Tripura High Court
Smti. Laxmi Bala Paul vs Dr. Batakrishna Paul on 7 February, 2019
Equivalent citations: AIR 2019 TRIPURA 29, AIRONLINE 2019 TRI 170
Author: A. Lodh
Bench: Sanjay Karol, Arindam Lodh
Page 1 of 26
HIGH COURT OF TRIPURA
AGARTALA
W.A. NO.5 OF 2015
Smti. Laxmi Bala Paul,
W/o-Late Kanailal Paul,
Resident of Reshambagan.
P.O.-Reshambagan,
P.S.-East Agartala,
District- West Tripura
Represented by her son
Sri Swapan Kumar Paul
...... Appellant
Versus
1. Dr. Batakrishna Paul,
S/o- Late Amar Chand Paul,
Resident of Town Pratapgarh,
Central Road Extension,
P.S.-West Agartala,
P.O-Agartala, Pin-799001,
Dist-West Tripura
2. The Director of Health Services,
Government of Tripura,
Pandit Neheru Complex,
Gurkhabasti, Agartala,
P.O- Kunjaban, Pin-799006,
Gurkhabasti, Agartala
3. The State of Tripura,
Represented by the Secretary to the
Government of Tripura,
Department of Health & Family Welfare,
Pandit Nehru Complex,
Gurkhabasti, Agartala,
P.O- Kunjaban, Pin-799006,
Dist- West Tripura.
......Respondents
For Appellant(s) : Mr. Amrit Lal Saha, Advocate. For Respondent(s) : Mr. Shaktimoy Chakraborty, Sr. Adv.
Mr. Debalaya Bhattacharjee, Advocate.
Date of hearing : 22/11/2018.
Date of delivery of
Judgment and order : 07/02/2019.
Whether fit for reporting : YES
Page 2 of 26
HON'BLE THE CHIEF JUSTICE MR. SANJAY KAROL
HON'BLE MR. JUSTICE ARINDAM LODH
Judgment & Order
(A. Lodh, J.)
By means of filing this intra court appeal, the appellant Smt. Laxmi Bala Paul has challenged the judgment and order dated 21.11.2014 passed by the learned Single Judge in WP(C) No.255 of 2009 and WP(C) No.36 of 2010 wherein while deciding both the writ petitions together, the learned single judge has set aside the order of payment of compensation awarded by the Permanent Lok Adalat in favour of the appellant herein.
2. The facts in brief:
2.1 The appellant herein, Smt. Laxmi Bala Paul, has approached the Permanent Lok Adalat by filing Lok Adalat (PUS) Case No.4 of 2007 against the respondents complaining gross negligence and deficiency in providing services relating to her eye operation and claimed compensation of `10,00,000/- (Rupees ten lakhs) only. The Permanent Lok Adalat took cognizance. Thereafter, after considering the materials on record and the evidences adduced by the parties has awarded ` 2,00,000/-(Rupees two lakhs only) as compensation with interest in favour of the appellant vide its judgment dated 08.06.2009. In the complaint filed before the permanent Lok Adalat, it is stated that on 10.05.2006, the appellant herein along with her son visited the chamber of the respondent No.1 i.e., Dr. Batakrishna Paul at Melarmath, Agartala on payment of consultation fees who advised the complainant-appellant to take admission in the IGM Hospital, Agartala for Cataract operation in her eye. On 03.06.2006 she was admitted and the respondent No.1, Dr. Page 3 of 26 Batakrishna Paul, conducted cataract operation and in the afternoon she was discharged from the hospital. Initially, she thought that it was normal post operation discomfort, but on 07.06.2006 unbearable pain developed in her operated eye and she was forced to take admission on the same day at the IGM Hospital and in the afternoon she was referred to the 'Sri Sankardeva Nethralaya', Guwahati for better treatment. On arrival at 'Sri Sankardeva Nethralaya' on 08.06.2006, the physician of the said hospital after careful examination clearly opined that due to infection at the time of cataract operation in the IGM Hospital conducted by Dr. Bata Krishna Paul, i.e., respondent No.1, the complication had arisen and it would be very difficult to protect the damaged eye because of infection.
2.2 On 12.06.2006, an operation was again conducted in the 'Sankardeva Nethralaya' Guwahati in the same eye to remove the infected eye and consequently the complainant-appellant herein, Smt. Laxmi Bala Paul, became blind of one eye. She was discharged on 13.06.2006 and stayed in Guwahati for a few days for post- operation checkup and thereafter returned back to Agartala, but the Doctor of 'Sankaradeva Nethralaya' advised the complainant to go to the said hospital again after three weeks. As per advice of the Doctor, she went along with her escort again to the said hospital and after examining her eye, the expert physicians therein opined that for checkup and implanting of artificial eye the complainant- appellant was required to go to Guwahati again in the short time. Accordingly, on 15.09.2006 the complainant went to 'Sankardeva Page 4 of 26 Netralaya' for checkup and treatment. She was further advised to go to the said hospital at the regular interval.
