Naba Kumar Nanda vs Dr. Nurul Islam & 2 Ors

Dr. S. M. Kantikar, J

This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the order dated 25.04.2017 passed in First Appeal No. 64 of 2016 by West Bengal State Consumer Disputes Redressal Commission, Kolkata (for short, 'the State Commission') whereby the State Commission allowed the appeal of the opposite parties and set aside the order of the District Consumer Disputes Redressal Forum, Purba Medinipur (in short, 'the District Forum'), and, consequently, the complaint of the complainant was dismissed.

The brief facts are that the consumer complaint for alleged medical negligence filed by the Complainant/Petitioner before the District Forum was allowed and the OPs No. 1 and 2 were directed to pay Rs.1 lakh and the OP No. 3 was directed to pay Rs. 4 lakh as compensation alongwith litigation costs of Rs.9,000/-. Being aggrieved, the OPs preferred First Appeal No. A-64 of 2016 before the State Commission. The State Commission, after hearing the parties, allowed the appeal and dismissed the complaint on the ground of lack of pecuniary jurisdiction of the District Forum. Being aggrieved by the impugned order, the Complainant/Petitioner has filed this revision petition.

We have heard the learned counsel for both the parties and perused the material on record. Learned counsel for the petitioner submitted that the OPs did not raise the ground of lack of pecuniary jurisdiction before the District Forum, but it was raised during the appeal. The complainant in his complaint prayed for total sum of Rs.19,90,000/-, however, the State Commission erroneously added Rs.4,50,000/-, as an admitted cost of the treatment i.e. cost of service hired. The complainant had never prayed for the cost of the treatment in its prayer clause. Learned counsel for the respondents made his submission that the District Forum did not have pecuniary jurisdiction as the aggregate value of the compensation was Rs.24,40,000/-, which exceeds the pecuniary limit of District Forum as prescribed under Section 11(1) of the Consumer Protection Act, 1986.

We have given our thoughtful consideration to the arguments adduced before us by both the parties. We have perused the complaint and the orders of the lower fora. The prayer clause in para 21 of the complaint is as under:

"21. That in such circumstances the complainant praying compensation from the opposite parties for their medical negligence.

Therefore, your honour would be pleased to direct the opposite parties:-

i) to give a compensation of Rs.19,90,000/- to the complainant for death of his wife by medical negligence of opposite parties.

ii) to pay a litigation cost of Rs.10,000/- to complainant for conduct of this case.

iii) And you honour would be pleased to grant any other relief to the complainant which for your honour may deem fit and proper."

From a bare perusal of para 21 of the complaint it is clear that the complainant had only prayed for compensation of Rs.19,90,000/- plus Rs.10,000/- i.e Rs.20 lakh. It is pertinent to note that the complainant neither prayed for reimbursement of the cost of treatment nor did he made any reference to Rs.4,50,000/- in his prayer clause. Thus, it was a wrong assumption on the part of the State Commission to include the cost of the treatment in the prayer when it was not claimed by the complainant. Section 11(1) of the Consumer Protection Act, 1986 is clear in this regard. It is reproduced below:

"11. Jurisdiction of the District Forum.-

(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed 1[does not exceed rupees twenty lakhs].

We note that the question of pecuniary jurisdiction was not raised in the District Forum (it was raised subsequently in appeal after the complaint was decided by the District Forum). We also note, without comment on merit, that the total amount awarded by the District Forum is Rs. 1 lakh and Rs. 4 lakh as compensation and Rs. 9000/- as litigation costs, which, in all, is within its pecuniary jurisdiction.

At this stage, without commenting on the merits of the complaint, lest it may cause prejudice to the parties, based on the foregoing discussion, we allow this revision petition and set aside the order of the State Commission.

The matter is remanded back to the State Commission to decide the appeal on merit. Both the parties are directed to appear before the State Commission on 22.10.2018.