KAILASH MALHOTRA vs CENTRE FOR SIGHT

THIS revision petition under section 21 of the Consumer Protection Act, 1986, (for short "Act") has been filed against order dated 28.1.2011, passed by State Consumer Disputes Redressal Commission, Delhi (for short "State Commission").

PETITIONER herein, has filed a complaint for gross medical negligence on the part of the respondents before the State Commission. During pendency of the complaint, respondent Nos.1 and 2 filed an application for calling for the expert opinion. Vide impugned order, State Commission allowed that application. It is against this order, petitioner has come in revision before us.

It is the case of the petitioner, that she is a senior citizen who has suffered irreparable loss as she has lost her vision in left eye due to medical negligence of the respondents which has resulted in life long suffering and trauma making her permanently disabled and dependant. The respondents filed an application for calling for expert opinion. In the given facts and circumstances of the present case, there is no need for calling of the expert opinion and thus, the application filed by the respondents is a gross misuse of the process of law. Petitioner has strong apprehension that respondent no.2 (Dr.Mahipal Singh Sachdev) due to his powerful position " being Secretary of Intra-ocular Implant and Refractive Society of India -commanding great amount of hold and influence on eye surgeons all over India will definitely ensure that the medical report is "grossly biased and tilted" in his favour. Thus, order passed by State Commission is an erroneous order, which is not sustainable on facts of law and is liable to be set aside.

THE impugned order passed by the State Commission read as under ; "Heard on the application of OP no.1 and 2 for calling expert opinion. For a person who is not conversant with the medical procedure and the techniques adopted for removal of cataract of the eye, it will be difficult to determine whether there has been any negligence on the part of the doctors in this case. It will, therefore, be advisable to refer the matter to a panel of experts for their opinion. A copy of points of reference alongwith relevant medical papers, copy of the complaint and the written statement accompanied by copy of this order, be sent to Director, Guru Nanak Eye Centre, with the direction to form a board of experts, and to elicit their opinion particularly highlighting the points of negligence and to sent to this Commission by or before 21.2.2011." As per petitioner"s own case, it is a case of medical negligence, the State Commission rightly sought the expert opinion particularly highlighting the points of negligence, in order to arrive at a just and fair decision. The order passed by State Commission is in the interest of both the parties and no prejudice has been caused to the petitioner, by way of impugned order.

IT is well settled that the powers of this Commission as a Revisional Court under Section 21(b) of the Act, are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order or the fora below have acted with any material irregularity. Recently, Hon"ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ; "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."

Ince, the impugned order, does not suffer from any jurisdictional error or legal error and the same is based on sound reasoning, it does not call for any interference nor there is any infirmity or erroneous exercise of the jurisdiction.

HENCE, the present revision petition is not maintainable and the same is hereby, dismissed.

PENDING application stands dismissed.