1.      This Order shall decide both Revision Petitions Nos. RP No. 513 of 2016 filed by Kamal Narayan Verma, the Complainant and RP No. 659 of 2016 filed by Gayatri Hospital/OP-1 under Section 21(b) of the Consumer Protection Act, 1986 (the “Act”) arising from the impugned Order dated 02.12.2015 passed by the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur (the ‘State Commission’) in FA No.585/2014, wherein the State Commission partly allowed the Appeal of the Gayatri Hospital/OP-1 and reduced the compensation from Rs.15 Lakh to Rs.8 Lakh and set aside the amount of compensation Rs.3 Lakh towards mental harassment and maintained the litigation cost of Rs.10,000/-. 

2.      For convenience, the parties are referred to as placed in the original Complaint before the District Forum. Kamal Narayan Verma is referred to as the Complainant. Whereas, Gayatri Hospital is referred to as the OP-1 and New India Insurance Co. Ltd. is denoted as the OP-2.

3.      Brief facts, as per the Complainant, are that on 28.04.2004, he was hit by a negligently driven Jeep near Saragaon, resulting in injuries to his leg and other parts of his body. He was immediately taken to Gayatri Hospital, Raipur, where Dr. Arun Madharia treated him. An X-ray revealed a fractured bone in his leg, necessitating an operation. On 29.04.2004, a rod and screws were fitted in his leg during surgery. The Complainant was hospitalized for 11 days and was discharged on 08.05.2004 with instructions to return after 15 days for follow-up. However, after 12 days he experienced complications, including puss in his knee. Subsequent treatment included regular dressing and medication, but the Complainant continued to experience pain and complications. On 22.05.2006, another surgery was performed to remove the rod, but further issues arose, including a fractured bone and a half screw left in the leg. The Complainant alleged negligent treatment by Dr. Arun Madharia, resulting in permanent disability and inability to work. He is currently under treatment by Dr. Sushil Sharma, who indicated that the initial treatment was incorrect, leading to ongoing issues. Being aggrieved, the Complainant filed a Consumer Complaint before the District Forum seeking compensation from Dr. Arun Madharia and the insurance provider, as the doctor's professional indemnity policy was active during the treatment period.

4.      In reply before the District Forum, Gayatri Hospital, through Dr. Arun Madharia (OP-1) contended that the treatment provided to the Complainant was appropriate and in accordance with medical standards. The initial examination revealed a compound fracture in his left leg, and an IMAK Nail was used to join the broken bone during surgery on 29.04.2004. He was discharged on 08.05.2004 after his condition improved and was advised to return for check-up after 30 days. He returned on 20.05.2004, complaining of pain due to not taking complete rest. Further treatment and regular check-ups, including X-rays, indicated that the fracture was appropriately healing. The IMAK Nail was removed on 22.05.2006, and he was advised to use a POP slab and take complete rest. Subsequent X-rays and checks showed no abnormalities. OP-1 contended that the Complainant's ongoing issues were due to his failure to follow medical advice and his subsequent fall and denied any negligence and that the treatment was correct and effective. In reply, OP-2 acknowledged issuing a professional indemnity policy for Dr. Arun Madharia, valid from 26.04.2006 to 25.04.2007. But, he failed to prove any negligence or deficiency in services. The Complainant is not a consumer of OP-2, and there is no contractual relationship between them. The policy was not in effect at the time of initial treatment. The claim is exaggerated and not supported by evidence.

5.      The learned District Forum vide Order dated 20.02.2014, allowed the complaint with the following findings:

"29.  Therefore on the basis of the aforesaid interpretation we accept the Complaint presented by the Complainant and order that within one month from the date of the order:-

A) Non applicant no.1 shall pay Rs.15,00,000 (fifteen lacs) with simple interest of 18% per annum to the complainant from the date of complaint dated 03.01.2007 till the date of payment.

B) Non applicant no.1 shall pay Rs.3,00,000 (three lacs) to the Complainant for mental harassment due to above mentioned act.

