Dr. Brijesh Kumar Misra and Dr. (Smt.) M. Misra vs State Consumer Disputes Redressal Commission and Nasir Ali

R.N. Misra, J.—This petition has been filed by the petitioners for quashing the proceedings of complaint No. 105 of 1998 pending before State Consumer Disputes Redressal Commission, U.P. Lucknow (hereinafter referred to as ''Consumer Forum'') for compensation filed by the respondent No. 2.

We have heard Shri R.B. Singhal, learned Counsel for the petitioners. None appeared for the respondents.

From the contents of the writ petition, it appears that Shuja Alia, the grandson of respondent No. 2 fell ill and was treated by the petitioners free of cost because the respondent No. 2 was their family friend and when his condition deteriorated, he was advised to be shifted to some better hospital in Meerut. He was admitted in Lok Priya Hospital, Meerut and in the intervening night of 14-15/9/1996 he died there. The respondent No. 2 lodged a criminal complaint No. 502/9/1997 against the petitioners in the Court of Judicial Magistrate, Muzaffarnagar, who summoned them for trial vide order dated 13.2.1997. The petitioners moved High Court u/s 482 Cr.P.C. for quashing the proceedings of criminal case. Proceedings No. 3641 of 1998 is pending before the High Court, Allahabad. In the meantime, the respondent No. 2 filed complaint before the Consumer Forum for compensation and refunds of the amount spent on the treatment.

In the counter affidavit filed by Shri Firoz Ali, son of respondent No. 2., it has been alleged that the patient was treated by the petitioners negligently, causing serious complications and in the last moment he was advised to be shifted to some better hospital in Meerut. There was acute negligence on the part of the petitioners while treating the patient. Further it has been alleged that payment was made to the petitioners for treatment.

The only point which has been argued before us is that when the criminal proceeding is already pending before the Magistrate concerned, no remedy can be sought before the Consumer Forum. It has also been argued that the petitioners did not charge any amount for the treatment of the patient because the respondent No. 2 was their family friend but respondent No. 2 has alleged that payment was made. As regards the payment for the treatment is concerned that is subject matter of evidence.

As regards the jurisdiction is concerned, there is no such law that the Consumer Forum cannot be approached when a civil or criminal proceedings is pending. This fact is not disputed that the services of the medical practitioners got after payment come within the jurisdiction of Consumer Forum. Section 2(d) of the Consumer Protection Act, 1986 defines the word ''Consumer'', according to which every persons who hires or avails the services for consideration come within the ambit of consumer. In the case of Indian Medical Association v. V.P. Shantha and Ors. 1995(3) CTR 412, it has been held by the Apex Court that the services of Medical Practitioners come under the definition of ''service'' as defined u/s 2(o) of the Consumer Protection Act, 1986.

No doubt the criminal complaint was filed earlier by the respondent No. 2 against the petitioners and after sometimes the complaint before the State Commission was filed for compensation and refunds of money paid to the Doctors. But on this very basis the Consumer Forum cannot be deprived of its rights to entertain such complaint on the same facts. The criminal proceeding launched by the complainant on the same cause of action is no bar to the maintainability of a complaint under the Consumer Protection Act. This view has been taken by Madras High Court in the case of M.K.S. Balsubramainain v. Jayalakshmi Planers 1992 (1) CTR 133. In the case of Powerware India Private Limited v. Economic Transport Organisation (2) 2006 CPJ 269, the same view has been taken. In that case the petitioners had booked raw material for transportation, which was misappropriated by the transporter and the FIR was lodged with the police. The criminal case u/s 407 IPC was pending. The petitioners filed complaint before the Consumer Forum also seeking relief for the value of the goods on the basis of deficiency in service on the part of the transporter The National Consumer Disputes Redressal Commission, while allowing the revision, held that the nature of two proceedings being different, the pendency of criminal case would not come in the way of Consumer Forum in granting the relief in the complaint.

The learned Counsel for the petitioners has cited Jacob Mathew Vs. State of Punjab and Another, and has contended that the norms for fixing the liability of negligence on the Doctors have been given in the said judgement. He has further contended that the proceeding before the Consumer Forum cannot be allowed to continue in the light of the said judgement. We have perused the aforesaid judgement. In that case the appellant had challenged the order passed u/s 482 Cr.P.C. by the Punjab & Haryana High Court. The appeal was allowed and certain observations were made for fixing the liability of medical practitioners in respect of negligence. The proceedings before the Consumer Forum are not treated as criminal proceedings. The respondent No. 2 has moved the Consumer Forum for compensation regarding negligence. The petitioners can take the help of the decision given in Jacob Mathew''s case in the criminal case pending against them. In the case of Indian Medical Association v. V.P. Shantha and Ors. (3) 1995 CPJ 412, referred to earlier the Hon''ble Supreme Court found itself unable to subscribe the view that merely because the medical practitioners belong to the medical profession, they are outside the purview of the provisions of the Consumer Protection Act. The Court held that medical practitioners though belonging to the medical profession, are not immune from a claim for damages on the ground of negligence. The fact that they are governed by the Indian Medical Council Act and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils is no solace to the person who has suffered due to their negligence and the right of such person to seek redress is not affected.

In view of above discussions, we are of the opinion that this petition is devoid of merits and is liable to be dismissed. Hence, the petition is dismissed. No order as to cost.