Jehangir Hospital vs Sajid Usman Shaikh

THIS revision petition under Section 21(b) of the Consumer Protection Act, 1986 is directed against the order dated 21.1.2011 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, "the State Commission") in complaint case No. CC/10/15. By the impugned order, the State commission has admitted the complaint against opposite parties 1, 2, 3, 4, 6, 7 and 9 and dismissed the same against opposite parties 5 and 8 and thereafter called upon the opposite parties 1, 2,3,4,6,7 and 9 to file the written version.

WE have heard Mr. S. K. Sharma, learned counsel representing the petitioners and have considered his submissions. Mr. Sharma, learned counsel for the petitioners would assail the impugned order on the ground that the State Commission has committed the jurisdictional error in admitting the complaint. The basis on his submissions is that firstly the impugned order has been passed by the State Commission without deciding an application dated 26.10.2010 moved by opposite parties 1, 2, 3, 6 and 7 raising objections about the maintainability of the complaint on several grounds and secondly that there was no justification for dismissing the complaint against the opposite parties 5 and 8. WE have noted down this submission only to be rejected because the impugned order was passed by the State Commission after hearing the counsel for all the parties before it and specifically on the question of maintainability. Although the order does not specifically say that the order was passed on the applications moved by opposite parties 1,2,3, 6 and 7 but for all intent and purposes, the State Commission considered and decided the application. As regards the dismissal of the complaint against opposite parties 5 and 8 is concerned, it may be noticed from the array of the parties that the opposite party No. 4-Dr. Keki Byram Grant was simply the Chairman of Ruby Hall Clinic while opposite party No. 8-Mr. Bomi Bhote was CEO, Ruby Hall Clinic and opposite party No. 7-Dr. Purvez Keki Grant was Dy. Managing Trustee, Ruby Hall Clinic. It is pertinent to note that the complainant had also impleaded Mr. Bomi Bhote as one of the opposite parties. It must be noted that the Ruby Hall Clinic was a party through opposite party No. 1. The State Commission did not consider necessary the presence of above named opposite parties 5 and 8. In our view, the State Commission has not committed any error by dismissing the complaint against them. Mr. Sharma has then invited our attention to certain observations made in the penultimate paragraph of the impugned order which are to the following effect:- "However, we are of the view that this case involves Res Ipsa Loquitur (things speak for themselves) and there is no necessity to have expert opinion and though expert opinion on the face of it is negative, we are of the view that this case requires to be admitted to consider the medical negligence as alleged by the Complainant on the part of both the hospitals and treating doctors on the basis of case law reported in 2010 INDLAW SC 364 (v. Kishan Rao V/s. Nikhil Super Speciality Hospital and Another)."

The grievance of the petitioner is that the State Commission has prejudged the merits of the complaint even at the threshold i.e. the admission stage itself and the said observation/finding of the State Commission may cause great prejudice to the opposite parties when the complaint is put to trial and finally decided by the State Commission.

We see some merits in this contention but would like to observe that the said observation/finding was just a tentative expression of opinion by the State Commission for arriving at the conclusion that the complainant had a prima facie case.

FOR the forgoing reasons, we dismiss the present petition with the observations that the said tentative opinion will not have a bearing on the merit of the matter when the complaint is put to trial.