JOSLIN CHRYSOSTOM vs S. LOURDU

THIS appeal is directed against the order dated 10.2.1997 in O.P. No. 137/93 on the file of the District Consumer Disputes Redressal Forum, Nagercoil.

THE appellant is the opposite party while the respondent is the complainant. The complainant, it appears, was assaulted by her enemies on 26.11.1992 at 6 p.m. near her house. She reported the matter to Nesamani Nagar Police Station. The Station House Officer (S.H.O.) on the Police Station issued a memo for the treatment of her injuries alleged to have been sustained in the occurrence. She was admitted in the Government Headquarters Hospital on the Police Memo as an inpatient and eventually got discharged on 28.11.1992. The Government Headquarters Hospital, Nagercoil, issued a certificate to the following effect : "Pain Abdomen, Bodily Pain, No external injuries Opinion : injury simple."

Thereafter, it appears, she took treatment from the opposite party, doctor. She would claim that she was there as an inpatient for sometime. During her stay there, she had taken x-ray and scan. She would also allege that she spent a huge amount for the stay in the hospital as an inpatient. When she was discharged from the hospital, she prayed for a certificate and particulars of treatment to which the opposite party, doctor, refused to issue. She would state that the act of the opposite party, doctor, in refusing to issue the certificate and other particulars of treatment given to her in the said hospital would amount to deficiency in service on his part. For such deficiency in service, she claims compensation in a sum of Rs. 50,000/-.

The opposite party doctor in pith and substance would contend that she was not at all admitted in their hospital as an inpatient. She took treatment as an outpatient for a specified period. There is no deficiency in service on their part. To say that x-ray and scan report has been taken is shorn of the reality of the situation. The complaint is liable to be dismissed as such.

THE Forum below after taking into consideration the materials placed on record recorded a finding that the refusal on the part of the opposite party hospital to issue certificate and the particulars of treatment given to her would tantamount to deficiency in service and ultimately directed the opposite party to pay a sum of Rs. 5,000/- by way of compensation besides cost of Rs. 500/-. Aggrieved by the order as above, the opposite party resorted to the present action by engaging a Counsel of their choice namely learned Counsel Mr. C. Godwin.

ON service of process, the respondent/complainant entered appearance through a Counsel of her choice namely learned Counsel M. Richard Dass. We heard the arguments of learned Counsel Mr. D. Yesa, representing learned Counsel Mr. C. Godwin, appearing for the appellant and learned Counsel Mr. M. Richard Dass, appearing for the respondent/complainant. From the pith and substance of the submissions of respective learned Counsel appearing for the parties, the points as below emerge for consideration. (1) Whether the order of the Forum below is sustainable in law, on the facts and in the circumstances of the case ? (2) If for any reason, this Commission comes to the conclusion that the order of the Forum below is not sustainable in law, on the facts and in the circumstances of the case, and the complaint, as filed, ought to have dismissed, is it permissible for this Commission, on the facts and in the circumstances of the case, to record a finding that the complaint, as instituted, is a frivolous or vexatious thereby mulcting liability on the complainant to pay cost in a reasonable sum to the opposite party?

POINT No. 1 : The gravamen of the accusation as hurled by the complainant as against the opposite party doctor is that he refused to issue a certificate and treatment particulars and such act on the part of the opposite party doctor would tantamount to deficiency in service on his part. The Forum below also affixed its seal of approval to such a hue of view as projected by the complainant. The Forum below, while recording such a finding, we are of the view, was rather oblivious of the legal position as of obtaining now and perhaps was the reason for the Forum below to have rendered such a finding.

PERTINENT it is at this juncture to refer to a decision emerging from the National Commission in the case of Poona Medical Foundation v. Maruttrao L. Tikare & Anr., I (1995) CPJ 232 (NC)=1995 (1) CPR P. 661. In that case, the question that arose for consideration was as to whether the non-furnishing of the medical papers of the hospital would amount to deficiency in service on the part of the hospital. The National Commission considered the question and answered the same in the negative. While doing so, what the National Commission observed is relevant and such aspect of the matter is getting reflected in paragraph 4 at page 662 which runs as under : "1. We find that there is merit in the challenge raised by the appellant against the award of Rs. 10,000/- as compensation on the ground that failure on the part of the appellant to supply to the complainant copies of the hospital records pertaining to the surgical operation performed on the complainant constitutes "negligence". There can be no question of negligence by reason of such failure to supply the papers unless there was a legal duty cast on the hospital to furnish such documents to a patient. The appellant hospital had duly given to the complainant at the time of his discharge, the discharge card and slip and also a case sheet wherein the particulars of the diagnosis and the treatment administered to him had been mentioned. No material has been placed before us to show that either by law or by convention or by practice there was any obligation on the part of the hospital to furnish to the patient full particulars of the surgical operation performed on him. It has also to be stated in this context that there was no arrangement of hiring of the service of the hospital by the complainant for consideration with respect to the demand made by the complainant on the hospital for being furnished, such particulars and papers relating to the operation. Hence, we do not find it possible to uphold the view expressed by the State Commission that the failure on the part of the appellant hospital to accede to the request of the complainant for being furnished all the papers relating to his surgical operation and treatment constituted "negligence" and "deficiency in service" within the meaning of those expressions as defined in the Consumer Protection Act. We accordingly set aside the order of the State Commission in so far as it has awarded Rs. 10,000/- as compensation to the complainant on this count."