2.3 The complainant has stated that she incurred financial expense of about ` 50,000/- and she was further required to spend an amount of ` 2,00,000/- for her future treatment. The petitioner has further stated that apart from continuous suffering from pain and discomfort due to loss of one of her valuable eye, the complainant now cannot live as a normal person and it was only due to negligence on the part of the respondent No.1. She also cannot perform even her normal duties as a house wife and due to loss of mental peace and happiness permanently and on account of pain, suffering and discomforts the complainant-appellant claimed that she was entitled to get a compensation of ` 7,50,000/- in addition to the pecuniary loss of ` 2,50,000/-. The complainant served a demand notice upon the respondents demanding ` 10,00,000/- (Rupees ten lakhs only) to be paid within two months otherwise appropriate legal course would be taken against the respondents.
3. The respondent Nos.2 and 3, i.e., the Director of Health Services, Government of Tripura and the State of Tripura are represented by Secretary, Department of Health and Family Welfare, Government of Tripura, respectively and by filing written statement have denied and disputed the allegations levelled against the said respondents. The respondent No.1, i.e., Dr. Bata Krishna Paul had also contested the suit by filling written statement denying and disputing the statements and allegations levelled against him by the appellant herein. All the opposite-parties have stated that there is Page 5 of 26 not even an iota of hint that post-operative Endophthalmitis was developed in the operated eye of the petitioner due to negligence or deficiency in service or want of due care on the part of the concerned Doctor (respondent No.1, Dr. Bata Krishna Paul) or any other Doctor or person engaged in or connected with conducting the cataract surgery and treatment of the appellant herein in the IGM Hospital. Furthermore, it has been stated, that after perusal of the documents of 'Sankardeva Nethralaya' it appeared that no adverse comment in respect of treatment of the complainant-appellant in the IGM Hospital was made by the Doctors of the said hospital at Guwahati. They have further stated that there cannot be any doubt or confusion about performance, sincerity, ability and devotion of the O.P. No. 1 in pre-operative, operative and post-operative treatment of the appellant. They have further stated that there was neither any negligence nor any deficiency in service in treating the appellant in IGM Hospital, Agartala. It is also specifically stated by the respondents that on that day, not only the eye of the appellant but also the eyes of many others having cataract were operated at the same operation theatre. They also have specifically stated that all necessary preoperative tests were conducted and having satisfied they conducted operation and discharged the appellant and other patients after conducting post-operative tests or examinations. In their written compliant they have extracted some texts from some books on the subject, wherefrom it is found that the development of postoperative Endophthalmitis in the operated eye of the appellant herein was merely an accident on which the respondents have no control and it happens in rarest of the raret cases. They referred the appellant to 'Sankardeva Nethralaya' at Guwahati only due to lack of Page 6 of 26 infrastructure to treat postoperative complications like Endophthalmitis.
4. Thus, Permanent Lok Adalat has found negligence in taking adequate care in the operation theatre and ultimately has opined that there exists an element of settlement. The permanent Lok Adalat has further observed that the sources of the infection are within the four walls of the operation theatre which could have been eradicated before operation.
5. It may be mentioned herein that another person, namely, Sri Narayan Chandra Saha, was also attacked with same post-operative Endophthalmitis and he also lost his eye. The Permanent Lok Adalat has awarded compensation in favour of him which has been upheld by the present learned Single Judge, by the present common judgment and order dated 21.11.2014.
6. Permanent Lok Adalat after considering all circumstances was of the considered view that lump sum of ` 2,00,000/- on account of pecuniary and non-pecuniary loss might be awarded as reasonable compensation to the appellant Smt. laxmi Bala Paul, who was aged about 68 years.
7. We have carefully perused the findings of the learned Single Judge, while setting aside the order of learned Permanent Lok Adalat to pay compensation of `2,00,000/- to the appellant and upholding the order of payment of compensation to the tune of `3,00,000/- to another patient, Sri Narayan Chandra Saha, who was also attacked with post-operative Endophthalmitis on the same day and both were undergone cataract operation on the same date. Page 7 of 26
8. Being aggrieved of setting aside the order of compensation to the tune of ` 2,00,000/- (Rupees two lakhs) as afforestated, the appellant, Smt. Laxmibala Paul has preferred this intra-court appeal before this Court.
9. At the outset, the way the writ petition was decided by the learned Single Judge has taken us to examine the scope and extent of interference of the High Court in exercise of its extra- ordinary jurisdiction under Article 226 of the Constitution of India.
