SHARDUL NANA CHANDANE vs CHANDRAJEET, & ORS.

This revision petition has been filed u/s 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 18.10.2013, passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as ''the State Commission'') in FA No. A/1612/08, "Nana L Chandane (since deceased represented by his legal heirs) vs. Chandrajeet & Ors.", vide which, while dismissing the appeal, the order passed by the District Forum on 30.06.2008, allowing the consumer complaint filed by the present petitioners, was upheld.

The facts of the case are that Rukmini Chandane wife of the original complainant Nana L. Chandane was suffering from a sleep disorder called Sleep Apnea syndrome, which made it stressful for her to breathe. She was advised by the treating Doctor P.P. Prabhudesai to use the CPAP (Continuous Positive Air Pressure) machine. The machine was first installed by the OPs on trial basis on 09.01.2003. The purchase was confirmed on 16.01.2003 and a total sum of 45,000/- was paid for the machine to the OPs in instalments of 30,000/- paid on 17.01.2003 and 15,000/- paid on 20.01.2003. As per the version of the complainant, the machine was not functioning properly since the very beginning. The complainants lodged a complaint with the OP supplier who changed some parts of the machine on 08.04.2003. It is alleged that the wife of the complainant became more sick due to the faulty machine and had to be admitted in Holy Spirit Hospital from 17.04.2003 to 20.04.2003. The machine again started giving trouble in August and September 2003, whereupon, the OPs replaced the said machine with some other old machine. The wife of the complainants died on 29.09.2003. The consumer complaint was then filed by Nana L Chandane and one of his daughters Bharti N. Chandane alleging that the OPs had indulged in grave negligence and deficiency in service towards the complainants by supplying the faulty machine and hence, compensation should be awarded to them. The complaint was first filed before the State Commission, but it was returned by them vide order dated 10.02.2005 for filing the same before the forum, having the necessary pecuniary jurisdiction. Thereafter, the complaint was filed before the District Forum and the same was disposed of vide order dated 30.06.2008, vide which the OPs were asked to refund a sum of 45,000/- to the complainant jointly and severally and the machine was to be returned by the complainants to the OPs.

In their reply filed before the District Forum, the OPs denied the allegations against them and stated that the machine was not old or defective. The OPs also stated that the complaints made from time to time were attended to properly and certain parts of the machine were replaced. However, since the complainants were not satisfied, they replaced the machine with a stand-by machine. The OPs denied that they were liable to pay the amount of compensation as demanded in the consumer complaint.

The order passed by the District Forum on 30.06.2008 was challenged by the complainants by way of appeal before the State Commission, seeking compensation of about 20 lakhs as damages to the complainants and also interest @18% on 45,000/- which was the cost of the machine. During the pendency of the appeal, Nana L. Chandane died and his four legal heirs, including the original co-complainant Bharti Chandane was impleaded as parties. However, the said appeal having been dismissed by the impugned order, the complainants are before this Commission by way of the present revision petition.

During hearing, it was contended on behalf of the petitioners/complainants that since their mother Rukmini Chandane died as a result of fault in the machine, they should have been adequately compensated by the consumer fora below. Vide impugned order passed by the District Forum and confirmed by the State Commission, only the cost of the machine, i.e., 45,000/- had been ordered to be paid to them. The consumer fora below had done grave injustice to them by not awarding any interest on the said amount and also by not giving them any compensation as damages for the loss of their mother. The Ld. Counsel argued that the machine in question was a life-saving machine. In support of his arguments, he has drawn attention to an order dated 19.02.2008, passed by this Commission in RP No. 711/2008, " United India Insurance Co. Ltd. Vs. Ramesh Chand Gupta ".

