National Consumer Disputes Redressal
Ramesh Kumar Sihan Hans Alias Ramesh ... vs Goyal Eye Institute & Ors. on 30 March, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER COMPLAINT NO. 135 OF 2011 Ramesh Kumar Sihan Hans ........ Complainant Alias Ramesh Kumar s/o Late Khubi Ram r/o 108, Dasghara Village Near Main Park, P.O. Pusa, I.A.R.I., Pusa, New Delhi-110012 Office Address: Office of Ministry of Labour and Employment S.S.Bhawan, Rafi Nagar, Near Parliament House & RBI New Delhi-110011 Vs. 1. Goyal Eye Institute .. Opposite Party(s) 1/10, East Patel Nagar New Delhi-110008 Through its proprietor 2. Dr.Pawal Goyal 1/10, East Patel Nagar New Delhi-110008 3. Dr. Lalit 1/10, East Patel Nagar New Delhi-110008 BEFORE: HON'BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER HONBLE MR.S.K.NAIK, MEMBER For the Complainant : Mr. Suneet Bhardwaj, Advocate Dated : 30th March, 2012 ORDER
PER JUSTICE R.C.JAIN, PRESIDING MEMBER Alleging gross medical negligence and deficiency in service in performing surgery on the right eye for removal of cataract and implantation of ocular lens at the hands of the opposite party-doctor, the complainant has filed the present complaint claiming a total compensation of Rupees Three crores alongwith simple interest @ 12% p.a. w.e.f. 12.03.2010 till the date of payment.
2. We have carefully perused the averments and allegations made in the complaint as also the documents and material placed on record. We have heard the complainant and Mr. Suneet Bhardwaj, Advocate, learned counsel, representing the complainant at length on the question of maintainability of the present complaint before this Commission in particular whether the complaint falls within the pecuniary jurisdiction of this Commission.
3. The case of the complainant is that he is a government officer serving in the Ministry of Labour and Employment, Govt. of India. At the age of about 52 years, he developed cataract in his right eye in the year 2009, for removal of which he contacted opposite party no.1-Goyal Eye Institute. On 12.03.2010 Dr.Pawan Goel-opposite party no.2 conducted cataract surgery in the morning of 12.03.2010 on the complainant and he was discharged on the same day. It is alleged that due to negligence of opposite party no.2, there was renal detachment of the right eye for which he underwent certain surgeries first at Dr.R.M.L.Hospital and then at AIIMS-Rajinder Prasad Eye Centre, New Delhi. However, the complainant lost the complete vision of the right eye which caused permanent disability. Complainant claims to have incurred a total expenditure of Rs.86050/- for undergoing said treatment as per the following details:
S.No. Under the Head Date Amount Paid (Rs.)
1.
For right eye operation 12.03.2010 (8 am -12 noon) 22500 (21500/- through cheque no. 780594 dt. 12.03.2010 + 1000/- in cash
2. For right eye reoperation / second surgery 12.03.2010 ( 1.30 pm -5.30 pm) 20000
3. For left eye operation 29.4.2010 13300
4. Spectacles 150
5. Fee paid on 11.03.2010 500
6. Two injections 12.3.2010 1100 7 Bandages and dressings On several dates from 12.3.2010 30.4.2010 5000 8 Injection 29.4.2010 500
9. Medicines From 11.03.2010 till date 25000 (approx.) Total 86050/-
4. However, complainant has claimed a sum of Rupees Three crores including the cost of the above treatment and losses incurred due to negligence of the respondent doctor. It is pertinent to note the averments made in para 21 of the complaint, where the above claim has been made:
That an irreparable damage has been done to the Complainant by the respondents conduct which cannot be set off by any amount whatsoever. However, in the light of the canvassed facts and circumstances and for the trauma and agony suffered by the complainant due to the above said acts and conduct of all the respondents, amount to gross deficiency in the rendition / performance of medical services, the complainant is entitled to a compensation of Rs.3,00,00,000/-( Rupees Three Crores only) including the cost of treatment and losses incurred due to negligence of the respondents, from all the respondents out of which Rs.2,00,00,000/- has been assessed for causing permanent disability of right eye closing all opportunities for further employment of work and great difficulty in daily life and routine pursuits, rest amount of Rs.1,00,00,000/- is assessed on the basis of the medical expenses he incurred through the treatment and trauma and mental agony the complainant and his family underwent and which is continuing. All the respondents are jointly and severally liable to pay the same to the complainant alongwith simple interest @ 12% per annum thereon from 12.03.2010 till the date of actual payment.