10. Since ancient times, the concept of settlement of disputes by village leaders or by Panchayat has been in existence in India. By the Passage of time, and since the cases are piled up, the Legislature felt it necessary to bring appropriate law and inserted Article 39-A in the Constitution by the 42nd amendment Act, 1976 w.e.f. 03.01.1997 to promote justice on the basis of equal opportunity by way of providing free legal aid so that all citizens despite their economic or other disabilities can ventilate their grievance in a simplified manner. Ensuring free legal aid and to cause equitous justice to all are the hallmark of Article 39-A and with that object in view, the Act of 1987 was enacted by the parliament to constitute Legal Services Authorities to bring a unique feature in the justice delivery system so that weaker sections of the society are not denied and deprived of securing justice.
11. The statement of objects and reasons leading to the enactment of the 1987 Act reads as under:
"1. Article 39-A of the Constitution provides that the State shall secure that the operation of the legal system promotes justice, on a basis of equal Page 8 of 26 opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
2. With the object of providing free legal aid, Government had, by Resolution dated the 26.09.1980 appointed the 'Committee for Implementing Legal Aid Schemes'(CILAS) under the Chairmanship of Mr. Justice P.N. Bhagwati (as he then was) to monitor and implement legal aid programmes on a uniform basis in all the States and Union territories. CILAS evolved a model scheme for legal aid programme applicable throughout the country by which several Legal Aid and Advice Boards have been set up in the States and Union territories. CILAS is funded wholly by grants from the Central Government. The Government is accordingly concerned with the programme of legal aid as it is the implementation of a constitutional mandate. But on a review of the working of the CILAS, certain deficiencies have come to the fore. It is, therefore, felt that it will be desirable to constitute statutory legal service authorities at the National, State and District levels so as to provide for the effective monitoring of legal aid programmes. The Bill provides for the composition of such authorities and for the funding of these authorities by means of grants from the Central Government and the State Governments. Power has been also given to the National Committee and the State Committees to supervise the effective implementation of legal aid schemes.
3. For some time now, Lok Adalats are being constituted at various places in the country for the disposal, in a summary way and through the process of arbitration and settlement between the parties, of a large number of cases expeditiously and with lesser costs. The institution of Lok Adalats is at present functioning as a voluntary and conciliatory agency without any statutory backing for its decisions. It has proved to be very popular in providing for a speedier system of administration of justice. In view of its growing popularity, there has been a demand for providing a statutory backing to this institution and the awards given by Lok Adalats. It is felt that such a statutory support would not only reduce the burden of arrears of work in regular Courts, but would also take justice to the doorsteps of the poor and the needy and make justice quicker and less expensive."Page 9 of 26
12. So, initially the main purpose of setting up of Lok Adalats was to give powers to resolve the disputes by way of compromise or settlement between the parties, but it was felt that failure to arrive at such settlement or compromise, the parties were again returned to the Court of law for redressal of their grievance and the real purpose could not be achieved. So, it prompted the legislature to bring appropriate change in the system and accordingly, the Parliament has brought an amendment in the 1987 Act in the year 2002.
13. The statement of objects and reasons of the 2002 Amendment Act, inter alia, is reproduced herein below:
"(1) The Legal Services Authorities Act, 1987 was enacted to constitute Legal Services Authorities for providing(sic) and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice were not denied to any citizen by reason of economic or other disabilities and to organize Lok Adalats to ensure that the operation of the legal system promoted justice on a basis of equal opportunity. The system of Lok Adalat, which is an innovative mechanism for alternate dispute resolution, has proved effective for resolving disputes in a spirit of conciliation outside the Court.
2. However, the major drawback in the existing scheme of organisation of the Lok Adalats under Chapter VI of the said Act is that the system of Lok Adalats is mainly based on compromise or settlement between the parties. If the parties do not arrive at any compromise or settlement, the case is either returned to the Court of law or the parties are advised to seek remedy in a Court of law. This causes unnecessary delay in the dispensation of justice. If Lok Adalats are given power to decide the cases on merits in case parties fails to arrive at any compromise or settlement, this problem can be tackled to a great extent. Further, the cases which arise in relation to public utility services such as Mahanagar Telephone Nigam Limited, Delhi Vidyut Board, etc., need to be settled urgently so that people get justice without delay even at pre-litigation stage and thus most of the Page 10 of 26 petty cases which ought not to go in the regular Courts would be settled at the pre- litigation stage itself which would result in reducing the workload of the regular Courts to a great extent. It is, therefore, proposed to amend the Legal Service Authorities Act, 1987 to set up Permanent Lok Adalats for providing compulsory pre-litigative mechanism for conciliation and settlement of cases relating to public utility services.
