Parties to the  First Appeal No. 428 / 2004 titled as Ajay Gautam  Vs. Amritsar Eye Clinic & Ors. have filed Review Petitions No. 79 of 2010 and 209 of 2011 seeking review of the order of this Commission dated 26.02.2010. Review Petition No. 79 of 2010 has been filed on behalf of the respondents while Review Petition No. 209  of  2011 has been filed by the appellant – complainant.

2.       In Review Petition No. 79 / 2010, the respondents has sought the review particularly of the findings, observations and order made of this Commission appearing in Para Nos. 9 to 13 of the order dated 26.07.2010 which we would like to reproduce here.

“Now, we come to the next contention of the counsel of the appellant that the respondent-doctor and hospital are guilty of adopting unfair trade practice by publishing a misleading advertisement in the newspapers.  It is not disputed that the respondent was a qualified Ophthalmic surgeon having speciality and expertise in conducting PRK surgeries.  This is apparent from the copies of the degrees and certificates produced on record which we have no reason to disbelieve.  However, the important question is as to whether despite possessing such qualification, expertise and experience, the opposite party-doctor could have published the advertisement making the kind of claims in the said advertisement.  Copies of the advertisements published in local daily Amar Ujala have been placed on record which is reproduced below:

10.   Now, it is to be seen if the opposite party-doctor was entitled to publish such an advertisement or whether it was unethical on his part to do so.  In this context, we may notice the injunction of the Medical Council of India under Regulation no.6.1 of the Code of Ethics Regulations 2002, which reads as under:

“Chapter 6

6.     UNETHICAL ACTS:       

        A physician shall not aid or abet or commit any of the following acts, which shall be construed as unethical –

6.1   Advertising:

6.1.1 Soliciting of patients directly or indirectly, by a physician, by a group of physicians or by institutions or organisations is unethical. A physician shall not make use of him / her (or his / her name) as subject of any form or manner of advertising or publicity through any mode either alone or in conjunction with others which is of such a character as to invite attention to him or to his professional position, skill, qualification, achievements, attainments, specialities, appointments, associations, affiliations or honours and/or of such character as would ordinarily result in his self aggrandizement. A physician shall not give to any person, whether for compensation or otherwise, any approval, recommendation, endorsement, certificate, report or statement with respect of any drug, medicine, nostrum remedy, surgical, or therapeutic article, apparatus or appliance or any commercial product or article with respect of any property, quality or use thereof or any test, demonstration or trial thereof, for use in connection with his name, signature, or photograph in any form or manner of advertising through any mode nor shall he boast of cases, operations, cures or remedies or permit the publication of report thereof through any mode. A medical practitioner is however permitted to make a formal announcement in press regarding the following:

1.         On starting practice.

2.         On change of type of practice.

3.         On changing address.

4.         On temporary absence from duty.

5.         On resumption of another practice.

6.         On succeeding to another practice.

7.         Public declaration of charges.

6.1.2 Printing of self photograph, or any such material of publicity in the letter head or on sign board of the consulting room or any such clinical establishment shall be regarded as acts of self advertisement and unethical conduct on the part of the physician. However, printing of sketches, diagrams, picture of human system shall not be treated as unethical”.

        Clearly the doctor violated the above mentioned Regulation which by itself was unethical conduct and hence constitute deficiency in service.

        Moreover, the contents of the advertisement appear to be prima facie misleading to the reader inasmuch as it gives an impression that any defective vision could be corrected to the normal vision of 6/6 at respondent no.1-hospital by the use of the excimer laser machine acquired by the respondent no.1 & 2.  The complainant states that having come across such a misleading advertisement, he contacted respondent no.2-doctor who also gave assurance and promised that defect in his eye would be fully corrected and cured and only thereafter he agreed to undergo the PRK surgery at the hands of the respondent-doctor. The respondent-doctor denies that he had given any such assurance / promise.  The expert medical opinion received from the Rajendra Prasad Centre for Opthalmic Sciences would clearly show that such a claim as was published in the above mentioned advertisement was untenable altogether and, therefore, amounted to representation by the respondent-doctor which could not have been fulfilled.

        The respondent-doctor also claimed that he had explained the implications of such a surgery and had obtained the consent of the complainant.  As noticed above, the doctor and the hospital have failed to produce the consent form which the complainant had purportedly signed before undergoing the PRK surgery.  However, reliance is placed on the format of other consent forms obtained from other patients which contain some admissions on the part of the patients that they had been explained the implications of the procedure.

