“NIIT has a full fledged placement division which assists you in finding placement after you successfully complete a career course. The placement division is in touch with prospective employers the year round and identifies job opening and industry trends- and guides NIIT students meaningfully.” This is not merely an offer but something more than an offer. The students get attracted by such like advertisements. Even if there was fall in the IT business during those days, it was the bounden duty of the OP to take care of their students. It is clear that for money, the people can stoop down to any extent. It is well said that money is the biggest seed of strife in the world.Keeping in view all the facts and circumstances of the case, we dismiss the revision petition filed by the opposite party and partly allow the second appeal filed by the complainant. The opposite parties are directed to pay Rs.38,944/- towards fee, alongwith interest @9% p.a. from the date of its deposit till its realisation. The opposite parties are also directed to pay Rs.1 lakh to the complainant as compensation for harassment and mental agony and Rs.35,000/-, the stipend for five months, within one month, failing which, it will carry interest @9% pa. till its realization.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 REVISION PETITION NO. 3954-3955 OF 2010

 (Against the order dated 01.07.2010 in Appeal No. FA-09/12 of the

Delhi State Consumer Disputes Redressal Commission, Delhi )

M/s NIIT Ltd.

C-125, Okhla Industrial Area,

Phase-1, New Delhi-110020                                       ........ Petitioner (s)      

          Vs.

Ms. Anu Kohli

524, Mandakini Enclave,

Alaknanda, New Delhi                                               …….Respondent (s)

REVISION PETITION NO. 655 OF 2011

 (Against the order dated 01.07.2010 in Appeal No. FA-09/59 of the

Delhi State Consumer Disputes Redressal Commission, Delhi)

Ms. Anu Kohli

11501 Century Oaks #3124

Austin TX 76758-0000 U.S.A.

Through : I. S. Kohli

524, Mandakini Enclave,

Alaknanda, New Delhi                                               ........ Petitioner (s)      

          Vs.

1. M/s NIIT Ltd.

   C-125, Okhla Industrial Area,

   Phase-1, New Delhi-110020

2. Mr. R. S. Pawar, Chairman of

    Respondent No. 1,

    C-125, Okhla Industrial Area,

    Phase-1, New Delhi-110020

   Also at

   N-3, Panchsheel Enclave,

   New Delhi – 110017.

3. Mr. Rohit Verma

    Divisional Manager (Human Resource)

    8, Balajee Estate,

    Kalkaji, New Delhi – 110019

4. Col. Ajai Lal,

    Regional Head NIIT,

    C-1/30, SDA

    Behind Aurbindo Place Market,

    New Delhi- 110016                                      …….Respondent (s)

BEFORE: 

      HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER

      HON’BLE MR. VINAY KUMAR, MEMBER

       

For M/s NIIT Ltd.                    :     Mr. Avanish Kumar, Advocate

                                                

For Mr. Anu Kohli                 :     Mr.  I. S. Kohli, Advocate

For the Respondent             :     Mr. A. K. Sharma, Advocate

Pronounced on  3^rd  September, 2012

ORDER

JUSTICE J. M. MALIK, PRESIDING MEMBER

1.      This order shall decide two cases which arise out of the same judgment by the State Commission where, too, both the cases were decided by a single judgment, one for enhancement of compensation and second for deletion of the compensation.  Both these appeals have been filed by both the parties separately. 

2.      The complainant, Ms. Anu Kohli took admission in GNIIT course with the opposite party, M/s NIIT Ltd. on 18.8.1998. She paid a total fees of Rs.38,944/- in installments.  She was admitted at Gargi College, New Delhi for doing GNIIT course and availed opportunity of Bhavishya Jyoti Scholarship Scheme.  The course consisted of four semesters of classroom coaching, machine room learning and one year of professional practice in the capacity of employee/stipendee.  After completion of professional practice, giving of placement was also part of the contract.  According to the complainant, the faculty was not adequately trained.  Number of complaints were lodged vide letters dated 2.12.1999, 1.3.2000, 18.5.2000, 20.5.2000, 24.5.2000, 25.5.2000, 18.8.2000, 22.9.2000 and 15.9.2000, which did not evoke any response.  Again, opposite parties were not having proper infrastructure for teaching the course.  The complainant took one semester in fast track mode but even that, it also took six months to complete the course in place of three months.  Compensatory course in ‘JAVA’ was offered to the petitioner free of cost.  However, said promise was not kept. 