3. The salient features of proposed legislation are as follows :-
(i) to provide for the establishment of Permanent Lok Adalats which shall consists (sic) of a Chairman who is or has been a District Judge or Additional District Judge or has held judicial officer (sic) higher in rank than that of the District Judge and two other persons having adequate experience in public utility services;
(ii) the Permanent Lok Adalat shall exercise jurisdiction in respect of one or more public utility services such as transport services of passengers of goods by air, road and water, postal, telegraph or telephone services, supply of power, light or water to the public by any establishment, public conservancy or sanitation, services in hospitals or dispensaries, and insurance services;
(iii) the pecuniary jurisdiction of the Permanent Lok Adalat shall be up to Rupees Ten Lakhs. However, the Central Government may increase the said pecuniary jurisdiction from time to time. It shall have no jurisdiction in respect of any matter relating to an offence not compoundable under any law;
(iv) it also provides that before the dispute is brought before any Court, any party to the dispute may make an application to the Permanent Lok Adalat for settlement of the dispute;
(v) where it appears to the Permanent Lok Adalat that there exist elements of a settlement, which may be acceptable to the parties, it shall formulate the terms of a possible settlement and submit them to the parties for their observations and in case the parties reach an agreement, the Permanent Lok Adalat shall pass an award in terms thereof. In case parties to the dispute fail to reach an agreement, the Permanent Lok Adalat shall decide the dispute on merits; and
(vi) every award made by the Permanent Lok Adalat shall be final and binding on all the parties thereto and Page 11 of 26 shall be by a majority of the persons constituting the Permanent Lok Adalat."
14. To achieve the above objectives, Chapter VI-A with the insertion of Section 22-A to 22-E, the Amendment Act of 2002 was brought in with few other consequential amendments here and there in the Act. Thus, with the establishment of Permanent Lok Adalat, it has got both 'non-adjudicatory' as well as 'adjudicatory' powers, though, in limited fields. Adjudicatory power was given in regard to "public utility services" as defined in Section 22-A(b). In terms of the said definition "public utility service" includes (i) transport service for the carriage of passengers or goods by air, road or water; or (ii) postal, telegraph or telephone service; or (iii) supply of power, light or water to the public by any establishment; or (iv) system of public conservancy or sanitation; or (v) service in hospital or dispensary; or
(vi) insurance service. If the Central Government or the State Government declares in the public interest, any service to be a public utility service for the purposes of Chapter VI-A, such service on declaration is also included in the definition of 'public utility service' under Section 22-A(b).
15. Further, by way of 2nd proviso, the pecuniary jurisdiction of Permanent Lok Adalat has been restricted to the value of the property in dispute not exceeding `10,00,000/- (Rupees ten lakhs). Another cap was put in Section 22-C sub-section (1) which provides that any party to a dispute may make an application to the Permanent Lok Adalat for the settlement of dispute before the dispute is brought before any Court. Further, Permanent Lok Adalat has no jurisdiction to deal with any matter relating to an offence not punishable under any law. Sub-section (2) of Section 22-C puts an Page 12 of 26 embargo on the parties to a dispute to invoke the jurisdiction of any Court in the same subject in dispute after the application being filed before the Permanent Lok Adalat. To sum up, the object and purpose of establishment of Permanent Lok Adalat empowering it to adjudicate the disputes makes it clear that the entire scheme of the Amendment Act of 2002, was aimed in regard to the public utility to resolve or end the disputes related to public utility service expeditiously, because, if the dispute in regard to those matters is allowed to be prolonged, then, it would not only cause hardship but also may result an irretrievable damage to either of the service provider or an aggrieved party.
16. Another noticeable aspect which the parliament was intended to be brought in is to prevent the poor litigants from being bogged down in legal intricacies and complicacies provided in the Code of Civil Procedure and in the Evidence Act. The Legislature in their own wisdom has only pleaded for affording reasonable opportunity to the parties consistent with the principles of fair play and natural justice. Thus, Chapter VI-A has been enacted to provide an institutional mechanism, though, the establishment of Permanent Lok Adalats for settlement of disputes in regard to public utility service before the matter is brought to the Court and in the event of failure to reach any amicable settlement, empowers the Permanent Lok Adalat to adjudicate such disputes if it does not relate to any criminal offence.
17. In furtherance thereof, from a bare perusal of the Act it is clear that there are significant differences between Lok Adalats and Permanent Lok Adalats. Lok Adalats under Chapter VI are Page 13 of 26 conducted for cases which are either pending in the Courts or for pre-litigative cases, whereas Permanent Lok Adalats under Chapter VI-A are established for pre-litigation conciliation and settlement in respect of Public Utility Services. Another essential point of distinction between both the forums is that even where no settlement is reached between the parties, the Permanent Lok Adalats are empowered to determine the dispute on merits. However, this is not the case with the regular Lok Adalats.
