National Consumer Disputes Redressal
Rehana Khan vs Dungri Ram on 16 February, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1936 OF 2018 (Against the Order dated 30/11/2017 in Appeal No. 164/2010 of the State Commission Rajasthan) 1. REHANA KHAN ALIAS MEENA, ALIAS VEENA W/O. MEHTAB KHAN, R/O. RAILWAY COLONY, ABUROAD HALL GANDHI NAGAR, ABUROAD SIROHI RAJASTHAN ...........Petitioner(s) Versus 1. DUNGRI RAM S/O. SHRI DANAJI REBARI R/O. DERNA ABUROAD, DISTRICT-SIROHI RAJASTHAN. ...........Respondent(s)
BEFORE: HON'BLE DR. INDER JIT SINGH,PRESIDING MEMBER
FOR THE PETITIONER : MR. ROMIL PATHAK, ADVOCATE
MR. AMIT KUMAR, ADVOCATE FOR THE RESPONDENT : MR. ANWESHA SAHA, ADVOCATE
MR. SALIM ANSARI, ADVOCATE
Dated : 16 February 2024 ORDER
1. The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 21 of Consumer Protection Act 1986, against the order dated 30.11.2017 of the State Consumer Disputes Redressal Commission Rajasthan (hereinafter referred to as the 'State Commission'), in First Appeal (FA) No. 164 of 2010 in which order dated 01.06.2010 of Sirohi District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 56 of 2009 was challenged, inter alia praying for setting aside the order dated 30.11.2017.
2. While the Revision Petitioner (hereinafter also referred to as OP) was Appellant before the State Commission and OP before the District Forum, Respondent (hereinafter also referred to as Complainant) was Respondent in the said FA No. 164 of 2010 before the State Commission and Complainant before the District Forum in the CC no.56 of 2009.
3. Notice was issued to the Respondent on 27.07.2018. Parties filed Written Arguments/Synopsis on 04.12.2023 ( Petitioner ) and 30.09.2020 ( Respondent) respectively.
4. Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that wife of the Complainant, namely, Soudril fell sick on 13.08.2008 and she was taken to the private hospital being run by the OP for primary treatment where the OP gave 3 tablets and 2 injections to his wife from her hospital for which the Complainant gave Rs.300/- to the OP and for which no receipt was given to him. After some time of the administration of the tablets and injection, wife of the complainant started vomiting and at that time the OP asked the complainant to take his wife to the hospital of Dr. Kela situated at Aaburoad and that she is also reaching there in sometime. When the Complainant reached the hospital alongwith his wife, he saw the OP alongwith her husband Mehtab Khan already there. Dr. Kela examined the wife of the complainant and declared her dead. According to the Complainant, the cause of death of his wife is wrong administration of medicines and injections. The complainant registered a case at the Police Station Aaburoad. While investigating the case, it was revealed that OP was authorized to work only as 'Vaaidh' and was not authorized to prescribe allopathic medicines or administer injections and it was due to the medicines and injection given to the wife of the complainant that her throat swelled and she died of asphyxia The said fact has been proved from the postmortem report and from the opinion taken by the police. The Upper District and Session Court Aaburoad while holding the OP guilty of the offence imposed 5 years imprisonment and 6 months imprisonment under section 15 (2) (3) of the Indian Medical Law Act. According to the Complainant, death of his wife has been caused due to negligence on the part of the OP. The Complainant being aggrieved filed CC before the District Forum and District Forum vide order dated 01.06.2009 allowed the Complaint.
5. Being aggrieved, the OP preferred an appeal before the State Commission and State Commission vide order dated 30.11.2017 dismissed the appeal of the OP. Hence, the OP is before the Commission now in the present RP.
6. Petitioner has challenged the said Order dated 30.11.2017of the State Commission mainly/ on following grounds:
The State Commission's order is in total disagreement to the settled principle of law opined by Hon'ble Supreme Court in Seth Ramdayal Jat Vs. Laxmi Prasad, Civil Appeal No. 2543 of 2009.
State Commission ignored the fact that petitioner never treated or gave any injection and medicine to the wife of the respondent on 13.08.2008.
The Respondent presented his complaint on the basis of evidences taken in the criminal case only while the respondent ought to have presented separate evidences before the District Forum and thus he has failed to prove his case through independent evidences.
The Fora below had given its judgment that OP had been convicted by Upper District and Sessions Fast Track Court while the District Forum had done a grave mistake by ignoring the fact that Petitioner aggrieved by the order dated 07.07.2009 has filed SB Criminal Appeal No. 476 of 2009 before the High Court, Jodhpur which is pending adjudication. The Petitioner has also filed S.B.Criminal MA No. 579 of 2009 in which the Court vide order dated 14.10.2009 stayed the operation of the sentencing order passed against her. Till the adjudication of the appeal, this complaint of the respondent is pre-mature.
Petitioner is an Ayurvedic 'Vaidh' and not a homeopathic practitioner which has been proved by presenting a certificate in this regard. District Forum has committed an error by relying upon the judgment of Hon'ble Supreme Court 11 (1196) CPJ (SC) titled Poonam Verma Vs. Ashwin Patel Postmortem report does not prove that death of Soudril was caused by medicine or any injection. The complainant's wife viscera test ought to have been conducted by the doctors from FSL in order to bring out true picture.
The respondent has failed to prove that death of Soudril has been caused due to some reaction of the medicines given to her and medical science supports the case of the petitioner that death of Soudril was due to swelling in her throat.
The Petitioner in her reply stated that she had never treated the wife of complainant and thus question of giving medicines and injections to her and receiving Rs.300/- does not arise and had no knowledge as to how and due to what reason her death was caused.
