Max Super Speciality Hospital vs Syed Zakir

This petition has been filed under section 58(1)(b) of the Act 2019 in challenge to the Order dated 21.09.2021 of the State Commission in appeal no. 560 of 2021 arising out of the Order dated 07.07.2021 of the District Commission in complaint no. 173 of 2020.

Vide Order dated 14.02.2022 the matter was heard and reserved by a coordinate bench. Vide Order dated 16.02.2022 one Hon’ble Member of the coordinate bench recused himself. Vide Hon’ble President’s kind minute dated 21.02.2022, passed on the administrative side, the matter was listed before this bench.

We have heard the learned counsel for the petitioner hospital (the opposite party no. 1 before the District Commission) and have perused the material on record.

The petition has been filed with delay of 15 days. There is no application for condonation of delay. However, in the interest of justice, to provide fair opportunity to the petitioner hospital, and to dispose the matter on merit, the short delay is condoned.

Succinctly put, the respondent (the complainant before the District Commission) had filed a complaint against the petitioner hospital (the opposite party no.1 before the District Commission), its managing director (the opposite party no. 2) and two doctors (the opposite parties no. 3 and 4) apropos the death of his pregnant wife and the baby she was carrying in her womb.

In the course of adjudication, the petitioner hospital filed an interlocutory application with an averment that the complainant has made false and frivolous allegations and also that the complainant is not a ‘consumer’ and his “petition” is not a ‘complaint’ under the Act 2019, and sought dismissal of the complaint.

The application inter alia also contained reference to the date of the death of the patient and disputed the same as was alleged in the complaint. The District Commission disposed of the application by recording that the dispute regarding the date of the death of the patient would be considered at the time of passing the final orders. The Order of the District Commission is reproduced below:

Dt: 7.7.21

Comp. GRR

Opt 1 to 4: SM

Stage to hear on IA

Heard both the counsel OP counsel disputed the date of death of patient. This matter will be turn in to consideration at the time of passing final orders in main complaint for of PW-1 finally

Call in 19.7.21

Sd/- 7.7.21

(as per the translated copy provided by the petitioner hospital with its petition)

Appeal filed by the petitioner hospital was dismissed by the State Commission at the admission stage vide its impugned Order dated 21.09.2021. Extracts of the appraisal made by the State Commission, as contained in para 4 of its Order, are reproduced below:

The respondent/complainant filed a complaint alleging medical negligence on the part of the appellant / Opposite Party it requires detailed evidence from both sides in order to elicit the truth with respect of the dispute raised by the complainant. When the wife and baby of the respondent / complainant died in the hospital certainly there is an allegation of medical negligence in the complaint which requires adjudication and the complainant is definitely a ‘Consumer’ as per the provisions of the Consumer Protection Act, 2019. Further, with respect to maintainability, the District Commission shall adjudicate at the time of deciding on merit. Hence, there is no necessity to file IA to decide on maintainability. The District Commission rightly dismissed the IA. We found no reason for interference. Hence, the following;

ORDER

The appeal is dismissed.

The District Commission is hereby directed to dispose the complaint expeditiously after detailed evidence from both sides.

Forward free copies to both parties.

(as per the copy of the State Commission’s Order provided by the petitioner hospital with its petition)

The State Commission observed that there is certainly an allegation of medical negligence in the complaint which requires adjudication, the complainant is definitely a ‘consumer’ under the Act 2019, there was no necessity to file an interlocutory application to decide on maintainability and the District Commission shall adjudicate the maintainability at the time of deciding the case on merit. As such it found no reason for interference. And it directed the District Commission to dispose the complaint expeditiously after detailed evidence from both sides.

Learned counsel for the petitioner hospital submits that the complaint merits to be dismissed as it is without substance, the allegations are false and frivolous. The submission is that the allegations written therein do not deserve to be treated as a ‘complaint’ under the Act 2019, and the continuance of the case would only harass the hospital and the doctors concerned.

