ANURADHA SAHOO vs ORISSA NURSING HOME

IS a housewife. Her inconveniences and trouble in OrISsa Nursing Home (opposite party) and the cause of action for thIS complaint for compensation.

ALTHOUGH complainant describes the opposite party to be represented by opposite party Nos. 1 (a) and 1 (b) stating that opposite party No. 1 (a) is the owner of the Nursing Home, on service of notice case has been stated on behalf of the Nursing Home where it is stated that son of opposite party Nos. 1(a) and 1(b) is the proprietor. In a petition for bail filed in the Court of the Sessions Judge, Cuttack, it has been stated that opposite party No. 1(a) is an Advocate and opposite party No. 2 is a doctor in Government service. They are husband and wife. Proprietor of the Nursing Home, as reveals from the case stated, is son of opposite parties Nos. 1(a) and 1(b). He is also a doctor. Since it is not disputed that prosecution against opposite party Nos. 1(a) and 1(b) is pending for part of the cause of action which gives rise to this complaint, adequate care is to be taken in expression and findings so that neither the prosecution nor the defence would be prejudiced in any manner by such findings of competent forums. In this background, the complaint is to be decided.

In course of hearing, Mr. Ashok Mukherjee, learned Counsel for the opposite parties, brought to our notice by filing xerox copy of a settlement between the parties date 21.1.1992 signed by complainant, opposite party Nos. 1(a) and 1(b) and advocates for both the parties. Since learned Counsel for complainant objected stating that the settlement is not true, we called upon parties to file affidavits. There affidavits by Suresh Chandra Padhi, Babaji Charan Sahu and opposite party No. 1(b) have been filed in support of the settlement. Complainant has filed an affidavit with xerox copy of an account payee cheque for Rs. 50,000/-. Dispute thus centres round whether there is any settlement. In this view of the matter, xerox copy of the settlement which was to be Filed before the Commission but has not been filed reads as follows: "Before the Consumer Kedressa Forum: Orissa : Cuttack C.D. Case No. 47/90 Smt. Anurekha Sahoo -Petitioner versus Dr. Harapriya Sahoo & Anr. -Opp. Parties The humble joint petition of the petitioner and the Opp. Parties. Most respectfully Sheweth:- 1. That the above case stands posted for hearing on the month of August, 1991. 2. That the parties are respectable persons of the locality and are neighbours. To restore good will, peace amity and fraternity, the local gentlemen such as Babaji Charan Sahoo S/o Late Gopal Ch. Sahoo, of Manisahoo Chhak, Cuttack have amicably compromised the case between the parties out of Court and as a matter of fact peace, amity and fraternity have been restored among the parties. 3. That at the intervention of the local gentlemen the parties have compromised the matter and by virtue of this compromise they have no claim against each other. PRAYER It is respectfully prayed that your honour may be graciously pleased in the interest of justice to record compromise of the case and dispose of the same accordingly; And for this act of kindness the petitioners and the opposite parties shall ever pray as in duty bound."

FROM the affidavit filed by the complainant, it is clear that there was a talk of compromise. Paragraphs 5, 6 and 7 of the affidavit read as follows: "5. That I entered into a purported compromise with Harapriya Sahu and Ramesh Sahu which would clearly prove their guilt. They offered to pay Rs. 1.15 lakhs to me. That Ramesh Sahu made a banker''s cheque in the State Bank of Bikaner and Jeypore and gave the same to Suresh Padhi and Babaji Charan Sahu on dated 18.1.1991.

