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PETITIONER: CHARAN SINGH

       Vs.

RESPONDENT: HEALING TOUCH HOSPITAL & ORS.

DATE OF JUDGMENT:       20/09/2000

BENCH: K.G.Balakrishnan, M.B.Shah

JUDGMENT:

Dr.  A.S.Anand, CJI: L.....I.........T.......T.......T.......T.......T.......T..J

     This   appeal  under  Section  23  of   the   Consumer Protection  Act,  1986 is directed against an order  of  the National  Consumer Disputes Redressal Commission, New  Delhi (hereinafter  the  "National  Consumer   Forum")  dated  9th August,  1999 dismissing a complaint filed by the appellant, without  expressing  any opinion on the merits of the  case, but  granting liberty to the appellant to "make a  realistic claim"  and move the State Commission or the District Forum, as  the  case may be in accordance with law.   The  National Consumer Forum 1

     further  directed that time spent before it, should be taken  into  account  for  purpose of  computing  period  of limitation  by  the  appropriate forum where  the  appellant moves  his complaint, With a view to dispose of this appeal, we would refer only to minimal relevant facts as emerge from the  record before us.  In 1993, according to the appellant, he  went to the Healing Touch Hospital, respondent No.l  for treatment of stomachache and burning sensation while passing urine.   He  was  examined by respondent No.2,  Dr.   A.J.S. Juneja,  who  admitted  him in respondent No.l  hospital  on 12.1.1993  for  an operation for removal of "stone from  the Urethra".   At the time of operation, it was respondent  No. 4,  Dr.   Sunil Seth, who administered spinal anesthesia  to the   appellant.    Operation    was   performed.    Certain complications,  according to the appellant, arose on account of  negligence  of respondent No.l hospital and its team  of doctors, both in the administration of spinal anesthesia and performing  the  operation.  According to the appellant,  he was  paralysed  on  the  right hand side of  his  body.   He complained  and was prescribed some medicines and discharged from the hospital.  Despite taking the prescribed medicines, there was no

     improvement.  He a!so started passing blood along with urine.   On 1st February, 1993, the appellant again went  to respondent  No.   1 hospital and met respondent No.  2,  Dr. Juneja, who once again admitted him to the hospital.  On 9th of  February,  1993,  the appellant was advised  to  undergo another  operation  to stop passing blood with  urine.   The appellant  claims that he was taken to the operation theatre

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and  after administering anesthesia to him, when he was in a drowsy  state,  respondents  No.   2  and  3,  obtained  his signatures   on  some  papers.   On  10.2.1993,  after   the appellant  regained  consciousness, respondents No.2  and  3 told  him  that  he would be discharged  from  the  hospital within  a  couple  of days.  The tht side of his  body  was, however,  still paralytic and he complained about it to  the doctors  at  the hospital.  According to the  appellant,  on 18,2.1993,  he was discharged from respondent No.l  hospital In  the  same paralytic condition.  He was  prescribed  some medicines  which  he  kept  on  taking.   Since,   paralytic condition  continued, the appellant went back to  respondent No.l  hospitai where respondent No.2 asked him to ’go  away’ and  not  to return to the hospital ever  again.   Appellant claims  that,  he,  thereafter went  to  Medical  Diagnostic Centre,  Hauz  Khas,  New  Delhi.   On  examination  of  his discharge slip and after

     undertaking  certain  other tests, the  appellant  was told by the Diagnostic Centre, that his left kidney had been removed.  The appeilant was shocked to hear this and went to respondent  No.   3  in the hospital, who told him  to  meet respondents  No.2 and 4.  He asked them how they had removed his  left  kidney  during the second operation  without  his knowledge or consent.  No body was willing to talk to him in the  hospital  and  he  was made to go from  one  doctor  to another.   Finally,  he  was turned away from  the  hospital without  providing  any  explanation.    According  to   the appellant,  as  a  result of the negligence  of  doctors  at respondent  No.l  hospital,  he   has  become  disabled  and handicapped  with his right side being paralysed, for  which has  to  use crutches.  His kidney has also  been  ’legally’ removed.   He states that, as a result, he also lost his job with M/s.  Durga Lakshmi Builders where he was serving prior to  his operation.  He states that he had to spend a fortune for  paying  the  exorbitant bills of the  doctors  and  the hospital  besides medicines, tests and for his upkeep.   The appellant,  thereupon,  filed  a complaint in  the  National Consumer  Forum  and  claimed  Rs.   34  lakhs  by  way   of compensation  from  the  respondents  in  1993  on   various grounds, under different heads.