3.      On 13.12.2000, the complainant was called for interview and was consulted for professional practice in the capacity of employee/stipendee with the respondents own SEB section for one year following technical test and interview vide contract letter dated 13.12.2000.  After about more than 7 months, on one day, the complainant was called at 8, BalajiEstate and was forced to accept/sign a letter placed before her, terminating her provisional practice in the capacity of employee/stipendee and converting it to Project Mode contrary to the report on respondents SEED centre ( Centre/school for employee education and development) at Sanik Farms for two weeks for project based skills/learning sessions contrary to the scheme of GNIIT on 13.12.2000.  On 13.8.2001, the complainant objected and forcefully rejected the above said mala fide action on the part of the respondent.  After completion of two weeks, she was given a cyclostyled paper containing details of a dummy project to be completed at home, which was contrary to the terms and conditions of the contract and scheme of GNIIT.

4.      Assessment made during one year period which comprised partly of professional practice in the capacity of employees/stipendee and Internal Organisational Courier and rest to do at home project mode were submitted to the PP Coordinator, Ms. Suja Ajith from time to time by registered post between 23.10.2001 & 7.12.2001.  The respondents-Institute failed to provide the quality education and teaching in the class room.  Even the examination system was miserably deficient, so much so that the transcripts of marks issued  by the respondents for various semesters were incorrect.  Third semester evaluation was re-assessed resulting change in marks.  No detail of deposit of PF and ESI was given to her depriving her of facilities available under ESI or continuation or refund of PF deducted and deposited, if any. Respondent failed to refund stipendee for five months i.e. 9.8.2001 onwards.  Above all, the Respondents failed to grant the certificate to the complainant, after the completion of the course.

5.      Therefore, the complaint was filed with the prayer to refund Rs.38,944/- paid towards fee alongwith interest @18% p.a. and Rs. 4 lakh be paid as compensation as the complainant had suffered mental agony, harassment, loss of job as the opposite parties are liable for wasting two important years of her carrier.

6.      The opposite party contested this case.  It is contended that the complainant had completed 4^th Semester and 8 months of her professional practice and thereafter abandoned the course of her own accord.  The complainant was apprised of the completion of the rest of the professional course through many reminders but to no avail. The stance set up by the petitioner is that since complainant did not complete the course, therefore, complainant is not entitled to GNIIT certificate and there was no deficiency in service on the part of the opposite party.

7.      The District Forum came to the conclusion that the case in favour of the complainant does not stand proved but on account of negligence, deficiency in service in the class room teaching as well as due to inefficient facility held opposite party liable to compensate the complainant by paying a sum of Rs.40,000/- towards mental agony, harassment, deficiency in service and cost of litigation.

8.      The complainant filed the appeal for enhacement of the compensation and the opposite parties filed the appeal for setting aside the order passed by the District Forum.  The State Commission held that the opposite party is guilty of deficiency in service.  The State Commission also upheld the order of District Forum and made the following observations:-

                             “15. All the grounds raised by the complainant in her appeal against the impugned order have no relevance in this consumer dispute.  The ld. District Forum has recorded its findings in respect of three of the four issues framed by it, on the basis of material produced before the forum and there appears no reason to us to interfere with these findings.  Regarding issue of deficiency-in-service, though we feel inclined to differ with the Ld. District Forum, yet considering the facts and circumstances of the case, we refrain to upset those findings recorded by the Ld. District Forum, in the interest of justice.  Hence without expressing any opinion whether OP are guilty or not for deficiency-in-service, we dismiss both the appeals holding that the compensation awarded vide the impugned order is nothing but a consolation award to assuage the hurt feelings of the complainant.”

          This is a strange type of judgment where all the questions were not decided as per law. 

9.      We have heard learned counsel for the parties.

10.    Both the parties reiterated the pleas raised in their pleadings.  Learned counsel for the complainant contended that the petitioner was deficient in providing service but counsel for the respondents argued that since the complainant had abandoned the course of her own, she cannot put the blame at the door of the other party. 