We note that there is no dispute in so far as the pecuniary and territorial jurisdiction of the District Commission is concerned. We also note that there is no justification or worthwhile reason to raise dispute in respect of the complainant being a ‘consumer’ under the Act 2019. As such these preliminary issues re maintainability are not relevant to the matter at hand.

As regards whether the allegations made in writing by the complainant at all qualify to be a ‘complaint’ under the Act 2019, we may note that as per its definition, contained in Section 2(6) of the Act 2019, "complaint" means any allegation in writing, made by a complainant for obtaining any relief provided by or under this Act.

The revision petition has been filed in challenge to the State Commission’s Order which confirmed an interlocutory order of the District Commission. Since the District Commission is still in the process of adjudicating the complaint on merit, we are consciously refraining from entering into a critique of the contents of the complaint so as not to colour the vision of the District Commission in any manner whatsoever. It should suffice to observe that the perusal of the complaint shows that it contains allegations which have manifest as well as implicit ingredients of ‘deficiency’ / ‘negligence’ as well as of ‘unfair trade practice’. As such it requires to be adjudicated on merit as per the law in the normal wont i.e. by affording opportunity to the opposite parties to file their written versions, to the complainant to file rejoinder thereto, and to all parties to adduce evidence and argue their respective cases.

An interlocutory application with an averment that the allegations are false and frivolous and an assertion that it is not a ‘complaint’ as envisaged under the Act 2019 does not appear to be a good substitute for completing the pleadings and filing the evidence and arguing the case on merit. It appears more in the nature of a contrivance to delay the proceedings and to keep them on hold anyhow.

We find no jurisdictional error or material irregularity or miscarriage of justice having been occasioned in the impugned Order. Nothing warrants interference with the District Commission deciding the complaint on merit as per the law.

We may add that when allegations of medical negligence resulting in death are made, and when the allegations in the complaint contain manifest and / or implicit ingredients of ‘deficiency’ / ‘negligence’ and / or ‘unfair trade practice’, the case requires to be adjudicated by completing the pleadings, taking the evidence and hearing arguments; whether or not the allegations would sustain is to be decided on the pleadings and the evidence, on merit.

In the instant case, the fight is recognizedly amongst unequals, on the one side we have an ordinary common consumer, without wherewithal, on the other side we have the petitioner hospital, with wherewithal. Rather than allowing the complaint to be adjudicated in the normal wont before the forum of original jurisdiction i.e. the District Commission, the petitioner hospital chose to agitate on an interlocutory application seeking immediate and outright dismissal of the complaint and even after the District Commission had aptly disposed the same, it pursued such worthless application right upto this Commission. We find such approach in such facts and circumstances to be impedimentary and meant to procrastinate the matter before the forum of original jurisdiction and also to put the complainant to trouble and prejudice by making him go from the forum of original jurisdiction to the forum of appellate jurisdiction and then to the forum of revisional jurisdiction on a meritless interlocutory application while his complaint per se pends adjudication in the forum of original jurisdiction. This is not viewed favourably.

In the light of the afore discussion, we find no hesitation in dismissing the revision petition with cost of Rs. 1 lakh, out of which Rs. 50 thousand shall be paid to the complainant and Rs. 50 thousand shall be deposited in the ‘Consumer Legal Aid Account’ of the District Commission within a period of four weeks from today.

The parties are directed to appear before the District Commission on the date fixed by the District Commission.

In the eventuality, for whatever reason, the complainant or the opposite parties no. 3 and no. 4 (doctors) do not appear before the District Commission on the date fixed, the District Commission shall issue notice to them and ensure that they are duly intimated of the proceedings before the District Commission.

The District Commission is requested to dispose of the complaint on merit as per the law as expeditiously as possible.

The Registry is requested to send a copy each of this Order to all parties in the petition as well as to the District Commission immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately.