Delhi High Court - Orders
Soumya Bhattacharya vs Sudhir Kumar Thakur & Ors on 2 August, 2022
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~52 (Appellate Side)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 757/2022 & CM APPL. 33618/2022, CM APPL.
33619/2022
SOUMYA BHATTACHARYA ..... Petitioner
Through: Mr. Sugata Shankar Roy, Adv.
versus
SUDHIR KUMAR THAKUR & ORS. ..... Respondents
Through: Mr. A. K. Thakur, Adv. for R-1
to 3
Mr. Prabir Basu and Sanjoy Kumar Ghosh,
Advs. for R-4 and 5
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
ORDER
% 02.08.2022 CM APPL. 33619/2022 in CM(M) 757/2022
1. Exemption allowed, subject to all just exceptions
2. The application stand disposed of.
CM(M) 757/2022 & CM APPL. 33618/2022 (stay)
3. Consumer Complaint 114/2012 was instituted by Respondent 1 Dr. Sudhir Kumar Thakur against the Apollo Gleneagles Hospital (hereinafter referred to "the hospital") and, inter alia, the present petitioner, who was Respondent 3 in the complaint.
4. The complaint alleged medical negligence, on the part of the hospital and the doctors in the hospital, including the petitioner, in the Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI Signing Date:08.08.2022 CM(M) 757/2022 Page 1 of 8 15:16:49 treatment of Mr. Shambhu Nath Thakur, the younger brother of Respondent 1.
5. During the course of the proceedings before the learned National Consumer Disputes Redressal Commission (NDCRC), the petitioner objected to the locus standi of Respondent1 to institute and prosecute the complaint.
6. The precise objection of the petitioner, as it emerges from the impugned order dated 7th December 2021, was that the complainant Sudhir Kumar Thakur was not a class-I legal heir of deceased patient Shambhu Nath Thakur and could not, therefore, institute and prosecute the complaint. The petitioner contended that the only persons who could legally institute or prosecute the complaint would be the class-I legal heir of the deceased patient Shambhu Nath Thakur, i.e. his widow or children.
7. The impugned order dated 7th December 2021 rejects this objection. The learned NCDRC has proceeded on the premise that the definition of "complainant" in the Consumer Protection Act, 1986 ("the Act") meant, in the case of death of a consumer, his legal heirs or representatives. The learned NCDRC opined that, thus, the definition was not restricted to class-I legal heirs. Observing that Respondent 1 was a class-II legal heir of the deceased patient Shambhu Nath Thakur, the learned NCDRC rejected the petitioner's objection.
Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI Signing Date:08.08.2022 CM(M) 757/2022 Page 2 of 8 15:16:498. To my mind, the issue requires a deeper consideration. Ordinarily, the rights of class-II legal heir would arise only where there are no class-I legal heirs available. It appears to be debatable as to whether any legal heir, irrespective of the class of legal heir to which he or she belongs, would be entitled to institute a complaint as a complainant under the Act.
9. Another aspect of the matter which would arise would be as to whether, if class-I legal heirs of the deceased patient are not intending to prosecute the hospital or the doctors concerned, a class-II legal heirs could, nonetheless, institute a proceeding under the Act.
10. This issue would have wide ramifications, as it deals with the very locus standi of the complainant to institute the complaint and, conversely, the jurisdiction of the consumer protection forum to entertain and deal with the complaint.
11. Mr. A.K.Thakur, learned Counsel for the respondent, who appears on advance notice, advanced a preliminary objection to the maintainability of the present petition.
12. He submits, relying on a judgment of the Supreme Court in Ibrat Faizan v. Omaxe Buildhome Pvt. Ltd1 that, as Section 23 of the Act provides for an appeal, to the Supreme Court, against the impugned order, the present petition under Article 227 of the Constitution of India would not lie.
1AIR 2022 SC 2363 Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI Signing Date:08.08.2022 CM(M) 757/2022 Page 3 of 8 15:16:49
13. Equally, even under the Consumer Protection Act, 2019, he submits that a similar right of remedy is available to the Supreme Court under Section 67 thereof.
14. Learned Counsel for the petitioner does not dispute the availability of a right of remedy to the Supreme Court, against the impugned order. He, however, submits that the availability of said right would not foreclose the jurisdiction of this Court under Article 227 of the Constitution of India.
