Allahabad High Court
State Of U.P. vs Smt. Kamini Devi & Another on 31 July, 2017
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 59 Case :- WRIT - C No. - 5831 of 2016 Petitioner :- State Of U.P. Respondent :- Smt. Kamini Devi & Another Counsel for Petitioner :- Syed Mohd. Iqbal Hasan Counsel for Respondent :- S.C.,Subash Chandra Srivastava Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner. Although notices were issued to the opposite party No.1, none has appeared. The petition is therefore taken up for final disposal.
The challenge in the instant writ petition is to an order dated 30 December 2014 passed by the Permanent Lok Adalat, Moradabad allowing a claim laid by the first respondent in respect of a failed sterilisation procedure.
According to the facts as noticed by the Permanent Lok Adalat, the first respondent underwent a sterilisation procedure on 18 January 2010. It is alleged that on 19 May 2013, she undertook an ultrasound examination when it was revealed that she was pregnant. She later gave birth to a girl child on 25 September 2013. In this backdrop, a claim came to be laid before the Permanent Lok Adalat for damages and compensation against the State and its officers. This claim has been allowed by the Permanent Lok Adalat by awarding Rs. 1,00,000 as damages to the respondent with a further direction that in case the same is not paid within one month, it would carry interest at 7% per annum.
Sri Bipin Behari Pandey, learned Additional Chief Standing Counsel, has primarily raised two contentions in support of the challenge to the Award made by the Permanent Lok Adalat. He firstly submits that the Lok Adalat has clearly failed to follow the procedure as envisaged under Section 22-C of the Legal Services Authority Act 19871. He refers to the pleadings taken in paragraph 15 of the writ petition, in which the petitioner asserts that no conciliation proceedings were ever undertaken by the Permanent Lok Adalat and that without exhausting this avenue, the Permanent Lok Adalat proceeded to assume jurisdiction over the dispute and rule upon the same on merits.
Referring to the judgment rendered by a learned Single Judge of the Punjab & Haryana High Court in Reliance General Insurance Company Limited Vs. Vijay Kumar and another2, it was submitted by Sri Pandey that the statutory obligation which stands placed upon the Permanent Lok Adalat was given a go by and an award declared against the petitioner.
The second contention urged in support of the challenge is that the award of damages in the absence of any finding of medical negligence is clearly unsustainable.
From the record, the Court finds that the Permanent Lok Adalat has cryptically noted that the proceedings of conciliation came to an end on 21 November 2014. Apart from this singular recital that the award carries, no details of any conciliatory steps that were taken or initiated by the Permanent Lok Adalat in order to arrive at a settlement in between parties is elaborated upon or can be spelt out from the impugned Award. The obligation placed upon the Permanent Lok Adalat to undertake such an exercise is clearly recognised in sub section (7) of Section 22-C of the Act. This aspect has been correctly noticed by the learned Single Judge in Reliance General Insurance Company. The learned Single Judge in the aforementioned judgment has placed reliance upon a decision of the the Gauhati High Court in Deputy Divisional Manager, Shillong and another Vs. Smt. Jharna Ghosh3 which commends notice and reiteration:
"10. It has been specifically provided in sub-section (4), (5), (6) and (7) of Section 22(C) of the Act that the Permanent Lok Adalat, during conduct of conciliation proceedings under sub-section (4), it shall assist the parties in their attempt to reach an amicable settlement of the dispute in an independent and impartial manner, and it shall be the duty of every party to the application to co-operate in good faith with the Permanent Lok Adalat in conciliation of the dispute relating to the application and to comply with the direction of the Permanent Lok Adalat to produce evidence and other related documents before it. When a Permanent Lok Adalat, in the aforesaid conciliation proceedings, is of the opinion that there exist elements of settlement in such proceedings, which may be acceptable to the parties, it may formulate the terms of a possible settlement of the dispute and give to the parties concerned for their observations and in case the parties reach at an agreement on the settlement of the dispute and give to the parties concerned for their observations and in case the parties reach at an agreement on the settlement of the dispute, they shall sign the settlement agreement and the Permanent Lok Adalat shall pass an award in terms thereof and furnish a copy of the same to each of the parties concerned. However, if the parties fail to reach to an agreement under sub-section (7), the Permanent Lok Adalat shall, if the dispute does not relate to any offence, in terms of the above provision, with the approval of the parties, decide the dispute.
