Delhi High Court
Dr. Ashutosh Bajpai vs Union Of India (Uoi) And Ors. [Along With ... on 16 May, 2008
Author: Veena Birbal
Bench: T.S. Thakur, Veena Birbal
JUDGMENT Veena Birbal, J.
1. Consumer Complaint No. 59/2003 was filed by respondents No. 2 to 5 who happen to be the family members of deceased Vishnu Kumar Shukla before the UP State Commission Dispute Redressal Forum alleging negligence in providing medical treatment to the deceased by the hospital run by the petitioners. The allegations made against the petitioners were that the deceased was kept in the hospital with the ulterior motive of extracting money from the respondents. It was also alleged that the petitioners did not refer the deceased to PCI Hospital as a result of which he died. Since no one appeared before the State Commission it proceeded ex parte against the petitioners and awarded Rs. 22 lakhs as compensation to the widow and family members of the deceased i.e. respondent nos. 2 to 5 together with interest @ 12% p.a.
2. Aggrieved by the judgment of the State Commission, the petitioners preferred an appeal under Section 19 of Consumer Protection Act, 1986 (hereinafter referred to as the Act) before the National Consumer Dispute Redressal Commission. The National Commission asked the petitioners to file their written submissions as also affidavits by way of evidence. The case thereafter came up for hearing on 11th September, 2007 on which date the respondents also appeared before the National Commission, who stayed the operation of the impugned order subject to deposit of 50% of the amount awarded by the State Commission. Aggrieved by the said order the present two petitions have been filed one by Regency Hospital and its Director Smt. Rashmi Kapoor and the other by Dr. Ashutosh Bajpai who had treated the deceased at the relevant time.
3. On behalf of the petitioners it was contended that the impugned order dated 11th September, 2007 passed by the National Commission is contrary to the provisions of Section 19 of the Act. It was further contended that under the second proviso to Section 19, the National Commission cannot pass an order asking the appellant before it to deposit an amount over and above 50% of the amount awarded by the State Commission or Rs. 35000/- whichever is less. In support of that contention learned Counsel relied upon a judgment of this Court in Dr. Mrs. K Kathuria v. National Consumer Dispute Redressal Forum AIR 2007 Delhi 137.
4. We have given our careful consideration to submissions made at the Bar and perused the record.
5. For deciding the aforesaid contention of petitioners it will be appropriate to reproduce the order dated 11.9.2007 of the State Commission, which is as follows:
In compliance with our order dated 5.9.2007, an application for permission to file written version and affidavit by way of evidence has been filed by the appellant. We had to issue this direction for the simple reason that appellant/opposite party were ex parte before the State Commission.
A copy of this application has been given to learned Counsel for the complainant, who was caveator.
Caveator is directed to file his reply to the application for permission to file written version etc. filed by the appellant within a period of four weeks.
Till then the execution of the order is stayed subject to deposit of 50% of amount with the State Commission.
List on 30.10.2007 for admission.
6. For the sake of convenience Section 19 is also reproduced below:
Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by Sub-clause (i) of Clause (a) of Section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:
"Provided" that the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:
["Provided" further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited in the prescribed manner fifty per cent of the amount or rupees thirty-five thousand, whichever is less].
7. The Hon'ble Supreme Court in Lakshmiratan Engineering Works Ltd. v. Asst. Commissioner-I, Sales Tax, Kanpur Range, Kanpur and Anr. AIR 1968 SC 488 has discussed the meaning of word "entertain" appearing in proviso to Section 9 of U.P. Sales Tax Act, 1948. In the said judgment various decisions of Hon'ble High Court of Allahabad on the word "entertain" appearing in proviso to Section 9 of the aforesaid Act have been discussed. The relevant para of the judgment of Hon'ble Supreme Court is reproduced below:
10. In our opinion these cases have taken a correct view of the word 'entertain' which according to dictionary also means 'admit to consideration'. It would therefore appear that the direction to the court in the proviso to S. 9 is that the court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up by the court for the first time. In the decision on which the Assistant Commissioner relied, the learned Chief Justice (Desai C.J.) holds that the words 'accompanied by' showed that something tangible had to accompany the memorandum of appeal. If the memorandum of appeal had to be accompanied by satisfactory proof, it had to be in the shape of something tangible, because no intangible thing can accompany a document like the memorandum of appeal. In our opinion, making 'an appeal' the equivalent of the memorandum of appeal is not sound. Even under Order 41 of the Code of Civil Procedure, the expressions "appeal" and "memorandum of appeal" are used to denote two distinct things. In Wharton's Law Lexicon, the word "appeal" is defined as the judicial examination of the decision by a higher Court of the decision of an inferior court. The appeal is the judicial examination; the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for purposes of the rules of the Court it is required that a written memorandum of appeal shall be filed. When the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax.
8. The interpretation of word "entertain" in aforesaid judgment has also been followed in State of Haryana v. Maruti Udyog Ltd. AIR 2000 SC 2941.
9. Thus deposit under 2nd proviso to Section 19 of the Act i.e. 50% of the amount or Rs. 35,000/- whichever is less is a prerequisite for consideration of an appeal before National Commission, otherwise, appeal will not be considered. The same is a statutory requirement. If the said deposit is not made appeal before the National Commission will not be considered. Condition of pre-deposit is there to avoid frivolous appeals. If the National Commission after hearing the appeal or the parties in its discretion wants to stay the impugned award subject to deposit of some amount out of awarded amount there is no bar to the making of an order to that effect. Entertainment of an appeal and the stay of proceedings in pursuance of order impugned in the appeal are two different things. The Provision can't be read to mean that pre-deposit under 2nd proviso to Section 19 ipso facto operates as stay of operation of order of State Commission without any further order of National Commission to that effect. If that were the intention, the parliament would have expressly stated so.
10. Coming to the present case, we are of the opinion that the National Commission has exercised its discretion keeping in mind the facts and circumstances of the case. We find no reason to interfere with the discretion exercised by the National Commission in exercise of our jurisdiction under Article 226 of the Constitution. The judgment cited by the counsel for petitioner deals only with the pre-deposit at the time of hearing of the appeal i.e. for the maintainability of appeal and as such is of no help to the petitioner. Further any order passed in the facts of a particular case having regard to equitable principles cannot be considered as a precedent in the facts of all cases. The language of the provision being clear we have no hesitation in holding that the judgment of the Division Bench relied upon by learned Counsel for the petitioner did not intend to do away with the distinction between entertaining of an appeal per se and grant of an interim order of stay or such conditions as the Commission may deem fit. Section 19 of the Act takes care of the former, while the matter is entirely in the discretion of the Commission on the latter aspect. In as much as the Commission in exercise of its powers of granting an interim order, directed deposit of 50% of the amount in question, it committed no illegality or irregularity to warrant interference. In the result both these writ petitions fail and are hereby dismissed, but without any order as to costs.