The decision of the National Commission is applicable in all fours to the facts of the instant case. No material worth the name in the instant case had been placed on record to point out that the complainant was legally entitled to have the copies of the documents to be furnished to her. In this view of the matter, there is no other go for us to reverse the finding of the Forum below on this aspect of the matter and we accordingly do so. In this view of the matter, it cannot at all be stated that the order of the Forum below is sustainable in law. We answer the point No. 1 accordingly.

Point No. 2 : The sequence of events or incidents that took place in the alleged treatment of the injuries sustained by the complainant both by the Government Headquarters Hospital at Nagercoil and the treatment given by the doctor of the opposite party hospital, if related, would enable us to arrive at a just conclusion in recording a finding on this point. Even according to the complainant, she was assaulted by her enemies on 26.11.1992 at 6 p.m. near her house and she reported the matter to Nesamani Nagar Police Station. The SHO of the Police Station referred her to the Government Hospital for the injuries alleged to have been sustained by her in the occurrence. The Government Headquarters Hospital, it appears, admitted her in the hospital on the basis of the police memo and subsequently discharged her on 28.11.1992. While discharging her from the hospital, it was found that except the fact that she complained of certain pain on her abdomen and other parts of her body, no external injury was found on her body. The hospital, further opined that the injury is simple.

THE complainant, it appears, not satisfied with the treatment meted out by the Government Headquarters Hospital, Nagercoil, approached the opposite party, doctor, for taking treatment. She would state in the complaint in a flamboyant style that she was admitted as an inpatient in the hospital for pretty long period, that is to say, from 28.11.1992 till 17.12.1992 after expending a huge amount. She would also further claim that on the advice of the Hospital Authorities, x-ray and scan were taken by spending huge amount. For such hyperbole statements, no material worth the name in the shape of document for the payment of charges to the opposite party hospital had been placed on record by way of exhibits. No material worth the name had also been placed on record that x-ray and scan were taken on the advice of the opposite party Hospital Authorities. If really, the complainant was subjected to the x-ray and scan either by the opposite party Hospital Authority or different centre on the advice of the opposite party Hospital Authority, she could have had the necessary receipt for the payment of charges for such x-ray and scan or the medical prescription given by the opposite party doctor for taking x-ray and scan in some other hospital. No material worth the name had been filed on record on such aspect of the matter by way of marking certain exhibits. It appears that the complainant was desirous of prosecuting her assailants in a Criminal Court as if they had caused on her some serious injuries and for which course she appears to have demanded from the opposite party doctor for the issuance of a certificate. At this juncture, we may reiterate for the sake of emphasis that the Government Headquarters Hospital, Nagercoil, found on her present no external injuries at all and she simply complained of certain pain over her body to the said hospital while she was admitted in the hospital on a police memo. THE launching of a complaint as against the opposite party doctor, on the facts and in the circumstances of the case, can''t be anyone other than blackmailing the opposite party doctor. THE act of the complainant in launching a complaint as against the opposite party doctor for the refusal to issue a certificate and other particulars of treatment he had given to the complainant when especially there is no obligation caused on him to do so, would definitely tantamount to institution of a complaint as against the opposite party doctor either frivolously or vexatiously. In view of our finding on point No. 1, it goes without saying that the appeal has to be necessarily allowed and the complaint as instituted by the complainant against the opposite party doctor to be dismissed.

THIS Commission is a Forum of first appeal. The appeal before this Commission is a continuation of the original proceeding. Such being the case, this Commission, as an Appellate Forum, is having almost all the powers of a Forum of first instance, namely the Forum below to sift, scan and analyse the materials placed on record as a Forum of first instance and come to a conclusion of its own, of course, for different reasons. Thus, we are possessed of the powers of the Forum of first instance. Once we come to the conclusion that the complaint as instituted by the complainant against the opposite party doctor is either frivolous or vexatious, it goes without saying that the complainant can be mulcted with the liability on the dismissal of the complaint on the ground of the same being frivolous or vexatious for payment of cost in a sum not exceeding Rs. 10,000/- as had been provided in Section 26 of the Consumer Protection Act, 1986 [for short, "the Act"]. On the facts and in the circumstances of the case, we rather feel that if the complainant is directed to pay to the opposite party doctor a sum of Rs. 1,000/- by way of cost for the institution of such frivolous or vexatious complaint, it won''t be besides justice. We accordingly do so. In fine, the appeal is allowed; the order of the Forum below is set aside and the complaint itself is dismissed. We direct the complainant to pay to the opposite party doctor a sum of Rs. 1,000/- by way of cost for the institution of a frivolous or vexatious complaint as against the said doctor. This amount of Rs. 1,000/- is to be paid within a month from the date of our order or otherwise this amount of Rs. 1,000/- will carry interest @ 12% p.a. till realisation. We however make no order as to cost in this appeal. The order of ours as above is required to be complied with by the complainant within a month from the date of receipt of our order or otherwise the opposite party doctor is entitled to invoke the provisions of Section 27 of the Act. Appeal allowed.