National Consumer Disputes Redressal
Meenakshi Jain & 3 Ors. vs Indraprastha Apollo Hospital & 6 Ors. on 3 November, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 103 OF 2020 (Against the Order dated 15/10/2019 in Complaint No. 67/2010 of the State Commission Delhi) 1. MEENAKSHI JAIN & 3 ORS. D/O LATE SHRI PAWAN KUMAR JAIN, R/O J-206, SARITA VIHAR, NEW DELHI-110076 2. ARCHANA JHA D/O LATE SHRI PAWAN KUMAR JAIN, R/O C-701, SARITA VIHAR, NEW DELHI-110076 3. SMT PUSHPA JAIN W/O LATE SHRI PAWAN KUMAR JAIN, R/O C-701, SARITA VIHAR, NEW DELHI-110076 ...........Appellant(s) Versus 1. INDRAPRASTHA APOLLO HOSPITAL & 6 ORS. MATHURA ROAD SARITA VIHAR NEW DELHI-110076 2. DR. SAKET GOEL, SENIOR CONSULTANT, SURGICAL GASTROENTEROLOGIST INDRAPRASTHA APOLLO HOSPITAL, MATHURA ROAD, SARITA VIHAR, NEW DELHI 3. DR VINAYAK AGARWAL, SENIOR CONSULTANT CARDIOLOGIST, INDRAPRASTHA APOLLO HOSPITAL, MATHURA ROAD, SARITA VIHAR NEW DELHI 4. DR. S. WANGNOO SENIOR CONSULTANT ENDOCRINOLOGIST INDRAPRASTHA APOLLO HOSPITAL, MATHURA ROAD, SARITA VIHAR NEW DELHI 5. DR. RAJESH CHAWLA, SENIOR CONSULTANT RESPIRATORY MEDICINE INDRAPRASTHA APOLLO HOSPITAL, MATHURA ROAD, SARITA VIHAR NEW DELHI 6. DR SANJEEV JASUJA SENIOR CONSULTANT NEPHROLOGIST INDRAPRASTHA APOLLO HOSPITAL, MATHURA ROAD, SARITA VIHAR NEW DELHI 7. DR. S.CHATTERJEE, SENIOR CONSULTANT PHYSICIAN INDRAPRASTHA APOLLO HOSPITAL, MATHURA ROAD, SARITA VIHAR NEW DELHI 8. DR. VINAYAK AGRAWAL -- ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE KARUNA NAND BAJPAYEE,PRESIDING MEMBER
FOR THE APPELLANT : FOR THE APPELLANT : APPELLANT NO.1 IN PERSON AND AUTHORIZED
REPRESENTATIVE OF THE APPELLANT NOS.2 & NO.3
WITH MR. GAUTAM KAPUR, ADVOCATE FOR THE RESPONDENT : FOR THE RESPONDENTS
NO.1, 2, 4, 5, 6 & 7 : DR. LALIT BHASIN, ADVOCATE WITH
MS. NINA GUPTA, ADVOCATE
FOR THE RESPONDENT NO. 3 : MR. UMESH KUMAR SINGH, ADVOCATE
Dated : 03 November 2023 ORDER
1. The appeal has been filed under section 19 of The Consumer Protection Act 1986 in challenge to the Order dated 15.10.2019 passed by the State Commission in Consumer Complaint no. 67 of 2010.
2. It appears that the complaint in question was filed in the year 2010 and remained pending for almost a decade in the State Commission. It transpires from the record that some application dated 30.05.2018 for brining on record some material facts and documents as additional evidence allegedly suppressed by the opposite parties, was moved by the complainant, on which the State Commission directed the complainant to file the documents which included the report of F.S.L., the report of second medical opinion and documents given by the opposite party no.1 to the I.O. While giving such directions it was also observed by the State Commission that the effect thereof would be considered at the time of final decision only. It further transpires from the perusal of the impugned Order that some application dated 24.07.2019 was moved by the opposite party no.3 for return of the complainant, as according to it, the case involved complicated questions of facts and law pertaining to forgery. This application was heard and allowed and the complaint was returned to be presented to a civil court or to other appropriate forum. Aggrieved by the same order, the present Appeal has been filed.
3. During the course of arguments learned counsel for all the respondents except respondent no. 3 submitted that he had no objection if the matter be remanded back and the appeal be allowed. However, counsel for the respondent no. 3 opposed the same and submitted that the arguments may be heard.
4. Heard the appellant no.1 who is appeared in person also representing the appellants no. 2 and no. 3 as their authorized representative and the learned counsel for all the respondents.
Perused the record.