11.    It appears that the foras below have not appreciated the documents properly.  The main document produced before the fora is letter written by opposite party dated nil, relevant portion is reproduced as follows:-

          “This is further to our letter on the above subject.  Effective August 13^th, 2001, your Professional Practice at NIIT shall be converted to a project mode during which learning support shall be provided to you by NIIT.  This would be for the residual part of Professional Placement.

Throughout the duration of the project, NIIT shall continue to fulfill all academic obligations four your GNIIT certification. The details of your schedule in the project mode are given below:

·        Starting August 13^th, 2001, we have scheduled learning sessions for you on latest technologies at our trainingcentre at SEED, New Delhi.

·        This programme shall be for duration of two weeks.

·        After completion of this programme, you shall be assigned a project based on the skills acquired by you during these sessions.

·        You will complete the project under the guidance of Mr. Sridhar Reddy.

·        You will be evaluated for this project assignment and the marks obtained by you shall be combined with the marks earlier obtained by you during your Professional placement.

·        You will not be paid any stipend during this period.

·        As a special dispensation, during this period, you will be allowed to attend employment interviews.

I am sure these input sessions would help you in future employment opportunities.

          Pl. report to Col.(Retd.) T.G. Mathur on August, 13^th 2001 at 9.00 am at SEED, 140 B. Sainik Farms, New Delhi.

          Please get back to me for any further clarifications.

Thanking you,

For NIIT Limited

Sd/-

Rohit Varma

Deputy General Manager-Human Resource, SSB.”

         

12.    The opposite party failed to pay the stipend during this period.  They did not assure that they will pay the stipend for the rest four and a half month or five months.   This shows cheating on the part of the opposite party in order to save the money.  They have played with the life of a student.   When confronting with this document, learned counsel for the opposite party could not explain this fact.  It is, thus, clear that the complainant was compelled to leave the course.  We are informed that the student used to get stipend in the sum of Rs.7,000/- per month.  If this much amount is denied, how she can carry on her studies.    This goes to reveal that the respondent was terribly remiss in discharge of its duties.  The rights and duties of the citizens are actually two sides of the same coin and you cannot demand your rights without performing your duties.

13.    The judgment of State Commission reveals that the brochure of the opposite party mentions as under:-

          “NIIT has a full fledged placement division which assists you in finding placement after you successfully complete a career course.  The placement division is in touch with prospective employers the year round and identifies job opening and industry trends- and guides NIIT students meaningfully.”

          This is not merely an offer but something more than an offer.  The students get attracted by such like advertisements.  There were also deficiencies as recorded by the District Forum. 

14.    The State Commission’s order reveals that during the last 7 years, the complainant had acquired experience and was certified as TARADATA Master by NCR, PMP by institute of Project Manager(USA) and reached the position of Sr. Project Manager with Multinational Software Company drawing a CTC of Rs.15 lakhs per annum having worked in India and U.S. now having a job offer of $11 ac p.a. with benefits.  We find force in the plea that she has pursued this case to set an example that M/s NIIT Limited should not play with the life of students (young generation). 

15.    Even if there was fall in the IT business during those days, it was the bounden duty of the OP to take care of their students.  It is clear that for money, the people can stoop down to any extent. It is well said that money is the biggest seed of strife in the world.

16.    Keeping in view all the facts and circumstances of the case, we dismiss the revision petition filed by the opposite party and partly allow the second appeal filed by the complainant.  The opposite parties are directed to pay Rs.38,944/- towards fee, alongwith interest @9% p.a. from the date of its deposit till its realisation.  The opposite parties are also directed to pay Rs.1 lakh to the complainant as compensation for harassment and mental agony and Rs.35,000/-, the stipend for five months, within one month, failing which, it will carry interest @9% pa. till its realization. 

..……………Sd/-……..………

     (J.M. MALIK, J.)