Without any evidence, oral or documentary, District Forum believed that Soudril earned Rs.5000/- per month and has erroneously estimated the loss of income to be Rs.1,50,000/- keeping in view that Petitioner had stated that Soudril was a house-wife and was not employed anywhere.
7. Heard counsels of both sides. Counsel for the Petitioner repeated the points which have been stated in para 6 (i to v), hence the same are not being repeated here. Counsel for the respondent reiterated the same facts which have been mentioned in para 4.
8. We have carefully gone through the orders of the State Commission, District Forum, other relevant records and rival contentions of the parties. The Petitioner - Opposite Party has denied having treated or gave any injection and medicine to the wife of respondent - complainant. Petitioner - Opposite Party has been convicted by the Court, although the sentencing order has been stayed. Petitioner - Opposite Party admits being an Ayurveda Vaidh and not a homeopathic practitioner. State Commission in its order has observed as follows:
"The wife of the complainant went to the non-petitioner. She was administered medicines and injection, after which she fell sick and she was taken to Dr. Kaiila at Aaburoad where she died. The non-petitioner was also convicted by the court. Appeal is pending at the Rajasthan High Court. The death of the wife of the petitioner was caused due to the wrong medicines and injections administered to her.
There is nothing wrong in the decision taken by the learned District Forum and thus this appeal is liable to be dismissed and is hereby dismissed".
9. District Forum in its order has observed as follows :
"The petitioner has filed his evidence by way of affidavits, photocopy of Order passed by the District and Sessions Court, certified copy of statement of Dr. Hargovind Kaiila before the District and Sessions Court, photocopy of postmortem report. And the non-petitioner has filed her evidence affidavit, order passed by the Hon'ble High Court staying the operation of the order sentencing the non-petitioner, photocopy of order granting bail and photocopies of certificate issued by State Ayurvedic and Unani Council, Bihar and that of marksheet of National Institute of open Schooling.
Heard the arguments and perused the evidences on record.
The opposite party has denied treating the deceased Soudril, whereas the petitioner has stated that Soudrii was taken to the hospital of the non-petitioner where the non-petitioner gave 3 tablets and administered 2 injections to her for which the petitioner also gave Rs. 300/- to the non-petitioner and also stated that the deceased was taken to Dr. Kaiila. The certified copy of the statement of Dr. Hargovind Kaiila recorded before the District and Sessions Fast Track Court, Aaburoad has also been presented, the perusal of which proves the fact that the non- petitioner Rehana alias Meena visited Dr. Kaiila on 13.08.08 and told him that a serious patient was to be attended by him. After some time Soudrii was brought to Dr. Kaiila and on examination she was declared dead. DR. Kaiila also stated that Rehana was practicing in Aaburoad initially and was thereafter practicing in her own hospital in the village. This supports the case of the petitioner. The District & Sessions Fast Track Court, Aaburoad has vide order dated 07.07.2009 in Case no. 88/2008 held the petitioner guilty for murdering Soudrii and also for the allopathic medicines recovered from her hospital and also for practicing allopathy without license and has also prescribed punishment. The Court has from the varios evidences and after careful examination of the post-mortem report held the non-petitioner guilty. From the post-mortem report it is proved that death of Soudrii has been caused due to swelling in her throat and due to asphyxiation. From the documents it is proved that the non- petitioner gave allopathic treatment to Soudrii and also gave her injections which resulted in her ill health and so she was suggested to visit Dr. Kaiila and herself went to Dr. Kalila where she was declared dead. The non- petitioner presented the Certificate issued by the State Ayurvedic and Unani Council, Bihar and the marksheet of the General and Life enrichment vocational courses. From both these documents it is further proved that the non-petitioner did not have the right to give allopathic treatment. Thus, the non-petitioner was held guilty of keeping allopathic medicines and giving allopathic treatment. Thus, it is proved that the non- petitioner did not have the right to give allopathy medicines.
x x x x In the present case it is clear that the non-petitioner advised that Soudrii be taken to DR. Kalilla and in her presence only declared Soudrii dead. Had the non-petitioner not treated Soudril, she would not have gone to visit Dr. Kaalla on 13.08.2008 and the non-petitioner would also not have asked Dr. Kaaila that one patient in serious state of health is about to visit him. Thereafter the petitioner brought Soudrii to Dr. Kaiila who declared her dead. Thus, the statement of the petitioner that the non-petitioner gave 3 tablets and administered 2 injections to Soudrii after which she fell sick and started to vomit is also believable after which there was immediate death of Soudrii from which it is concluded that there was negligence on the part of the non-petitioner due to which wife of the petitioner Soudrii died. Thus, the denial of the opposite party is rejected."
10. In Jacob Mathew Vs. State of Punjab and Anr. ( 2005) 6 SCC 1, Hon'ble Supreme Court observed 'death due to administration of medicine of which knowledge not possessed by doctor though professed expressly or impliedly, held, prima facie constitutes medical negligence'. Court further observed in this case as under :
3. .......To fasten liability in Criminal Law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in Civil Law........ Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment....... In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt.
11. In this case there are concurrent findings of both the Fora below against the Petitioner herein. As was held by the Hon'ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that "the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity."
12. The Hon'ble Supreme Court in Rajiv Shukla vs Gold Rush Sales And Services Ltd. Civil Appeal No. 5928 of 2022, decided on 8th September, 2022, held that:-
"13. As per Section 21(b) the National Commission shall have jurisdiction 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 its 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. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction.
14. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21(b) of the Consumer Protection Act."
13. Both State Commission and District Forum have given well-reasoned orders. We find no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence the same is upheld. Accordingly, Revision Petition is dismissed.
14. The pending IAs in the case, if any, also stand disposed off.
................................................ DR. INDER JIT SINGH PRESIDING MEMBER