5. A perusal of the above statement would show that out of the sum of Rupees Three crores, a sum of Rupees Two crore has been claimed for causing permanent disability of the right eye of the complainant closing all opportunities for employment and for experiencing great difficulty in daily life and routine pursuits and balance of Rs.1.00 crore is claimed on the basis of the medical expenses incurred throughout the treatment and the trauma and mental agony the complainant and his family underwent and which is continuing one.
That apart, complainant has claimed interest on the said amount.
6. On a consideration of the matter i.e. allegations of medical negligence and deficiency in service in the treatment and resultant injury and loss occasioned to the complainant, we were prima facie not satisfied that the compensation as high as Rupees Three crores claimed by the complainant could legitimately be claimed by him, so we afforded an opportunity to the complainant and his counsel to explain the basis of claiming such a high compensation. Learned counsel for the complainant vehemently argued that claim of compensation of Rupees Three crores is quite just and reasonable looking to the entirety of the facts and circumstances of the case. It was contended that larger part of the compensation of Rupees Three crore claimed in the complaint is with a view to bringing about the qualitative change in the attitude of the service provider i.e. OP No.2 and the balance amount is claimed towards pecuniary damages as already suffered or likely to be suffered by the complainant in future. In support of his contention, learned counsel for the complainant has sought support from a Supreme Court decision in the case of Charan Singh Vs. Healing Touch Hospital & Ors. In that case, this Commission had dismissed the complaint holding that the claim of Rs.30 lakh made by the complainant was unrealistic, exaggerated and excessive. In appeal, the Supreme Court set aside the said order by observing as under:
After hearing learned counsel for the parties and perusing the record, we are constrained to say that we are not happy with the manner in which the complaint of the appellant has been disposed of.
Consumer Protection Act is one of the benevolent pieces of legislation intended to protect a large body of consumers from exploitation. The Act provides for an alternative system of consumer justice by summary trial. The authorities under the Act quasi judicial powers for redressal of consumer dispute and it is one of the postulates of such a body that it arrive at a conclusion on reason. The necessity to provide reasons, howsoever, brief in support of its conclusion by such a forum, is too obvious to be reiterated and needs no emphasising. Obligation to give reasons not only introduces clarity but it also excludes, or at any rate minimizes, the chances of arbitrariness and the higher forum can test the correctness of those reasons. Unfortunately we have not been able to find from the impugned order any reasons in support of the conclusion that the claim of the appellant is "unrealistic" or "exaggerated" or "excessive". Loss of salary is not the sole factor which was required to be taken into consideration. While quantifying damages, consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge. It is not merely the alleged harm or mental pain, agony or physical discomfort, loss of salary and emoluments etc. suffered by the appellant which is in issue - it is also the quality of conduct committed by the respondents upon which attention is required to be founded in a case of proven negligence. it must be remembered that National Consumer Forum has jurisdiction, without pecuniary limitations, to award proper compensation., even less than the one claimed in a given case, depending upon the established facts and circumstances of that particular case and the evidence led by the parties.
