Virumal Ladharam Rajani vs Shat Aayu Hospital And Research ...
2005 Latest Caselaw 102 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. Heard Shri Srivastava, Advocate for the petitioner and Shri Solat Advocate for respondents Nos. 1 and 2.

2. Rule. Rule is made returnable forthwith, by consent of the parties as per order dated 28-6-2004. Nobody appears for respondent No. 3, though served, A.G.P. appears for respondent No. 4.

3. By this writ petition under Article 227 of the Constitution of India, the petitioner, a consumer, who has filed a dispute before the District Consumer Forum, Nagpur, challenges the order dated 31-1-2004 passed by the Consumer Forum whereby it has rejected his prayer to call for expert opinion from the Civil surgeon. The Civil Surgeon, Nagpur, is respondent No. 4 in the present petition.

4. It appears that the petitioner has filed a complaint before the District Consumer Forum, Nagpur, against respondent Nos. 1 and 2 claiming compensation of Rs. Five lakh on account of gross medical negligence in the matter of treatment of his deceased son. The claim filed by him is denied by respondent No. 2 i.e. the concerned Shat Aayu Hospital and Research Centre and also respondent No. 2 i.e. the concerned doctor and also by respondent No. 3 i.e. the other hospital. The petitioner thereafter moved an application for filling expert medical opinion on record and said application was allowed on 3-5-2003 by the District Forum. He states that the petitioner thereafter tried his best to privately obtain expert's opinion but no private doctor is prepared to give such an opinion as the case relates to medical negligence and no doctor was ready as it creates unhealthy situation. Thus, constrained petitioner moved an application before the forum for calling expert opinion of Civil Surgeon, Nagpur. That application has been rejected by forum on 31-1-2004 observing that the Civil Surgeon is not party to the proceedings and it has no machinery to call for such opinion from any expert. The petitioner has made a grievance that he comes from a poor family and has no funds to approach State appellate forum. He further contends that rejection of his prayer is causing him serious prejudice because he has to prove negligence on the part of concerned doctors while treating his son. He points out that on earlier occasion, in Complaint No. 80 of 2003, the Additional District Consumer Disputes Redressal Forum at Nagpur, only has forwarded the case to the Dean, Government Medical College, Nagpur, for his expert opinion after examination of complainant therein. The petitioner has also produced copy of said interim order dated 11-5-2004 on record of this case.

5. The petition is opposed by Shri Solat, Advocate for respondents No. 1 and 2. He has contended that there is no medical negligence at all and respondent No. 1 & 2 are unnecessarily being harassed by the petitioner. He further states that the petitioner has got remedy of filing appeal before the State Forum and he must exhaust that remedy and writ petition filed before the High Court is not tenable. He states that the Civil Surgeon was not a part before the District Forum and the District Forum also does not have any machinery with it to call for such expert opinion from the Civil Surgeon. He, therefore, states that no interference is called for in the petition.

6. In view of this reply, the petitioner has filed an affidavit on 18-12-2004 expressing his inability to approach the State Appellate Forum under Section 15 of Consumer Protection Act, 1986. He has stated that he is engaged in petty business of selling Kirana items and has a small rented shop located at Indore and he is earning about 6000-7000 per month. He has thereafter mentioned that he is required to pay interest of Rs. 3,000/- per month on loan obtained from certain persons for the purposes of marriage of his daughters and after paying rent, very small amount is left with him. He further states that as the impugned order passed is only procedural one, instead of asking him to file appeal before the appellate forum, an order similar to interim order dated 11-5-2004 passed by the other authority i.e. Additional District Consumer Disputes Redressal Forum should be passed and expert opinion should be allowed to be brought on record.

7. Shri Srivastava, Advocate appearing for the petitioner contends that in view of the judgment of this Court in the case of Central Bank of India v. Kurian Babu, reported at 2004(6) Bom.C.R. 597 : 2004(4) Mh.L.J. 1006, the appeal against impugned order will not be tenable before the State Forum as the order passed by the District Consumer Forum on 31-1-2004 is only procedural order and does not in any ways decide the rights of the parties. He further contends that the District Forum is saying that it has no machinery but other Bench of the said forum has forwarded the case papers in other case to the Dean, Government Medical College, to obtain opinion. He, therefore, contends that for such petty issue, a poor person like the petitioner should not be required to file appeal by going to Mumbai. He contends that the matter is pending before the District Consumer Forum since 2002 and no local doctor is in a position to express any opinion in view of their mutual relations. He, therefore, states that under the circumstances, extra-ordinary jurisdiction of this Court under Article 227 of the Constitution of India should be exercised only for the purpose of enabling the petitioner to have expert opinion from the Civil Surgeon, Nagpur.

8. Shri Solat, Advocate for respondents Nos. 1 and 2 have relied upon the judgement of Madras High Court in the case of K. Pudur Primary Agriculture Co-op. Bank Limited v. State Consumer Disputes Redressal Commissioner, reported at 2001(1) C.P.R. 589, judgment of Calcutta High Court in Dr. Jagannath Mondal and Anr. v. Smt Soma Roji and Ors., reported at 1996(2) C.P.R. 129 and judgment of Allahabad Development Authority and Anr. v. Civil Judge (Junior Division), East, Allahabad, reported at 1998(3) C.P.R. 356, to contend that orders passed by the District Forum are appealable before the State Commission and, therefore, this Court should not interfere in writ jurisdiction.