18. In Bar Council of India Vrs. Union of India, reported in 2012 8 SCC 243, the Apex Court has observed thus:
"Sine qua non of taking cognizance of a dispute concerning public utility service by the Permanent Lok Adalat is that neither party to a dispute has approached the civil court. There is no merit in the submission of the petitioner that the service provider may pre-empt the consideration of a dispute by a court or a forum under special statute by approaching the Permanent Lok Adalat established under Chapter VI-A of the 1987 Act and, thus, depriving the user or consumer of such public utility service of an opportunity to have the dispute adjudicated by a civil court or a forum created under the special statute. In the first place, the jurisdiction of fora created under the Special Statutes has not been taken away in any manner whatsoever by the impugned provisions. As noted above, the Permanent Lok Adalats are in addition to and not in derogation of fora provided under Special Statutes. Secondly, not a single instance has been cited where a provider of service of public utility in a dispute with its user has approached the Permanent Lok Adalat first. The submission is unfounded and misplaced.
The alternative institutional mechanism in Chapter VI-A with regard to the disputes concerning public utility service is intended to provide an affordable, speedy and efficient mechanism to secure justice. By not making applicable the Code of Civil Procedure and the statutory provisions of the Indian Evidence Act, there is no compromise on the quality of determination of dispute since the Permanent Lok Adalat has to be objective, decide the dispute with Page 14 of 26 fairness and follow the principles of natural justice. Sense of justice and equity continue to guide the Permanent Lok Adalat while conducting conciliation proceedings or when the conciliation proceedings fail, in deciding a dispute on merit.
19. The Apex Court while dealing with the issue that the Permanent Lok Adalat lacks in fairness or sense of justice held that-- the Permanent Lok Adalat shall consist of a person who is or has been a District Judge or Additional District Judge or has held judicial office higher in rank than that of a District Judge and two other persons having adequate experience in public utility service to be nominated by the Central Government or the State Government, as the case may be, on the recommendation of the Central Authority or the State Authority, as the case may be. Of the three members, the judicial officer is the Chairman of the Permanent Lok Adalat. The Central Authority under Section 3 of the 1987 Act, inter alia, consists of the Chief Justice of India, a serving or retired Judge of the Supreme Court to be nominated by the President in consultation with the Chief Justice of India and the other members to be nominated by the Central Government in consultation with the Chief Justice of India.
20. Having observed thus, the Apex Court in the above decision (supra) has held:-
"........... It would be, thus, seen that the two members other than the judicial officer of a Permanent Lok Adalat can be appointed by the Central Government or the State Government, as the case may be, on the recommendation of the Central Authority or the State Authority only. The composition of Central Authority and the State Authority has been noted above. In the above view, it is misconceived to say that the judiciary has been kept out in the appointment of members of Page 15 of 26 the Permanent Lok Adalats. The independence of Permanent Lok Adalats does not seem to have been compromised at all as even the non-judicial members of every Permanent Lok Adalat have to be appointed on the recommendation of a high powered Central or State Authority headed by none other than the Chief Justice of India or a serving or retired Judge of the Supreme Court where the nomination is made by the Central Government or by the Chief Justice of the State High Court or a serving or retired Judge of the High Court where the nomination is made by the State Government.
It is not unusual to have the tribunals comprising of judicial as well as non-judicial members. The whole idea of having non-judicial members in a tribunal like Permanent Lok Adalat is to make sure that the legal technicalities do not get paramountcy in conciliation or adjudicatory proceedings. The fact that a Permanent Lok Adalat established under Section 22- B comprises of one judicial officer and two other persons having adequate experience in public utility service does not show any abhorrence to the rule of law nor such composition becomes violative of principles of fairness and justice or is contrary to Articles 14 and 21 of the Constitution of India.
21. It is true that the Legal Services Authorities Act, 1987 does not provide any provision for appeal but the Apex Court held though there is no statutory right of appeal but it does not exclude the supervisory and extra ordinary jurisdiction of the High Court under Article 226 and 227 of the Constitution of India.
22. In Bar Council of India (supra), the Apex Court held that--
"There is no inherent right of appeal. Appeal is always a creature of statute and if no appeal is provided to an aggrieved party in a particular statute, that by itself may not render that statute unconstitutional. Section 22-E(1) makes every award of the Permanent Lok Adalat under the 1987 Act either on merit or in terms of a settlement final and binding on all the parties thereto and on persons claiming under them. No appeal is provided from the award passed by the Permanent Lok Adalat but that in our opinion does not render the impugned provisions Page 16 of 26 unconstitutional. In the first place, having regard to the nature of dispute up to a specific pecuniary limit relating to public utility service and resolution of such dispute by the procedure provided in Sections 22-C(1) to 22-C(8), it is important that such dispute is brought to an end at the earliest and is not prolonged unnecessarily. Secondly, and more importantly, if at all a party to the dispute has a grievance against the award of Permanent Lok Adalat it can always approach the High Court under its supervisory and extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India. There is no merit in the submission of the learned counsel for the petitioner that in that situation the burden of litigation would be brought back on the High Courts after the award is passed by the Permanent Lok Adalat on merits."
