra Chaubey
Mr. Gaurab Kumar Basu ... for the petitioner.
Sk. Md. Galib
Mr. Niranjan Chattopadhyay ..for the opposite party.
This revisional application is directed against the order dated 13.07.2007 passed in Case No. S.C.44/0/06 (Sailendra Chaubey Vs. Apollo Gleneagles Hospitals & Ors.) by the State Consumer Disputes Redressal Commission, West Bengal.
The factual background in a nutshell leading to the presentation of this revisional application is that the opposite party/complainant, Sailendra Chaubey, filed a complaint under the relevant provision of Consumer Protection Act, 1986 seeking relief, inter alia, to take cognizance of the fact as complained of by the complainant and passed an award compensating the complainant with an amount of Rs.31,36,481/- (Rupees Thirty one lakh thirty six thousand four hundred eighty one and odd) and the cost of the present complaint and proceedings. The opposite party/complainant also lodged an F.I.R. with Phool Bagan police station against the officers and employees of the company and on the basis of that F.I.R., a case under Sections 120B/304A/201 of the Indian Penal Code was started. The cause of action of the complainant/opposite party - both in the criminal proceedings and in the complaint submitted before the State Commission - is same and identical. The petitioner took out an application and filed it before the State Commission praying for stay of the complaint being S.C. 44/0/06 in view of the pendency of the criminal case on identical facts against the petitioner/opposite party. The State Commission has not considered the prayer of the petitioner and passed the order impugned. So, this revisional application Learned Counsel appearing on behalf of the petitioner has contended that in a similar case being Case No S.C.6/0/2003 (Master Shuvayan Roy Vs. Dr. Bichitrananda Behra & Ors.), the State Commission passed an order of stay of the complaint pending before the Commission. But in the instant case, it was refused. He has contended that the State Commission has no jurisdiction to take up the matter and he has invited my attention to Section 2 of Consumer Protection Act, 1986. He has further contended that where a criminal proceeding is pending, civil proceeding including any proceeding pending before a Consumer Forum cannot be proceeded with. He has relied on a decision reported in (2005)4 SCC 370 (Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another) and on an unreported decision being Civil Appeal No. 5477 of 2008 (Pahwa @ Vijay Pahwa Vs. Utsab Basu & Ors.) .
2He has contended further that there is no irregularity in passing a stay order against a complaint pending before the State Commission where a criminal proceeding is pending over the selfsame matter. He has relied on another decision reported in (2012) 3 WBLR (CPNC) 321. He has also relied on a decision reported in 2005 CTJ 551 (CP) (SCDRC) (Dr. Madhabi Mukherjee and Another Vs. Amalendu Chinay and Others.) and has contended that the complaint before the Consumer Forum was dismissed as the criminal case over the selfsame matter was pending. He has relied on another decision reported in 1989 (2) CLJ 221 (Apeejay Private Limited Vs. Raghavachari Narasingham & Ors.) and submits that the civil proceeding be stayed during pendency of criminal proceeding.
In the second phase of his submission, learned Counsel of the petitioner has contended that the opposite party/complainant cannot take the point of maintainability at this stage after the lapse of so many years when it is an admitted fact that the revisional application was filed as back as in the year 2007. The point of maintainability should have been taken at the very beginning before filing the written objection by the opposite party/complainant. He has relied on the decisions reported in (2012) 4 SCC 786 (Krishan Lal Vs. Food Corporation of India And Others) and (2012) 2 SCC 489 (Regional Provident Fund Commissioner Vs. Hooghly Mills Company Limited & Ors.). He has further invited my attention to Annexure - 'D' to the affidavit- in-reply to show that the dead-body of Manabendra Kumar Chakraborty was received by his daughter, Anamika Chakraborty and that is why, it may not be said that the petitioner was negligent in any way to handle the dead-body. He has contended that the order impugned may be interfered with and set aside.
Learned Counsel appearing for the opposite party/complainant has contended that the question of maintainability need not be pleaded in the affidavit-in-reply. It is a question of law. It can be agitated at any point of time during hearing of the matter. He has further contended that the revisional application came up for hearing days after days and was adjourned as per prayer of the petitioner. It was never heard. Therefore, the opposite party/complainant had no scope to take the question of maintainability at the threshold. It is his further contention that the copy of the revisional application was not served upon the opposite party/complainant by the petitioner at the beginning and it is on the prayer of the opposite party/complainant, such copy was supplied to him. The opposite party/complainant had no scope to file full-fledged written objection. The application submitted by him against the interim order of stay has been treated as affidavit-in-opposition.
Learned Counsel appearing for the opposite party/complainant has contended that the order impugned will reflect that the point touching Annexure-'D' has been dealt with, vide paragraph 1 and 2 of the impugned order. It is his contention that both the civil and criminal proceedings can proceed simultaneously side by side and there is no hard and fast rule regarding the stay of civil proceedings. He has cited the decisions reported in (1985) 2 SCC 370 (Pratibha 3 Rani Vs. Suraj Kumar and Another), 2005 SCC (Cri) 1101 (Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another) and (2006) 6 SCC 736 (Indian Oil Corporation Vs. NEPC India Ltd. and Others.) and has contended that there is no question of quashing the criminal proceedings as a civil remedy is available or has been availed of. He has contended that the order impugned goes to indicate as to why the complaint pending before the Consumer Forum/ State Commission shall not be held up and on that line a decision reported in (2004) CPJ 106 (NC) Geeta Jethani & Others Vs. Airport Authority of India & Ors.) has been taken care of by the State Commission at the time of passing the order impugned.
