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  • S. Rama Rao  
    v.   Bantwal
    Sulochana Madhava shenoy Trust(Regd) & Ors.

    1997(1) CPJ 301 (Karnataka SCDRC)

        

    The
    complainant was operated for hernia, under spinal anaesthesia.
    After surgery he developed paralysis in his body below the waist
    (paraplegia). He was advised to undergo another operation to
    remove blood clot in the spinal cord by an orthopaedician but he
    did not recover. The court held that there was no specific
    grievance about deficiency in service, as the complainant failed
    to establish paraplegia due to any deficiency and dismissed the
    complaint.

       

  • CHARAN SINGH v. HEALING TOUCH HOSPITAL

    III (2000) CPJ 1 (SC)

      

    Medical
    Negligence : Paralysis on Right Side, Permanent Disablement,
    illegal Removal of One Kidney : Jursdiction : Compensation : Claim
    not “unrealistic”, “Exaggerated” or
    “Excessive” – Appellant was operated upon for removal of
    “Stone from Urethra” in respondent No 1 hospital-
    Certain Complications arose on account of negligence of spinal
    anesthesia and performing operation – Appellant paralysed on right
    hand side of his body – No improvement despite medicines – He also
    started passing blood along with urine- Advised to undergo another
    operation- Paralytic condition continued – His left kidney removed
    when he was in drowsy state – Appellant claimed Rs 34 lakhs by way
    of compensation from respondents – National Consumer Forum was not
    fair in disposing to complaint by styling his claim as
    “excessive” or “exaggerated” after six years
    of pendency of complaint – No opportunity given to appellant to
    substantiate his case- Obligation to give reasons not only
    introduces clarity but it also excludes or minimizes chances of
    arbitrariness and higher Forum can test correctness of those
    reasons – National Consumer Forum has Jurisdiction without
    pecuniary limitations, to award proper compensation, even less
    than one claimed in a given case- Complaint petition filled by
    appellant for compensation pending before National Consumer Forum
    for six long years – Pleadings completed – Appellant condemned
    unheard after waiting for six years

      

    – Impugned order of National Consumer Forum set aside – Complaint
    remanded to National Consumer Forum for disposal in accordance
    with law – Consumer protection Act, !986 – Section 23

       

    Dr. A.
    S. Anand, CJI. This appeal under 23 Section of the Consumer
    Protection Act, is directed against an order of the National
    Consumer Disputes Redressal Comission, New Delhi (hereinafter the
    “National Consumer Forum”) dated 9th August, 1999
    dismissing a complaint field by the appellant, without expressing
    any opinion on the merits of the case, but granting liberty to
    appellant to ” make a realistic claim” and move the
    State Commission or District Forum, as the case may be in
    accordance with law. The National Consumer Forum further directed
    that time spent before, it should be taken into account for
    purpose of computing period of limitation by the appropriate forum
    where the appellant moves his complaint.

     

    With a
    view to dispose of this appeal, we would refer only to minimal
    relevant facts as emerge from the record before us.

      