23. Now, the question arises for consideration in this writ appeal about the legislative intendment for not providing any statutory right to appeal in the Act.
24. What is discernible from the discussions in the preceeding paragraphs about the object of enactment of 2002 Act, that the Act itself, under Section 21, explicitly states that the award is final and binding and no appeal shall be preferred against the same. Therefore, it is not possible to prefer an appeal against the award of the Lok Adalat, and it is as like as a decree which also may be executed in terms of the Code of Civil Procedure. The position would be the same with regard to the Permanent Lok Adalat established under Section 22-E of the Act. There, the award is made in two ways i.e., either out of mutual agreement between the parties, or if the parties do not come to a settlement, then, the dispute can be adjudicated on merits. Such an award also is non- appealable. So, Lok Adalat is non-adjudicatory in nature; where the Permanent Lok Adalat has got both adjudicatory power, and non- Page 17 of 26 adjudicatory, in both the cases, the award is final and cannot be challenged due to absence of provision of appeal in the statute.
25. From an overview of the statements of objects and reasons of the whole scheme of providing adjudicatory power of the Permanent Lok Adalat, according to us, to ensure speedy, efficacious and expeditious disposal of the disputes raised before the Permanent Lok Adalat and the exclusion of application of Civil Procedure Code and the Evidence Act makes the mechanism simplified, which is further aimed to ensure of providing equitious relief and justice to the aggrieved party and not to drag the litigants into the arduous complexities of legal technicalities. The putting up of cap to the extent of `10,00,000/- (Rupees ten lakhs) as pecuniary jurisdiction vested upon the Permanent Lok Adalat, according to us, is further indicative that award passed by the Permanent Lok Adalat is beneficial legislation, then, limiting the scope of challenge of such order awarded under Articles 206/227 of Constitution of India. In the nature of the present case, the approach of the writ court should be liberal because the matters relate to only public utility services and where the pecuniary limit is restricted to the extent of `10,00,000/- (Rupees ten lakhs).
26. By not making a provision of appeal, even after the Amendment Act of 2002 empowering the Permanent Lok Adalat to adjudicate the dispute, in our considered view, the Parliament was/is of the clear intention that award of the Permanent Lok Adalat should be kept outside the purview of being challenged and interfered with by any High Court. Here, according to us, the statement of objects and reasons of the Amendment Act of 2002, and the precedent Page 18 of 26 declared by the Apex Court giving the power of interference by the High Court under its supervisory and extraordinary jurisdiction under Article 226/227 of the Constitution of India have to be read conjointly, and the reasonable conclusion would be that the judicial review in exercise of our jurisdiction under Article 226/227 of the Constitution of India would be to the extent of very limited grounds as already have been delineated above.
27. The establishment of Permanent Lok Adalat has opened a single window and independent judicial redressal forum providing prospective litigants a scope for pre-litigation and settlement of cases.
28. The importance of the Permandnet Lok Adalat lies in its instinct power to promote and protect the welfare of consumers who will be able to resolve their disputes with regard to Public Utility Services in a straightforward and unsophisticated manner.
29. In the case at hand, the Permanent Lok Adalat has afforded opportunity to the opposite parties to file their written statement, furnishing the relevant documents by the respective parties and also to adduce evidence. Accordingly, the opposite parties have filed written statements, furnished their relevant documents in support of their respective cases, issues were framed and also adduced evidence by way of filing examination-in-chief and the parties were put to cross-examination. The documents were exhibited on the admission of the parties. Even before adjudicating the matter finally, the Permanent Lok Adalat placed a proposal for Page 19 of 26 settlement in compliance with the provision of sub-section (7) of Section 22-C of the Legal Services Authorities Act,1987.
30. On careful and meticulous scrutiny of discussion and findings of the award passed by the Permanent Lok Adalat, we find no fraud was committed by any of the parties. There was neither misrepresentation of facts nor abuse of the process of proceeding before the Permanent Lok Adalat, and the findings and decisions arrived at by the esteemed members of the Permanent Lok Adalat were well-reasoned and based on sound principles of appreciating evidence. All the statements made by the parties to the lis and the evidence they produced were reasonably considered by the Permanent Lok Adalat.
31. Learned Single Judge, bending towards the observations made by the Apex Court in the case of Jacob Mathew vs. State of Punjab reported in (2005) 6 SCC 1 had opined in para 117 wherein it has been observed:-
"117. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora(whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face legal action."Page 20 of 26
32. We have gone through the comments of the enquiry committee in Exbt-D, which reads as follows:-
"1. Even in the advanced centres, the percentage of postoperative endophthalmitis after cataract surgery is 0.1 to 0.2.
2. As per record of the last year(16.05.05 to 16.06.06) the percentage of post operative endophthalmitis after cataract surgery in IGM Hospital, is only 0.07(because of the above mentioned two cases), which shows that lower incidence than in the advanced centres.
