NAGARMAL MODI SEVA SADAN SEVA SADAN PATH vs SHIV NATH PANDEY

DELAY condoned.

BY way of present revision petition, there is challenge to the impugned order dated 14.6.2006 passed Jharkhand State Consumer Disputes Redressal Commission, Ranchi (for short State Commission) by which petitioners appeal challenging order dated 23.9.2005, passed by District Consumer Disputes Redressal Forum, Ranchi, was dismissed with cost of Rs.5,000/-. Brief facts giving rise to the present revision are that, on 22.6.2003 brother of complainant Basukinath Pandey, was admitted In Nagarmal Modi Seva Sadan and on diagnosis, it was found that the patient is suffering from renal failure. Dr. A.K.Baidya accordingly advised the complainant for transplantation of kidney for which the complainant was asked to deposit Rs.3.25 lakhs being the cost of kidney transplantation. Accordingly, the said amount was deposited in between 22.6.2003 to 13.10.2003 in cash but the receipts issued by the petitioner hospital, show the deposit of Rs.1,50,000/- only. It is alleged that the patient remained in the hospital from 22.6.2003 to 13.11.2003 but petitioner hospital, as well as the doctor attached to the hospital failed to transplant the kidney for the reasons best known to them. Complainant had also arranged the donor of the kidney i.e. mother who was found to be fit for donation along with affidavit as suggested. Inspite of repeated requests, amount deposited with hospital was not refunded. Accordingly, legal notice was sent twice, on 13.12.2003 and again on 12.1.2004 asking hospital and the attending doctor to refund the aforesaid Rs.3.25 lakhs. But all efforts failed, resultantly a complaint was filed claiming refund of Rs.3.25 lakhs along with the compensation of Rs.5 lakhs on account of the deficiency in service on the part of the hospital and the doctor attached thereto.

Petitioners/opposite parties filed their response, wherein, they denied any deficiency on their part. However, it was admitted that the patient was admitted in the hospital on 22.6.2003 in a serious condition. On proper diagnosis, it was found that patient was suffering from renal failure and as such, patient was put on Heamodialysis with necessary supporting treatment to save his life. It is further stated that, since both the kidneys of the patient were non-functional, it required immediate transplantation. Respondent No.2 referred the patient to CMC, Vellore for kidney transplantation. It is further stated that respondent No.2 had issued certificate regarding estimated cost of kidney transplantation showing the estimated cost of Rs.1,50,000/-. Respondent No.2 is a highly qualified professional having specialization in Nephrology. The pathological tests of prospective donor i.e. the mother of the complainant was also done in order to find whether she is capable and fit to donate the kidney. The alleged payment of Rs.3.25 lakhs has been stoutly denied.

DISTRICT Forum allowed the compliant of the respondent, vide order dated 23.9.2005 and the operative part of its order read as under; 41. We find it a case of unfair trade practice on the part of the Ops. The complainant for such act of the Ops requires compensation which we assess at a sum of Rs.1,25,000/- (One lac twenty five thousand only.) 42. In the circumstances, Ops are directed to pay a sum of Rs.1,25,000/- as compensation to the complainant.

Aggrieved by the order of the District Forum, petitioner as well as respondent filed separate appeals.

STATE Commission vide impugned order disposed of both the appeals. It is contended by learned counsel for the petitioner that the respondent knowingly made false and concocted and inconsistent statements before the fora below regarding the dates and duration of admission of the patient. In fact, the patient was admitted only 9 days from (22.6.2003 to 1.7.2003) and again for 9 days from (22.8.2003 to 31.8.2003). Another contention is that the respondent got certificate dated 16.9.2003 from the petitioners regarding estimated expenses of Rs.1.5 lakhs for kidney transplant, so that he might apply for government grant. Petitioners in good faith issued that certificate but respondent has knowingly and falsely pleaded in his complaint that the said certificate was a receipt for money paid to the petitioners. Another contention is that petitioners hospital admittedly does not carry out kidney transplant surgery and has no facilities for the same and as such they could have never told the respondent that petitioners would carry out such surgery. It is also contended that petitioner rightly advised the complainant to go to CMC, Vellore, or some other higher reputed hospital because there was no such hospital in the whole of the State of Jharkhand where kidney transplant could be carried out and this fact was in the knowledge of the complainant that no kidney transplant could be carried out in Jharkhand.

ON the other hand, it is contended by learned counsel for the respondent that there are concurrent findings of two fora below and no legal issue is involved. Further, there is delay of about 40 days in filing of the revision petition which has not been explained by the petitioner. however, respondent being a poor person below poverty line was given financial help by the Government for treatment of the patient. Petitioners hospital realized Rs.1.5 lakhs from the Government for the treatment of the patient and it also made public notice through newspaper requiring six units of B negative blood whereas, in fact, there was no provision for the kidney transplant and as such, there has been deficiency in the service on the part of the petitioners.