C) Non Applicant shall also pay Rs.10,000 (ten thousand) to the Complainant on account of legal cost and advocate fees.”                            (Extracted from translated copy)

6.      Being aggrieved by the District Forum Order, OP-1 filed Appeal No. 585 of 2014 and the State Commission vide Order dated 02.12.2015 reduced the compensation with following observations:-

“17. On the scrutiny of the case it is clear that Respondent No.1/Complainant was operated on 29.04.2004 by the Appellant/Non-Applicant No.1. Thereafter, Respondent No.1/ Complainant has been getting treatment from Appellant/ Non-Applicant No.1 till 20.05.2006 but Respondent No.1/ Complainant did not have full benefits and it seems that Appellant/Non-Applicant No.1 has taken a defence that Respondent No.1/Complainant has fallen after colliding with doorstep due to which pain has started in the leg. Appellant/Non-Applicant No.1 has no animosity or enmity with the Respondent No.1/Complainant and that Respondent No.1/Complainant has no such reason to present a complaint on false basis and in this situation it is the defence of Appellant/Non-Applicant No.1 that Respondent No.1/ Complainant has fallen after colliding with door step due to which pain has started, is not acceptable, if the Respondent No.1/Complainant has stated the said statement. Appellant/Non-applicant No.1 would have mentioned the said fact in the medical report of Respondent No.1/ Complainant and even the Respondent No.1/ Complainant has undertaken treatment from the Appellant/ Non-applicant No.1 for a long time, Respondent No.1 /Complainant did not get any benefit therefore in this situation it is clear that the Appellant/Non-Applicant No.1 has been negligent in the treatment of the Respondent No.1/ Complainant and resultantly, the conclusion of the District Forum is totally justified and there is no irregularity/illegality

18. In regard to the compensation, the Respondent No.1/ Complainant in its complaint has asked for 15,00,000/(fifteen lacs rupees) on account of medical negligence and 3.00,000 (three lacs rupees) on account of mental harassment and the District Forum has granted the amount which was claimed by the Respondent No.1/Complainant. In para - 28 of it's order, the District Forum has only mentioned that "it concludes that on account of the negligent treatment by the Non-Applicant No.1, Complainant is entitled to 15,00,000 (fifteen lacs rupees) with interest of 18 percent per annum. Complainant is also entitled to 3,00,000/ -(three lacs rupees) on account of Non-Applicant No.1's deficiency in service, unfair trade practice and mental harassment and 10,000(ten thousand rupees) for the legal cost "but District Forum has not mentioned any reason in its order for granting the aforementioned amount and the amount which was claimed by the Respondent No.1/Complainant has been granted to the Respondent No.1/Complainant which cannot be justified in any circumstance. In our view the compensation which is granted by the District Forum is excessive.

19. As per the Respondent No.1/Complainant, he has been operated three times and he has been continuously in trouble but Respondent No.1/Complainant has not produced any bill in support of his expenses incurred. in treatment, in this situation In our view the Respondent No.1/Complainant is entitled to a lump sum amount of 8,00,000/ (eight lacs rupees) will be justified. The amount of 3,00,000/ (three lacs rupees) which has been granted by the District forum on account of mental harassment is unnecessary. In our view, the Respondent No.1/Complainant is entitled to a lump sum amount of 8,00,000/ (eight lacs rupees). District Forum has order for the payment of simple interest of 18 percent per annum, that is also excessive. In our view, grant of aforementioned amount of 8,00,000/ (eight lacs rupees) to the Respondent No.1/complainant along with the interest of 9 percent per annum from the date 03.01.2007 i.e. the date of the presentation of complaint till date of realization, will be justified. District Forum has granted 10,000/-(ten thousand rupees) on account of legal cost which is justified and no interference is required.

