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Judgment
Subhash Chandra, Presiding Member
The present revision petition has been filed under section 21 (b) of the Consumer Protection Act, 1986 (in short, ‘the Act’) against the order dated 28.02.2020 of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (in short, ‘the State Commission’) in First Appeal no. 146 of 2016.
The brief facts of the case as stated by the petitioner are that the wife of respondent no.1 and the mother of respondent nos.2 and 3 was admitted to the petitioner’s hospital for delivery. As per the advice of the petitioners, the wife of respondent no.1 was to undergo elective laparoscopic sterilization operation within two days of the delivery. Though the wife of respondent no.1 was in good health and gave birth to a healthy child, after performance of sterilization surgery, she died. Alleging deficiency in service on the part of the hospital, respondent nos.1 to 3 filed a complaint (CC no. 57 of 2014) before the District Consumer Disputes Redressal Commission, Tiruvallur (in short, ‘the District Forum’) praying for compensation of Rs.19,59,000/- for mental agony and deficiency in service and along with Rs.25,000/- towards the cost of filing of the complaint.
The petitioner herein in their written version before the District Forum has stated that the wife of respondent no.1 was taken to the operation theatre at 05.15 p m on 22.05.2014 and when the petitioners were preparing for anaesthesia and surgery, the patient developed convulsions and became restless leading to fits. At about 05.45 p m the patient’s BP was 230/130 mm/hg. The hospital authorities immediately informed the respondent no.1 and her mother in law who were waiting outside the theatre about the patient’s condition and the patient was referred to a higher centre for intensive care and ventilator support. The hospital also took the support of a consultant physician. At about 07.15 pm on the same day, the patient’s BP dropped and she went into cardiac arrest. However, with the constant care and diligence on part of the petitioner the patient was revived and her BP picked up to 80/60 mm/hg. The patient’s revival to normalcy after cardiac arrest was due to diligence and efficiency of petitioners. It is therefore, stated that there was no deficiency in service on the part of the petitioners. However, the patient died in the hospital of respondent no.5 on 22.05.2014 at 12.45 p m.
The District Forum vide its order dated 18.08.2016 in CC no. 57 of 2014 has allowed the complaint in part and observed as under:
“Accordingly, the 1 to 4 opposite parties are jointly and severally directed to pay a sum of Rs.5,00,000/- for loss of income due to death of the deceased wife of 1st complainant, being a home maker, a sum of Rs.1,00,000/- towards consortium and for love and affection to the 1st complainant, a sum of Rs.4,00,000/- for motherly care, love and affection to the 2nd and 3rd complainants, a sum of Rs.2,00,000/- towards mental agony and physical pain and a sum of Rs.50,000/- towards miscellaneous items such as medical expenses, conveyance, funeral/ last rites expenses etc., totally of Rs.12,50,000/- for committing medical negligence which certainly leads to deficiency in service on the part of the 1 to 4 opposite parties with cost of Rs.10,000/-. Total amount awarded is Rs.12,60,000/-. In respect of the 5th opposite party, this complaint is dismissed.
The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, the said amount shall carry interest at the rate of 9.5% till the date of payment.”
Aggrieved by the inadequate compensation, respondent nos.1 to 3 filed FA No. 146 of 2016 dated 23.09.2016 before the State Commission, Chennai, praying to modify the award of the District Forum by directing the petitioners to pay a sum of Rs.19,60,000/- with 18% interest from the date of appeal. Thereafter the petitioners filed an FA Sr no. 857 of 2016 before the State Commission, Chennai, which could not be represented and is now under process for listing along with an application for condonation of delay.
It is contended by the petitioners that the State Commission partly allowed the FA no. 146 of 2016 vide order dated 28.02.2020 enhancing the award of compensation towards loss of motherly care, love and affection to respondent nos. 2 and 3 at Rs.5,00,000/- instead of Rs.4,00,000/-. Without appreciating the error committed by the District Forum as well as reasons given by them. This order is impugned is the present revision petition.
We have heard the learned counsel for the petitioners as well as respondent nos.1 to 3. As respondent no.4 remained unrepresented despite notice, he was proceeded ex parte.
