Disposed

Prafulla Chandra Dash v. Apollo Hospitals Enterprise Ltd.

Orissa HC15 Sept 2023WP(C)/18909/2023

Case brief

AI extract

What is this about?

This judgment holds that the High Court lacks statutory authority as an appellate forum to entertain appeals directly against orders of the National Consumer Disputes Redressal Commission. The petitioner was directed to approach the Supreme Court under Section 23 of the Consumer Protection Act, 1986, with liberty to condone the delay.

What did the court decide?

Petitioner granted liberty to approach the Supreme Court as the appropriate appellate forum against the National Commission's oral order.

Prafulla Chandra Dash Vs Apollo Hospitals Enterprise Ltd. — Consumer Protection | Orissa HC (2023)

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.18909 of 2023

¶2

Prafulla Chandra Dash …. Petitioner

¶3

Ms. Namita Pattanaik, Adv.

¶4

-versus-

¶5

…. Apollo Hospitals Enterprise Opposite Parties Ltd. and Ors.

¶6

M/s. Rohini Kanta Pattnaik, Adv.

¶7

(for O.Ps. 1 to 4)

¶8

Order No.

¶9

CORAM:
DR. JUSTICE S.K. PANIGRAHI
ORDER
15.09.2023

¶10

¶11

1 . This matter is taken up through hybrid arrangement. 2 . In this Writ Petition, the Petitioner assails the Order (Oral) dated 06.04.2017 passed by the National Consumer Disputes Redressal Commission, New Delhi in First Appeal No.439 of 2016 allowing the appeal filed by the Opposite Party Nos.1, 3 and 4 by setting aside the order dated 18.03.2016 passed by the State Consumer Disputes Redressal Commission, Orissa, Cuttack dismissing the Misc. Case No.72 of 2002 filed by the said Opposite Party Nos.1, 3 and 4 for dismissal of the complaint i.e. Consumer Disputes Case No.16 of 1999 filed by the

¶12

Page 1 of 10

¶13

Signature Not Verified

¶14

Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUT TACK Date: 21-Sep-2023 11:39:39

¶15

// 2 //

¶16

present Petitioner and others claiming compensation of Rs.76,856,92/- with pendente lite and future interest for the deficiency of service in implanting an expired pace maker on late Bharat Chandra Dash. The Petitioner also assails the order dated 13.05.2023 passed by the State Consumer Disputes Redressal Commission, Orissa, Cuttack in Consumer Disputes Case No.16 of 1999 transferring the case to the District Commission, Chennai as well as directing the Secretary to the State Commission to send the record with all documents to the District Commission, Channai for disposal.

¶17

3 . Heard learned counsel for the parties.

¶18

4 . The fact of the case is that the father of the Petitioner and the Opposite Party Nos. 9 to 14 named Bharat Chandra Dash was admitted in the Opposite Party No.1/ Apollo Hospitals Enterprise Ltd. Chennai for treatment of Postulate Gland ailment on 17.03.1998. Therefore, ultrasound, echocardiogram test, City Scan, Xray etc. were undertaken. Therefater, operation was done by the Opposite Party No.4 on 30.03.1998. The deceased father of the Petitioner remained in the said Hospital for Post Operational Care.

¶19

5. While the father of the Petitioner was undergoing treatment in the said hospital, on 04.04.1998 at about 3.30

¶20

Page 2 of 10

¶21

Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUT TACK Date: 21-Sep-2023 11:39:39

¶22

Signature Not Verified

¶23

// 3 //

¶24

P.M felt uneasy, he was taken to intensive care Unit where he was advised to take a temporary pacemaker for his heart ailment. After taking consent from the legal heirs of the deceased, the Petitioner, the Opposite Party No.3 who was looking after the treatment of Late Bharat Chandra Dash advised/suggested the Opposite Party Nos.2, 4 and 5 to fix a permanent Pacemaker. He also told that the cost of the pacemaker and installation charges would be costing around Rs.90,000/-.

¶25

6. The Petitioner initially deposited a sum of Rs.20,000/and, thereafter, an amount of Rs.1,17,692/- out of which Rs.64,720/- was paid towards the cost of the pacemaker.

¶26

7. The deceased father of the Petitioner was discharged from the hospital on 14.04.1998. Thereafter, they left Chennai by train and could reach their permanent residence at Bhubaneswar on 16.04.1998 at 9 A.M. On the very same day around 9/9.30 P.M. the father of the Petitioner became sick and died at his residence.

¶27

8. On verification of the medical documents submitted by the Opposite Party No.1/hospital, the Petitioner came to know that the said pacemaker implanted with his deceased father was an expired one which had lost its efficacy since 17.03.1998.