20. Therefore, the appeal of the Appellant/non-Applicant No. 1 is partially accepted. The impugned order dated 20.08.2014 is modified and it is ordered that Appellant/Non-applicant No.1 will pay a lump sum amount of 8,00,000/ (eight lacs rupees) on account of compensation. Appellant/Non-Applicant No.1 will also pay the interest at the rate of 9 percent simple interest per annum on the aforementioned amount of 8,00,000/ (eight lacs rupees) from the date 03.01.2007 i.e. the date of the presentation of complaint till date of realization. The amount of 3,00,000/- (three lacs rupees) which has been granted by the District Forum on the ground of mental harassment is set aside. District Forum has granted 10,000/-(ten thousand rupees) on account of legal cost, which is maintained. Parties will bear their respective cost of this appeal.’’

7.      Dissatisfied by the Order of the State Commission, both the parties i.e., the Complainant and the OP1 filed the present cross Revision Petitions before this Commission with the following prayer.

RP/513/2016 – filed by the Complainant

“It is therefore prayed to the Hon’ble Commission that the Revision Petition of the Petitioner may kindly be allowed and the order passed by the C.G. State Consumer Commission may kindly be set aside and order passed by District Forum may be resorted.”

RP/659/2016-filed by the Gayatri Hospital/OP1

1. set aside the impugned final judgment/order dated 02.12.2015 passed by the State Commission, Pandri, Raipur, Chhattisgarh in appeal No.FA/14/585 of 2014.
2. Set aside the Order dated 20.08.2014 passed by Hon’ble District Consumer Disputes Redressal Forum, Raipur, Chhattisgarh in consumer complaint no.06/2007.
3. and/or pass any other judgment or order as deemed fit and proper in the facts and circumstances of the case.”

8.      In his arguments, the learned Counsel for the Complainant reiterated the facts of the complaint and sought to modify the order passed by the State Commission and to restore the order passed by the District Forum. He has relied upon the following judgments:

A. Ms. Prasanna Lakshmi Vs. Maxvision Laser Center Pvt. Ltd., FA. No.170/2013, decided on 05.04.2019 by the NCDRC;

B. Smt.Saroj Chandoke Vs. Sir Gangaram Hospital, OP No.61/1996, decided on 09.07.2007 by the NCDRC;

C. Ms. Surjeet Sodhi Vs. Fortis Hospital, decided on 20.01.2020 by the NCDRC;

D. Samira Kohli Vs. Dr. Prabha Manchanda & Ors. Civil Appeal No.1949/2004 decided on 16.01.2008 by the Hon’ble Supreme Court;

E. Shoda Devi Vs. DDU/Ripon Hospital Shimla and Ors, Civil Appeal No.2557 of 2019, decided on 07.03.2019 by the Hon’ble Supreme Court;

F. Dr. K. Rangarao Vs. Shaik Dadoo Saheb, R.P. No.2190/2013 decided on 11.03.2014 by the NCDRC;

G. Harnek Singh Vs. Gurmeet Singh and Ors., Civil Appeal No.4126-4127/2022, SLP(C) Nos.10782-10783/2020, decided on 18.05.2022 by the Hon’ble Supreme Court.

9.      On the other hand, in his arguments the learned Counsel for Gayatri Hospital/OP-1 reiterated the contentions which were already taken in the Reply filed before the District Forum and grounds taken in the Revision Petition herein. He contended that the treatment provided to the Complainant was appropriate and in accordance with medical standards. The initial examination revealed a compound fracture in his left leg, and an IMAK Nail was used to join the broken bone during surgery on 29.04.2004. The Complainant was discharged on 08.05.2004 after his condition improved and was advised to return for a check-up after 30 days. He returned on 20.05.2004, complaining of pain due to not taking complete rest. Further treatment and regular check-ups, including X-rays, indicated that the fracture was healing appropriately. The IMAK Nail was removed on 22.05.2006, and he was advised to use a POP slab and take complete rest. Subsequent X-rays and check-ups showed no abnormalities. The learned counsel asserted that the Complainant's ongoing issues resulted from his failure to follow medical advice and his subsequent fall. He denied any negligence and contended that the treatment was correct and effective. He sought to set aside the impugned order passed by the State Commission and resultantly dismissed the complaint filed before the District Forum. He relied upon the following judgments:

