12/02/16

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

             This Appeal is directed against the judgment and order passed by Learned District Forum, Hooghly in CC 105 of 2006 allowing the complaint on medical negligence and directing the OP Nos.1 and 2 to pay litigation cost of Rs.50,000/- with further direction upon OP No.1 to pay compensation of Rs.5 lakh for the mental agony, anxiety, harassment and for financial loss.  OP No.1 was directed to pay Rs.4,50,000/- as punitive damage for running unfair trade practice in the Nursing Home and the said amount be deposited with the welfare fund of the Forum.  The OP No.2 was directed to pay compensation of Rs.10 lakh to the Complainant for mental agony, anxiety, harassment and financial loss.

            The case of the Complainant/Respondent, in short, is that his wife Smt. Minakshi Koley was admitted in the OP No.1 Nursing Home on 26/03/06 for delivery.  Smt. Chandana Mukherjee is the Proprietor of OP No.1 Nursing Home.  The patient was brought to the OP No.1 Nursing Home at 7 a.m. and Smt. Chandana Mukherjee, the Proprietor and her husband OP No.2 Dr. Pranab Kumar Mukherjee, R.M.O. of the Nursing Home told the Complainant that the condition of Smt. Minakshi Koley was not serious and the delivery will be normal.  The OP No.2 attended the patient after one hour of admission on so many requests of the Complainant and the patient was in unconscious condition.  The Complainant found that the OP No.1 Nursing Home had no infrastructure and arrangements for operation.  After the delivery of male baby the Complainant’s wife expired on the same day at about 12.40 p.m. due to the fault and negligent act of the OPs.  The OPs did not make necessary arrangement or proper care and after delivery the patient was in a convulsion stage and even at that stage the patient was compelled to move towards operation theatre on foot by the Nursing Home Authority as there was no stretcher facility in the Nursing Home.  The baby was removed to Burdwan Medical College and subsequently at Woodland Nursing Home, Kolkata. The Nursing Home had no registration number and it is not being run in a legal manner.  Under such circumstances, the complaint was filed before the Learned District Forum with the prayer for compensation of Rs.20 lakh. 

            The Learned Counsel for the Appellant has submitted that the complaint was not maintainable before the Learned District Forum, in as much as, the prayer for compensation was Rs.20 lakh and Complainant paid bill of Rs.2,400/- to the Nursing Home being the value of services.  It is contended that taking both the amounts in consideration it would exceed the pecuniary limit of the District Forum. It is contended that the doctor took proper care in the matter of delivery and referred the patient to higher centre for better management.  It is submitted that there is no observation in the impugned judgment as to the evidence of the expert doctor.  It is submitted that on 26/03/06 renewal of licence was made.  It is contended that on way to Hospital the patient expired.  It is submitted that the delivery was normal and the doctor prescribed medicines as per standard medical practice and procedure.  The Learned Counsel for the Appellant has referred to the decision reported in 1976 (1) SCR 739 [Gurucharan Singh vs. Kamla Singh] wherein it has been held that a pure question of law going to the root of the case and based on undisputed or proven facts could be raised even before the Court of last resort, provided the OP was not taken by surprise or otherwise unfairly prejudiced.  The Learned Counsel has referred to the decision reported in 1996 (2) CPR 26 [M/s Quality Foils India Pvt. Ltd. vs. Bank of Madura Ltd. & Anr.]; 2012 (3) CPR 306 (NC) [M/s Swati Prakash Patil vs. Dr. Rajaram Vanasari]; 2014 (2) CPR 632 (NC) [National Seeds Corporation Ltd. vs. Sh. Dadaso Vishvanath Bagal & Anr.]; 2014 (2) CPR 787 (NC) [M/s Praveen Gandhi & Ors. vs. Dr. K. N. Singla]; 2014 (2) CPR 340 (NC) [Smt. Vidya Devi vs. Dr. (Mrs.) Jatinder Chaddha].  The Learned Counsel for the Appellant has also submitted medical literature in support of his contention.

            The Learned Counsel for the Respondent/Complainant has submitted that the ground of pecuniary jurisdiction should have been taken at the first stage and it cannot be raised at the appellate stage.  It has been submitted that the doctor did not take proper care and failed to exercise standard skill in the matter of delivery.  It is contended that the medicines were prescribed at low dose.  It is contended that the doctor ought to have resorted to balloon tamponade and bimanual compression of the uterus.  It is contended that the licence of the Nursing Home was subsequently cancelled as at the time of enquiry the R.M.O. was not present. 

            We have heard the submission made by both sides and perused the papers on record. It is the main contention of the Learned Counsel for the Appellant that the Learned District Forum had no pecuniary jurisdiction to entertain the complaint and the impugned judgment passed by the Learned District Forum is a nullity.  In the decision reported in 1996 (2) CPR 26 (NC) [M/s Quality Foils India Pvt. Ltd. vs. Bank of Madura Ltd. & Anr.] and in RP No.2679 of 2011 and RP No.2680 of 2011 [P.S. Srijan Enclave & Ors. Vs. Sanjeev Bhargav and Sanjay Dewan] it has been held by the Hon'ble National Commission that the total value of goods and/or services as well as that of compensation would determine the pecuniary limit of jurisdiction of Consumer Fora.  In the decision reported in 2015 (3) CPR 114 (NC) [Hema Gadodia vs. Calcutta Medical Research Institute & Ors.] it has been held by the Hon'ble National Commission that payments made to Hospital would constitute value of services engaged by deceased or family members for his treatment.  In the W.V. it has been averred that the petition of complaint was not maintainable in law.  In the instant case in the prayer portion of the complaint the Complainant has prayed for Rs.20 lakh as compensation and cost.  It appears from the materials on record that the Complainant paid Rs.2,400/- towards the expenses of treatment in the Nursing Home.  Therefore, the amount of compensation and the amount of services taken together exceeded the pecuniary limit of jurisdiction of the Learned District Forum.  The petition of complaint, therefore, was not maintainable and, as such, the impugned judgment amounts to a nullity. 

            The Appeal is allowed.  The impugned judgment is set aside.  The Complainant is at liberty to file the complaint before the appropriate Forum within 30 days of passing this order. LCR be returned to the Learned District Forum immediately.