¶28

Page 3 of 10

¶29

Signature Not Verified

¶30

Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUT TACK Date: 21-Sep-2023 11:39:39

¶31

// 4 //

¶32

9. Thereafter, on 03.05.1998, the Petitioner intimated the hospital authority regarding the death of his father immediately after discharge from the Opposite Party No.1/hospital i.e. on 16.04.1998. Besides, the Petitioner informed the hospital authority regarding implantation of the expired pacemaker mentioned in the summary of Discharge Certificate vide letter dated 14.04.1998.

¶33

10. On receipt of the letter from the Petitioner, the Opposite Party No.1/ hospital gave reply to the Petitioner that “nevertheless the validity of the pacemaker expired on 17.03.1998 the same is revalidated Vide Circular dated

¶34

02.03.1998”.

¶35

11. Being dejected with the evasive reply, the Petitioner along with the Opposite Party Nos.9 to 14 filed Complaint Petition before the State Consumer Commission Vide C.D Case No.16 of 1999.

¶36

12. At the threshold, the Opposite Party No.1/ hospital had raised the question of maintainability of complaint on the score that the same lacks territorial jurisdiction by filing Misc. Case No.72 of 2002.

¶37

13. The Petitioner filed his objection to the said Misc. Case No.72 of 2002 stating therein that to invoke Jurisdiction under Order XIV Rule 2 of the C.P.C, filing of written statement is a must and a mandatory requirement and

¶38

Page 4 of 10

¶39

Signature Not Verified

¶40

Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUT TACK Date: 21-Sep-2023 11:39:39

¶41

// 5 //

¶42

this Court vide order dated 26.08.1999 passed in OJC Nos.10092 and 10093 of 1999 observed that in case the Petitioner raised the question of jurisdiction, the said question should be considered first before proceeding with the Complaint. Further, though the order was passed by this Court as back as on 27.08.1999, the said application has been filed three years after passing of the order, without filling any written version, inter alia, with other grounds.

¶43

14. The State Consumer Disputes Redressal Commission, Orissa, Cuttack vide order dated 18.03.2016 rejected the Misc. Case No.72 of 2002 filed by the Opposite Party Nos.1, 3 and 4 holding that since a part of cause of action took place at Bhubaneswar, the State Commission has territorial jurisdiction to entertain the Consumer Dispute Case.

¶44

15. Being aggrieved by the order dated 18.03.2016 passed

¶45

by the State Consumer Disputes Redressal Commission, Orissa, Cuttack, the Opposite Party Nos.1, 3 and 4 filed First Appeal No.439 of 2016 before the National Consumer Disputes Redressal Commission, New Delhi. The National Consumer Disputes Redressal Commission, New Delhi vide order dated 06.04.2017 allowed the said Fist Appeal No.439 of 2016 based on the ratio decided by

¶46

Page 5 of 10

¶47

Signature Not Verified

¶48

Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUT TACK Date: 21-Sep-2023 11:39:39

¶49

// 6 //

¶50

the apex Court in Sonic Surgical –Versus- National Insurance Company¹ allowed the appeal holding that no cause of action had in fact arisen in the State of Orissa conferring jurisdiction on the Consumer Fora based in Orissa to entertain the complaint.

¶51

16. On the basis of the said order passed by the N ational Consumer Disputes Rederssal Commission, New Delhi, the State Consumer Disputes Redressal Commission, Orissa, Cuttack have been pleased to transfer the case to the District Consumer Disputes Redressal Commission, Chennai on 13.05.2023 for adjudication of the Complaint Case directing the Secretary of the State Consumer Commission to send the record with all documents to District Consumer Disputes Redressal Commission, Chennai. Hence, this Writ Petition.

¶52

16. Learned counsel for the Petitioner submits that the factum of expiry or invalidated pacemaker implanted with his deceased father was not within the knowledge of the Petitioner, since the Petitioner was kept under dark regarding the expiry date of pacemaker nor the Petitioner had scope to know as they were outside the O.T. during operation. She further submits that since the patient belongs to Orissa and all correspondences were made

¶53

1 (2010)1 SCC 135

¶54

Page 6 of 10

¶55

Signature Not Verified

¶56

Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUT TACK Date: 21-Sep-2023 11:39:39

¶57

// 7 //

¶58

from Orissa so also the Opposite Party No.1/ hospital had sent letter to the address at Bhubaneswar, the cause of action arises well within the territorial jurisdiction of the State Consumer Commission. It is also submitted that the order of the State Consumer Commission in sending the record to the District Consumer Commission, Chennai is not justified without any direction from the National Consumer Commission.

