State Consumer Disputes Redressal Commission
Manjeet Kumar Sharma, B.A. L.L.B, ... vs 1.Dr. R.K. Gupta, Ayurvediacharya, ... on 13 August, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA Complaint No.59 of 1997 Date of Institution: 20.08.1997 Date of Decision: 13.08.2012 Manjeet Kumar Sharma, B.A. L.L.B, Advocate s/o Sh. Dhani Ram Sharma r/o H.No.302, Sector-17, Panchkula (Haryana). Complainant Versus 1. Dr. R.K. Gupta, Ayurvediacharya, Neeraj Clinic (P) Ltd. 13/2, Sadanand Marg, Rishikesh (U.P.). 2. Neeraj Clinic (P) Ltd., 13/2 Sadanand Marg, Rishikesh through its Proprietor/Managing Director Dr. R.K. Gupta Ayurvedacharya. 3. The Drug Controller of India, New Delhi. Opposite Parties BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Ajay Kaushik, Advocate for complainant. Opposite Parties exparte. O R D E R
Justice R.S. Madan, President:
This complaint has been received by remand in view of the order dated 20.07.2011 passed by Honble National Consumer Disputes Redressal Commission, New Delhi.
The brief facts of the present case as emerged from the record are that the complainant had suffered electric shock in the year 1984 as a result of which he had developed some physical problem. The complainant read some advertisement in the newspaper Punjab Kesri dated 10.11.1996 which was inserted by the opposite party No.1 Dr. R.K. Gupta, Ayurvedacharya running Neeraj Clinic Private Limited, Rishikesh claiming Psychological Treatment of Epilepsy Fits. In the aforesaid advertisement, Dr. R.K. Gupta had given narration of epilepsy and it was claimed by Dr. R.K. Gupta that he could cure any of the 27 ailments. Believing the aforesaid advertisement, the complainant contacted the opposite party No.1 Dr. R.K. Gupta on telephone from Panchkula and as per the assurance given by Dr. R.K. Gupta, for curing the disease of the complainant, the complainant alongwith his father visited Dr. R.K. Gupta at Rishikesh at his clinic on 13.11.1996 and paid Rs.500/- as consultation fee and Rs.500/- for feeding his Bio-data in the clinic computer. Dr. R.K. Gupta after perusing the Bio-data orally examined the complainant. The complainant had told the history as to how the trouble had arisen. The opposite party had No.1 asked the complainant to pay Rs.1300/- as cost for two type of tablets, one pink colour tablet, which he told was allopathic and the other of black colour tablet which was told to be of Ayurvedic. It was further told by Dr. R.K. Gupta, that in future the medicines would be sent through VPP against the payment of Rs.1300/- for medicines plus Rs.500/- for his medical services. No prescription slip was given to the complainant despite asking for the same. According to the complainant, he started taking the medicines strictly as per the instructions given by Dr. R.K. Gupta but there were side effects of the tablets due to which the complainant became lazy and used to feel uncomfortable. The complainant contacted Dr. R.K. Gupta, on telephone and was assured that he would get relief from the disease and there was no need to worry. On 15.3.1997 the opposite party No.1 Dr. R.K. Gupta informing that he was going abroad to attend some medical conference, additional medicines for six months were sent by him through VPP, because the medicines were to be taken continuously without any break in the treatment. The medicines were received by the complainant through post against payment of Rs.1825/- plus VPP charges of Rs.92/-. The last dose was taken by the complainant on 18.05.1997 and as a result of which be became uncomfortable and started struggling for life due to consumption of drugs given by Dr. R.K. Gupta. As the life of the complainant was in danger, he was taken to P.G.I. Chandigarh on 19.5.1997 where he was admitted as indoor patient vide CR No.889427. The complainant was subjected to various medical examinations by the P.G.I. Doctors and Doctors of the P.G.I. recorded the impression of the patient as abnormal and EEG recorded showed gin-slowing wint b suggestion of symptomatic gin seizure disorder and high blood pressure. The complainant remained admitted in the Psychiatry ward of the P.G.I. till 9.6.1997. The P.G.I. Doctors kept the complainant on oxygen and liquid diet was given through tubes and some medicines were also prescribed.
