AJIT KUMAR SINGH vs BALMIKI CHOUBEY

BEING aggrieved by the ex parte order dated 28.10.2003 passed by the District Consumer Forum, Garhwa in Complaint Case No. 26/2002, this appeal has been preferred, whereby the State has been held liable to pay a sum of Rs. 1,00,000/- as compensation to the minor children of deceased Smt. Kusum Devi although the State has not been made a party by the complainant.

IN this appeal, a limitation petition has been filed on 3.2.2004 for condoning the delay. According to the office report, the limitation ex-pired on 27.11.2003 whereas the instant appeal was filed on 3.2.2004. Mr. Jaiswal, learned Counsel appearing on behalf of the appellant submitted that since the order was passed ex parte, the appellant was not aware of the order. Admittedly, pursuant to the notice by the District Forum, the appellants appeared and filed the show cause on 24.1.2003 and since then they remained absent throughout the proceedings. Ultimately ex parte order was passed on 28.10.2003. Mr. Jaiswal further submitted that the order was communicated to the Civil Surgeon on 17.4.2003 and from the letter of the Civil Surgeon the appellant came to know about the order. We heard the learned Counsel for the opposite party/appellant and the complainant/respondent in person and perused the limitation petition. Admittedly, the order was passed on 28.10.2003. The appellants, no doubt, appeared and filed their show cause in the Court below as far back as on 24.1.2003 and remained absent for the reasons best known to them. However, in the facts and circumstances of the case, the delay in filing the appeal was condoned subject to the condition that the appellant would pay a sum of Rs. 1,000 by way of cost to the complainant, who was appearing in person, within a week. Briefly stated, the facts of the case are that the compainant''s/respondent''s daughter Smt. Kusum Devi used to be tortured and assaulted by her husband, father-in-law, mother-in-law and sister-in-law for which she made a complaint to the Garhwa Police Station. On her complaint, Police registered Sanha being SDE No. 365 dated14.5.2000 and sent her to the Sadar Hospital, Garhwa for treatment of her injury. It was alleged that under an influence of her husband and her father-in-law the appellant No. 1, Dr. Ajit Kumar Singh did not submit her injury report to the Garhwa Police Station, subsequently, the same accused persons whose names are mentioned in the Sanha dated 14.5.2000, killed her on 6.9.2002 i.e., more than two years after the earlier incident. In the post-mortem, in which appellant No. 1 was also a participant mentioned the reasons for her death as "due to poisoning". The complainant/respondent alleged that in collusion with the accused person, the appellant submitted a false post-mortem report and claimed that due to non-submission of the injury report, the accused person ultimately murdered Kusum Devi on 6.9.2002. As a result, the Complaint Case No. 26/2002 was lodged in the Forum below by the complainant/respondent. After receiving the notice from the Court below, the opposite parties/appellants sought advice from the Civil Surgeon, Garhwa through letter dated 3.4.2003 who vide his Letter No. 472/17.4.2003 requested the Public Prosecutor, Garhwa to take all necessary action on behalf of the appellants in the aforesaid complaint case. The Public Prosecutor, who conducted the case, failed to instruct the appellants to remain physically present on all the dates fixed in the cases, as a result, the appellants failed to attend the proceedings of the Court and even failed to submit their evidence although the show cause was filed on 24.1.2003. Ultimately, the case was decided ex parte, resulting the above mentioned order dated 28.10.2003.

Being aggrieved by the order dated 28.10.2003 passed by the Forum below the appellants/opposite parties preferred this appeal.

IN the memo of appeal as well as rejoinder to the written arguments of the respondent, the appellants contended that the present case is not maintainable under the Consumer Protection Act. Since the respondent/complainant is not a consumer under Section 2(1)(d) of the Consumer Protection Act, as there was no such allegation by the complainant/respondent that any payment was made to the hospital of the concerned doctor/appellants. The appellants also annexed the written arguments filed by the respondent, the certificate being No. dated 27.9.2004 issued by the Civil Surgeon-cum-CMO, Garhwa Hospital, which transpires that the Sadar Hospital which is the Government Hospital does not charge fee in any form from the patients for their treatment. He also submitted that although the impugned order was not directly against the appellants yet they filed this appeal. Ultimately, the appellants had to face the actual consequence and they would be affected by the order, as per the Annexure 6 dated 22.1.2004. Moreover the entire case is based upon the probability and throughout the entire case, no medical negligence/deficiency in service has been made against the appellant doctors. Sending all injury report to the Police Station is not the duty of the doctor of the hospital, it is the duty of the office staff of the concerned Government Hospital. Mr. Praveen Jaiswal, the learned Counsel for the appellant doctor has placed the same points in his arguments as pleaded in memo of appeal and the rejoinder/reply to the written arguments filed by the respondent/complainant. His main contention is that non-sending of the injury report dated 13.5.2000 to the police, is not a medical negligence on the part of the doctors/appellants in view of Section 2(1)(g)(o) of the Consumer Protection Act. He submits in ordinary course the Police Officer, who investigates the matter collects the injury report from the authority concerned. As such, in the case in hand, it was the prime duty of the police to collect the injury report in relation to the occurrence dated 13.5.2000. He submitted the appellants/doctors cannot be held liable for non-sending the injury report to the police.

WE have carefully perused all the documents/materials on record as well as have heard the arguments of the learned Counsel for the appellants in detail. We have given the matter a a deep thought and find that no negligence has been proved against the appellant doctor, in respect of injury, treatment and preparing of post-mortem report undertaken by them in this case. Hence, raising the question of any negligence or deficiency in service on the part of the appellants is not sustainable. In our opinion, the charges levelled against the appellant''s doctor are baseless and in-deficient. The impugned judgment passed by the Court below is not sustainable. We find the Forum below has not correctly appreciated the materials available on record. In the result, the appeal is allowed and the ex parte order passed by the lower Forum is hereby set aside. Since the findings of the Court below are not based on correct apprisal of the law and facts of the case. Accordingly, the requisite amount of Rs. 25,000/- to be refunded to the appellant. The parties shall bear their own costs.

THE above mentioned appeal, filed by the appellant stands disposed of in above terms.

LET a copy of this order be sent to the parties or hand it over to their respective Counsel forthwith for needful. Appeal allowed.