7. There cannot possibly be any quarrel with the above stated legal proposition but the crucial question which arises for consideration is as to whether this Commission or for that reason any other consumer fora established under the provisions of Consumer Protection Act, 1986 (in short, the Act) must entertain the complaint simply going by the value of the claim made by the complainant, howsoever, exaggerated or unrealistic it may be or it has a duty to examine whether the complaint falls within or outside its pecuniary jurisdiction. Section 12(3) of the Act provides the procedure to be followed by a District Forum, State Commission or National Commission on receipt of a complaint. It envisages examination of the complaint with a view to find out if going by the averments and allegations made in the complaint, complaint is fit to be admitted and proceeded with. Such examination of the complaint would require consideration of the following aspects:
(i) Whether complainant is a consumer within the meaning of section 2 (1) (d) of the Act and is entitled to invoke the original jurisdiction of a consumer forum;
(ii) Whether the complaint raises one or more consumer dispute viz., unfair trade practice or restrictive trade practice, defects in goods or deficiency in service as defined under the Act;
(iii) Whether consumer forum has territorial and pecuniary jurisdiction to entertain the complaint;
(iv) Whether the complaint has been filed within the period of limitation as prescribed by section 24(a) of the Act, and;
(v) Whether complaint is accompanied with such amount of fee as has been prescribed.
Section 11(a), 17 (1) (a) and 21 (a) of the Act prescribe the limit of pecuniary jurisdiction of District Forum, State Commission and National Commission. Section 11 (1) of the Act provides that subject to the other provisions of the Act, the District Forum shall have jurisdiction to entertain complaints where value of goods or services and the compensation, if any, claimed does not exceed Rs.20 lakh. Similarly section 17(1)(a) provides that where value of goods and claim exceeds Rs.20 Lakh but does not exceed Rupees One Crore can be filed before the State Commission. By virtue of Section 21(a), the National Commission is vested with the original jurisdiction to entertain complaints where the value of goods or services and compensation, if any, exceeds Rupees One Crore.
In our view, a Consumer Fora whether it is District Forum, State Commission or National Commission must consider the question whether the complaints so filed before it is within its pecuniary jurisdiction besides satisfying itself about the maintainability of the complaint on other parameters.
8. From these provisions intention of the legislature is manifest that the complaint claiming a relief upto a particular value should be filed before and decided by the respective three fora. This appears to be a fair scheme going by the hierarchy of the consumer fora established under the Act. In complaints where the value of the goods or service can be ascertained with certainty, there appears to be not much difficulty in accepting the value as put forth by the complainant. However, the difficulty arises when the value of the goods or services is very meagre but the compensation claimed is manifold, based on the complainants perception of the extent of loss or injury suffered by him due to the deficit in goods or deficient service. More often than not, this happens in the complaints where compensation is claimed for the loss and injury suffered by the complainant or by his successor-in-interest after the injury or death of the patient arising from medical negligence and / or deficiency in treatment. In such cases, the fee paid to the medical practitioner or hospital may be a few thousand or lakh of rupees but the compensation for the loss and injury resulting from medical negligence or deficiency in the treatment is claimed in crores. In a given case, having regard to the status of the deceased patient, his occupational income, perhaps claim of crores of Rupees may be justified towards loss of income due to depriviation of the income of the deceased patient and on account of non pecuniary damages etc. This may not hold good in many other cases where the loss occasioned and compensation claimed even prima facie appear to be imaginary, fanciful and unrealistic.
9. We are constrained to note that of-late there is an increased tendency on the part of the complainants to over-value their claim. The reason why the complainants tend to do this are not difficult to understand. The one reason for doing this may be that a very meagre fee as compared to the Court Fee payable in civil suit, is payable on complaints filed before the consumer fora. The optimum fee payable for filing original complaint is Rs.5000/- irrespective of the valuation of the claim made in the complaint. Yet another reason may be is that when it comes to settlement of the claim, the complainant may have an edge and will be in better bargaining position to settle the claim on his own terms. Such a tendency need to be curbed, lest the complaints of over-valued claim keep on mounting in the National Commission. As per the recent statistics more than 200 complaints which are more than a decade old are pending for disposal. Had proper examination of the complaint been done at the admission stage, perhaps the number of complaints filed and pending could have been drastically reduced. It is the experience of this Commission that more often than not in most of the complaints, compensation awarded by this Commission is not even a fraction of the claim made by the complainant.