According to the complainant the medicines given by Dr. R.K. Gupta, were taken to the P.G.I. at the time of admission and after seeing those medicines the Doctors of P.G.I. had told that the condition of the complainant had deteriorated due to the consumption of the medicines prescribed by Dr. R.K. Gupta-opposite partyno.1. The Doctors of P.G.I. further opined that the tablets given by Dr. R.K. Gupta, did not conform to any standard medicine and the same looked to be fake both as Ayurvedic or Allopathic. CT Scan of the brain of the complainant was also conducted and finding noted in the CT Scan report is as under:-
Report CECT head done by taking 10/10 mm contiguous axial sections.
Posterior fossa structures are normal.
Ventricular system is prominent. There is hyperdense calcified disc lesion in right caudate head without perifocal edema. No midline shift seen. No intra/extra axial collection seen.
Impression:- Calcified disc lesion in right caudate head without perifocal edema with ventriculomegaly.
Complainant has further alleged that as a result of medicines given by the opposite party No.1, he had become a patient of hypertension and there was seizure disorder. He also developed some eye trouble during his stay in the hospital and the medicines sent by the opposite party No.1 were sent for laboratory analysis to the Drug Controller of India. Complainant had written a letter to the opposite party No.1 to supply the prescription, diagnosis and nature of ailment but to no effect. It was further stated by the complainant that the opposite party No.1 does not possess any medical degree or certificate from any recognized Institute or Medical College in India and he was only a quack. Thus, the complainant alleged it a case of medical negligence and deficiency in service on the part of the opposite parties No.1 and 2 and invoked the jurisdiction of State Commission claiming compensation of Rs.19,95,000/- alongwith interest @ 18% per annum from the date of filing the complaint till its realization.
Notice of the complaint was issued to the opposite parties but they did not appear despite service and were proceed exparte.
In order to substantiate his allegations against the opposite parties, the complainant tendered his affidavit and closed evidence.
After perusing the case file, this Commission vide order dated 02.01.2003 disposed of the complaint with the following observations:-
In view of the matter, the Commission has reached to the conclusion that such like matters can not be decided in summary proceedings as the matter requires detailed oral evidence. Since the complainant has failed to substantiate his allegations levelled against the opposite parties, we have no option but to dismiss the complaint with no order as to costs. However, the complainant may, if so advised, invoke the jurisdiction of the Civil Court.
Complainant filed appeal No.354/2003 before Honble National Consumer Disputes Redressal Commission, New Delhi (hereinafter referred to as the Honble National Commission) and as per order dated 20.07.2011 Honble National Commission remanded this case to this Commission with the following observations:-
the appeal is partly allowed. The impugned judgment is set aside. The matter is remanded back to the State Commission with direction to give liberty to the appellant to place on record any experts opinion and also to give opportunity to the respondent to give any counter opinion. the State Commission shall give afresh decision after considering the relevant documents and the opinion of the expert, as may be placed on record. The appellant shall be given due opportunity for obtaining the experts opinion within a period of eight weeks after his appearance before the State Commission. The appellant shall appear before the State Commission on 08.08.2011 and shall give due intimation, by registered post (AD), to the respondents of the date so fixed for the appearance before the State Commission. The appeal is accordingly disposed of. No costs.
In view of the order dated 20.07.2011 of the Honble National Commission, the complainant has tendered his affidavit dated 22.11.2011 and affidavit of Joint Controller (General) India, North Zone Ghaziabad dated 18.11.1998, Chemical Analysis Report dated 18.11.1998 of Central Indian Pharmacopocla Laboratory Ghaziabad; The medical expert opinion D.O. letter of Renu Sahni Dharm, IAS Joint Secretary Ministry of Health and Family Welfare Government of India, New Delhi dated 16.10.1998, Statement of Dr. D. Kaul, Additional Professor of Department of Experimental Medicine at the P.G.I. M.S. Chandigarh dated 13.09.2004, copy of note on use and effect of phenobarbitone and Phenytcin (Extract of Martindale, the Extra Pharmoacopoeia thirty first edition), News item published in Hindu Daily regarding inspection report of three members delegation of Indian Medical Association Antiquachery Cell who visited Dr. R.K. Gupta, Neeraj Clinic at Rishikesh, Written Reply of Joint Drugs Controller India dated 31.5.1999.
Heard. File as well as written arguments perused.
At the very outset the question for consideration before us is whether this Commission has got territorial jurisdiction to entertain and decide this complaint?