A. Martin F D’Souza Vs. Moh. Ishfaq, (2009) 3 SCC 1;

B. Kusum Sharma Vs. Batra Hospital and Medical Research Centre & Ors., (2010) 3 SCC 480;

C. S.K. Jhunjhunwala Vs. Dhanwanti Kaur & Ors., (2019) 2 SCC 282;

D. Mohd. Abrar Vs. Dr. Ashok Desai & Ors., 2011 SCC OnLine NCDRC 164.

10.    OP-2 did not appear despite service of notice and was proceeded ex-parte vide order dated 14.02.2014.

11.    I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.

12.    In is uncontested position that the Complainant was operated on 29.04.2004 by the OPs and he continued the treatment from OPs till 20.05.2006. His injury did not heal and he suffered extended medical complications. He alleged medical negligence and deficiency in service against the Respondents and demanded compensation. On the other hand, The OPs contested the allegations and contended that the Complainant had in fact had a fall after colliding with a doorstep due to which he sustained injury and as a consequence the pain has started in his leg. At the same time, there is nothing on record to establish the same or reasons thereto. Therefore, the learned State Commission did not accede to this assertion of the OPs as, if the Complainant had stated any such incident of fall as claimed, the OPs would certainly have mentioned the same fact in the medical records as he had taken treatment from the OPs hospital for a long time. The learned District Forum and the learned State Commission have gone into detailed analysis of the matter and passed a detailed and well reasoned order. I, therefore, see no reason to disagree with the findings of both the fora.

13.    As regards award of compensation, the learned District Forum had granted Rs.15 Lakhs on account of medical negligence, along with interest @ 18% PA and Rs.3 Lakhs towards mental harassment, unfair trade practice and mental harassment and Rs.10,000 as costs.  The learned State Commission considered the compensation as excessive, in the absence of evidence in the form of bills in support of the expenses claimed. Therefore, the learned State Commission granted a lump sum amount of Rs.8,00,000 along with the interest @ 9% p.a. from the date of filing the complaint on 03.01.2007 till the date of realization and Rs.10,000 as costs.

14.    In the present case, the Complainant has not brought any new ground for further enhancement of compensation.

15.    It is a well settled position in law that revision under section 58(1)(b) of the Consumer Protection Act, 2019, (which is pari materia to Section 21(b) the Consumer Protection Act, 1986) confers very limited jurisdiction on this Commission. In the present case there are concurrent findings of the facts and the revisional jurisdiction of this Commission is limited. From the facts emerged and the arguments made, I do not find any illegality, material irregularity or jurisdictional error in the impugned Order passed by the learned District Forum and the State Commission warranting our interference in revisional jurisdiction under Section 21(b) of the Act. In this regard, I rely upon the decision of Hon'ble Supreme Court in 'Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., (2011) 11 SCC 269.

16.    The Hon'ble Supreme Court in 'Sunil Kumar Maity Vs. State Bank of India & Anr. Civil Appeal No. 432 OF 2022 Order dated 21.01.2022, it was held that the revisional Jurisdiction of this Commission is extremely limited by observing as under: -

"9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the OP-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. .....”

17.    Similarly, the Hon'ble Supreme Court in Rajiv Shukla Vs. Gold Rush Sales and Services Ltd. (2022) 9 SCC 31 has held:-

As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally  or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record.

18.    Based on the discussion above, I do not find any illegality or material irregularity with the reasoned orders passed by the learned State Commission, except for award of interest on lumpsum compensation. Accordingly, the order of the learned State Commission is modified as follows:

ORDER

1. The Opposite Parties are jointly and severally liable to pay a lumpsum amount of Rs.8,00,000 to the Complainant towards compensation, within a period of one month from the date of this order. In the event of delay beyond one month, the OPs are liable to pay simple interest @ 9% PA for such extended period.

2. The OPs are also directed to pay the complaint Rs.10,000 as costs of litigation.

19.    With the above directions, both the present Revision Petitions No.513 and 659 of 2016 are disposed of.

20.    There shall be no order as to costs.

21.    All pending Applications, if any, stand disposed of accordingly.