THAT Ramesh Sahu paid Rs. 50,000/- through one Babaji Charan Sahu and Suresh Padhi by cheque dated 30.1.1991 is annexed hereto and marked as Annexure-1 to this affidavit." It has been stated in the affidavit filed by opposite party No. 1(a) that well wishers of parties decided that all pending disputes between the parties in this forum, in Criminal Court and in the State Bar Council, are to be amicably settled on payment of a sum of Rs. 1,00,000/- only by opposite parties to the complainant and Rs. 50,000/- was to be paid to complainant through the said well-wishers after withdrawal of her complaint from the forum, from the Criminal Court and from the State Bar Council and after withdrawal of all the aforesaid cases, balance amount of Rs. 50,000/- would be paid to the complainant through the said well-wishers. Opposite parties paid Rs. 1,00,000/- to the aforesaid gentlemen who were negotiating the settlement which has been deposited in the joint account of Suresh Chandra Padhi and Babaji Charan Sahu in the Canara Bank, Cuttack Main Branch. Compromise to be filed was drafted and after the same was explained, parties accepted the same and executed the petition. After a sum of Rs. 50,000/- was paid to the complainant by an account payee cheque issued under the joint signature of Babaji and Suresh, referred to above, complainant received the cheque and encashed the amount and the compromise application was signed by complainant and her lawyer Shri Milan Kanungo. Complainant, however, did not withdraw the cases but has come forward with a case that well-wishers had decided that all disputes would be settled on payment of Rs. 1.50,000/- only. Suresh Chandra Padhi has filed an affidavit. He has stated that complaint case ICC No. 82 of 1990 and C.D. Case No. 47 of 1990 were settled on his intervention and intervention of Babaji Charan Sahu, Subas Chandra Sahu, Advocate, and other well-wishers of the parties. Well-wishers decided that all pending disputes in the three forums-State Commission, Criminal Court and State Bar Council - shall be amicably settled on payment of a sum of Rs. 1,00,000/- only to be paid by the opposite parties through the gentlemen to the complainant. Rs. 50,000/- was to be paid first on receipt of which complainant would withdraw this complaint and prosecution from Criminal Court and grievance from the State Bar Council. After withdrawal of the aforesaid cases, balance amount of Rs. 50,000/- would be paid. An amount of Rs. 50,000/- was paid to the complainant by an account payee cheque. Receiving the cheque complainant signed the compromise petition. Balance amount of Rs. 50,000/- is still unpaid and kept in the bank is the joint account. Babaji Charan Sahu in his affidavit has stated that Suresh Chandra Padhi is an Advocate. He, Suresh and one Subas Chandra Sahu, Advocate, intervened to settle the disputes with other well-wishers of the parties. He has corroborated all other facts as stated in the affidavit of Babaji. 6. From the documents filed, I find that one G.R. Case No. 225 of 1990 and ICC Case No. 82 of 1990 are being tried together for which evidence is recorded. Cognizance has been taken under Sections 316/338, I.P.C. against both the accused persons and under Section 419, I.P.C. against accused Ramesh. As it appears a complaint relating to misconduct of Ramesh as an Advocate is pending in the State Bar Council. Offence under Sec. 316, I.P.C. is causing death of a quick unborn child by an act amounting to culpable homicide. Offence under Sec. 338, I.P.C. is causing grievous hurt by an act which endangers human life, etc. Offence under Sec. 419, I.P.C. is cheating by personation, Excepting, the offence under Sec. 419, I.P.C, offence under other provisions does not appear to be compoundable as provided in Sec. 320, Cr.P.C When three advocates are concerned in the settlement and two other advocates for parties have signed the settlement, there is no scope for withdrawal of the prosecutions by the complainant. Even though complaint filed by a person in the State Bar Council for misconduct of an Advocate is either withdrawn or not pressed by such person, Bar Council can suo motri proceed to examine the mis-couduct of the Advocate. This is well known to the Advocates. We are astonished how the prosecution and proceeding before the State Bar Council were decided to be settled. There can be no doubt that a complaint under the Consumer Protection Act can be settled as provided under Order 23 of the Code of Civil Procedure. Requirement of Order 23 is to be satisfied for that purpose. As has been brought to our notice, the settlement was out of Court and applications were to be filed. We cannot act upon such settlement. 7. Treatment in a Nursing Home for payment is service rendered. For deficiency in service in a Nursing Home complaint can be filed, In the complaint there is no allegation that there was contract for payment or payment had actually been made either in part or in full. Normally, deficiency of a person rendering service without payment would not come within the scope of Consumer Protection Act. In the objection filed it has been stated that complainant was admitted for treatment totally free of charges for circumstances indicated therein. However, except the statement in the objection supported by affidavit, no other material has been produced before us to corroborate such statement. Peculiarly, the persons at whose request complainant was admitted to the Nursing Home have not been brought to limelight in this proceeding before us although they have been specifically indicated in the case stated by the proprietor of the Nursing Home. Although the Advocates as mentioned above have not taken into consideration the fact that there cannot be any settlement of the criminal case and the proceeding before the Bar Council, in the peculiar circumstances of this case we are inclined to hold that the service rendered in the Nursing Home was for payment. This finding is given by us in the peculiar circumstances where not only opposite parties agreed to pay Rs. 1,00,000/-, as stated by them, but also paid the same to the gentlemen in part performance of their part in the settlement. A cheque for Rs. 50,000/- has been received by the complainant and another Rs. 50,000/- lies with the gentlemen for payment. There is no dispute that complainant had to be shifted to the S.C.B. Medical College Hospital from the Nursing Home, Where a Nursing Home admits a patient and is not able to explain before us the circumstances under which a patient had to be shifted to another hospital and it is not explained that the patient on examination did not have sufferings which would require sophisticated treatment of a Medical College Hospital, we are inclined to hold that admission and continuance of such patient in the Nursing Home is a deficiency in service. Since gentlemen have decided the quantum of compensation to be Rs. 1 lakh in absence of any better material, we are inclined to hold that the quantum decided is just and sufficient in this case. We have not examined in this case the conduct of the Advocate as well as his wife. Since the proprietor of the Nursing Home has come forward to state the case, we make him liable for the amount. It is no doubt true that he is not a party to the settlement. However, opposite party No. 1 (b) who is father of the proprietor is a party to the settlement. According payment of the father for deficiency in service in the Nursing Home of the son can be adjusted. The amount of Rs. 50,000/- already paid by cheque can be adjusted by the complainant to this Rs. 1,00,000/-. Balance amount of Rs. 50,000/- in deposit with the gentlemen would be paid to the complainant. In view of the nature of the dispute opposite parties including the proprietor of the Nursing Home shall take steps so that a cross bank draft for the amount of Rs. 50,000/- shall be sent to the complainant by registered post. In case complainant is not able to encash the cheque of Rs. 50,000/- if not already encashed, and does not receive the bank draft of Rs. 50,000/- within two months from the date of receipt of this order, she can recover the said amount from the proprietor of the Nursing Home, Dr. Manas Ranjan Sahu.

IN view of our aforesaid direction, we amend the cause title by stating Orissa Nursing Home represented through its proprietor Dr. Manas Ranjan Sahu. Dr. Harapriya Sahu and Ramesh Sahu are made opposite parties 2 and 3 respectively. ORDER Complainant is entitled to Rs. 1,00,000/- (Rupees one lakh) as compensation on account of deficiency in service by opposite party No. 1. IN case she will not be paid the amount, as stated in the body of the order, she will recover the same from opposite party No. 1. IN view of pendency of prosecutions against opposite party Nos. 2 and 3 and misconduct proceeding before the State Bar Council against opposite party No. 3, we have not esxamined their conduct in this proceeding. Complaint allowed.