NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
IN
MISC. APPLICATION NO.543 OF 2002
IN
COMPLAINT NO.435 OF 2001
(From the order
dated 27.12.2002 in M.A.
Nos.542-547/2002
of the State Commission, Maharashtra)
Dr. (Mrs.) K.
Sankari.
Appellant
(Original
Party)
Vs.
Mr. Shailesh
More
Respondent
(Original
complainant)
For the
Appellant : Mr. Yogesh Naidu, Advocate
For
C.R. Naidu & Co.
For the
Respondent : Mr. Ashutosh Sharma, Advocate
and
IN
MISC. APPLICATION NO.542 OF 2002
IN
COMPLAINT NO.435 OF 2001
(From the order
dated 27.12.2002 in M.A.
Nos.542-547/2002
of the State Commission, Maharashtra)
Dr. Balabhai
Nanavati Hospital
Appellant
(Original
Party)
Vs.
Mr. Shailesh
More
Respondent
(Original
complainant)
For the
Appellant : Mr. Yogesh Naidu, Advocate
For
C.R. Naidu & Co.
For the
Respondent : Mr. Ashutosh Sharma, Advocate
BEFORE:
HONBLE
MR. JUSTICE D.P. WADHWA,
PRESIDENT
MR. B.K.
TAIMNI, MEMBER.
Jurisdiction - refusal of the State Commission to stay
proceedings in a complaint alleging
medical negligence suit also by the hospital claiming charges for
treatment - civil court framing issue whether the defendants prove that there was a positive
negligence on the part of the plaintiff leading to the death of the patient
and, therefore, the defendant is not
bound to pay the suit claim -
State Commission holding that the
hospital to be treated as only formal
party before it and State Commission will not adjudicate any claim against the hospital as such - writ petition filed by the complainant against the order of the State
Commission dismissed by the Bombay High Court challenge to the order of the
State Commission before the National Commission held pending civil suit cannot bar the proceedings before Consumer Forum as the complaint is for
deficiency of service on the part of the attending doctors complaint is not that hospital was deficient in
providing any other service Supreme Courts decision in the case of Viswalakshmi Sasidharan
(Mrs.) and Others vs. Branch Manager, Syndicate Bank, Belgaum relied upon.
DATED THE 21st AUGUST, 2003
JUSTICE D.P. WADHWA, J.(PRESIDENT).
These two appeals arise out of order dated 27.12.2002 of the Maharashtra State Consumer Disputes Redressal Commission. The order though disposed of six applications filed by different opposite parties being the Hospital and the Doctors, these 2 appeals have been filed only by 2 of the opposite parties before the State Commission. By the impugned order, State Commission declined to stay the proceedings in a complaint filed by the respondent complainant alleging medical negligence against the Hospital and the Doctors which according to him resulted into the death of his wife and a still born child. The complaint was against the Hospital, Dr. Balabhai Nanavati Hospital (Appellant in F.A.445 of 2003) and 7 Doctors attached to Hospital of which appellant Dr. (Mrs.) K. Sanlkari (in F.A. 427.A of 2003) was the Gynecologist and Dr. Sharad M. Seth was Anesthetist at the time of performing surgery upon the deceased wife of the complainant.
The
Hospital filed a Civil Suit in the Court of City Civil Court, Bombay against
the complainant for recovery of Rs.10,514/- on account of balance payment of
Hospital charges. Complainant, it is
stated, raised a defence of negligence on the part of Hospital which led the
Civil Court framing the issue as to whether
the defendants prove that there was a positive negligence on the part of the
plaintiff leading to the death of the patient and, therefore, the defendant is
not bound to pay the suit claim. It
was on this issue that applications were filed seeking that the complaint be
dismissed and in the alternative hearing of the complaint be stayed during the
pendency of the case before the Civil Court.
State Commission passed the following operative order :-
(i)
The relief claimed vide prayer clause 13(a) seeking
dismissal of the complaint stands rejected.
(ii)
The relief claimed vide prayer clause 13(b) also stands
rejected.
(iii)
The names of O.P. No.3 of 8 from the complaint stand
deleted.
(iv)
It is made clear & distinctly understood that in the
light of pendency of Civil Suit being No.6606 of 2001 pending on the file of
City Civil Court, Mumbai and in view of Issue No.2 framed in the said Suit by
the Hon. Civil Judge, Mumbai on 17.10.2002 concerning O.P. No.1 herein i.e.
Balabhai Nanavati Hospital, the presence of O.P. No.1 in the complaint herein
to be treated as being only a formal party and as such, there will not be any
adjudication as such undertaken by the commission.
(v)
All the applications accordingly stand disposed of.
The prayer, in fact, was for dismissal of the complaint and in the alternative for stay of the proceedings in the complaint till pendency of the Suit filed by the Hospital.