10. It is true that complainant has the right to value his claim in the complaint but it is equally true that by doing so, complainant should not value the claim which is grossly over-valued. The question is not res integra and has been considered by the Apex Court in a number of cases viz. Tara Devi Vs. Sri Thakur Radha Krishna Maharaj (1987) 4 SCC 69, Nandita Bose Vs.Ratanlal Nahata (1987) 3 SCC 705. In the later case, the Honble Supreme Court has held as under:
The principles which regulate the pecuniary jurisdiction of civil courts are well settled. Ordinarily, the valuation of a suit depends upon the reliefs claimed therein and the plaintiffs valuation in his plaint determines the court in which it can be presented. It is also true that the plaintiff cannot invoke the jurisdiction of a court by either grossly over-valuing or gross under-valuing a suit. The court always has the jurisdiction to prevent the abuse of the process of law. But the question whether she was entitled to claim mense profits or damages in respect of the period subsequent to February 1, 1995 could not have been disposed of at a preliminary stage even before the trial had commenced. That question had to be decided at the conclusion of the trial alongwith other issues arising in the suit. Having regard to some of the decisions on which reliance is placed by the appellant in the course of the appeal, we are of the view that matter is not free from doubt.
11. Coming to the facts and circumstances of the present case, as per his own showing the complainant has incurred expenditure of Rs.86050/- only towards medical expenses towards the medical treatment and, therefore, rest of claim of Rs.2.99 crore can be considered towards non pecuniary damages. Complainant has failed to give break up of this high claim. The compensation for medical negligence or deficiency in treatment has to be commensurate with the resultant loss and injury to the patient or his heirs. Same is granted by following the well established norms as laid down by the Apex Court in empteen number of cases. We have not come across with any case where compensation as high as Rs.3.00 crore or even exceeding Rs.1.00 crore has been granted to a complainant on account of the impairment of vision of one eye. In the case in hand, complainant is a Central Government Officer and despite the said impairment of vision of his right eye, he continues to serve in the government and has some years to retire. Claim of Rs.3.00 crore for loss of future prospect, to say the least is not legitimate. We have, therefore, no manner of doubt that the complainant has over valued his claim just to misuse the jurisdiction to this Commission. In our view, the legitimate valuation of the claim of the complainant cannot exceed Rupees One Crore by any stretch under any circumstances This has been the approach of this Commission. In this regard, reference may be made to an order dated 08.07.2011 passed by this Commission in CC No. 60/211 titled as Smt.Sujata Nath Vs. Popular Nursing Home and others where this Commission held that valuation made by the complainant was exaggerated and complainant had over valued her claim just to give jurisdiction to the National Commission. The said order was challenged by the complainant in appeal before the Supreme Court in Civil Appeal No.8642 of 2011. The appeal was dismissed by the Supreme Court by observing as under:
We have heard learned counsel for the appellant and perused the record. In the complaint filed by her, the appellant had claimed compensation of Rs.1,50,00,000/- but despite an opportunity having been given by the National Commission, she could not, prima facie, show how she was entitled to rupees eight lakhs towards future medical treatment and rupees fifty lakhs for mental agony and harassment allegedly caused by the respondents. Therefore, the National Commission did not commit any error by refusing to entertain the complaint and rightly returned the same for being filed before an appropriate forum.
The appeal is, accordingly, dismissed.
12. Having considered the matter in its entirety, we are, therefore, of the considered view that the present case does not fall within the pecuniary jurisdiction of this Commission. We, therefore, direct the Registry to return the complaint to the complainant with liberty to file same before the appropriate forum after suitably modifying the valuation of the complaint. Modified complaint may be filed before the appropriate forum within a period of 30 days from the receipt of this order.
J (R.C. JAIN) ( PRESIDING MEMBER) (S.K.NAIK) MEMBER Am/