9. After hearing the parties, it is to be noted that the provisions of Section 15 of Consumer Protection Act, 1986, provide for a remedy of appeal before the State Commission. The appeals are provided against the order passed by the District forums. The provisions of Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as Recovery of Debts Act) also provide for appeal to the Appellate Tribunal. Section 20(1) also uses word "order" only. This section has been interpreted by the Division Bench of this Court in 2004(4) Mh.L.J. 1066 (supra). The Debts Recovery Tribunal Pune, vide its order dated 16-6-2003 allowed the Central Bank of India to lead secondary evidence and respondent Nos. 1 & 2 i.e. the Debtor challenged said order before the Debts Recovery Appellate Tribunal in appeal. The Appellate Tribunal on 10-2-2004 allowed the said appeal. The High Court has considered said provision and has found that the appeal contemplated by Section 20(1) of Recovery of Debts Act, will not lie unless the impugned order formally adjudicates or affects the rights of parties. It is held that an appeal against the order which is merely a procedural order could not lie under that section. The order passed by the Debts Recovery Tribunal, Pune, was held to be procedural order and it was held that the appeal could not lie under Section 20(1) of Recovery of Debts Act. This view has been taken after placing reliance upon the judgment of the Apex Court in the case of one Central Bank of India Ltd. v. Gokal Chand, reported at A.I.R. 1967 S.C. 799, where the Apex Court was considering the provisions of Section 38 of Delhi Rent Control Act which uses the word "every order of controller made under this Act." and the Hon'ble Apex Court said that though these words are very wide, they do not include interlocutory orders which are merely procedural and do not affect the rights and liabilities of the parties.

10. Section 15 of the Consumer Protection Act, 1986, reads as under:

"15. Appeal - Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order. In such form and manner as may be prescribed:

Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not finding it within that period:

Provided Further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty per cent of that amount or twenty-five thousand rupees, whichever is less.)

Under the circumstances, it is apparent that the provisions of Section 15 also use the word "order" and therefore, it follows that the orders which are in any way adjudicate the rights of the parties or affect their interest can only be subjected to appeal under Consumer Protection Act, 1986. As the impugned order dated 31-1-2004 passed by the District forum does not in any way decide either the rights or liabilities of any of the attesting parties, no appeal is provided against it. It is further apparent that it is only a procedural order. The rulings on which reliance has been placed by Shri Solat, Advocate for respondents No. 1 & 2 have not considered this issue at all. Insofar as the judgment of Madras High Court reported at 2001(1) C.P.R. 589 (supra) is concerned, it appears that writ petition has been held to be not maintainable because the Cooperative Bank which approached the High Court in writ petition could have filed appeal before the National Forum under Section 21 of Consumer Protection Act. The discussion does not reveal whether the order is either interim or final. The ruling of the Calcutta High Court reported at 1996(2) C.P.R. 129 lays down that appeal under Section 21 of the Consumer Protection Act, is available not only against the judgment but also against the order. It appears that the Consumer forum has taken cognizance of the complaint of medical negligence and concerned doctor filed writ petition before the Calcutta High Court complaining that the complaint does not disclose any cause of action. The learned Single Judge has held that against order issuing said notice passed by the State Commission, remedy of appeal was available. The argument that the remedy of appeal was not available. The argument that the remedy of appeal was not available against an interlocutory order was negatived by placing reliance upon Section 17 of the Consumer Protection Act, 1986. However, the issue as is considered by the Division Bench of this Court in 2000(4) Mh.L.J. 1006 (supra) has not been considered by the learned Single Judge of the Calcutta High Court. The Allahabad High Court in 1998(3) C.P.R. 356 has passed by the Civil Judge, Junior Division Allahabad, in execution and the order of District Consumer Forum as also the order of State Commission. In para 4, however, Allahabad High Court has observed that the order dated 14-5-1998 passed by the State Commission is interlocutory order, not appealable to the National Commission under Section 19 of the Act. The facts discussed above also reveal that the coordinate Bench i.e. Additional District Consumer Redressal Forum, Nagpur, on 11-5-2004 in Complaint No. 80 of 2003 called for expert opinion from the Dean, Medical College, Nagpur, and for that purpose, forwarded the complaint and case before it to the Dean for obtaining his expert opinion. The expenses for that purpose were ordered to be borne by the complainant and same view could have been taken even by the District Forum which has passed the impugned order on 31-1-2004. The reason assigned that there is no machinery is totally irrelevant and it is not possible to sustain the said order. Even otherwise, considering the prayer made and the facts that other local doctors are not in a position to give any opinion in the matter of present petitioner, it will be in the fitness of things to forward his case to the Civil Surgeon, Nagpur, for medical expert opinion. At the same time, it will not be proper to ask him to go to Mumbai to file appeal against such order and to obtain the same relief.

11. The grievance of the respondents that remedy of filing revision under Section 17(1)(b) of the Act is available to the petitioner and thereof, writ petition should not be entertained is again without any substance. The said remedy is not as a matter of right and is in the discretion of State Commission. Further, considering the controversy, it will be inappropriate to direct the petitioner to approach State Commission at Mumbai for relief of this type.

12. Under the circumstances, writ petition is allowed. The order dated 31-1-2004 passed by the District Consumer Forum, Nagpur, is hereby quashed and set aside. The District Consumer Forum, Nagpur, is directed to forward the case papers of complainant with other necessary material to the Civil Surgeon, Nagpur, for obtaining his expert opinion about the grievance made by the petitioner before it. The cost for said purpose is to be incurred by the petitioner.

13. Writ petition is disposed of accordingly. Rule is made absolute in above terms. There shall be no order as to costs.