It would appear that against the order of the State
Commission, complainant filed Writ petition No.44490 of 2002 in the Bombay High
Court which was rejected by passing the following order :-
CORAM : DR.
D.Y. CHANDRACHUD, J
26TH
November, 2002
Mentioned. Not on Board. By consent, taken up for hearing.
I have perused Chamber Summons No.1605/02 and Chamber summons No.1606/02 which have been dismissed by the impugned order dated 21st November, 2002 of the City Civil court. The claim in the suit which has been instituted by the Respondents is in the amount of Rs.10,514/-. Obviously, therefore, the City Civil Court has pecuniary jurisdiction. Now in so far as the second Chamber summons is concerned, there was no question of deleting Issue No.2 since the petitioner has set up a plea of negligence in defence to the claim of the Respondents in the suit before the City Civil Court. There is no merit in the Writ Petition which is accordingly rejected.
We do not find it is a case where we should interfere. The complaint before the State Commission is for alleged deficiency in service on the part of the Hospital and the attached doctors. The Civil Suit has been filed by the Hospital which is only vicariously liable for alleged negligence on the part of the attached Doctors. From the arguments advanced, it is apparent that the complaint is for deficiency in service on the part of the attending Doctors and it is not that Hospital was deficient in providing any other service. Pending of Civil Suit cannot bar the proceedings before the Consumer Forum on this account. Supreme Court in the case where the Bank filed a Suit for recovery of the loan amount under Agreement and the defendant complainant had filed a claim alleging deficiency in service on the part of the Bank in providing loan held that complaint could lie. We set out the Supreme Court judgement hereunder :-
Viswalakshmi Sasidharan (Mrs.) and others
Vs. Branch Manager,
Syndicate Bank, Belgaum
ORDER :
1.
This special
leave petition arises from the order of the National Consumer disputes
Redressal Commission, New Delhi. The
petitioners had taken loan from the respondent-Bank on two accounts, one for a
sum of Rs.1,50,000/- and the other for Rs.3,00,000/-. It would appear that the Bank had disbursed a sum of Rs.1.47
lakhs and the balance amount was not released to the petitions. It was their case, in the complaint laid
before the District forum, that due to
deficiency in service, namely, failure to disburse the total amount
contracted under the agreement, the petitioner could not carry on the a
business and discharge the obligations to pay the labour charges and,
therefore, could not manufacture the products for which orders had been
served. Since, there was slump in the
market, they could not discharge the contract for repayment. Accordingly, they filed the complaint for damages
in the sum of Rs.9,50,000/-. The
Tribunals below dismissed the case and the National Commission confirmed the
dismissal of the complaint on three grounds.
First, the petitioner had not complied with the conditions of the
agreement of repayment, thereby they committed breach of the contract. They cannot, therefore, complain of the
deficiency of service. Another ground
given was that the suit was filed by the Bank for recovery on the premise that
the Tribunal could not go into theft question.
Thirdly, it was stated that in a letter addressed by the petitioners to
the Bank they had admitted that the failure to pay the instalments was due to
slump in the market of the finished products and, therefore, they could not
repay the loan.
2.
Though we
find that there is not much force in the findings recorded by the courts below
on the first two grounds, the last ground merits acceptance. If pursuant to the contract the Bank did not
disburse the amount and If there was any resultant default in the payment on account
thereof, that may be a defence open to the petitioners in the suit and also
furnishes the right to complain of deficiency in service to seek redressal
under the Consumer Protection Act. On that ground, the relief could not be
rejected and the question was required to be gone into. Secondly, the mere filing of the suit for
recovery of the amount may not be an absolute bar on the Commission to go into
that question for the reason that the issue before the Civil Court is not the
deficiency in the service unless that is specifically raised as a defence in
the suit. However, we think that is one
of the defaults in the payment of the instalments. Under those circumstances, merely filing of the suit by the Bank
doe not put a bar on the tribunal to go into the merits in the complaint. Each case requires examination on the facts
of the case. On the other hand, we find
force in the reasoning given by the tribunal on the third point. It is the petitioners case that they were
unable to produce the goods and have them marketed to pay back the loan in
instalments. It was not the case that
it was due to deficiency in service. On
the other hand, it is admitted that due to slump in the market they could not
sell the goods, realise the price of the finished product and pay back the loan
to the Bank. That admission stands in
their way to plead at the later stage that they suffered loss on account of
deficiency in service. Under those
circumstances, we do find any ground warranting interference.
3. The special leave petition is dismissed.
In this view of the matter, we do not find any ground to interfere in exercise of our jurisdiction.
J
(D.P. WADHWA)
PRESIDENT
..
(RAJYALAKSHMI RAO)
MEMBER
.
(B.K. TAIMNI)
MEMBER
.J
(K.S. GUPTA)
MEMBER
.