State Consumer Disputes Redressal Commission
Lt. Col. Atma Singh (Retd.) vs The Managing Director, Fortis ... on 12 August, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
Review Application N0. 479 of 2010
In
Consumer Complaint No.3 of 2008
Date of institution : 2.3.2010
Date of decision : 12.8.2010
Lt. Col. Atma Singh (Retd.), R/o House No.44, Sector 10-A, Chandigarh.
....Complainant
Versus
1. The Managing Director, Fortis Healthcare Limited, SAS Nagar (Mohali).
2. Dr. Ashok K. Chordiya Medical Director, Fortis Healthcare Limited, SAS
Nagar (Mohali).
3. Dr. A.S. Bawa, Urology Surgeon, Fortis Healthcare Limited, SAS Nagar,
(Mohali).
4. Dr. K.P. Singh, Endocrinologist Consultant, Fortis Healthcare Limited,
SAS Nagar (Mohali).
5. Dr. Rashmi Saluja, Incharge Special Intensive Care Unit, Fortis Healthcare
Limited, SAS Nagar (Mohali).
......Respondents
Review Petition under Section 151 of the CPC
against the impugned judgment dated 15.12.2009
passed by the State Consumer Disputes Redressal
Commission, Punjab, Chandigarh.
Before :-
Lt. Col. Darshan Singh, Presiding Member.
Shri Inderjit Kaushik, Member.
Present :-
For the applicants (respondents) : Shri Pavit S. Mattewal, Advocate. For the respondent (complainant) : Shri H.S. Thiara, Advocate with Col. Atma Singh in person.
INDERJIT KAUSHIK, MEMBER:
The Managing Director, Fortis Healthcare Limited, SAS Nagar (Mohali) and others who are respondents have filed this review application under Section Review Application No.479 of 2010 2 In Consumer Complaint No.3 of 2008.
151 of the Code of Civil Procedure against the impugned judgment dated 15.12.2009 passed by this Commission.
2. It was submitted that the complaint was decided by this Commission on 15th of December 2009. The applicants seek to get correction of error which is apparent on the face of record which had crept into the order passed due to misrepresentation by the complainant by reviewing and recalling the said order passed. In para 55 of the judgment the Commission has observed no consent was taken prior to the first operation performed in the respondent Hospital on 23.5.2007 amounts to medical negligence on the part of the respondents. It was also recorded in the judgment that the respondents have taken the plea that it was truly explained to the patient but no such document has been placed on the file to prove if the patient was made aware prior to 23rd of May 2007 about the post operative consequences. In other words, no such post operative complications were brought to the notice of the complainant.
3. From the above para it becomes clear that the words mentioned in the para are contrary to the record and is an error on the face of the record. The Commission has held the respondent Hospital guilty of medical negligence. The relevant portion of the judgment of the Commission is reproduced hereunder:-
"55. As discussed above, no such consent letter was taken prior to first operation performed in the respondent Hospital on 23 May 2007. This amounts to medical negligence on the part of the respondents."
4. The Commission might have erred in recording the facts in this respect due to misrepresentation on the part of the complainant. The respondents have placed on record the consent letter signed by the patient in which the informed consent has been recorded prior to 23.5.2007. The said document is titled "Authorisation for and consent to Operation Administration of Anaesthesia and procedures". The Review Application No.479 of 2010 3 In Consumer Complaint No.3 of 2008.
consent letter was signed by the patient Raminder on 21.5.2007 in the presence one witness, namely, Megha Mittal. The aforesaid error is the outcome of misrepresentation and is sought to be corrected by way of this review application. The review application is maintainable in view of the law laid down by the Hon'ble Supreme Court in case "Indian Bank Vs. Messer's Satyam Fibres Private Limited" 1996 INDLAW SC 2393. There is no evidence whatsoever produced by the complainant to show that informed consent was not taken and there is positive evidence submitted by the respondents that they had conducted the operation only after explaining to the patient the various facets of the operation and also educated the patient regarding all the post operative complications of the surgery and prayed that the Commission may be pleased to recall the order passed and allow the present review application.