    In 1993, according to the appellant, he went to the Healing
    Touch Hospital, respondent No 1. for treatment of stomach ache and
    burning sensation while passing urine. He was examined by
    respondent No. 2, Dr. A.J.S. Juneja, who admitted him in
    respondent No 1 hospital on 12.1.1993 for an operation for removal
    of “stone from the urethra”. At the time of operation,
    it was respondent No. 1, Dr Sunil Seth, who administered spinal
    anesthesia to the appellant. Operation was performed. Certain
    complications, according to the appellant, arose on a account of
    negligence of respondent No. 1 hospital and its team of doctors,
    both in the administration of spinal anaesthesia and performing
    the operation. According to the appellant, he was paralysed on the
    right hand side of his body. He complained and was prescribed some
    medicines and discharged from the hospital. Despite taking the
    prescribed some medicines, there was no improvement. He also
    started passing blood along with urine. On 1st February 1993, the
    appellant again went to respondent No. 1 hospital and met
    respondent No. 2, Dr. Juneja, who once again admitted him to the
    hospital. On 9th of February 1993, the appellant was advised to
    undergo another operation to stop passing of blood with urine. The
    appellant claims that he was taken to the operation threatre and
    after administering anaesthesia to him, when he in a drowsy state,
    respondent No 2 and 3 obtained his signatures on some papers. On
    10.2.1993, after the appellant regained consciousness, respondent
    No 2 and 3 told him that he would be discharged from the hospital
    within a couple of days. The right side of his body was, however,
    still paralytic and he complained about it to the doctors at the
    hospital. According to the appellant, on 18.2.1993, he was
    discharged from respondent No. 1 hospital in the same paralytic
    condition. He was prescribed some medicines, which he kept on
    taking. Since, paralytic condition continued, the appellant went
    back to respondent No. 1 hospital where respondent No. 2 asked him
    to go away. Appellant claims that he thereafter went to Medical
    Diagnostic Center, Hrauz Khas, New Delhi. On examination of his
    discharge slip and after undertaking certain other tests, the
    appellant was told by the Diagnostic Center, that his left kidney
    had been removed. The appellant was shocked to hear this and went
    back to respondent No. 3  in
    the hospital, who told him to meet respondent No. 2 and 4. He
    asked them how them how they has removed his left kidney during
    the second operation without his knowledge or consent. No body was
    willing to talk to him in the hospital and he was made to go from
    one doctor to another. Finally, he was turned away from the
    hospital without providing any explanation. According to the
    appellant, as a result of the negligence of doctors at respondent
    No 1. hospital, he has to use crutches. His kidney has also been
    ‘illegally’ removed. He states that, as a result, he also lost his
    job with M/s. Durga Lakshmi Builders where he was serving prior to
    his operation. He states that, he had to spend a fortune for
    paying the exorbitant bills of the doctors and the hospital
    besides medicines, tests and or his upkeep. The appellant,
    thereupon, filed a complaint in the National Consumer Forum and
    claimed Rs. 34 lakhs by way of compensation from the respondents
    in 1993 on various grounds, under different heads.

      

    The
    respondents were put to notice. They filed their counter
    statements and replies, to which the appellant also filed his
    rejoinder. While the matters rested, thus, the National Consumer
    Forum passed the impugned order referred to above six years after
    the complaint was field, on 9th August, 1999. Hence this appeal.

      

    The appellant appeared in person before us in the appeal and Court
    that on account of his disabilities and handicap, the appellant
    was not in a position to properly assist the Court. We therefore,
    requested Ms. Indira Jaising, learned Senior Counsel who was
    present in Court, to appear as animus curiae, which readily
    agreed.

      

    We have heard learned Counsels for the parties.

      

    The impugned order of the National Consumer Forum is very brief.
    While dismissing the complaint relegating the appellant to
    approach either the District Forum or the State Commission, the
    National Consumer Forum inter alia observed:

      

    “…. The complainant was drawing a salary of Rs. 3,000/-
    plus allowances. This is his allegation which is not admitted by
    the opposite party. Even if we accept this contention is correct
    and even if we accept that as a result of wrong treatment given in
    the hospital he has suffered permanent disability, the claim of Rs.
    34 lakhs made by the complainant is excessive. We are of the view
    that his exaggerated claim has been made only for the purpose of
    invoking the jurisdiction of this Commission….”

      

    The National Consumer Forum, in our opinion, was not fair in
    disposing of the complaint of the appellant by styling his claim
    as “excessive” or “exaggerated”, after six
    years of the pendency of the complaint, and asking the appellant
    to move the State Commission or the District Forum by making
    “a realistic claim”. Whether the claim of the appellant
    was “realistic”, “exaggerated” or
    “excessive”, could only have been given an opportunity
    to prove the case he had set up and established his claim under
    various heads. It was not fair to call his claim
    “unrealistic”, “exaggerated” or
    “excessive” without giving the appellant an opportunity
    to substantiate his case.