15. Mr. Thakur has placed reliance on the judgment of the Supreme Court in Ibrat Faizan1.
16. Prima facie, a reading of the said decision does not indicate that it forecloses the right of remedy under Article 227 of the Constitution of India, against order passed by the learned NCDRC exercising original jurisdiction.
17. The said decision dealt with the issue of whether a remedy under Article 227 of the Constitution of India lie against an order passed by the learned NCDRC exercising appellate jurisdiction in a challenge to an order passed by the State Consumer Disputes Redressal Commission (SCDRC). The decision, noting the fact that no appeal to the Supreme Court lay against an order passed by the learned NCDRC in appellate jurisdiction, the Supreme Court has upheld the view taken by this Court, that Article 227 would be available against Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI Signing Date:08.08.2022 CM(M) 757/2022 Page 4 of 8 15:16:49 such an order.
18. That, however, would not lead, inexorably, to the sequitur that, against an order passed by the learned NCDRC in exercising original jurisdiction, no writ petition under Article 227 of the Constitution of India would lie to this Court.
19. No specific enunciation of the law, to that effect, is to be found in Ibrat Faizan1. It is well-settled that judicial decisions are only authorities for what they state, and not for what may legitimately be said to flow from such decisions.
20. The issue of whether the right to approach the High Court under Article 227 of the Constitution of India is barred in the case where an alternate remedy is available, has been examined in a wide variety of decisions. A three-judge Bench of the Supreme Court has, in Virudhnagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society 2, held thus:
11. Secondly, the High Court ought to have seen that when a remedy of appeal under section 104 (1)(i) read with Order XLIII, Rule 1 (r) of the Code of Civil Procedure, 1908, was directly available, the respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu v. S. Chellappan & Ors 3, this Court held that "though no hurdle can be put against the exercise of the Constitutional powers of the High Court, it is a well recognized principle which gained judicial recognition that 2 (2019) 9 SCC 538 3 (2000) 7 SCC 695 Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI Signing Date:08.08.2022 CM(M) 757/2022 Page 5 of 8 15:16:49 the High Court should direct the party to avail himself of such remedies before he resorts to a Constitutional remedy".
12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before Civil Courts in terms of the provisions of Code of Civil procedure and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3 member Bench of this court, while overruling the decision in Surya Dev Rai vs. Ram Chander Rai 4, pointed out in Radhey Shyam Vs. Chhabi Nath 5 that ―orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts.
13. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself."
(Emphasis supplied)
21. If one were to apply the law enunciated in the afore-extracted passages from Virudhnagar2 to an issue of availability of a remedy 4 (2003) 6 SCC 675 5 (2015) 5 SCC 423 Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI Signing Date:08.08.2022 CM(M) 757/2022 Page 6 of 8 15:16:49 under Article 227 of the Constitution of India against an order passed by the learned NCDRC in exercise of original jurisdiction, it may be difficult to hold, prima facie, that such remedy is barred. The rational of the decision in Virudhnagar2 is that, where an alternate remedy exists, to a forum subordinate to the Supreme Court, the party should be directed to exhaust such alternate remedy before approaching the Supreme Court directly.
22. As I have had occasion to observe in Lucina Land Development v. Union of India 6 that that situation would not exist where the appellate remedy lies to the Supreme Court directly. In such a case, it may be debatable as to whether, in an appropriate case, the Article 227 of the court would be foreclosed.
23. Having said that, as has been observed by the Supreme Court in para 14.1 of the report in Ibrat Faizan1, the party invoking Article 227 jurisdiction subjects itself to the rigours of the said provision, and to the limited peripheries within which the provision operates.
24. The objection of Mr. Thakur, to the maintainability of the present petition, therefore, prima facie, does not appear to be sustainable.
25. In view thereof, issue notice, returnable on 13th October 2022
26. Notice is accepted, on behalf of Respondents 1 to 3, by Mr. 6 2022 SCC OnLine Del 1274 Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI Signing Date:08.08.2022 CM(M) 757/2022 Page 7 of 8 15:16:49 A.K.Thakur and, on behalf of Respondents 4 and 5, by Mr. Prabir Basu, respectively.
27. Reply, if any, be filed within four weeks with advance copy to learned Counsel for the petitioner who may file rejoinder thereto, if any, before the next date of hearing.
28. This Court is not interdicting continuation of the proceedings before the learned NCDRC. However, the learned NCDRC is requested not to pass any final order in the complaint pending further orders to be passed in these proceedings.
C. HARI SHANKAR, J.
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