On behalf of the complainant it is argued by Shri Ajay Kaushik, Advocate that the question of territorial jurisdiction should have been taken at the early stage and the same cannot be allowed to be taken at a subsequent stage. In support of his argument learned counsel for the complainant has referred to the following citations of settled law on the point of jurisdiction:-
a) HARSHAD CHIMAN LAL MODI versus DLF UNIVERSAL LTD. AND ANOTHER, (2005) 7 Supreme Court Cases 791
b) HASHAM ABBAS SAYYAD versus USMAN ABBAS SAYYAD AND OTHERS, (2007) 2 Supreme Court Cases 355
c) Rampion Pharmaceuticals Versus Dr. Preetam Shah, 1997(1) CPC 467;
d) Lucknow Development Authority v. M.K. Gupta, AIR 1994 Supreme Court 787;
e) M/s Patel Roadways limited, Bombay, V. M/s Prasad Trading Company, WITH M/s Patel Roadways Ltd., Bombay v. M/s Tropical Agro Systems Pvt. Ltd.
and another, AIR 1992 SUPREME COURT 1514
f) LIC Housing Finance Ltd. Karnal Versus Shri Om Parkash Taank and Others, 1995(2) CPC 118 (SCDRC, HARYANA);
g) Burjor B. Mehta versus The National Insurance Co. Ltd. 1992 CPC 306 (N.C.) The judgments produced on behalf of the complainant are not applicable to the facts of the present case because in the instant case the opposite parties never contested this complaint and they have been proceeded exparte. Admittedly, the treatment was taken by the complainant from Dr. R.K. Gupta by visiting Neeraj Clinic Private Limited at Rishikesh where he was examined by Dr. R.K. Gupta-opposite party No.1. Therefore, cause of action has arisen to the complainant at Rishikesh where he was examined by Dr. R.K. Gupta and prescribed medicines. Section 11 of the Consumer Protection Act, 1986 reproduced as under being relevant in this case:-
11. Jurisdiction of the District Forum.(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed [does not exceed rupees twenty lakhs.] (2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or] personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or [9][carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or [carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
What is the cause of action has been defined in various pronouncements though not been defined in the Consumer Protection Act, 1986. Honble High Court of Calcutta in case IFB Automotive Seating and System Ltd. and others versus Union of India, AIR 2003 CALCUTTA 80 while discussing various judgments on the cause of action has observed as under:-
Before the Court decides to exercise the jurisdiction, it must be satisfied that the decision which has been served within its jurisdiction vitally affects the rights of the party and such decision forms an integral part of the cause of action of the party. Though in the language of Art.226(2), there is no mention of the part of cause of action being an integral one, but by way of judicial interpretation, the Supreme Court has added that expression to the concept of part of cause of action so that there is no abuse. Therefore, the order which originated from outside the local limits of the High Court must materially affect the interest of the party concerned that an order having a remote or indirect consequence upon the office of party situated in Calcutta, will not furnish a cause of action. Unless an order imposes any liability or obligation at any place within the territorial limits of a Court, merely because the party feels the consequence of the order within the jurisdiction of the High Court, the same will not furnish a cause of action.
In para 40 of IFB Automotive Seating and System Ltd. and others versus Union of India (Supra), it has been observed that:-
40. Now the Court proposes to discuss the principles renderd in five Supreme Court judgments on which counsel of both the parties relied. The first in this series is the one render in the case of Oswal Woollen Mill (AIR 1984 SC 1264).
(i) Oswal Woolen Mill had its registered office at Ludhiana and a branch office at Calcutta.
The writ petition was filed before Calcutta High Court seeking reliefs against authorities mostly in Delhi and Amritsar. In the background of these facts the Court observed in para 2 that one would have expected the writ petition to be filed either in the High Court of Punjab and Haryana or in Delhi High Court but instead of that the writ petition was filed in Calcutta High Court because of a consignment having arrived in Calcutta Port.
The question of territorial jurisdiction in that case was not considered with reference to Art. 226(2) of the Constitution or with reference to accrual of a part of cause of action. The Apex Court in that case expressed its concern about the High Courts lack of circumspection in granting ex parte interim order and the various manoeuvres usually employed by the petitioner to prolong the life of an interim order and delay the final hearing. The Court was also considering the inconvenience of the respondents to fight a legal battle in Calcutta when its offices and records are at Delhi.
In that context, those observations have been made. Those observations cannot be treated as an authority for the proposition that if a party has a registered office in a place, it can validly institute a proceeding in that place in all situations regardless of the question whether cause of action either whooly or in part accrued there.
