State Consumer Disputes Redressal Commission
Shivappa Parappa Ganiger, vs Dr. Gouramba Ramappa Sajjan, on 17 September, 2022
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Appeal No.709/2021
Date of filing: 17.09.2021
Date of disposal: 17.09.2022
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED:17.09.2022
PRESENT
Mr.K.B SANGANNANAVAR : JUDICIAL MEMBER
Mrs. DIVYASHREE M : LADY MEMBER
APPEAL NO.709/2021
Sri.Shivappa Parappa Ganiger,
S/o Parappa Ganiger,
Aged about 35 years,
Occupation - Private work,
Residing at Chikkashellikeri,
Bagalkot Taluk,
Bagalkot District - 587204 .....Appellant/s
(Advocate - Sri.Vijayakumar G.Bagoji)
V/s
Dr.Gouramba Ramappa Sajjan,
W/o Ramappa Sajjan,
Residing at Aashraya Nursing Home,
Sajjan Colony, Lingad Road,
Vijayapura - 586103,
Vijayapura Taluk,
Vijayapura District. .....Respondent/s
(Advocate - Sri.N.C Mohan)
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Appeal No.709/2021
ORDER
Mr.K.B SANGANNANAVAR, JUDICIAL MEMBER This is an Appeal filed U/s.41 of C.P Act, 2019 by the complainant in complaint No.20/2021 on the file of District Consumer Disputes Redressal Commission, Vijayapura, aggrieved by the order dated 11.08.2021.
2. Commission examined grounds of Appeal, impugned order and heard learned counsels on record for the Appeal.
3. Let us examine the proceedings of the complaint case, one Mr.Shivappa, husband of deceased Smt.Sheela, raised consumer complaint U/s.35 of C.P Act, 2019 on 09.03.2021 through advocate and the Commission below even before issuance of notice to OP referred the matter to medical board and obtained a report followed by judgment of Hon'ble Apex Court reported in 2009 (3) AIR Bom R 242 (Supreme Court), wherein held, We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (Whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid 3 Appeal No.709/2021 harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the fact clearly come within the parameters laid down in Jacob Mathew's case (Supra) otherwise the policemen will themselves have to face legal action.
4. Found on examination of the complaint averments and papers along with medical report no prima-facie case to issue notice of complaint to OP, dismissed the complaint at the threshold in our view is in correct. Learned counsel for Respondent submits that Commission below has rightly dismissed the complaint on the basis of report of medical board and to find support placed judgment in a case between Jacob Mathew Versus State of Punjab and Another decided by Hon'ble apex Court reported in (2005) 6 SCC page-1, which in our view would arise only after receiving evidence on either side whether it was error of judgment or otherwise will have to be decided only after receiving affidavit evidence, documents in appreciation and not at the threshold accepting report of the medical board. If that is allowed, medical board itself has to be construed a Court or a Commission as the case may be to decide on cases relating to medical negligence. In such view of the matter, Commission found, Commission below committed an error in passing impugned order. In this regard it would be appropriate to refer here the following decisions of the Hon'ble Apex Court as under:
1. AIR 1969 Supreme Court 128.
2. AIR 1996 Supreme Court 550.
3. (2004) 8 Supreme Court Cases 56.4 Appeal No.709/2021
4. AIR 2008 Supreme Court 1385.
5. (2009) 6 Supreme Court cases 1.
6. AIR 2011 Supreme Court 249.
7. (2012) 12 Supreme Court Cases 550.
8. (2013) 4 Supreme Court Cases 252.
9. (2013) 9 Supreme Court Cases 496.
10. (2014) 1 Supreme Court Cases 384.
11. AIR 2015 Supreme Court 2836.
12. (2018) 12 Supreme Court Cases 699.
13. LAWS (NCD) - 2019-7-24 NCDRC.
5. Thus keeping in mind the principles enunciated in the decisions cited supra coupled with object of Consumer Law the impugned order does not sustainable, is liable to be set aside. Accordingly Appeal is allowed. Consequently set aside the impugned order dated 11.08.2021 passed in complaint No.20/2021 on the file of District Consumer Disputes Redressal Commission, Vijayapura with a direction to readmit the case and issue complaint notice to OP to hold an enquiry in accordance with law as early as possible not later than six months from the date of receipt of order.
6. Return the LCR forthwith
7. Provide copy of this order to the District Commission as well as parties to the appeal.
LADY MEMBER JUDICIAL MEMBER vln*