Ld. Counsel for the respondent, however, stated that the orders passed by the Consumer Fora below were in accordance with law and should be upheld. As per the documents regarding import of the machine, as produced by the OPs, a new machine had been given to the complainants. They had attended to the alleged faults in the machine also from time to time and hence, there was no deficiency in service on their part. The Ld. Counsel further stated that the death of the deceased was not due to any malfunctioning of the machine, but she had died on account of left ventricular failure, as she was a known case of hypertension and diabetes mellitus (DM). The Ld. Counsel further argued that the purpose of the machine was not to give any life-support treatment. The machine helped in curing the sleep disorder only. Moreover, the machine was to be used at night time only and was supposed to supply air to the user and not oxygen. The Ld. Counsel has drawn attention to a research paper in this regard, made by the Department of Chest Medicine, P.D. Hinduja National Hospital and Medical Research Centre, Mumbai by a team of Scientists, Zarif F. Udwadia et. al on the topic "Sleep Apnea in Urban Indian Men".

The Ld. Counsel for the respondents/OPs has also drawn attention to a number of judgments passed by the Hon''ble Supreme Court and this Commission, saying that the concurrent findings given by the fora below should not be interfered with in the exercise of revisional jurisdiction, unless there were cogent reasons and miscarriage of justice involved. The Ld. Counsel has drawn attention to the following orders in this regard:-

(i) "Mrs. Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd." [Civil Appeal No. 2588/2011 decided on 18.03.11]

(ii) "Momma Gauri Vs. Regional Manager, & Ors. [Civil Appeal No. 8815/2013 decided on 27.09.2013]"

(iii) "S.K. Sharma Vs. Central Bank of India & Anr." [RP No. 1279/2006 decided on 19.08.2009]

(iv) "Devi Dayal Gupta vs. B.R.S. Institute of Medical Sciences & Anr." [II (2013) CPJ 24A (NC) RP No. 437/2011 decided on 20.12.2010]

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

The basic issue involved in the present case is whether there has been any deficiency in service on the part of the OPs in the supply of the machine in question for treatment of sleep disorder of the mother of the complainants? Another important issue involved in the present case is that even if the machine was defective, whether it had contributed in any manner towards the death of the patient.

The State Commission have rightly observed in the impugned order that on the basis of the evidence tendered by the complainants, it was difficult to hold that the malfunctioning of the machine was the cause of death of the victim. In fact, the patient died on account of left ventricular failure, as observed in the report of the Post-mortem examination. She was a known case of hypertension and diabetes mellitus also. It has been stated in the complaint as well as in the memo of revision petition that as per X-ray report of the chest, both the lungs of the patient were clear. It is not made out therefore, as to how the alleged defect in the machine led to the death of the patient.

The factual position on record makes it clear that the machine was installed in the month of January 2003. Thereafter, the alleged faults in the machine have been attended to by the OPs from time to time. The patient was taken to the Holy Spirit Hospital on 19.04.2003. The State Commission have rightly observed that as per the position on record, the machine was working satisfactorily during these three months. Thereafter, when the defects were pointed out in the machine in August 2003, regarding emission of unusual sound, the OP replaced it with a stand-by machine. The OPs have also clarified that the machine supplied in January 2003 had been imported by them from Sweden in November 2002. The entire factual matrix of the case does not, therefore, lead to the conclusion that the death of the patient was related to the alleged faults in the machine.

Further, it is an established legal proposition that the revisional powers u/s 21(b) of the Act should be exercised only, if there is some prima-facie jurisdictional error in the impugned order, or there is any miscarriage of justice. The order passed by the Hon''ble Supreme Court in " Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. " [supra] and other authorities quoted by the respondent do make it very clear that the scope of the revisional jurisdiction is limited.

Keeping in view the facts and circumstances of the case, I do not find any justification to make any modification in the orders passed by the Consumer fora below in the exercise of the revisional jurisdiction. Moreover, the State Commission also concluded that there was no deficiency in service on the part of the OP, but since the OPs had not challenged the order of the State Commission, the State Commission did not find any error in the said order on compassionate grounds.

Based on the discussion above, it is held that there is no merit in this revision petition and the same is ordered to be dismissed and the order passed by the consumer fora below are upheld. There shall be no order as to costs.