DISTRICT Forum, while allowing the complaint in its order dated 29.9.2005 has held the petitioner guilty of unfair trade practice. The relevant findings of DISTRICT Forum read as under ; The complainant has also filed Photostat copy of a communiqu published in the newspaper. From its perusal, it appears that kidney of Basuki Nath Pandey was to be transplanted for which B Negative Blood was required while admitted in Seva Sadan under the treatment of Dr.Baidya, who has fixed the date of transplantation of kidney on 17.10.2003 and so request was made to the public at large to donate B Negative Blood to save his life. Had there been no such assurance, what was the necessity of such publication in the News paper ? These papers are specific evidence showing to the effect that the hospital Management assured of transplantation of kidney of the patient, Basuki Nath Pandey, paper publication, on the other hand, also confirms this fact. On the other hand, Ops have denied this allegation and has stated of referring the patient on 27.6.2003 to CMC, Vellore or any other higher institute for proper evaluation and further treatment. Bed Head Ticket has been filed by the Ops. In the margin of the prescription, such reference appears to have been made to CMC, Vellore or any other higher institute. Discharge summary Slip also bears the same fact, but the same appears to have been noted after prescribing medicines and putting of signature of the doctor. On the other hand, the complainant has denied of any reference made by the Ops for getting the patient transferred to CMC, Vellore on affidavit. The original Discharge slip ha also been filed by the complainant, which does not bear this fact. The discharge slip was issued finally on 1.7.2003, but this fact is not mentioned either on 27.6.2003 or 1.7.2003. Therefore, the complainant has alleged that such reference has been manipulated in the Bed Head Ticket. Bed head Ticket remains in the possession of the hospital and such interpolation was very much possible at a later stage. We find force in such submission of the complainant. If there was no infrastructure in Nagarmal Modi Seva Sadan and if Dr.A.K. Baidya was not a surgeon, what was the purpose to detain a serious patient for a longer period. It appears that when the case lodged the opposite parties have managed to interpolate the aforesaid reference only in the Bed Head Ticket which was available with the hospital. Thus, on perusal of discharge summary, affidavits sworn in by Hira Devi and the patient. Certificate of the father and various tests of Hira Devi, the mother of patient, got to show that the same were required by the Management of the hospital for purpose of transplantation of kidney of Basuki Nath Pandey. The Hospital Management seems to be playing unfair trade practice with the patient and the complainant. It was submitted on behalf of the opposite parties that the complainant was in financial problem, and so, he was advised to visit the hospital for conducting dialysis twice in a week as a life saving measure. The complainant was never kept in the hospital for such a longer period nor was assured of transplantation of kidney. Further, plea has been taken on behalf of opposite parties that on the request of the complainant various tests of Hira Devi to find her fitness for donation of kidney was conducted and various affidavits were suggested to be obtained so that the complainant may not get difficulties out side the State, but, it is well known fact that CMC, Vellore, or any other higher institute does not believe on the test reports of outside Pathological and Radiological reports, but, rather they their own tests. The communiqu published in newspaper as also different affidavit and tests of Hira Devi suggest the allegation of the complainant, of unfair trade practice. Keeping of the patient on the assurance of transplantation of kidney for such a longer period is a fact suggesting the case of the complainant, we find the opposite parties playing unfair trade practice with the complainant. State Commission vide impugned order upheld the order of the District Forum.

It is apparent from the record that petitioners hospital did not have any infrastructure for kidney transplant nor there was any surgeon to conduct such operation. Inspite there of, the patient with such a serious condition was made to stay in petitioners hospital for such a long period. Moreover, as per various tests conducted on the patient, it clearly shows that unfair trade practice are being adopted by the hospital authorities as they had given advertisement in the newspaper asking the request made to the public for donation of negative B blood to show that the hospital is conducting kidney transplant.

UNDER these circumstances, we find no reason to disagree with the findings of the fora below. Present revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 (for short Act).

IT is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order. Recently, Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ; Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora. It is also well settled that no leniency should be shown to such type of litigants, who in order to cover up their own fault and negligence goes on filing meritless petitions in different foras.

THUS, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of the Act since, two fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction. THUS, present petition is hereby, dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).

PETITIONERS are directed to deposit the cost of Rs.10,000/- in the Consumer Legal Aid Account of this Commission, within four weeks from today. In case, petitioners fail to deposit the said cost within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization. List on 16th Sept., 2011 for compliance.