      PRESIDING MEMBER

                                                                

  ……………Sd/-….……………

                                                        (VINAY KUMAR)

                                                                            MEMBER

Naresh/Reserved

As they (HUDA) were not in a position to deliver possession they cannot expect parties like the Respondent i.e. allottees to keep on paying installments to them. In such cases i.e. where Appellants are not in position to deliver possession they cannot charge interest on delayed payments till after they offer possession.” To sum-up, we partly allow the First Appeal and direct the Respondent/Authority to refund the penal interest paid by the Appellant on the delayed payment of Rs.1,60,422/- from 14.10.1996 to 09.10.2001 i.e. from the date of demand of this amount till the date of offer of the possession to the Appellant, within a period of 8 weeks from the date of receipt of this order failing which it will carry interest @ 9% per annum from the date of default. We further direct that the Appellant be paid Rs.20,000/- for mental agony and harassment and Rs.5,000/- as costs. The First Appeal is disposed of on the above terms.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

FIRST APPEAL  NO.418 of 2007

(From the order dated 22.05.2007 in Complaint No.10/2000 of the

State Commission, Haryana)

Lt.Col.Mangal Singh Nagal                                                                                                                                           …Appellant

Versus

HUDA & Anr.                                                                                                                                                                  …Respondents

BEFORE:

          HON’BLE  MR. JUSTICE  ASHOK  BHAN,  PRESIDENT

          HON’BLE  MRS. VINEETA RAI,  MEMBER

For the Appellant                   :         Mr.S.K.Sharma, Advocate

For the Respondents    :         Mr.R.B.Badhran, Advocate

Pronounced on 6^th September, 2012

ORDER

PER VINEETA RAI, MEMBER

Lt.Col.Mangal Singh Nagal, Appellant herein and complainant before the State Consumer Disputes Redressal Commission, Haryana (hereinafter referred to as the ‘State Commission’) has filed this Appeal being aggrieved by the dismissal of his complaint by the State Commission against Haryana Urban Development Authority and another, opposite parties before the State Commission and Respondents herein.

The facts of the case are that in 1991 Appellant had applied for a 14 Marla plot located in Bhiwani under the category reserved for Defence Personnel by submitting an application along with a draft for Rs.16,020/- to the Respondent/Authority.   He was allotted a residential plot No.1643 measuring 299 Sq.Mtrs. located in Sector-13 at Bhiwani vide allotment letter dated 27.08.1991 at a tentative price of Rs.1,60,200/-.  The Appellant deposited another Rs.24,030/- on 09.09.1991 so as to constitute 25% of the total tentative price of the allotted plot.  He paid the remaining amount in 6 installments.   Despite several letters and visits to the Respondent/Authority to hand over the possession of the said plot, Respondent/Authority failed to do so and in 1996 demanded another Rs.1,60,422.50p being the enhanced price of the plot.  Appellant refused to pay the same on the ground that till possession of the plot is delivered, Respondent/Authority was not competent to demand the enhanced payment.   On 14.10.1998, Respondent/Authority offered an alternative plot to Appellant that since the plot allotted to him was under litigation and development works could not be completed in the near future, Appellant immediately conveyed his consent on 21.10.1998.  However, even thereafter Respondent/Authority did not hand over possession of the same on the ground that development works had still to be completed.  Appellant again represented to the Respondent/Authority vide letter dated 31.05.1999 and claimed interest on the amount already deposited by him.  This was declined by the Respondent/Authority who however insisted that Appellant should pay Rs.1,60,422.50p being the enhanced price of the plot.  Being aggrieved, Appellant filed a complaint before the State Commission on grounds of deficiency in service and requested that Respondent/Authority be directed to deliver him possession of the allotted plot in Sector-13 as also interest @ 18% on Rs.1,60,450/- paid by him from the date of deposit till the date of delivery of possession of the plot, Rs.7,00,261.80p as compensation on account of escalation in the cost of construction,  Rs.20,000/- towards travelling costs, compensation of Rs.50,000/- on account of mental agony and harassment and Rs.5,000/- as litigation costs.

Respondents on being served denied that there was any deficiency in service in the instant case and inter alia stated that as per the terms and conditions of the allotment letter, possession of the plot in question was to be delivered to the Appellant on completion of development works at the site.  Due to circumstances beyond their control e.g., litigation etc., it had not been possible to do so.   Further, the Appellant had not paid the enhanced cost of the plot in question and therefore, it was the Appellant who had defaulted.  Appellant was also liable to pay interest on the delayed payment.