5. In the reply filed on behalf of the complainant objections were taken that there is no provision under the Consumer Protection Act, 1986 (in short "the Act") for filing the review application but the delay in filing the review application has not been explained and without filing the application for condonation of delay the review application is not maintainable. The complainant has already filed appeal No.43 of 2010 before the Hon'ble National Commission, New Delhi which has been admitted and notice has been issued to the respondents and the review application cannot proceed before the State Commission. The complainant has not played any fraud on the Commission. On merits it was submitted that the review petition itself shows that the respondents have filed the review application without filing the application for condonation of delay. The wife of the complainant was hale and hearty and she had gone to respondent Hospital for pre- checkup for knee surgery only but she was admitted in emergency and she came under shock and was terrified of hearing about cancerous tumour and under those treacherous circumstances the consent for the operation on 23.5.2007 was taken by some doctors two days prior to the operation on 21st of May 2007. The patient Review Application No.479 of 2010 4 In Consumer Complaint No.3 of 2008.
was in a very bad state of mind to properly think or go through any form in a cool manner. The consent form was the only document signed by her whereas other documents were signed by her relatives and spouses as and when required. The doctor did not personally and verbally explained the post operative complications. The consent form signed on 21st of May 2007 was under duress as desired by some doctor in a hurry as a routine formality and the surgeon himself did not sign it. There is no false representation on the part of the patient or the complainant. It is not the case of the complainant that the consent form was not signed or given but it was in the circumstances explained above. The respondents have purposely and with false intention had tried to misled the Commission by not mentioning details of the timing in carrying out various investigations etc. The complainant has given unnecessary details in this reply which seems to be grounds of appeal taken before the Hon'ble National Commission. As such the same are not required to be repeated and ultimately it was prayed that the application be dismissed.
6. Heard.
7. Learned counsel for the applicants (respondents) has relied upon the authority of the Hon'ble Supreme Court in case "Indian Bank v. M/s Satyam Fibres (India) Pvt. Ltd." AIR 1996 (SC) 2592, 2010 INDLAW 139 and another authority in case of "GRINDLAYS BANK LTD. v. CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL AND OTHERS" 1980 (Supp) Supreme Court Cases
420. On the strength of these authorities of the Hon'ble Supreme Court the learned counsel for the respondents has prayed for recalling and reviewing the order dated 15.12.2009 passed by this Commission pointing out para 55 of the judgment as reproduced above.
8. Learned counsel for the complainant relied upon the judgment in case "HARISH CHADHA v. NEW INDIA ASSURANCE CO. LTD." II(2008) CPJ Review Application No.479 of 2010 5 In Consumer Complaint No.3 of 2008.
195 (NC), another judgment in case "ARUN J. REBELLO v. SATISH" II(2008) CPJ 268 and argued that the review petition is not maintainable.
9. The Consumer Protection Act, 1986 is special enactment and there is no provision under the Act for recalling or reviewing its own orders/judgments by the State Commission. In case "Birachi Narayan Nayak v. M.M. Motor and Tractors and others" 2007(1) CLT 23 (NC), the Hon'ble National Commission relying upon the authority of the Hon'ble Supreme Court in case "Jyotsana Arvind Shah and others vs. Bombay Hospital Trust" 2000 CTJ 728 (SC) (CP) held that the State Commission has no power to review/modify its own earlier orders.
10. This Commission earlier in case "Bayer India Limited v. Hari Chand and others" 2010 CTJ 308 (CP)(SCDRC) has observed that there is no provision in the Act to recall or review the order passed by the State Commission on merits although ex parte. Reliance was placed again on the judgment of the Hon'ble Supreme Court in case of Jyotsana Arvind Kumar Shah and others (supra) and the latest judgment of the Hon'ble National Commission in case "Rourkela Development Authority v. Saraswathi Beura" III(2007) CPJ 309 (NC) wherein it was held that under Section 21(b) of the Act the order can be reviewed by the Hon'ble National Commission only when the error apparently exists on the face of the record.
11. In view of the above settled preposition of law, we do not find any merit in the present application and the same is dismissed.
(LT. COL. DARSHAN SINGH)
PRESIDING MEMBER
August 12 , 2010 (INDERJIT KAUSHIK)
Bansal MEMBER
Review Application No.479 of 2010 6
In Consumer Complaint No.3 of 2008.