Learned counsel for the petitioners argued that the order of the District Forum and the State Commission were contrary to law and the enhancement of compensation by the State Commission from Rs.4,00,000/- to Rs.5,00,000/- was without justification. It is contended that there was no negligence on part of the petitioners and the late wife of respondent no.1 had been under the care and medical attention of the petitioners till her death. It is contended that the laparoscopic sterilisation was an elective procedure which was done after due consent. Negligence is denied as the patient had revived and died only after two hours 45 minutes of being shifted to a hospital with facility for ventilator. Compensation of Rs.12,60,000/- is stated to be abnormally high. It is also contended that ‘professional or medical negligence’ has not been proven in the instant case. The petitioner has urged that a doctor can be held guilty of medical negligence only when he falls short of the standard of reasonable medical care and not merely because he made an error of judgment. He has relied on the judgment of Dr Ganesh Prasad and Anr V Lal Janamajay Nath Shahdeo, I (2006) CPJ 117 (NC) of this Commission and has stated that since proper treatment was given and death occurs due to process of disease and its complications, negligence of the doctor and the hospital cannot be held. He has also relied on the judgment of the Hon’ble Supreme Court in the case of Davarakonda Surya Sesha Mami and Ors vs Care Hospital, Institute of Medical Science and Ors (2022) (SC) 753 which held that every death in institutionalised environment of a hospital does not necessarily amount to medical negligence on the hypothetical assumption of lack of due medical care. It is stated that family planning Consent Form supplied by the Government of Tamil Nadu had been signed by respondent no.1, and that but for the due negligence and efficiency of the petitioners would not have revived normalcy after the caradic arrest and hence, there was no deficiency in services.
Learned counsel for the respondent nos. 1 to 3 argues that the impugned order was passed on merits directing the petitioners to pay a sum of Rs.12,60,000/-. As this order was not complied with, the respondents filed an Execution Application no. 25 of 2016 to execute the award. It was at that point of time that the petitioners put in their appearance; FA no. 146 of 2016 was filed by respondents 1 to 3 for enhancement of the compensation awarded. It is also submitted that petitioners were duly served with summons; however, the petitioners chose not to contest the appeal. The appeal was allowed vide the impugned order dated 28.02.2020 and compensation was enhanced from 12,60,000/- to 13,60,000/-. Learned Counsel for respondent further submits that the respondents filed EA no. 03 of 2021, wherein the petitioners paid Rs.1,00,000/- and sought time of four months to pay the entire award amount. He also states that the petitioners have filed the present revision petition to condone the delay of more than 1 ½ years. It is also submitted that the award passed by the District Forum in CC no. 57 of 2014 was merged with the order passed in FA no. 146 of 2016. However, as on date the only decree is the one passed in FA No. 146 of 2016. Learned counsel for the respondent has relied upon this Commission’s order M/s Damden Properties vs Dr M V Paranjyothi in EA No.190 of 2018 in FA no. 321 of 2012 decided on 27.09.2018, wherein it has held that as per the doctrine of merger:
“there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below.”
The order of the District Forum in CC no. 57 of 2014 stands merged with the order in FA no.146 of 2016 by the State Commission. The order of the District Forum according to the respondents has not been challenged by the petitioners. It is also argued that in view of the concurrent findings on facts by the fora below, the revisional jurisdiction of this Commission is limited as per the law laid down by the Hon’ble Supreme Court.
From the foregoing, it is apparent that the District Forum and the State Commission have returned concurrent findings on facts. It is also manifest that the order of the District Forum has not been challenged by the petitioners till the respondents filed EA no. 03 of 2021 seeking execution of the order. The enhancement by the State Commission with regard to compensation for loss of mother’s love and affection by respondents 2 and 3 from Rs.4,00,000/- to Rs.5,00,000/- is based upon this Commission’s order in OP no. 289 of 1997 in Shri Joginder Singh vs Dr Rajeev Kumar Majumdar dated 13.08.2009 .
In view of the fact that the impugned order only confirms the finding of the District Forum and enhances the compensation on one ground, this revision petition is liable to succeed since the revisional jurisdiction of this Commission is cases where the lower fora arrive at concurrent findings on facts is limited is a position well established under the law. The Hon’ble Apex Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., (2011) 11 SCC 269 held that:
“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.”
Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors (2016) 8 Supreme Court Case 286 held:
“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”
Again, the Hon’ble Supreme Court in T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors, dated 05.04.2019 held as under:
“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”
In a recent judgment, the Hon’ble Apex Court in Rajiv Shukla vs Gold Rush Sales and Services Ltd., and Ors., (2002) 9 SCC 31 while affirming its earlier view taken in the case of Rubi (Chandra) Dutta vs United India Insurance Company (2011) 11 SCC 269 held that the National Commission has no right to interfere with the concurrent finding of facts of the Fora below in its Revisional Jurisdiction, as under:
“At this stage, it is required to be noted that on appreciation of evidence on record the District Forum as well as the State Commission concurrently found that the car delivered was used car. Such findings of facts recorded by the District Forum and the State Commission were not required to be interfered by the National Commission in exercise of the revisional jurisdiction. It is required to be noted that while passing the impugned judgment and order the National Commission was exercising the revisional jurisdiction vested under Section 21 of the Consumer Protection Act, 1986. As per section 21 (b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21 (b) of the Consumer Protection Act.”
In the result, I do not find any justification in the revision petition, which is accordingly dismissed as without merits. Order of the State Commission is hereby confirmed.