5. During the course of the submissions made by the appellant no.1, she has taken the Bench to the contents of the complaint and it has been emphasised that fullest details have been given in the same as to how and in what manner the opposite parties have been deficient in rendering service, how they acted negligently and as to how they indulged in unfair trade practice. It has also been sought to be shown in the complaint as to how in order to cover up their negligence and deficiency, the opposite parties have indulged in unscrupulous acts of tempering with documents which would independently and separately be tantamount to forgery or fraud. Her submission is that the relief that has been sought by the complainant relates to improper medical care, reckless and criminal negligence and relates to compensation for committing deficiency of service, which resulted in the loss of life of the father of the complainants no.1 & 2 and husband of the complainant no. 3. It seeks compensation for the harassment, mental agony and trauma and the loss of precious life. The unscrupulous acts of tempering of documents have been done as a cover-up measure to create false defence. But all the acts of showing deficiency of service and criminal negligence are independently provable and most of them are unrelated to the acts of the tempering of the documents which have been alleged. It has also been submitted that even the allegations made with regard to tempering are not at all of complicated nature and the unsavoury acts of unfair trade practice are apparent on the face of record. It has been emphasised by the appellant no.1 that if the State Commission was not feeling inclined to enter into that arena, it could have still decided the complaint very well and recorded its findings with regard to deficiency of service and award compensation as prayed in the complaint. By laying its hands off from the complaint after almost a decade and returning the same to be filed in a civil court is an act of refusal to exercise the jurisdiction which was vested in it. The complaint was filed in the year 2010 and the complainants who are the daughters and wife of the deceased were waiting all this while to get justice in the hope that the opposite parties would be put to terms, made answerable and be brought to the justice. But the manner in which the State Commission has shirked or abstained to exercise its jurisdiction has only added to their agony. It has also been contended that criminal liability may be fixed in a criminal court for committing offences, but the jurisdiction of a competent court to fix criminal liability and award punishment for the offence does not exclude the jurisdiction of the consumer commission as has been conferred by the Consumer Protection Act which has its own area to operate and which has its own independent ambit and scope for determining the issues which demonstrate deficiency of service or unfair trade practice. The powers provided under the Consumer Protection Act are in addition to and not in derogation of any other law. The submission is that the impugned Order is not sustainable in the eyes of law and the law in this regard has been completely misconstrued and misinterpreted.
6. In rebuttal learned counsel for the respondent no. 3 has tried to submit that the allegations of tempering with the record and allegations with regard to the manipulations said to have been done all amount to forgery and fraud and, therefore, they should be deemed to be complicated questions of law and facts and for which the Consumer Commission is not a competent forum. For such matters the complainant should approach in a regular civil court which may adjudicate upon such issues. Submission is that the impugned Order has been validly passed and on the same ground the complaint has been returned. It has also been submitted that this has been consistent judicial policy that in such maters which involved complicated questions of law and facts the Consumer Commission should recuse itself and should not venture into them and such questions should be left for the appropriate civil court for adjudication.
Perused the record in the light of the submissions made by the learned counsel for the parties including inter alia the impugned Order dated 15.10.2019 passed in Consumer Complaint No. 67 of 2010 and the memorandum of appeal
7. The subject Complaint is a voluminous document and runs in pages after pages and is a part of record. It is not needed to reproduce the same verbatim as such, lest the Order should become unwieldy or cumbersome to read. Suffice it to observe that the first 20 pages of the complaint are bristling with myriad kinds of allegations demonstrating deficiency of service or unfair trade practice. Grave allegations have been made under various sub-titles / sub-heads which may be aptly quoted as followings:
(i) Unreasonable delay on performing surgery ; (ii) Discontinuation of cardiac medicines; (iii) Failure of communication between the Doctors which proved detrimental for the patient's recovery;
(iv) Deviation from normal standard practice- timely blood trasfusion not given which proved too costly for;
(v) Professional misconduct and abandonment of patient by OP-4 - Dr. S.K. Wangnoo & further not referring to other Endocrinologist though available;
(vi) Bed sores formed during hospitalization; and
(vii) Following episodes show total and complete lack of standard medical care and the patient was not managed appropriately.
In the tail end of the complaint, the allegations have also been made with regard to the tempering in the case record.
