Nilesh G. Nimavat vs Medipicks

IN this revision filed under Section 21(b) of the Consumer Protection Act,1986(for short, ''Act ''), by the Petitioner/Complainant there is challenge to order dated 23.08.2010, passed by Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad (for short, ''State Commission '') in (First Appeal No. 422 of 2010).

PETITIONER had filed a Consumer Complaint against the Respondents/Opposite Parties on the allegations that he being a doctor, pursuant to the representation of the respondents, purchased a C -Arm Image Intensifier X -Ray Machine from them for a sum of Rs.6,30,000/ - After the installation of the said machine in the operation theater, petitioner performed operation with the help of the said machine. It is alleged by the petitioner that during the usage of the machine, he felt dizziness and suffered nausea, headache, redness of eyeballs and swelling, which are symptomatic of having absorbed excess quantity of X -Rays. Thereafter, again on next occasion petitioner used the said machine for a longer period in the operation, then again he developed the aforesaid problem. The said health problem occurred due to the extra emission of X -Rays. Therefore, petitioner complained about the same to the respondents. The employees of the respondents did visit but could not repair the machine and rectify the said problem. Hence, it is alleged that the respondent had supplied defective machine and not rectified the machine. Therefore, there is deficiency in service on the part of the respondents.

NOTICES issued by the District Consumer Disputes Redressal Forum (Additional), Rajkot (for short, ''District Forum '') were duly served upon the Respondents. However, they did not file any written statement and as such their right was closed. Thereafter, they did not appear before the District Forum. The District Forum, after going through the record of the case dismissed the complaint, vide its order dated 22.01.2010.

BEING aggrieved, petitioner filed an appeal before the State Commission, which upheld the order of the District Forum and dismissed the appeal at the admission stage itself.

HENCE , this revision.

ON 25.09.2012, counsel for petitioner gave a statement before this Commission that he does not claim any relief against respondent no.1. Thus, revision petition against respondent no.1 was dismissed being not pressed.

RESPONDENT No.2, who had been duly served, did not appear before this Commission. Accordingly, vide order dated 25.09.2012, passed by this Commission, respondent no.2 was proceeded exparte. 8. We have heard the learned counsel for the petitioner and gone through the record.

IT has been contended by the learned counsel for the petitioner that respondents did not contest the consumer complaint before the District Forum. Moreover, they did not cross examine the petitioner and as such the defects in the X -Ray machine, stand admitted by them. Further, the District Forum did not consider the affidavit of Dr.Hemang Desai, who had treated the petitioner for excess exposure to radiations.

DISTRICT Forum in its order has held; ''''12. The complainant has alleged that the opponents had supplied defective machine as there was extra emission of X -Rays causing health problem to the complainant and thus deficiency in service on the part of the opponents. It is pertinent to note that the complainant has not adduced any evidence in this regard. No material is placed on record indicating that there was extra emission of X -Rays and that the machine is defective. The complainant has neither produced any expert opinion or Report nor any such job card on record suggesting that there was extra emission of X -Rays and the machine defective. The complainant has not produced any evidence on record in support of the contention raised and thus failed to discharge the burden. Hence, the complainant failed to prove the alleged defects in the machine with corroborative and convincing evidence.

The complainant has further averred that the complainant sustained health problem and was treated for the same due to the extra emission of X -Rays. In this regard the complainant has relied upon the certificate of the treating doctor produced at Mark 18/1 and Para -2 of the certificate reads as below; '' He had complained of dizziness, headache, erythema with swelling over face and eyelids. Patient had history of exposure to radiation both episodes ''.

Bare reading of said certificate clearly reveals that there is no mention about the disputed machine. It is evident that though it is mentioned that the patient had history of exposure to radiation both episodes but it is nowhere specifically mentioned that the same is due to extra emission of X -Rays from this particulars machine was defective. ''''

THE State Commission, while upholding the order of the District Forum, dismissed the appeal at the admission stage itself observing as under; ''''4. The Forum has specifically observed in the judgment that the Appellant has not produced any independent evidence to prove that the X -ray Machine used to make noise and its parts were not functioning property and hence the complaint was dismissed.

According to us, the judgment and order of the Forum is justifiable as the Appellant has not produced any evidence or any expert opinion for supporting the defects in the said machine. Hence no interference is required in the said judgment and order. ''''

IT is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very limited. Under Section 21 of Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested,or has acted in the exercise of its jurisdiction illegally or with material irregularity.

THE Hon ''ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ; ''''Also, it isto 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 ''''.

THE Petitioner has not placed any expert evidence on record, so as to show about the defects in the X -Ray machine and also to show since when, there was extra emission from the X -Ray machine which has caused health problem to the petitioner.

MUCH reliance has been placed by the petitioner on certificate dated 19th October,2007 issued by Dr. Hemang Desai which read as under; ''''This is to certify that Dr. Nilesh G. Nimavat was under my treatment on 2.10.2007 and on 14.10.2007. He had complaint of Dizziness, Headache, erythema with swelling over face & eyelids. Patient had history of exposure to radiation during both episodes.

THE petitioner has not placed on record any prescription slip with regard to the treatment taken by him from Dr.Hemang Desai on 2.10.2007 as well as on 14.10.2007. Thus, this certificate in the absence of any prescription slip is of no help to the petitioner. Moreover, there is no expert evidence on record to show that X -Ray was emitting excess radiation.

BOTH the Fora below have given finding of facts, that petitioner has failed to prove any defects in the X -Ray machine and have also failed to establish that X -Ray machine was emitting excessive radiation due to which petitioner had suffered ailments.

UNDER these circumstance, we hold that the orders passed by the foras below, do not call for any interference, as the same are well reasoned and there is no jurisdictional error, infirmity or illegality in the impugned order. Accordingly, the present revision petition stand dismissed.

NO order as to cost.