11.   Having considered the matter in its entirety, we are of the opinion that the finding of the State Commission that the complainant has failed to establish any negligence/deficiency in service on the part of the respondent-doctor and hospital in giving him the treatment by way of PRK surgery is justified on record and needs no interference.  However, it has also been established on record that the doctor and the hospital are guilty of adopting unfair trade practice within the meaning of section 2 (1) (r ) of the Consumer Protection Act, 1986 as well as violating the Code of Ethics Regulations ( Regulation no.6.1) by publishing misleading advertisement.  They are also held guilty of not having been able to produce / maintain the record, i.e., consent form said to have been signed by the complainant before undertaking PRK surgery.  The complainant is entitled to some reasonable compensation on these two counts.

12.   In our view, it would meet the ends of justice if respondents no. 1 & 2 are called upon to pay lumpsum compensation of Rs.1,00,000/- to the complainant on these counts and a direction is given to respondent no.1 and the doctor to forthwith withdraw any such advertisement in electronic, print or any other media and desist from doing so in future.

13.   In the result appeal is partly allowed and respondent no.1 & 2 i.e. hospital and doctor are hereby directed to pay lumpsum compensation of Rs.1,00,000/- to the complainant and also to give an undertaking before this Commission that he will not publish any such advertisement in future within a period of four weeks from the date of receipt of order.  However, in case the amount is not paid within the prescribed period, it will carry interest @ 12% p.a”.

3.       In the Review Petition (No.209 of 2011) filed on behalf of the appellant – complainant, appellant – complainant has sought review of the finding and upgradation of the relief so granted to the appellant on the premise that there is error apparent on the face of the record.  It is pertinent to note that before filing the said review petition, the appellant – complainant filed a Special Leave to Appeal ( Civil ) No. 13561 of 2010 before the Supreme Court which was dismissed in liminie by the Supreme Court vide an order dated 10.09.2010.  In view of this development, we would first like to consider the question as to whether the appellant – complainant is well within his right to file a review petition before this Commission once his SLP filed against the order of this Commission has been dismissed by the Supreme Court.

4.       We have heard Mr. Ajay K Sharma, Advocate, learned counsel for the appellant – complainant and Mr.Aditya Narain, Advocate, learned counsel for the respondents at great length and have considered their submissions.  In support of his contention that review petition filed by the appellant – complainant is maintainable despite the dismissal of the SLP by the Supreme Court, learned counsel for the petitioner has placed reliance on following Supreme Court decisions:

1.       Nirbhay Singh V. State of Rajasthan AIR 2002 Raj 28

2.       Ratan Singh Vs. Vijay Singh  AIR 2001 SC 279

3.       Kunhayammed Vs. State of Kerala (2000) 6 SCC 359

4.       K. Raja Mouli  Vs. A.V.K.N. Swamy (2001) 5 SCC 37.

5.       In the first case, Rajasthan High Court held that even if a special appeal against the order of single judge has been dismissed on the ground on delay, the order of Civil Judge would not mere in order of Division Bench and order of single Judge shall continue to be final, effective and binding as between the parties.  Another fact of such a situation would be that review of order of single judge cannot be declined solely on the ground that special appeal against the said decision was dismissed by the Division Bench.  In the second case Ratan Singh Vs. Vijay Singh, the Supreme Court held as under:

“Article 136 of the Schedule to the Limitation Act, 1963 provides 12 years for execution of any decree or order of any Civil Court other than a decree granting a mandatory injunction. The third coloumn in the Article which indicates the time from which period begins to run, states that “when the decree or order becomes enforceable.  Normally a decree or order becomes enforceable from its date.  But cases are not unknown when the decree becomes enforceable on some future date or on the happening of certain specified events.  The expression “enforceable” has been used to cover such decrees or orders also which become enforceable subsequently.  Filing of an appeal would not affect the enforceability of the decree unless the appellate court stays its operation.  But if the appeal results in a decree that would supersede the decree passed by the lower Court and it is the appellate Court decree which becomes enforceable.  When the appellate order does not amount to a decree there would be no supersession and hence the lower Court decree continues to be enforceable”.

6.       In our view, none of these judgments are relevant to the question involved here.  The decision of the Supreme Court in the case of Kunhayammed V. State of Kerala is, however, relevant because in that case, the Supreme Court held as under:

“The exercise of jurisdiction conferred on the Supreme Court by Article 136 of the Constitution consists of two steps : (1) granting special leave to Appeal; and (ii) hearing the appeal.  This distinction is clearly demonstrated by Rules 4, 10, 13 and 11 of Order 16 of the Supreme Court Rules framed in exercise of the power conferred by Article 145 of the Constitution.  The legal position in respect of these two stages is as under:

1.     While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry.

 2. If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out;

3. If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the court may dismiss the appeal without noticing the respondent.