     

    Ms. Indira Jaising, learned Amicus, submitted that according to
    the appellant he had suffered paralysis on the right side and had
    also become permanently disabled and his one kidney had been
    illegally removed. The appellant had on the account suffered pain
    and suffering. He had also undergone heavy expenditure for his
    operations, upkeep, tests, medicines, etc. He had lost his job.
    Learned Counsel submitted that the appellant should have been
    given an opportunity to substantiate his claim and the National
    Consumer Forum was not justified to observe that the claim put
    forward by the appellant was “Unrealistic”,
    exaggerated” or “excessive” after referring to the
    salary of the appellant only. According to Ms. Jaising, the
    National Consumer Forum was not right in scuttling an enquiry in
    the claim of the appellant, in ‘limine’ after keeping him waiting
    for six long years. According to her, the impugned order violates
    the spirit with which the Consumer Protection Act was enacted.
    Learned Counsel for the respondents, however, submitted that the
    claim of the appellant was “exaggerated” and
    “excessive” and the Forum rightly rejected it, without
    giving any finding on merits so as not to prejudice the case of
    the appellant before the District Forum or the State Commission..

      

    After hearing learned Counsel for the parties and perusing the
    record, we are constrained to say that we are not happy with the
    manner in which the complaint of the appellant has been disposed
    of.

      

    Consumer Protection Act is one of the benevolent pieces of
    legislation intended to protect a large body of consumers from
    exploitation. The Act provides for an alternative system of
    consumer justice by summary trial. The authorities under the Act
    exercise quasi-judicial powers for redressal of consumer disputes
    and it is  one of the
    postulates of such a body that it should arrive at a conclusion
    based on reason. The necessity to provide reasons, however, brief
    in support of its conclusion by such a forum, is too obvious to be
    reiterated and needs no emphasising. Obligation to give reasons
    not only introduces clarity but it also excludes, or at any rate
    minimises, the chances of arbitrariness and the higher forum can
    test the correctness of those reasons. Unfortunately we have been
    able to find from the impugned order any reasons in support of the
    conclusion that the claim of the appellant is
    “unrealistic” or “exaggerated” or
    “excessive”. Loss of salary in not the sole factor which
    was required to be taken into consideration. While quantifying
    damages, consumer forums are required to make an attempt to serve
    ends of justice so that compensation is awarded, in an established
    case, which not only serves the purpose of recompensing the
    individual, but which also at the same time, aims to bring about a
    qualitative change in the attitude of the service provider.
    Indeed, calculation of damages depends on the fact and
    circumstances of each case. No hard and fast rule can be laid down
    of universal application. While awarding compensation, a Consumer
    Forum has to take into account all relevant factors and assess
    compensation on the basis of accepted legal principles, on
    moderation. It is for the Consumer Forum to grant compensation to
    the extent it finds it reasonable, fair and proper in the facts
    and circumstances of a given case according to established
    judicial standards where the claimant is able to establish his
    charge.

      

    It is
    not merely the alleged harm or mental pain, agony or physical
    discomfort, loss of salary and emoluments, etc. suffered by the
    appellant which is in issue- it is also the quality of conduct
    committed by the respondents upon which attention is required to
    be founded in a case of proven negligence.

     

    It must be remembered that National Consumer Forum has
    jurisdiction, without pecuniary, limitations, to award proper
    compensation, even less than one claimed in a given case,
    depending upon the established facts and circumstances of that
    particular case and the evidence led by the parties. The District
    Commission and the State Forum, or the other hand, have pecuniary
    jurisdictional limitations for granting compensation beyond their
    jurisdictional limits. Under Section 11(1) of the Consumer
    Protection Act, 1986 the District Forum has jurisdiction to
    entertain complaints where the value of the goods or services and
    compensation, if any, claimed does not exceed Rs 5 lakhs. Section
    17(a) of  the Act
    provides that State Commission shall have jurisdiction to
    entertain complaints where the value of goods of services and
    compensation, if any, claimed exceeds Rs. 5 lakhs, but does not
    exceed Rs. 20 lakhs.

