For the Appellant in FA No.43/10 : Mr. Harmanjit Singh Thiara, Advocate& Respondent in FA No.268/10..3..For the Appellants in FA No.268/10 : Mr. Pavit Mattewal and& Respondents in FA No.43/10 Mr. Sharan Thakur, Advocate Dated, the 26th day of August, 2010

 ORDER

JUSTICE R.C. JAIN, PRESIDING MEMBER (ORAL)

Both these appeals arise from an order dated 15.12.09 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short, ‘the State Commission’) in consumer complaint no. 3/08. The complaint before the State Commission was filed claiming in all compensation of Rs.50,00,000/- (Rs.30,00,000/- on account of mental agony, suffering and expenses incurred by the complainant in undertaking the medical services and Rs.20,00,000/- towards the damages on account of physical and mental sufferings undergone by the patient) alleging medical negligence and deficiency in service on the part of the opposite parties, i.e., Fortis Healthcare Ltd. and four doctors who treated Smt. Raminder Atma Singh, wife of complainant between 17.05.07 to 23.06.07 when she breathed her last. The complaint was resisted by the hospital and the doctors thereby denying any negligence or deficiency in service in the treatment of Smt. Raminder Atma Singh. The State Commission, ..4.. going by the respective pleadings of the parties, evidence and the material brought on record, found the hospital and the doctors, A.S. Bawa and Dr. K.P. Singh guilty of medical negligence and deficient in service in the treatment of Smt. Raminder Atma Singh and accordingly partly allowed the complaint and awarded compensation of Rs.10,00,000/- to be paid by them besides costs of Rs.20,000/-. The amount was directed to be paid within two months from the date of receipt of the copy of the order failing which the above named respondents shall be liable to pay interest @ 7% p.a. on the amount of compensation w.e.f. date of order. 2. It would appear that aggrieved by the said order passed by the State Commission, the opposite parties filed a Review Petition No. 479/10 under section 151 CPC before the State Commission on 2.3.10 seeking review of the order dated 15.12.09. The main ground for seeking review of the order was that certain errors which were apparent on the record had crept into the order passed by the State Commission due to misrepresentation made by the complainant in so much so that despite the hospital having specifically pleaded that the consent was taken from the patient herself on 23.05.07 which ..5.. document was also placed on record, the State Commission in para 55 of the impugned order has observed that no consent was taken by the hospital and the doctors prior to the first operation performed on 23.05.07 which amounted to medical negligence on the part of the respondents. The said Review Application was finally disposed of and dismissed by the State Commission vide order dated 12.08.10 thereby holding that it has no power to review its own order even the errors were apparent on record as alleged by the respondent in their application and the same could only be corrected/reviewed by the appellate authority, viz, National Commission. 3. Aggrieved by the order dated 15.12.09, the complainant has filed First Appeal No. 43/10 seeking enhancement of the compensation so awarded by the State Commission and pleadings that the compensation of Rs.10 lakh awarded by the State Commission was not commensurate with the kind and extent of negligence and deficiency noted by the State Commission in as much as the complainant had already been billed for Rs.7,85,714/- thereby leaving only a sum of Rs.2,14,286/- as compensation to the complainant. After notice was issued on the said appeal, the opposite parties, hospital and the ..6.. doctors have also filed First Appeal No. 268/10. Both the appeals were taken up for preliminary hearing and having regard to the limited controversy raised in the two appeals, we consider it expedient to answer the appeals at this state itself in order to avoid any further delay in the matter. 4. We have heard Mr. Pavit Mattewal, learned counsel for the appellants Hospital and the doctors in First Appeal No. 268/10 and Mr. Harmanjit Singh Thiara, learned counsel for the respondent/ complainant, Capt. Atma Singh (Retd.) and have considered their respective submissions. During the course of their submissions, both sides have tried to assail the impugned order on a number of grounds. The primary ground pressed from the side of the opposite parties, hospital and the doctors is that the State Commission has erred in ignoring certain pleas put forth by them, more particularly, in regard to the consent having been obtained from Smt. Raminder Atma Singh herself on 23.05.07 before conducting the first surgery on her and such a consent was in fact filed on record of the State Commission. It is contended that though the document entitled as Authorization for and consent to operation, administration of anesthesia and procedure etc.” (page at page 126- ..7.. 128 of the paper book of appeal no. 268/10) was on record of the State Commission, still the State Commission while deciding the matter has observed as under :- “ The respondents have not produced any document on the file to prove if the patient had got admission in the respondent Hospital on her own choice and voluntarily nor any consent of the patient or her relatives to that effect has been produced. The respondents allege that they had explained the post operative consequences to the patient and her relatives and that they had also taken the consent of the patient. The patient was operated in the respondent Hospital on 23.05.2007. The respondents have not filed any document dated 23.05.2007 or prior to that either about the consent of the patient for being operated in the respondent Hospital or that the post operative consequences were explained to the patient. If the respondents had actually received any such consent of the patient or if they had explained the post operative consequences to her then such document must have come into existence and could not have been held back by the respondents. As discussed above, no such consent letter was taken prior to the first operation performed in the respondent Hospital on 23.05.2007. This amounts to medical negligence on the part of the respondents. ..8.. 5. The above observations and findings of the State Commission would clearly show that the State Commission has either over-looked or grossly erred in taking into account the pleas put forth by the opposite parties and the aforesaid document dated 23.05.07 while returning the said finding. The State Commission itself noted this aspect while deciding the review petition but due to lack of requisite jurisdiction, it found itself handicapped to correct the said error appearing on the face of the record. For this reason alone, we are of the view that the matters need to be remitted back to the State Commission for deciding the complaint afresh. 6. Learned counsel for the complainant/appellant in First Appeal No. 43/10 also seeks to assail the impugned order on the ground that certain contentions raised by the complainant in order to prove the specific instances of deficiency in service in regard to post-operative management of the patient during her stay at the hospital have not been considered by the State Commission in the manner it was required. He also prays that the State Commission should be directed to consider all those aspects while deciding the matter afresh. 7. For the above reasons and in result, both the appeals are partly allowed, impugned order passed by the State Commission is hereby …9.. set aside and the complaint is remitted back to the State Commission to decide it afresh in accordance with law after affording reasonable opportunity to both the sides to make their submissions on the strength of existing pleadings, evidence and material. The parties are directed to appear before the State Commission on 27.09.10 to receive further directions in the matter. 8. Learned counsel for the appellants in First Appeal No. 268/10 informs that a sum of Rs.10,00,000/- has been deposited with the State Commission. We order that presently the said amount shall neither be refunded to the opposite parties nor disbursed to the complainant and shall abide the final outcome of the complaint. The appellants in FA No.268/10 shall also pay costs of Rs.5,000/- imposed vide order dated 06.08.10 passed in First Appeal No. 43/10 to the complainant and shall also pay further costs of 15,000/- to the complainant, Lt. Col. Atma Singh on the date of their appearance before the State Commission.