REPORTABLE        

  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2770    OF 2009 (Arising out of SLP(C) No. 29120/2008)

Anirudh Aggarwal ...Appellant(s)

Versus

Dharam Bir Bhatia ...Respondent(s)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

Leave granted. 2. Challenge in this appeal is to the order passed by the National  

Consumer Disputes Redressal  Commission (in short `the Commission')  

dismissing the petition which was filed by the appellant seeking revision  

of  the  order  of  the  State  Commission,  Rajasthan  (in  short  the  `State

Commission')

3. The  respondent  filed  a  claim  petition  before  the  District  

Consumer  Protection  Forum  –  Second,  Jaipur   (in  short  the  `District  

Forum') under Section 12 of Consumer Protection Act, 1986 (in short the  

`Act').  It was alleged in the complaint that the present appellant started  

treatment of the teeth of the complainant's daughter on the basis of the  

recommendation  made  by Dr.  Anjali  Dave Tiwari  who  was  respondent  

No.1 in the complaint petition.

4. It was alleged that  that the present appellant did not complete  

the treatment  of  the teeth and in fact  left  the treatment  midway which  

caused pain and agony to the daughter  of  the complainant.   Both the  

respondents before the District Forum filed their objections.  The District  

Forum  held  that  the  petition  was  not  maintainable  vis-a-vis  the  

respondent No.1.  However,  it held that since the present appellant did  

not solve the problem and inconvenience suffered by the daughter of the

complainant during the course of the treatment of her teeth and stopped  

the treatment midway on baseless and on imaginary grounds it was just  

and  fair to award compensation to the complainant and, therefore, the  

appellant  herein  was  directed  to  pay compensation  of  Rs.25,000/-  and  

cost of Rs.3,000/- to the complainant.  Both the present appellant and the  

complainant  approached  the  State  Commission.  While  the  present  

appellant  questioned  the  legality  of  the  direction  for  payment  of  

compensation,  the  present  respondent  No.1-complainant  sought  for  

enhancement  of  the  amount.   The  State  Commission  recorded  the  

findings  that  no  affidavit  was  filed  in  the  present  case  by  the  

complainant's daughter to show as to whether she had suffered any pain  

and/or  suffered  physical  hardship.  It  was  also  noted  by  the  State  

Commission that in a case of  this nature, since bulged and crooked teeth  

are  put into the right position, age limitation in this regard could be an  

important factor.  The State Commission also noted that, in the present  

case, the daughter of the complainant was told that considering her age

the treatment could take a long time. It was found that the daughter of the  

complainant had not produced the basis on which it was said that she  

suffered intolerable pain and she brought it to the notice of the Doctor  

and even thereafter,  the Doctor did not do anything.  It was noted that in  

the  notice  produced  by  the  complainant  it  had  not  been  mentioned  

anywhere that braces were tied up tightly because of which his daughter  

suffered problem.  No opinion of any expert had been produced so that it  

could  be  said  that  appellant  showed  negligence  in  the  treatment.  The  

Bench during the hearing of the arguments asked the complainant as to  

whether his daughter  could be sent to some expert even then so that it  

could be learnt as to whether the present appellant had committed any  

negligence in the treatment of her teeth and  that the present appellant  

tied up the  teeth of the complainant  so tightly that it made the life of  

complainant's daughter like a living hell.  Complainant showed negative  

attitude  in this regard and stated that the braces of his daughter  have  

been removed and he did not want  examination  by any Expert.   After

referring  to  the  factual  aspects  the  State  Commission  observed  as  

follows:

”If  any  inconvenience  is  suffered  in  eating  and  drinking  because  of  braces,  negligence  on  the  part  of  respondent  could  not  be  held  mere  on  this  ground.  Complainant  visited  the  respondent  till  nine  months  after  fitting  of  the  braces.   In  the  meantime,  if  she  had  any  problem,  she could  have discussed it  with  the respondent  definitely.”

5. In  other  words,  it  was  conclusively  held  that  there  was   no  

medical  negligence  involved  but  it  was  directed  that  the  complainant  

should be paid Rs.14,000/- which was the amount purported to have been  

paid  by  the  complainant  to  the  Doctor  for  treatment.   Both  the  

complainant and the present appellant filed revision petitions before the  

National Commission.  By the impugned order the National Commission  

dismissed the revision petition filed by the appellant on the ground that  

medical negligence was writ large and no interference was called for.  It  

was  held  that  there  was  concurrent  finding  that  the  appellant  was  

negligent  in  not  treating  the patient  who  was  to be treated.   Revision

petition field by the complainant has been admitted and notice has been  

issued.  

6. Learned  counsel  for  the  appellant  submits  that  the  National  

Commission  has  recorded  incorrect  finding  that  there  is  concurrent  

finding by the District Forum as well as the State Commission about the  

appellant  being  negligent  and  having  not  treated  the  patient.   The  

complainant, who appears in person, supported the order of the National  

Commission.

7. We are of the opinion that, prima facie, the National Commission  

was not justified in dismissing the revision petition filed by the appellant.  

Its conclusions that the forums below had recorded concurrent finding  

about the appellant  being negligent  and not treating the complainant's  

daughter  is  contrary  to   the  conclusion  recorded  by  the  State  

Commission.  That being so, we set aside the impugned order and direct  

that the revision petition of the appellant shall be heard along with the

revision petition filed by the complainant which is numbered as Revision  

Petition No. 4294/2007.  We make it clear that we have not expressed any  

opinion on the merits of the case.

8. The appeal is accordingly disposed of with no order as to costs.

                         ..................J.               (Dr. ARIJIT PASAYAT)

                  ...................J.                                         (ASOK KUMAR GANGULY) New Delhi, April 15, 2009.