      

    In view
    of these jurisdiction limitations of the District Forum and the
    State Commission, these bodies would not be able to award
    compensation, even if satisfied in given case that the complainant
    was entitled to more compensation than what he had clamed, beyond
    their pecuniary jurisdiction.

      

    That
    part, in the present case, complaint petition filed by the
    appellant for compensation was pending before the National
    Consumer Forum for six long years. The pleadings had been
    completed. The National Consumer Forum should have taken the
    complaint to its logical conclusion by asking the parties to
    adduce evidence and rendered its findings on merits. A
    mathematical calculation based only on the amount of salary being
    drawn by the appellant could not be the sole factor to be taken
    into consideration to style the claim
    of the appellant “unrealistic” or
    “exaggerated”.

      

 



 

     

  
Medicolegal
  

  

Anaesthetist
  

  • S. Rama Rao   v.   Bantwal Sulochana Madhava shenoy Trust(Regd) & Ors.
    1997(1) CPJ 301 (Karnataka SCDRC)
        
    The complainant was operated for hernia, under spinal anaesthesia. After surgery he developed paralysis in his body below the waist (paraplegia). He was advised to undergo another operation to remove blood clot in the spinal cord by an orthopaedician but he did not recover. The court held that there was no specific grievance about deficiency in service, as the complainant failed to establish paraplegia due to any deficiency and dismissed the complaint.
       

  • CHARAN SINGH v. HEALING TOUCH HOSPITAL
    III (2000) CPJ 1 (SC)
      
    Medical Negligence : Paralysis on Right Side, Permanent Disablement, illegal Removal of One Kidney : Jursdiction : Compensation : Claim not “unrealistic”, “Exaggerated” or “Excessive” – Appellant was operated upon for removal of “Stone from Urethra” in respondent No 1 hospital- Certain Complications arose on account of negligence of spinal anesthesia and performing operation – Appellant paralysed on right hand side of his body – No improvement despite medicines – He also started passing blood along with urine- Advised to undergo another operation- Paralytic condition continued – His left kidney removed when he was in drowsy state – Appellant claimed Rs 34 lakhs by way of compensation from respondents – National Consumer Forum was not fair in disposing to complaint by styling his claim as “excessive” or “exaggerated” after six years of pendency of complaint – No opportunity given to appellant to substantiate his case- Obligation to give reasons not only introduces clarity but it also excludes or minimizes chances of arbitrariness and higher Forum can test correctness of those reasons – National Consumer Forum has Jurisdiction without pecuniary limitations, to award proper compensation, even less than one claimed in a given case- Complaint petition filled by appellant for compensation pending before National Consumer Forum for six long years – Pleadings completed – Appellant condemned unheard after waiting for six years
      
    – Impugned order of National Consumer Forum set aside – Complaint remanded to National Consumer Forum for disposal in accordance with law – Consumer protection Act, !986 – Section 23
       
    Dr. A. S. Anand, CJI. This appeal under 23 Section of the Consumer Protection Act, is directed against an order of the National Consumer Disputes Redressal Comission, New Delhi (hereinafter the “National Consumer Forum”) dated 9th August, 1999 dismissing a complaint field by the appellant, without expressing any opinion on the merits of the case, but granting liberty to appellant to ” make a realistic claim” and move the State Commission or District Forum, as the case may be in accordance with law. The National Consumer Forum further directed that time spent before, it should be taken into account for purpose of computing period of limitation by the appropriate forum where the appellant moves his complaint.
     
    With a view to dispose of this appeal, we would refer only to minimal relevant facts as emerge from the record before us.
      
