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Judgment
Dr. S. M. Kantikar, J
This appeal has been filed under Section 19 of the Consumer Protection Act, 1986 against the order dated 13.02.2018 passed in C. C. No. 46 of 2018 by Delhi State Consumer Disputes Redressal Commission (for short, 'the State Commission') whereby the State Commission returned the complaint with the direction to file before the appropriate authority for adjudication.
The brief facts, in the instant appeal, are that the complainant, Smt. Vimla, wife of late Sh. Shiv Narayan Gupta, has filed a complaint before the State Commission for alleged medical negligence. She alleged that (Prof.) Dr. Ashwin Gupta, OP-1, had prescribed the medicine 'Ketosteril' for her husband's kidney ailment, but the Pharmacist, OP-3, wrongly gave the medicine 'Ketorpol-DT', a painkiller. Because of wrong medicine, her husband suffered several complications that resulted into death. The complainant had alleged deficiency in service and medical negligence against the OPs.
The State Commission on 7.2.2018 heard the complaint at admission stage, and held that the case needs trial, examination and cross-examination; and it returned the complaint, for filing before the appropriate authority having the jurisdiction therefor.
Being aggrieved by the impugned order of State Commission, the complainant filed this appeal.
We have heard the learned counsel for the appellant at admission stage.
The State Commission has inter alia observed as below:
"The matter was listed before us for admission hearing on 07.02.2018 when counsel for the complainant appeared and advanced his arguments for admission of complaint. We have perused all the papers/documents. We have given careful consideration to the matter.
The whole controversy in the case hinges on the point whether illegible writing of the doctor resulted in pharmacist issuing him medicine contrary to the one prescribed. On a careful consideration of the matter it is noticed that this is not a consumer dispute.
It is settled a position of law that a case where trial is required and examination and cross examination of evidence are required to be led into cannot be adjudicated under the provisions of Consumer Dispute Act, 1986."
The State Commission, in returning the complaint, relied upon the decision of this Commission in the matter of Bright Transport Company Ltd. vs. Sangli Sehkari Bank Ltd. II(2012) CPJ 151 (NC), in which it was held that complaints which are based on allegations of fraud, forgery, etc. and trial of which would require voluminous evidence and consideration are not to be entertained by this Commission. However, the facts are entirely different in the instant case. The complainant herein has not made any allegation of fraud or forgery etc. in her complaint.
In our view, this is a case of alleged medical negligence, alleged deficiency in service, which can be adjudged in the normal wont under the Consumer Protection Act, 1986.
We have perused the entire complaint and the medical record. We do not find any element of voluminous evidence and consideration, as may make the adjudication of this case unfeasible or proscribed in consumer fora.
We do not agree with the State Commission's observation that "this is not a consumer dispute." In our view, this is a case of alleged medical negligence (resulting in death), alleged deficiency in service. It is decidedly a "complaint" within the meaning of section 2(1) (c) of the Act 1986 and would convert into a "consumer dispute" within the meaning of section 2(1) (e) if the opposite parties dispute or deny the allegations contained in the complaint.
At this stage we are not inclined to comment on the merit of the case. We are consciously referring from further elaboration, to avoid coloring the vision of the State Commission.
The order dated 13.02.2018 passed by the State Commission is set aside and the matter is remanded back to the State Commission. The State Commission is requested to adjudicate on the complaint under the Act 1986.
The parties are directed to appear before the State Commission on 19.11.2018. In case of any objection from the opposite parties - respondents, the State Commission may not proceed further, and both sides (i.e. the appellant and the respondents, all) may appear before this Commission on 29.11.2018, for this Commission to consider the objection of the opposite parties - respondents and to pass appropriate order thereon.
The principal onus of informing the opposite parties - respondents about this order and the relevant dates, i.e. 19.11.2018 before the State Commission and 29.11.2018 before this Commission (if the contingency so arises), will be on the appellant - complainant.
The Registry is directed to send a copy of this order to all the parties and to the State Commission within ten days.