The order impugned is an order passed by the State Commission and the remedy of the petitioner is available before the National Commission in view of the provisions laid down in Section 21(b) of the Consumer Protection Act, 1986. He has relied on the decisions reported in (2012)3 WBLR (Cal) 878 (Smt. Monika Kahali Vs. Mr. Astik Moni Das & Ors.), 2009(2) CLJ (Cal) 685 ( The Manager, Burdwan Co-operative Agriculture and Rural Development Bank Limited Vs. Anath Bandhu Dhara) and (2011) 1 WBLR (Cal) 261 (Sri Prabir Dey Vs. Sri Goutam Mukherjee) and has contended that the revisional application is not maintainable. He has supported the order impugned and submitted that the revisional application may be dismissed.
I have gone through the revisional application, the order impugned and the other papers lying with the records. I have also taken meticulous notes of the submissions of the learned Counsel for the parties. It is alleged in the application submitted before the State Commission by the opposite party/complainant that the dead-body of his wife, Kanchan Choubey, was not handed over to him. The dead-body of his wife was handed over to the relative of another patient, Manabendra Kumar Chakraborty (who expired too) in the hospital and it was cremated at Nimtala Burning Ghat. It is also a fact that the F.I.R. was lodged at Full Bagan police station by the opposite party/complainant and on the basis of that, a case was registered under Sections120B/304A/201 of the Indian Penal Code. It is interesting to note that the case number of Full Bagan Police Station case does not find place in the body of the revisional application. It seems that a case must have been registered in the year 2005, as it appears from page 14 of the revisional application, as submitted by the learned Counsel for the petitioner but he has frankly submitted that he does not know the fate of the case. It is not in dispute that one application is pending before the State Consumer Forum praying for compensation and a criminal case has been initiated on the selfsame matter. The number of the F.I.R. being F.I.R No. 66, Diary Entry 1303 is coming out from the copy of the application submitted before the Consumer Forum which is annexed with the revisional application.
The order was passed on 13.7.2007, i.e., the impugned order passed by the Consumer Forum/State Commission. There is specific provision regarding the jurisdiction of the National 4 Commission. Section 21 of the Consumer Protection Act, 1986 deals with the jurisdiction of the National Commission. Section 21(b) runs as follows :-
21(b) : " To call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity".
In the case of The Manager, Burdwan Co-operative Agriculture and Rural Development Bank Limited Vs. Anath Bandhu Dhara, reported in 2009 (2) CLJ (Cal) 685, this court has held that in a case where the subject matter of decision of the State Commission is under challenge in a revision, the same cannot be entertained as the National Commission can entertain the revision in view of the provision of Section 21(b) of the Consumer Protection Act, 1986. The remedy lies with the National Commission. The remedy which is there before the petitioner should be exhausted and before exhausting that remedy of revision as available under Section 21(b) of the Consumer Protection Act, the application under Article 227 of the Constitution of India cannot be entertained and no relief can be granted to the petitioner in the proceeding.
In the case of Smt. Monika Kahali Vs. Mr. Astik Moni Das & Ors. Reported in (2012)3 WBLR (Cal) 878, it has been held that the revisionist had a grievance against an order of State Commission . The provision of Section 21(b) of the Consumer Protection Act, 1986 dealing with the provision of jurisdiction of the National Commission ought to have been resorted to. In a case of United Bank of India Vs. Hirak Mukherjee & Ors., reported in 1995(1) CLJ 124, it has been held that where alternative remedy is a suitable solution available on the terms of the statute itself, the exercise of jurisdiction under Articles 226 and 227 of the Constitution of India by way of writ petition may not be appropriate and proper. Consumer Protection Act is a self- contained Code making appropriate provisions for rectification or correction of the grievances, which could have been raised in this writ petition before the trial forum or the appellate forum.
Taking the spirit of the law coming out from the provisions laid down in Section 21(b) of the Consumer Protection Act and the decisions cited above, it is clear that the order impugned which is passed by the State Commission may be challenged before the National Commission. Therefore, the question of invoking power in revisional jurisdiction by this court does not appear to have the sanction of law.
Both the civil and criminal cases may be started on the selfsame allegations and there is no hard and fast rule that one case is to be given preference to that of others, specially the criminal case than that of the civil case. It is a fact that the criminal case must have to be dealt with and finished before the memory of the aggrieved and the witnesses fed up. In the instant case, I collect from the record that one F.I.R. being F.I.R. No. 66 was lodged in the early part of 5 2005 but there is nothing on record as to what is the fate of that criminal case. If the case which is pending before the Consumer Forum is stayed, then the same will be sheer injustice as the fate of the criminal case is nowhere in sight as on this date.
It is a grave case where the body of a female suffering from burn injury aged about 26 years was not handed over to the opposite party/complainant and instead of that, it was handed over to another patient party and the dead-body of that female was cremated. The opposite party/complainant and the family members had no scope to observe the last rituals. It may be noted further that the dead-body of a 60 years old patient, Manabendra Kumar Chakraborty, was handed over to the opposite party/complainant. He was a cancer patient. Taking all the aforesaid scenario in the judicious mind, I think that the matter which is pending before the State Commission, must be completed within a time-frame.
Taking all this background in judicious mind, I find that this revisional application is not maintainable as the remedy of the petitioner lies with the National Forum. Furthermore, the status of the criminal case is nowhere in sight.
The revisional application stands dismissed.
Interim order, if any, stands vacated.
Aggrieved party may move the appropriate forum against the order impugned, if it is permissible in the eye of law after the lapse of more than six years.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties as expeditiously as possible.
( Asim Kumar Ray, J.)