     The  respondents were put to notice.  They filed their counter  statements and replies, to which the appellant also filed  his  rejoinder.  While the matters rested  thus,  the National  Consumer Forum passed the impugned order  referred to  above,  six years after the complaint was filed, on  9th August, 1999.  Hence this appeal.  The appellant appeared in person before us in this appeal and the Court issued notice. It appeared to the Court that on account of his disabilities and  handicap,  the  appellant  was not  in  a  position  to properly  assist  the Court.  We, therefore,  requested  Ms. Indira  Jaising, learned senior counsel, who was present  in Court, to appear as amicus curiee, which she readily agreed. We have heard learned counsel for the parties.  The impugned order  of the National Consumer Forum is very brief.   While dismissing  the  complaint and relegating the  appellant  to approach  either the District Forum or the State Commission, the  National  Consumer Forum inter alia observed:   "...The Complainant   was  drawing  a   salary  of  Rs.3,000/-  plus allowances.  This is his allegation which is not admitted by the  Opposite  Party.  Even if we accept this contention  is correct  and  even  if we accept that as a result  of  wrong treatment qiven in the Hospital he has

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     suffered permanent disability_the claim,of Rs 34_lakhs made  bv  the Cnmplainnan is excessive.  We are of the  view that  this  exaggerated  claim has been made  only  for  the purpose  of invoking the jurisdiction of this Commission..." (Emphasis  ours) The National Consumer Forum, in our option, was  not fair in disposing of the complaint of the appellant by  styling his claim as "excessive" or "exaggerated", sfier six  years of the pendency of the compiaint, and asking  the appellant to move the State Commissjon or the District Forum by  making  "a  realistic claim" Whether the  claim  of  the appellant  was  "realistic", "exaggerated"  or  "excessive", could only have been determined after the appellant had been given  an  opportunity to prove the case he had set  up  and established  his claim under various heads.  It was not fair to   call   his  claim   "unrealtetic",   "exaggerated"   or "excessive"  without giving the appellant an opportunity  to substantiate  his  case.   ’ Ms.   Indira  Jaising,  learned Amicus,  submitted  that according to the appellant  he  had suffered  paralysis  on the right side and had  also  become permanently  disabled and his one kidney had been  illegally removed.   The  appellant had on that account suffered  pain and  suffering.  He had aiso undergone heavy expenditure for his.

     operations,  upkeep,  medicines etc.  He had lost  his job.   Learned  counsel submitted that the appellant  should have been given an opportunity to substantiate his claim and the  National  Consumer Forum was not justified  to  observe that   the   claim  put  forward   by  the   appellant   was "unrealistic",  "exaggerated" or "excessive" after referring to  the salary of the appellant only.  According to Ms.  Jai Singh,  the  National  Consumer  Forum,  was  not  right  in scuttling  an  enquiry into the claim of the  appellant,  in limine’  after  keeping  him  waiting for  six  long  years. According to her, the impugned order rotates the spirit with which  the  Consumer  Protection Act was  enacted.   Learned counsel  for  the respondents, however, submitted  that  the claim of the appellant was "exaggerated" and "excessive" and the Forum rightly rejected it, without giving any finding on merits  so  as  not to prejudice the case of  the  appellant before  the  District Forum or the State Commission.   After hearing  learned  counsel for the parties and  perusing  the record, we are constrained to say that we are not happy with the  manner in which the complaint of the appellant has been disposed of.

     Consumer  Protection  Act  is one  of  the  benevolent pieces  of  legislation intended to protect a large body  of consumers  from  exploitation.   The  Act  provides  for  an alternative  system  of consumer justice by  summary  trial. The  authorities  under  the Act quasi judicial  powers  for redressal  of  consumer  disputea  and  it  is  one  of  the postulates  of such a body that it arrive at a conclusion on reason.   The necessity to provide reasons, howsoever, brief in support of its conclusion by such a forum, is too obvious to  be  reiterated and needs no emphasising.  Obligation  to give  reasons  not  only  introduces   clrity  but  it  also excludes,  or  at  any  rate   minimizes,  the  chances   of arbitrariness  and the higher forum can test the correctness of  those reasons.  Unfortunately we have not been .able  to find  from the impugned order any reasons in support of  the conclusion  that the claim of the appellant is "unrealistic" or  "exaggerated" or "excessive".  Loss of salary is not the sole   factor   which  was  required   to  be   taken   into consideration.   While quantifying damages, consumer  forums