A judgment of Court cannot be read Euclids theorems or as provisions of Statute this has been repeatedly clarified by Supreme Court and again recently in the case of Haryana Financial Corporation V. M/s Jagadamba Oil Mills, reported in 2002 (1) SCC 404 (sic). So this Court cannot agree with the interpretation of the judgment of Oswal Woolen Mill given by the learned Counsel for the petitioner. Subsequently, Supreme Court in Adani Exports (AIR 2002 SC 126) 9Supra) also expressed the same view.
Xxxx In the background of these facts, the Supreme Court held in para 8, page 1292 of the report as follows:
The mere service of notice under S. 52(2) of the Act on the respondents at their registered office at 18-B. Brabourne Road, Calcutta i.e. within the territorial limits of the State of West Bengal, could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under S.52(1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur bench. The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Art. 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action.
Following the same ratio this Court holds that mere service in Calcutta of the communication dated 9.7.2001, not under any statutory provision, does not give rise to any integral part of cause of action of the petitioners inasmuch as all proceedings about the orders of approval took outside the limits of this Honble court.
Xxxxxxxx Therefore, merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages from Calcutta and received a copy thereto at Calcutta would not constitute an integral part of the cause of action.
Xxxxxxx In Adani Exports (AIR 2002 SC 126) (Supra) the learned Judges in para 13 set out the facts pleaded by the petitioner to give rise to cause of action conferring territorial jurisdiction on the Court at Ahmedabad. One of the facts pleaded is that non-granting and denial utilization of the credit in the pass book will affect the business of the respondents at Ahmedabad. This fact is not pleaded in the case in hand.
Even then the learned Judges held that those facts are not sufficient to furnish a cause of action as they are not connected with the relief sought for by the respondents.
Xxxxxxxx It is clear from the above judgment that each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Courts territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned.
Xxxxxxxx If for any trivial incident unconnected with the cause of action the court starts interfering that will be an abuse. At the same time that will lower the dignity of the institution and put the entire system to ridicule. This cause sounded in ONGC was repeated in Majithia. This Court is also of the view that the wider the jurisdiction, the greater should be the caution of the Court for its valid exercise.
41. Therefore, on an analysis of the facts of the case, and for the reasons discussed above, this Court is of the opinion that no pat of cause of action of the writ petitioners arose within the territorial jurisdiction of this Court. The objection taken by the respondents on that count succeeds. The writ petition falls and is dismissed.
The plea of the complainant is that he had received the medicines from the opposite party No.1 Dr. R.K. Gupta, through VPP at Panchkula and has paid the postal charges at Panchkula and the Post Office is also situated at Panchkula, therefore, Haryana State Consumer Commission at Panchkula had got the jurisdiction to entertain and try the present complaint. It is further contended that the complainant had been contacting Dr. R.K. Gupta on telephone from Panchkula with respect to his treatment progress from time to time which shall create a part of cause of action within the territorial jurisdiction of this Commission.
We are not inclined to accept the contention raised on behalf of the complainant because the complainant was examined by Dr. R.K. Gupta at Rishikesh, who charged his consultation fee and prescribed the medicines and charged for the medicines at Rishikesh. Thus the root of cause of action took place at Rishikesh. Merely that the complainant had been contacting Dr. R.K. Gupta at Panchkula on telephone and had been receiving the medicines through VPP at Panchkula by making payment of the medicines, would not remotely favour the cause of action having arisen within the jurisdiction of State Consumer Commission, Haryana at Panchkula.
Before parting with the judgment we have great sympathy with the complainant for not knocking the door of the appropriate Consumer Fora at the relevant time and kept perusing his case before this Commission. This fact has never been noticed prior to the hearing of this complaint either by my predecessor of this Commission or by Honble National Consumer Commission, which was a very important aspect to be noticed. However, as the complainant is pursuing his litigation for the last about fifteen years before the wrong State Commission, therefore, the time spent by the complainant in persuing his complaint before this Commission as well as before Honble National Consumer Commission may be treated as zero period. Therefore, the question of limitation shall not be made an obstacle in getting the relief from the State Consumer Commission having competent jurisdiction.
We, therefore, return this complaint with the liberty to the complainant to file this complaint before the State Consumer Commission which is competent to entertain and try the complaint. The question of limitation would not be a ground available to the opposite party to reject the claim of the complainant provided he approaches the State Consumer Commission or any other Court having competent jurisdiction to entertain and try this complaint, within a period of 60 days from today.
Office is directed to return the original complaint alongwith documents to the complainant after keeping the photo state copies of the entire file including the documents.
Announced: Justice R.S. Madan 13.08.2012 President B.M. Bedi Judicial Member