    In 1993, according to the appellant, he went to the Healing Touch Hospital, respondent No 1. for treatment of stomach ache and burning sensation while passing urine. He was examined by respondent No. 2, Dr. A.J.S. Juneja, who admitted him in respondent No 1 hospital on 12.1.1993 for an operation for removal of “stone from the urethra”. At the time of operation, it was respondent No. 1, Dr Sunil Seth, who administered spinal anesthesia to the appellant. Operation was performed. Certain complications, according to the appellant, arose on a account of negligence of respondent No. 1 hospital and its team of doctors, both in the administration of spinal anaesthesia and performing the operation. According to the appellant, he was paralysed on the right hand side of his body. He complained and was prescribed some medicines and discharged from the hospital. Despite taking the prescribed some medicines, there was no improvement. He also started passing blood along with urine. On 1st February 1993, the appellant again went to respondent No. 1 hospital and met respondent No. 2, Dr. Juneja, who once again admitted him to the hospital. On 9th of February 1993, the appellant was advised to undergo another operation to stop passing of blood with urine. The appellant claims that he was taken to the operation threatre and after administering anaesthesia to him, when he in a drowsy state, respondent No 2 and 3 obtained his signatures on some papers. On 10.2.1993, after the appellant regained consciousness, respondent No 2 and 3 told him that he would be discharged from the hospital within a couple of days. The right side of his body was, however, still paralytic and he complained about it to the doctors at the hospital. According to the appellant, on 18.2.1993, he was discharged from respondent No. 1 hospital in the same paralytic condition. He was prescribed some medicines, which he kept on taking. Since, paralytic condition continued, the appellant went back to respondent No. 1 hospital where respondent No. 2 asked him to go away. Appellant claims that he thereafter went to Medical Diagnostic Center, Hrauz Khas, New Delhi. On examination of his discharge slip and after undertaking certain other tests, the appellant was told by the Diagnostic Center, that his left kidney had been removed. The appellant was shocked to hear this and went back to respondent No. 3  in the hospital, who told him to meet respondent No. 2 and 4. He asked them how them how they has removed his left kidney during the second operation without his knowledge or consent. No body was willing to talk to him in the hospital and he was made to go from one doctor to another. Finally, he was turned away from the hospital without providing any explanation. According to the appellant, as a result of the negligence of doctors at respondent No 1. hospital, he has to use crutches. His kidney has also been ‘illegally’ removed. He states that, as a result, he also lost his job with M/s. Durga Lakshmi Builders where he was serving prior to his operation. He states that, he had to spend a fortune for paying the exorbitant bills of the doctors and the hospital besides medicines, tests and or his upkeep. The appellant, thereupon, filed a complaint in the National Consumer Forum and claimed Rs. 34 lakhs by way of compensation from the respondents in 1993 on various grounds, under different heads.
      
    The respondents were put to notice. They filed their counter statements and replies, to which the appellant also filed his rejoinder. While the matters rested, thus, the National Consumer Forum passed the impugned order referred to above six years after the complaint was field, on 9th August, 1999. Hence this appeal.
      
    The appellant appeared in person before us in the appeal and Court that on account of his disabilities and handicap, the appellant was not in a position to properly assist the Court. We therefore, requested Ms. Indira Jaising, learned Senior Counsel who was present in Court, to appear as animus curiae, which readily agreed.
      
    We have heard learned Counsels for the parties.
      
    The impugned order of the National Consumer Forum is very brief. While dismissing the complaint relegating the appellant to approach either the District Forum or the State Commission, the National Consumer Forum inter alia observed:
      
    “…. The complainant was drawing a salary of Rs. 3,000/- plus allowances. This is his allegation which is not admitted by the opposite party. Even if we accept this contention is correct and even if we accept that as a result of wrong treatment given in the hospital he has suffered permanent disability, the claim of Rs. 34 lakhs made by the complainant is excessive. We are of the view that his exaggerated claim has been made only for the purpose of invoking the jurisdiction of this Commission….”
      
    The National Consumer Forum, in our opinion, was not fair in disposing of the complaint of the appellant by styling his claim as “excessive” or “exaggerated”, after six years of the pendency of the complaint, and asking the appellant to move the State Commission or the District Forum by making “a realistic claim”. Whether the claim of the appellant was “realistic”, “exaggerated” or “excessive”, could only have been given an opportunity to prove the case he had set up and established his claim under various heads. It was not fair to call his claim “unrealistic”, “exaggerated” or “excessive” without giving the appellant an opportunity to substantiate his case.
     