3. As Sri Narayan Chandra Saha was known patient of Diabets Mellitus(DM), he should have been hospitalized for a few more days instead of discharging him on the next day of operation. The investigation of blood sugar should have been repeated on the 1st postoperative day to help further necessary treatment. At the same time, the pre- operative blood sugar status of the patient, just one day ahead of the operation, should have been done for proper preparation and management. Chance of infection is always high in DM patients."
33. In the said report, surprisingly, we find the committee skipped itself from any reference of the appellant, Smt. Laxmi Bala Paul. The enquiry committee is totally silent about the case of appellant, Smt. Laxmi Bala Paul for the reasons best know to them.
34. The learned Single Judge, at para-17 has observed-
"The observation of the expert committee regarding sterility on 18.12.2006 cannot prove the fact that on the date of surgery, i.e. on 05.06.2006 sterility of the OT was properly maintained. The OPs only stated that all preoperative and postoperative care taken by the OPs but what steps were taken has not been elaborated before the Lok Adalat. The expert committee, on which the original OPs relied, in their comments as reproduced above did not make any indictment in respect of the original petitioner, Laxmi Bala Paul'
35. After careful perusal of the evidence on record, we find that there is no specific evidence that the hospital authorities or the Page 21 of 26 Doctor had conducted any pre-operative tests or examinations, which according to us, is the prerequisite before undertaking any kinds of operations whether minor or major.
36. The learned Single Judge has also relied upon the part of the text books, i.e., Exbt-E and Exbt-F, which also was noted and considered by Permanent Lok Adalat while deciding the case, may be reproduced herein below, for convenience:
"A part of a Text Book titled Principles and practice of Ophthalmolog, vol. III edited by Gholam A Peyman, Md. And others has been filed by the opposite-parties No.2 and 3 in both the cases and marked Ext.E and F and the sources of infection resulting in the postoperative Endophthalmitis have been enumerated in page 599 of the said book as under:
"The principal sources of infection are i. Air borne bacteria, ii. Contaminated solutions and medications. iii. Tissue sources, including the surgeon's hands and the patients' eyelids and conjunctival, iv. Object sources including instrument, drapes and sutures."
It is further observed in the said text book that:
"Prior to any intraoculor procedure a careful examination of the eye should be performed paying particular attention to signs of Blepharitis, conjunctivitis or Daryocystitis. If any of these conditions are noted it should be adequately treated before intraocular surgery."
From the aforesaid observation it is clear that the sources of infection are within the four walls of operation theatre, which may be eradicated before operation The details of the procedure adopted by the surgeon during pre-operative examination and during the time of operation has not been narrated distinctly and vividly in the written statement filed by the opposite-parties. But is it clear from the observations in the above text book filed by the opposite-parties that the possibility of postoperative infection may be controlled before operation and during operation, but in the present case no such attempt was made on the part of the surgeon and as such we find lack of due care and attention in conducting the operation"
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37. Thus, the above excerpts of text book speak about the probable cause of post-operative Endophthalmitis.
38. After being duly considered all the probable cause of Endophthalmitis based on the aforesaid text book, the learned Single Judge, at para-22, 23 and 24 have observed as under:-
"22. The argument of learned counsel of the original OPs that there is neither pleading nor evidence in support of the observation of the Lok Adalat cannot stand since one cannot expect that Lok Adalat also shall deal with the disputes like an ordinary civil Court.
23. A Lok Adalat means a people's Court. It is an effective, efficient and important alternative dispute resolution mechanism providing informal and expeditious justice to common man. Complicated and cumbersome procedural law is not applicable in Lok Adalat. Any person can approach a Lok Adalat on a dispute either in writing or even orally and the oral complaint may be reduced to writing. There is no rule that unless specific pleading and evidence in respect of the pleading is adduced, Lok Adalat cannot grant relief.
24. Admittedly, the dispute is regarding a public utility service. The original petitioner attended the private chamber of the original OP No.1 Dr. Bata Krishna Paul and as per his advice admitted in the hospital for cataract operation. What was the preoperative and postoperative care and measure taken has not been elaborated by the original OPs. What tests or examinations were done also has not been stated. Regarding the condition of operation theatre, i.e. OT table, operating microscope, OT lamp, etc, nothing stated by the original OPs. The laymen petitioners cannot be expected to give evidence in respect of the care, preoperative or postoperative, taken by the original OPs. I, therefore find no force in the argument of the learned counsel, Mr. Chakraborty and Mr. Bhattacharji that the original petitioners failed to prove their case and the Lok Adalat arrived at a perverse finding. While the Lok Adalat has considered the evidence and materials of both side and there is prima facie evidence in support of arriving at a decision at least in respect of the original petitioner, Narayan Chandra Saha, I think the power of judicial review by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India is very limited."
