S K Abdul Sukur vs STATE OF ORISSA

1.THE complainant in C.D. Case No. 22 of 1990 on the file of the State Commission, Orissa has filed this appeal challenging the legality and correctness of the order dated October 11,1990 passed by the State Commission declining to go into the merits of the complaint petition on the ground that the competent forum to adjudicate upon the dispute is only the Civil Court.

THE complaints wife Kaiurun Nisha was admitted into the Gynaecology and Obstrictics Department of S.C.B. Medical College Hospital on May 9,1989. On the same day the Professor of Gynaecology under whose treatment the patient was, advised the complainant that it was necessary to give a blood transfusion to the patient. The blood grouping test was performed by the concerned department of the hospital and a requisition slip along with blood sample of the patient was handed over to the complainant at about 10 A.M. on the same day (9.5.1989) in order to enable him to obtain one bottle of ''O'' positive group blood from Orissa Red Cross Blood Bank, Cuttack. The complainant thereafter approached the Blood Bank and requested for the supply of one bottle of ''O'' positive group blood. Since the Blood Bank offered to supply the blood only by way of exchange for blood to be donated by the complainant, the complainant donated his blood to the Blood Bank after .ecessary tests were performed and other formalities complied with. Thereafter the complainant was supplied with one bottle of blood bearing a label wherein it was inscribed ''No. 1390, Group ''O'' positive'', after collecting from the complainant Rs. 45/ - by way of service charges. Prior to their making supply of the blood, the Blood Bank had conducted cross matching test as between the blood sample of the patient sent by the hospital and the sample of the blood to be supplied and a cross matching slip was also given to the complainant for being handed over to the hospital authorities. The complainant delivered the bottle of blood together with the cross matching slip to the hospital on May 10,1989. The blood transfusion was given to the patient using the blood procured by the complainant from the Red Cross. It is alleged that while the transfusion was being given to the patient she had abnormal reactions and despite treatment having been given by the doctors she was declared dead at about 6p.m. on May 19,1989. The dead body of the patient was handed over to the complainant without conducting any postmortem. It is alleged in the complaint that the death of the patient was caused on account of negligence in the matter of conducting the blood grouping test and the cross matching and that the hospital authorities were also negligent in omitting to conduct a postmortem inspite of the fact that the death of the patient had resulted from ''mis -matching'' of blood. On this basis the complainant sought to recover compensation to the tune of Rs. 7,50,000/ - from the Opposite Parties namely, (1) State of Orissa, (2) S.C.B. Medical College Hospital, Cuttuck (3) Orissa Red Cross Blood Bank and (4) Indian Red Cross Orissa State Level.

THE State Commission disposed of the complaint by a summary order which reads : ''Both members participated. Heard learned Counsel for the complainant and Mr. S.K. Padhi, Advocate appearing for Red Cross Blood Bank. After hearing learned Counsel for both parties, we are satisfied that oral evidence and Cross -examination is necessary for the purpose of proving the impersonation on one side and tampering the record on the other side. Accordingly, competent forum in this case would be Civil Court, where complaint, if so, advised may approach for his redressal. Accordingly, complaint is disposed of.

WE find that there is substance and force in the ground taken by the complainant that the State Commission was not justified in declining to adjudicate upon the complaint petition on the merits by stating that the competent forum to adjudicate upon the matter is only the Civil Court. The mere fact that witnesses may have to be examined and their cross examination may also be necessary is not by itself a valid ground for refusing adjudication of the dispute before the Redressal Forums constituted under the Consumer Protection Act. It is to be remembered that the very purpose for which the statute has to be enacted is to provide a cheap and speedy remedy to aggrieved consumers by way of an alternative to the time consuming and expensive process of civil litigation. Section 13(4) of the Act (the provisions of which are made applicable to the State Commission by Section (18) specifically invests the Redressal Forums with the powers vested in a Civil Court under the Code of Civil Procedure in respect of the summoning and enforcing attendance of witnesses and examining them on oath, the discovery and production of documents and other materials produceable as evidence, the reception of evidence on affidavits, the issuing of Commissions for the examination of any witness etc. The statute thus clearly contemplates that the Redressal Forums constituted under it are to decide cases filed before them after taking such oral and documentary evidence as the circumstances of any given case may require. Unless a Redressal Forum constituted under the Act finds after a careful scrutiny of the pleadings and the documents etc. relied on by the parties that a satisfactory adjudication of the matter cannot be conducted by it in proceedings under the Act because of the exceptionally complicated nature of the factual and legal issues involved, it will not be just or proper to decline to adjudicate upon a complaint filed by an aggrieved consumer. The question whether or not there was negligence on the part of the Opposite Parties in relation to the performance of a particular item of service is not by itself too complicated to be determined by the Redressal Forums constituted under the Act on a consideration of the relevant oral and documentary evidence. If jurisdiction is declined by the special Redressal Forums set up under the Act in all such cases on the mere ground that examination and cross examination of witnesses would be necessary, it would amount to unjust denial of the benefits of the Act to the aggrieved consumer by erroneous abdication of its jurisdiction by the Forums. It is true that in M/s. Special Machines v. Punjab National Bank and Ors. I (1991) CPJ 78 (NC)=O.P. No. 32 of 1989 this Commission did decline to adjudicate upon the disputes brought before it and referred the complaint to the remedy by way of suit. But that was an exceptional case where transactions of borrowings from banks extending over a long period of many years in different accounts were sought to be re -opened on allegations of fraud, misappropriation, manipulation of accounts, violation of banking norms etc. This Commission found after its preliminary examination of the case that the issues arising therein could not be satisfactorily adjudicated upon without elaborate scrutiny and rendition of accounts in relation to transactions of borrowing which the complainant had with the respondent Bank under different heads spread over a long period of many years. The observations contained in the order passed by this Commission in that case have to be understood against the background of the special facts relating thereto which were of an exceptional nature. The said decision is not to be understood as laying down any general preposition that in all cases where the examination and cross -examination of witnesses is involved the proper forum for adjudication of the dispute is only the Civil Court. Another important point that weighed with this Commission in the M/s. Special Machines case was that the subject matter of the complaint in that case was already sub -judice in suits pending before the Civil Court and there was a clear overlapping and intertwining of the questions arising for determination in the suits and those sought to be adjudicated in the complaint. It was under these special circumstances that the complaint therein was referred by this Commission to pursue his remedy by way of suit.

IN the light of what is stated above, we hold that the State Commission was in error in declining to adjudicate upon the merits of the complaint petition. The order of the State Commission is accordingly set aside and the case is remanded to the State Commission for fresh disposal on the merits in accordance with law.

THE appeal is allowed to the extent indicated above. The parties will bear their respective costs. Appeal allowed.