8. The Bench of the opinion that even if a complaint contains certain allegations regarding forgery in the documents or where during the proceedings of the Complaint, certain allegations are made with regard to fraud committed by the Opposite Party, that would not per se exclude the jurisdiction of the Consumer Commission. Of course it is possible that a given case a complaint may have been made where the allegation of the deficiency of service, allegation of negligence or allegation of unfair trade practice may be emanating solely on the basis of certain documents which may have been forged or which may be alleged to be fraudulent. They may be matters, where findings of deficiency of service, negligence or unfair trade practice may not be arrived at without conclusively holding that act of forgery and fraud has been committed. One could understand that in some of such matters (though not in all) the view of Consumer Commission may to certain extent be justified if it holds that such matter should be better adjudicated in a civil court. In fact, even in such kind of matters, the nature of the allegations regarding fraud and forgery should be of complicated nature and of such type which may be described as complicated questions of facts and law. All cases of fraud and forgery cannot be dubbed as being matters involving complicated questions of facts and law. If the acts of fraud or forgery are staring in the face and are apparent on the face of record, there is no reason why the Consumer Commission should not look into it and draw relevant inference in order to determine deficiency of service or unfair trade practice. But in the class of matters where several independent allegations are made to show the deficiency of service or negligent conduct of the service provider or in order to show unfair trade practice but where such allegations may be emanating not from the acts of forgery or fraud, in such matters it is not at all justifiable for the Consumer Commission to lay its hands off from the matter in the name of civil court. If the finding regarding negligence and deficiency of service can be arrived at regardless of the allegations made pertaining to fraud or forgery, there is no reason why the Consumer Commission should not entertain the complaint and adjudicate upon the same. In fact even with regard to the allegations of fraud and forgery if they are apparent on the face of record, there is no reason why the Consumer Commission may not look into it. Of course, if those allegations are of complicated nature and the allegations of fraud and forgery are not simple but convoluted questions of facts or law involving deeper analysis into various subtle nuances and pros and cons, the Consumer Commission may in a given case find it advisable to refer the matter to the civil court. But that it is not the case here at all. The substantial volume of the Complaint relates to the negligent conduct of the doctors and deficiency of service committed by them and the State Commission must have adjudicated upon the same. The most that may be said is that if certain allegations regarding fraud and forgery appeared complicated questions of fact, the forum below could have avoided to enter into that arena and those aspects may have been left to be adjudicated in any other forum. A bare perusal of the complaint would show that the decision regarding deficiency of service could have been well arrived at independently and the State commission could have very well proceeded with complaint without recording any findings on other counts, if they appeared so complicated to it. It must be clarified that this Bench is not at all making any observation regarding the truthfulness or otherwise of the allegations made. The Bench has gone through the allegations made in the Complaint only and is not giving any finding about the correctness of the allegations which has to be seen by the State Commission. In the present case, the contents of the complaint are replete with allegations of deficiency of service and negligence of doctors and also to certain extent with allegations of unfair trade practice and many or most of such allegations are certainly independent from the allegations of forgery or fraud that is said to have been committed with regard to certain documents.
9. It is true that sometimes there do come certain cases before this Commission and also before the Hon'ble Apex Court, which may involve highly complicated questions of facts and law and in the wake of their complicated nature, it may at times be found judicially prudent to refer such matters to proper civil courts, but whether a matter actually involves exceedingly complicated questions of facts and law or not, shall always depend on the specific facts of each particular case. There cannot be any cut and dried formula of universal application in this regard. In fact any over simplification of this principle or an omnibus generalization in this regard may eventually corrode the efficacy of the Consumer Protection Act and may even lead to defeat the very object that it strives to achieve and which is nothing but to provide for better protection of the interests of the consumers and to ensure timely and effective adjudication and speedy redressal of the consumer disputes.
10. The additional documents sought to be filed on behalf of the complainant, had already been allowed to be brought on record by the State Commission and their implications were left to be decided and adjudicated upon at the time of final hearing. It is not little disturbing to see that after having kept the Complaint pending for 10 years, the same was returned on the basis of objections which were raised by the opposite parties 8 years after filing of the Complaint. The State Commissions should not have absolved itself from exercising the jurisdiction in the name of calling the issues being complicated questions of law and facts. The matter deserves to be remanded back so that the same be decided on merits after affording opportunity to both the sides.
11. In view of the aforesaid discussion, the matter is remanded to the State Commission to be restored back on the file with the direction to adjudicate the same on its merits after affording opportunity of hearing to both the sides in accordance with the law.
12. The parties are directed to appear before the State Commission on 04.12.2023.
13. The Registry is requested to send a copy each of this Order to the parties in the appeal and to their respective learned counsel within three days. Copy of this Order be sent forthwith to the State Commission by fastest mode available. The stenographer is also requested to upload this Order on the website of this Commission within three days.
..................................................J KARUNA NAND BAJPAYEE PRESIDING MEMBER