39. The sum and substance as held by the learned Single Judge in his judgment is that he raised his reasonable doubt Page 23 of 26 regarding adequate sterility of the O.T as on 05.06.2006 i.e., the day on which the cataract operation of the appellant had taken place, as regard to which the expert committee was silent. The learned Single Judge has also noticed that the expert committee did not make any indictment in respect of Smt. Laxmi Bala Paul, who is appellant herein.
40. The learned Single Judge also has heavily relied upon the extracts in the context of the probable sources of infection based on the text book titled 'Principles and Practice of Ophthalmolog Volume III' as aforestated and has specifically observed:-
"What was the preoperative and postoperative care and measure taken has not been elaborated by the original OPs. What tests or examinations were done also has not been stated. Regarding the condition of operation theatre, i.e. OT table, operating microscope, OT lamp, etc, nothing stated by the original Ops The laymen petitioners cannot be expected to give evidence in respect of the care, preoperative or postoperative, taken by the original OPs."
41. After making such observations, the learned Single Judge has repelled the submissions of the learned counsel appearing for the State-respondents as well as the respondent No. 1 Dr. Bata Krishna Paul to the effect that Permanent Lok Adalat arrived at a perverse finding and the original petitioner/appellant herein failed to prove the case.
42. In the backdrop of the aforesaid findings arrived at by the learned Single Judge, we are unable to consume what prompted the learned Single Judge to set aside the order of payment of compensation awarded in favour of the appellant, Smt. Laxmi Bala Paul, thus, allowing the writ petitions filed by the State respondent Page 24 of 26 as well as the respondent No.1 Dr. Bata Krishna Paul being WP(C) NO.255 of 2009 and WP(C) NO. 36 of 2010.
43. After perusal of findings of both the Permanent Lok Adalat as well as the learned Single Judge, according to us, both Smt. Laxmi Bala Paul, the appellant herein, and Shri Narayan Chandra Saha, underwent cataract operations in their respective eyes on the same day under the same operating condition of the hospital which are admitted both by the Permanent Lok Adalat as well as learned Single Judge. We are of the further opinion that immunity power varies from man to man. We are also at a loss to understand as to why the expert committee had skipped to make any reference of Smt. Laxmi Bala Paul. We further have noticed that there is no indication as to whether any pre-operative tests or examinations were at all conducted in the case of Smt. Laxmi Bala Paul before her cataract operation.
44. In the light of the aforesaid discussions made above, we are of the opinion that the case of Smt. Laxmi Bala Paul cannot be distinguished from that of the case of Sri Narayan Chandra Saha and cannot in any way be read in isolation as both of them underwent cataract surgery under same operating condition. The hospital authorities as well as the Doctor are duty bound to take all possible protective measures before undertaking any operation for safety of the patients, following which may lead to infer negligence on the part of the hospital authorities as well as the Doctor.
45. In the result, we hold that both the cases of Smt. Laxmi Bala Paul and Sri Narayan Chandra Saha stand on the same footing Page 25 of 26 and equal merits, and both of them deserve same treatment. Accordingly, we set aside the judgment of the learned Single Judge allowing the writ petition being WP(C) No. 255 of 2009 and WP(C) No.36 of 2010 and reinstate the order of payment of compensation passed by the learned Permanent Lok Adalat in favour of Smt. Laxmi Bala Paul.
46. For convenience, it is made clear that the Permanent Lok Adalat has passed a direction upon the opposite-parties No.1 and 3 to pay compensation to Smt. Laxmi Bala Paul, the appellant herein of `1,00,000/-(Rupees One Lakh only) each respectively totalling `2,00,000/-(Rupees two lakhs only) with a further direction that the said opposite parties shall pay the said amount to the petitioner- appellant Smt. Laxmi Bala Paul within a period of three months from the date of award failing which the opposite parties i.e., the respondent Nos.1 and 3 herein shall be liable to pay interest on the said amount @ 10 % per annum(simple) after expiration of the said period of three months is hereby affirmed and upheld.
47. The direction of the Permanent Lok Adalat that the opposite parties were to pay cost of proceeding of ` 5,000/- (Rupees five thousand only) to each of the petitioners including Smt. Laxmi Bala Paul in equal shares in addition to aforesaid amount is also affirmed. Accordingly, the respondent Nos. 1 and 3 are liable to pay ` 5,000/- to Smt. Laxmi Bala Paul in addition to the aforesaid amount of ` 2,00,000/-(Rupees two lakhs only). It is also made clear that the award of the Permanent Lok Adalat shall be deemed to be a decree within the meaning of section 22 E(2) of the Legal Services Authorities Act 1987.
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48. With the aforesaid observations and directions, the present writ appeal is accordingly allowed.
(ARINDAM LODH),J (SANJAY KAROL),CJ.