¶59

17. Learned counsel for the Opposite Party Nos.1, 3 and 4, on the other hand, submits that the evidence both oral and documentary is available only at Chennai. It will be travesty of justice to call upon the Opposite Party Nos.1, 3 and 4 to go to Cuttack all the way from Chennai to defend their case, when no part of cause of action arose in Orissa. In such view of the matter, he submits that no error has been committed by the National Consumer Disputes Redressal Commission, New Delhi in allowing the appeal filed by the Opposite Party Nos.1, 3 and 4 vide order dated 06.04.2017 and the State Consumer Disputes Redressal Commission, Orissa, Cuttack in transferring the C.D. Case No.16 of 1999 to the District Commission, Chennai vide order dated 13.05.2023. Accordingly, this Writ Petition may be dismissed.

¶60

Page 7 of 10

¶61

Signature Not Verified

¶62

Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUT TACK Date: 21-Sep-2023 11:39:39

¶63

// 8 //

¶64

18. Section 23 of the Consumer Protection Act, 1986 provides as follows:

¶65

“Appeal. - Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of Section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order.

¶66

Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.

¶67

Xx xx xx xx”

¶68

19 . In this Case, the Petitioner has assailed the Order (Oral) dated 06.04.2017 passed by the National Consumer Disputes Redressal Commission, New Delhi in First Appeal No.439 of 2016 allowing the appeal filed by the Opposite Party Nos.1, 3 and 4 by setting aside the order dated 18.03.2016 passed by the State Consumer Disputes Redressal Commission, Orissa, Cuttack dismissing the Misc. Case No.72 of 2002 filed by the said Opposite Party Nos.1, 3 and 4 for dismissal of the complaint i.e. Consumer Disputes Case No.16 of 1999 filed by the present Petitioner and others claiming compensation of Rs.76,856,92/- with pendente lite and future interest for the deficiency of service in implanting an expired pace

¶69

Page 8 of 10

¶70

Signature Not Verified

¶71

Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUT TACK Date: 21-Sep-2023 11:39:39

¶72

// 9 //

¶73

maker on late Bharat Chandra Dash. The Petitioner has also assailed the order dated 13.05.2023 passed by the State Consumer Disputes Redressal Commission, Orissa, Cuttack in Consumer Disputes Case No.16 of 1999 transferring the case to the District Commission, Chennai as well as directing the Secretary to the State Commission to send the record with all documents to the District Commission, Channai for disposal. Therefore, this Court is of the view that the final order has been passed by the State Consumer Disputes Redressal Commission, Orissa, Cuttack. It is pertinent to mention that since the State Consumer Disputes Redressal Commission, Orissa, Cuttack has passed the final Order in in Consumer Disputes Case No.16 of 1999 vide order dated 13.05.2023 and the appellate forum is National Consumer Dispute Redressal Commission (NCDRC) as per Section 19 of the Consumer Protection Act, 1986. In K.V. Padmanabhan v. Consumer Dispute Redressal Forum, Ernakulam² , it has been held as follows:

¶74

“The High Court is not a statutory appellate of revisional authority under the provisions of the Act. An order made by the District Forum is appealable under Section 15 only before the State Commission. An order

¶75

2 AIR 1992 Ker 179

¶76

Signature Not Verified

¶77

Page 9 of 10

¶78

Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUT TACK Date: 21-Sep-2023 11:39:39

¶79

// 10 //

¶80

passed by the State Commission is appealable only before the National Commission under Section 19 and the order of the National Commission could be challenged in appeal only before the Supreme Court under Section 23.” 20 . In light of the aforesaid discussion and the cases cited

¶81

hereinabove, this Court is of the opinion that the Petitioner should have filed the appeal under Section 23 of the Consumer Protection Act, 1986 before the

¶82

appropriate forum against the order of National Commission. Accordingly, the Petitioner is granted liberty to approach the appellate forum provided in the statute. The delay may be condoned considering the plight of the petitioner. 21 . Accordingly, this Writ Petition is disposed of.

¶83

B.Jhankar

¶84

Page 10 of 10

¶85

Signature Not Verified

¶86

Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUT TACK Date: 21-Sep-2023 11:39:39

Prafulla Chandra Dash v. Apollo Hospitals Enterprise Ltd.

Case brief

What is this about?

What did the court decide?

Prafulla Chandra Dash v. Apollo Hospitals Enterprise Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Chittaranjan Sahoo Vs Zm,Bank of India

Sisir Ku.Samantaray Vs State and Ors.

Rabindra Nayak Vs Rajkumar Sharma, Addl Chief Secy., Cum Principal Secy., Health and Family Welfare Dept., Bbsr

Sanjaya Kumar Rout Vs State of Odisha

Basumati Sagaria Vs State of Odisha

Jyotismina Mantri Vs State of Odisha