HON’BLE MR. TARAPADA GANGOPADHYAY, PRESIDING MEMBER
These two Appeals bearing No. FA/457/2014 and FA/626/2014 u/s 15 of the Consumer Protection Act, 1986 have been filed by the OP No. 2 and the OP No. 1 respectively assailing respectively the order dated 25.3.2014 passed by only two learned Members of the District Consumer Disputes Redressal Forum, Howrah and the order dated 28.2.2014 passed by only the Ld. President of the said District Forum in one and the same Complaint Case bearing No. 6 of 2009, which appears to have been heard simultaneously by the Ld. President and the two Ld. Members constituting the Bench concerned.
By the order dated 25.3.2014 the learned two Members of the District Forum allowed the Complaint directing the Ops to pay jointly and severally to the Complainant, within one month from the date of the order, Rs. 10,00,000/- as compensation and Rs. 50,000/- as litigation cost and interest @ 10% per annum in case of default in payment of the said litigation cost within the said period. On the other hand, by order dated 28.2.2014 the learned President of the District Forum dismissed the Complaint.
Both the Appeals having been arisen out of the same Complaint Case and the parties involved being identical, the two Appeals have been heard analogously and are being disposed of by this common order.
Brief facts of the case are that the Complainant got his wife admitted to the OP No. 2-Nursing Home on 19.11.2007 with complaint of labor pain. After admission, the OP No. 2-Doctor, under whom the wife of the Complainant was under treatment from the very beginning of the pregnancy as averred in the Petition of Complaint, conducted the operation upon the Complainant’s wife. But after delivery of the male baby the wife of the Complainant expired due to ‘Pulmonary Embolism’ as per post mortem report. With this factual background, the Complainant moved the Complaint concerned before the Ld. District Forum concerned alleging negligence and deficiency in service on the part of the OPs. Aggrieved by such order the OPs have preferred their respective Appeal.
The Ld. Advocate for the OP No. 2-Nursing Home, being the Appellant in Appeal No. FA/457/2014, submits in the very beginning that neither of the orders passed by the Ld. District Forum is in consonance with the provisions laid down u/s 14(2) and 14(2A) of the Consumer Protection Act, 1986.
The Ld. Advocate continues that as the Complaint Case concerned was heard simultaneously by the learned President and other two learned Members of the District Forum constituting the Bench concerned, so the order was statutorily required to be passed simultaneously on the same date and signed by the learned President and the two learned Members conducted the hearing proceedings.
The Ld. Advocate emphatically submits that as per mandatory provision contained in Section 14(2A) of the Consumer Protection Act, 1986, every order of the District Forum has to be signed by its learned President and the other learned Members who conducted the proceedings and that in case of any dissent, the opinion of the majority shall legally validate the order of the District Forum and that as in the case of order dated 25.3.2014 the aforesaid statutory provision was not complied with, so the said order passed by the Ld. District Forum is illegal and liable to be set aside.
In support of his submission the Ld. Advocate refers to the following decisions of the Hon’ble National Commission:
- National Insurance Co. Ltd. Vs. Khodil Singh, reported in III (2003) CPJ 185 (NC); and
- M/s. Maruti Udyog Limited, New Delhi Vs. Shri V.K.Jain, reported in I (1991) CPJ 50 (NC).
The Ld. Advocate concludes that as the order dated 28.2.2014 has been signed by the learned President only, who is statutorily empowered u/s 14(2) of the Consumer Protection Act, 1986 to conduct the proceeding, so the said order may be affirmed, and the order dated 25.3.2014, signed by the two learned Members but not by the learned President who presided over the concerned proceeding, should be set aside.
The Ld. Advocate for the OP No. 1-Doctor, being the Respondent No. 2 in Appeal No. FA/457/2014, submits that so far as Appeal bearing No. FA/457/2014 is concerned, he adopts the submissions of the Ld. Advocate for the Appellant/OP No. 2-Nursing Home.
The Ld. Advocate for the OP No. 1-Doctor, being the Appellant in FA/626/2014, submits that there was no negligence or deficiency in service on the part of the OP No. 1 and that the OP No. 1 took utmost care to the wife of the Complainant.
The Ld. Advocate continues that Pulmonary Embolism for which the wife of the Complainant died is not curable in spite of proper care and infrastructure.
The Ld. Advocate adds that in case of Pulmonary Embolism, there are no pre-disposing factors to serve as forewarning in patients.
The Ld. Advocate finally submits that in view of the submission, the order dated 25.3.2014 should be set aside and the order dated 28.2.2014 be affirmed.
On the other hand, the Ld. Advocate for the Complainant, i.e. Respondent No. 1 in both the Appeals, submits that the Complainant should not be made to suffer for technical lapses of the learned District Forum.
The Ld. Advocate continues that negligence and deficiency in service on the part of the OP No. 2-Nursing Home and the OP No. 1-Doctor is clearly indicated from the facts of the Complaint Case and hence, the order dated 25.3.2014 should be affirmed and the order dated 28.2.2014 be set aside by dismissing both the Appeals.
Heard both the sides, considered their respective submission and perused the materials on records and the decisions referred to by the Ld. Advocate for the OP No. 2-Nursing Home.
Before going into the merits of the factual aspect of the Complaint Case, we deem it just to first decide on the issue of legality of the orders passed by the learned District Forum.
In this context, we deem it fit to refer to the provision of Section 14(2A) of the Consumer Protection Act, 1986 which reads as follows:
“Every order made by the District Forum under sub-section (1) shall be signed by its President and the member or members who conducted the proceeding:
Provided that where the proceeding is conducted by the President and one member and they differ on any point or points, they shall state the point or points on which they differ and refer the same to the other member for hearing on such point or points and the opinion of the majority shall be the order of the District Forum.”
The orders impugned reveal that the Complaint Case was finally heard on the same day simultaneously by the learned President and the other two Members who constituted the Bench which conducted the final hearing of the Complaint Case concerned. But the order dated 28.2.2014 appears to have been signed only by the learned President but not by the other two learned constituting Members and thus passed not in consonance with the statutory provision laid down u/s 14(2) of the Consumer Protection Act, 1986, and the order dated 25.3.2014 was signed only by the two learned Members but not by the learned President who appears to have presided over the proceeding of the final hearing of the Complaint Case concerned and thus passed not in consonance with the statutory provision laid down u/s 14(2A) of the Consumer Protection Act, 1986.
The aforesaid facts, evidence on records, statutory provisions and decisions referred to hereinbefore indicate that both the orders impugned run counter to the provisions under Sections 14(2) and 14(2A) of the Consumer Protection Act, 1986. Therefore, such incurable defect in the impugned order can be rectified only by setting aside both the orders separately passed by the learned President and the two learned Members and remanding the case back to the learned District Forum for disposal afresh in accordance with the statutory provisions concerned. In this view of the case, as the impugned orders are not sustainable, so we refrain ourselves from passing any opinion on other issues involved in the Appeals.
Consequently, the Appeals bearing No. FA/457/2014 and FA/626/2014 are dismissed and the impugned orders dated 28.2.2014 and 25.3.2014 are set aside and the case is remanded to the learned District Forum for hearing afresh on merits and passing the order in strict compliance with the statutory provisions laid down u/s 14(2) and 14(2A) of the Consumer Protection Act, 1986. No order as to costs.
Both the Appeals bearing No. FA/457/2014 and FA/626/2014 shall be governed by this common order.
Both the sides are directed to appear before the Ld. District Forum concerned on 4.4.2017.