        The Supreme Court has already held that the dismissal of a special leave petition in limine by a non-speaking order does not justify any interference that by necessary implication the contentions raised in the special leave petition on the merits of the case have been rejected by the Supreme Court and that such dismissal of the special leave petition will not preclude the party from moving the High Court for seeking relief under Article 226 of the Constitution.  What has been stated by the Supreme Court in this regard applies also to a case where a special leave petition having been dismissed by a non-speaking order and the applicant approaches the High Court by moving a petition for review.  May be that the Supreme Court was not inclined to exercise its discretionary jurisdiction under Article 136 probably because it felt that it was open to the applicant to move the High Court itself.  As nothing has been said specifically in the order dismissing the special leave petition one is left merely guessing.  Therefore, it would not be just to deprive the aggrieved person of the statutory right of seeking relief in review jurisdiction of the High Court if a case for relief in that jurisdiction could be made out merely because a special leave petition under Article 136 of the Constitution had already stood rejected by the Supreme Court by a non-speaking order.

          In the last case of K. Rajamouli  Vs. A.V.K.N.Swamy, Supreme Court reiterated the legal position as laid by the Supreme Court in earlier case Kunhayammed V. State of Kerala. 

7.       In view of the legal position, Mr. Ajay K Sharma, learned counsel for the appellant – applicant has strongly contended that despite dismissal of the SLP filed by the appellant, review petition is maintainable before this Commission.  We are not inclined to accept this submission because the said decisions were rendered by the Supreme Court in the proceedings which were decided by the High Court either in the writ jurisdiction or some other jurisdiction.  The power of review has been conferred on this Commission by virtue of section 22 (2) of the Consumer Protection Act, 1986, which inter alia lays down that without prejudice to the provisions contained in sub-section (1) of section 22, the National Commission shall have the power to review the order made by it if there is any error apparent on the face of the record.  This would clearly mean that review of an order passed by this Commission is permissible if there is an error apparent on the face of the record and for no other ground.  The Civil Courts and the High Courts by virtue of section 114 read with Order 47 of the Code of Civil Procedure have the power to review its order on a number of other grounds mentioned therein besides on the ground that there is an error apparent on the face of the record.  Similarly, the power of High Court to review its order is not circumscribed only to the ground of apparent on the face of the record and review can be sought and granted for several reasons.

8.       Interestingly, in this case, the appellant filed SLP before the Supreme Court assailing the order of this Commission on a variety of grounds.   Almost the same grounds are sought to be pressed by the appellant – applicant in support of his prayer for the review of the said order.  Since SLP filed by the appellant was dismissed by the Supreme Court without any prayer on behalf of the  petitioner to withdraw the said SLP and no such liberty has been granted to the appellant – applicant to move this Commission for seeking review of the order under challenge before the Supreme Court, the review petition filed by the appellant – applicant is liable to be dismissed as not maintainable.  In any case, even if for the sake of arguments it is assumed that review petition lies, we have considered the grounds pressed for by the appellant and in our opinion there exists no ground for review of the order.

9.       Now coming to the Review Petition No. 79 / 2010 filed by the  respondent,  the first ground taken by the respondent – applicant is that the finding of unfair trade practice / unethical conduct on the part of the respondent by publishing the advertisement is not  justified because this was not taken up as a ground by the complainant. In any case it is contended that the respondent has not committed any unethical practice by making the said advertisement and this act of the complainant is fully in consonance with the ethical code contained in the Indian Medical Council ( Professional Conduct, Etiquette and Ethics) Regulations, 2002 framed by the Medical Council of India in exercise of powers conferred under section 20A read with section 33 (m) of the Indian Medical Council Act, 1956 ( 102 of 1956).  According to him, the said advertisement was published by the respondent simply to notify to the public at large about the respondent – applicant having acquired a modern machine “EC 500 Excimer Laster ( Nidek Co. Jaipan) and nothing more. For the reason already stated in the order sought to be reviewed,  we must reject this contention because the advertisement clearly held out to the prospective patients about a kind of guarantee ‘to get rid of spectacles and contact lenses’ and ‘to see the world at large without spectacles’.  Such a proclamation was sufficient to allure unwary intended patients that their vision would be corrected to 6 /6 situation without the use of the spectacles and contact lenses. In the case in hand, in fact it was this advertisement which had attracted the complainant – appellant to approach the respondent for correction of  his vision which could not be achieved to the extent mentioned in the advertisement so the proclamation appeared to be misleading.  We are, therefore, of the view that there is no error apparent on the face of the record on the strength of which we should review the order dated 26.02.20120 passed by this Commission.  This review petition too is liable to dismissed.

10.     In the result, both the review petitions are dismissed.