11. In terms of the provisions of S.22(C)(7), it clearly transpires that the Permanent Lok Adalat has to formulate the terms of a possible settlement of the dispute and give to the parties concerned for their observations. However, in the instant case, as rightly pointed out by the learned counsel for the petitioners, no such initiative was ever taken up by the learned Members of the Permanent Lok Adalat, for a possible settlement of the dispute between the parties. Neither any observation, nor any opinion was expressed by the learned Permanent Lok Adalat as to whether any element of settlement existed for a possible settlement.
12. The very purpose of establishment of a Permanent Lok Adalat is to take an initiative for a settlement of the dispute between the parties without litigation. However, in the instant case, as it appears, such an effort for conciliation by the learned Permanent Lok Adalat is conspicuously absent.
13. Mr. Lodh, learned counsel for the petitioners, by referring to a decision, reported in AIR 2011 (Jhar) 5: (2010 (4) AIR Jhar HCR 61) Divisional Manager, National Insurance Co. Ltd. v. Usha Sinha and Ors., has submitted that the duty of the Permanent Lok Adalat is to bring parties to a settlement instead of adjudicating the dispute itself without making any effort for conciliation. The Permanent Lok Adalat has no jurisdiction to directly invoke the provisions of Section 22-C(8) of the Act and decide the dispute on merit against the will of the party. The relevant observations made by the learned single Bench of Jharkhand High Court, read as follows:
"8. The scope of the powers of the Permanent Lok Adalat under the provisions of Section 22-C and 22-D of the Legal Service Authority Act, has been elaborately discussed and explained by this Court in several judgments. A Division Bench judgment of this Court in the case of Bharat Sanchar Nigam Limited v. State of Jharkhand and Anr. reported in 2008 (3) JLJR 513 : (2009 (1) AIR Jhar R 77), has held as follows:
"The duty of the Permanent Lok Adalat is to bring parties to a settlement instead of adjudicating the dispute. The Permanent Lok Adalat has no jurisdiction to directly invoke the provisions of Sec. 22-C (8) and decide the dispute on merit against the will of the party."
14. The Permanent Lok Adalat are saddled with a pious duty of using their wisdom, knowledge and experience, for settlement of the dispute between the parties. The Permanent Lok Adalat should offer terms of settlement on its own. Thereafter, some time have to be given to the parties to the dispute to enable them to come to a settlement. If they offer their terms of settlement, it can be accepted by the Permanent Lok Adalat or if they accept the terms of settlement, offered by Permanent Lok Adalat, then also an award can be passed, as agreed to by the parties. Except as above, the Permanent Lok Adalat cannot directly take a decision, on merits. Even thereafter a written consent must be given by the parties to the Permanent Lok Adalat for deciding the dispute, on merits. Unless a written consent is given by the parties, for deciding the dispute, on merits, the Permanent Lok Adalat shall not exercise power to decide the issues, on merits in terms of Sec. 22C(8) of the Act."
In view thereof and in light of the averments in the writ petition which have gone un-rebutted, the learned Additional Chief Standing Counsel appears to be correct in his submission that there was a clear failure on the part of the Permanent Lok Adalat to undertake the requisite exercise as envisaged under Section 22-C. Insofar as the issue of award of damages in the case of a failed sterilisation procedure, this Court had an occasion to deal with a similar issue in State of U.P. and others Vs. Permanent Lok Adalat and another4 wherein after noticing the parameters laid down by the Supreme Court in State of Haryana Vs. Raj Rani5 it was held as follows.
"In order to sustain an award of damages, it is imperative that it be found that the attending doctors were reckless and negligent in the discharge of their functions. In fact this must necessarily be held to be the prerequisite or sina qua non for the award of damages in cases of this nature. The adjudicating authority must necessarily come to the conclusion that a case of medical negligence is established before it proceeds to award damages. In the absence of any cogent material or categorical finding which would evidence or establish that the doctors acted negligently, the award of damages is clearly rendered unsustainable in law."
From a perusal of the order impugned, it is clear that no finding on medical negligence stood entered by the Permanent Lok Adalat. In the absence of such a finding, the award of damages was clearly incorrect and cannot be sustained.
Accordingly and for the reasons noted above, this writ petition shall stand allowed. The impugned order of the Permanent Lok Adalat, Moradabad dated 30 December 2014 is hereby set aside. All consequences shall follow.
Order Date :- 31.7.2017 (Yashwant Varma, J.)
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