    Ms. Indira Jaising, learned Amicus, submitted that according to the appellant he had suffered paralysis on the right side and had also become permanently disabled and his one kidney had been illegally removed. The appellant had on the account suffered pain and suffering. He had also undergone heavy expenditure for his operations, upkeep, tests, medicines, etc. He had lost his job. Learned Counsel submitted that the appellant should have been given an opportunity to substantiate his claim and the National Consumer Forum was not justified to observe that the claim put forward by the appellant was “Unrealistic”, exaggerated” or “excessive” after referring to the salary of the appellant only. According to Ms. Jaising, the National Consumer Forum was not right in scuttling an enquiry in the claim of the appellant, in ‘limine’ after keeping him waiting for six long years. According to her, the impugned order violates the spirit with which the Consumer Protection Act was enacted. Learned Counsel for the respondents, however, submitted that the claim of the appellant was “exaggerated” and “excessive” and the Forum rightly rejected it, without giving any finding on merits so as not to prejudice the case of the appellant before the District Forum or the State Commission..
      
    After hearing learned Counsel for the parties and perusing the record, we are constrained to say that we are not happy with the manner in which the complaint of the appellant has been disposed of.
      
    Consumer Protection Act is one of the benevolent pieces of legislation intended to protect a large body of consumers from exploitation. The Act provides for an alternative system of consumer justice by summary trial. The authorities under the Act exercise quasi-judicial powers for redressal of consumer disputes and it is  one of the postulates of such a body that it should arrive at a conclusion based on reason. The necessity to provide reasons, however, brief in support of its conclusion by such a forum, is too obvious to be reiterated and needs no emphasising. Obligation to give reasons not only introduces clarity but it also excludes, or at any rate minimises, the chances of arbitrariness and the higher forum can test the correctness of those reasons. Unfortunately we have been able to find from the impugned order any reasons in support of the conclusion that the claim of the appellant is “unrealistic” or “exaggerated” or “excessive”. Loss of salary in not the sole factor which was required to be taken into consideration. While quantifying damages, consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the fact and circumstances of each case. No hard and fast rule can be laid down of universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge.
      
    It is not merely the alleged harm or mental pain, agony or physical discomfort, loss of salary and emoluments, etc. suffered by the appellant which is in issue- it is also the quality of conduct committed by the respondents upon which attention is required to be founded in a case of proven negligence.
     
    It must be remembered that National Consumer Forum has jurisdiction, without pecuniary, limitations, to award proper compensation, even less than one claimed in a given case, depending upon the established facts and circumstances of that particular case and the evidence led by the parties. The District Commission and the State Forum, or the other hand, have pecuniary jurisdictional limitations for granting compensation beyond their jurisdictional limits. Under Section 11(1) of the Consumer Protection Act, 1986 the District Forum has jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed does not exceed Rs 5 lakhs. Section 17(a) of  the Act provides that State Commission shall have jurisdiction to entertain complaints where the value of goods of services and compensation, if any, claimed exceeds Rs. 5 lakhs, but does not exceed Rs. 20 lakhs.
      
    In view of these jurisdiction limitations of the District Forum and the State Commission, these bodies would not be able to award compensation, even if satisfied in given case that the complainant was entitled to more compensation than what he had clamed, beyond their pecuniary jurisdiction.
      
    That part, in the present case, complaint petition filed by the appellant for compensation was pending before the National Consumer Forum for six long years. The pleadings had been completed. The National Consumer Forum should have taken the complaint to its logical conclusion by asking the parties to adduce evidence and rendered its findings on merits. A mathematical calculation based only on the amount of salary being drawn by the appellant could not be the sole factor to be taken into consideration to style the claim of the appellant “unrealistic” or “exaggerated”.
      

 

 

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