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are  required to make an attempt to serve ends of justice so that  compensation is awarded, in an established case, which not  only serves the purpose of recompensing the individual, but which also at the same time,

     aims  to  bring  about  a qualitative  change  in  the attitude  of  the service provider.  Indeed, calculation  of damages depends on the facts and circumstances of each case. No  hard  and  fast  rule can be  laid  down  for  universal application.   While swarding compensation, a Consumer Forum has  to  take into account all relevant faacors  ana  assess compensation  on the basis of accepted legal principles,  on moderation.   It  is  for  the   Consumer  Forum  to   grant compensation  to the extent it finds it reasonable, fair and proper  in  the  facts  and circumstances of  a  given  case according  to  established  judicial   standards  where  the claimant  is able to establish his charge.  It is not merely the  alleged  harm  or  mental   pain,  agony  or   physical discomfort,  loss of salary and emoluments etc.  suffered by the  appellant which is in issue - it is also the quality of conduct committed by the respondents upon which attention is required  to be founded in a case of proven negligence.   it must   be  remembered  that   National  Consumer  Forum  has jurisdiction, without pecuniary limitations, to award proper compensation.,  even  less than the one claimed in  a  given case, depending upon the established facts and circumstances of that

     particular  case and the evidence led by the parti’es. The  District  Commission and the State Forum, on the  other hand, have pecuniary jurisdictional limitations for granting compersation  beyond  their  jurisdictionai  limits.   Under Section  11(1)  of  the Consumer Protection Act,  1986,  the District Forum has junsdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed  does  not exceed Rs.5 lakhs.  Section 17(a) of  the Act  provides that State Commission shall have  jurisdiction to entertain complaints where the value of goods or services and  compensation,  if any, claimed exceeds Rs.5 lakhs,  but does   not   exceed  Rs.20  lakhs.    In   view   of   these jurisdictionai  limitations  of the District Forum  and  the State  Commission,  these bodies would not be able to  award compensation,  even  if satisfied in a given case  that  the complainant  was entitled to more compensation than what  he had  claimed,  beyond  their pecuniary  jurisdiction.   That apart,  in the present case, complaint petition filed by the appellant  for compensation was pending before the  National Consumer  Forum for six long years.  The pleadings had  been completed.   The  National Consumer Forum should have  taken the  complaint  to  its  logical conclusion  by  asking  the parties to adduce

     evidence  and  rendered  its findings  on  merits.   A mathematical  calculation based only on the amount of salary being drawn by the appellant couid not be the soie factor to be  into  consideration to style the claim of the  appellant "unrealistic"   or   "exaggerated"  or   "excessive".    The appellant  has virtually condemned unheard after waiting for six  long  years.  The legislative intent, for enacting  the legislation,  of a speedy summary trial, to settle the claim of  the  complainant (consumers) has been respected  in  its breach.   The spirit of the benevolent legislation has  been overlooked  and  its  object frustrated by  non-suiting  the appellant  in  the manner in v^hich it has been done by  the National  Consumer  Forum.   The consumer forums  must  take

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expeditious  steps to deal with the complaints fited  before them  and not keep them pending for years.  It would  defeat the  object of the Act if summary trials are not disposed of expeditiously  by  the  forums  at the  District,  State  or National levels.  Steps in this direction are required to be taken  in  the  right earnest.  We, therefore,  accept  this appeal,  set  aside  the  impugned  order  of  the  National Consumer  Forum  and  remand  the  complaint  filed  by  the appellant to the National Consumer Forum for its disposal in accordance with law.

     We  clarify that what we have said above shall not  be construed  as any expression of opinion on the merits of the case,  or the rights of the parties.  The complaint shaft be decided  on  its  own  merits in accordance  with  law.   We request  the  National  Consumer  Forum to  dispose  of  the complaint  of  the appellant expeditiously.  Before  parting with this order, we wish to place on record our appreciation for  the assistance rendered by learned Amicus, Ms.   Indira Jaising.