During the pendency of the case before the State Commission, it was submitted by the Appellant that possession of the plot was offered to him vide letter dated 09.10.2001.   To facilitate his taking possession of the plot, Appellant paid the demanded amount i.e. Rs.3,16,627/- of which Rs.1,33,565/- was the interest on enhanced compensation.

The State Commission after considering the submissions as also the evidence filed before it dismissed the complaint by observing as follows:

“Surprisingly enough, in this case the complainant has admitted that he had accepted the offer of possession vide letter dated 6.12.2001 Annexure A-2 placed on record, but still maintained that development was not completed.  What was the nature of development work which was not completed, has not been specified.  This part of the averments made in the additional evidence filed clearly shows that he wants to attribute the deficiency of service on the part of the opposite parties without any foundation on record in this regard.  Rather it is established that this stand has been taken in order to avoid his liability arisen therefrom because for taking possession of the allotted plot, burden was upon him to approach the opposite parties to get the possession of the plot from the opposite parties, rather, he deliberately withheld the payment of the additional price and even deposited Rs.1,00,000/- vide demand draft dated 9.8.2002 towards enhanced price of the plot and thereafter the balance amount on 19.4.2005.  These circumstances clearly established his default in performance of his part of the contract as stipulated in the allotment letter.

The next question arises is whether in the given circumstances the complainant is entitled to receive any interest amount for the delayed period of delivery of the allotted plot to the complainant.  It cannot be denied that the complainant has been allowed to taken possession of the allotted plot at the old rate and thus got the benefit in the escalation of the price.  Therefore, he is not entitled to any interest on the deposited amount.

Regarding the demand made in respect of the escalated cost of construction claimed by him, no doubt he has placed on record affidavit of Shri R.K. Jain, aforesaid Architect and Valuers, who has worked out the escalated cost of construction of two storeys building to be made on his plot by the complainant at Rs.7,68,420.69.  The complainant has disentitled himself to get his escalated cost of construction for two reasons.  Firstly, that he deliberately has not paid the enhanced compensation amount demanded by the opposite parties and on account of default committed by him contributed to the delayed period of completion of the amenities to be provided.  Secondly, that if the amount claimed is allowed it would mean that the complainant would get the land of plot free of cost which cannot be allowed under the circumstances of the case.  Under the circumstances of the case the complainant is not entitled to other claims made in the complaint.”

          Hence, the present First Appeal.

          Learned Counsel for both parties made detailed oral submissions.  Counsel for Appellant contended that the State Commission erred in dismissing his complaint without appreciating the facts of the case including the terms and conditions of the allotment letter as also a judgment of the Hon’ble Supreme Court in HUDA Vs. Shanti Devi - 2005(9) SCC 527 which is fully relevant in this case.  In that case, Hon’ble Supreme Court had, inter alia, stated that if possession cannot be delivered within a reasonable time, allottees cannot be expected to keep on paying instalments and where the Appellants (in that case HUDA) were not in position to deliver possession they cannot charge interest on delayed payments till after they offer possession.  Counsel for Appellant also brought to our notice the terms and conditions of allotment issued by HUDA in wherein it is clearly stated that “interest shall be payable on unpaid amounts from the date of offer of possession”.  Keeping in view these facts, Appellant was fully justified in not paying the enhanced compensation amount in the first instance and thereafter interest on this amount for delayed payment as per the judgment of the Hon’ble Supreme Court as also the terms and conditions of the allotment.  Therefore, the interest paid on the enhanced amount by the Appellant for the period 14.10.1996 to 09.10.2001 should be refunded to him.  Also in the interest of justice, Respondent/Authority must pay the Appellant interest on the tentative price of the plot already deposited by him.  Further, view of the certificate of an expert, namely; M/s Jain Architects & Valuers that delay in handing over the possession of the plot had resulted in escalation of the cost of construction by Rs.7,00,261.80p, this amount should also be paid by the Respondent/Authority to the Appellant.

          Counsel for Respondents on the other hand while admitting that there was  delay in delivery of possession of the plot stated that this was because of prolonged litigation and was, therefore, beyond the control of the Respondent/Authority.  As soon as the plot was free of encumbrances and available, possession was handed over to the Appellant.  It was further contended that Respondent/Authority was fully justified in asking for the enhanced price of the plot because as per the award given by the Court enhanced compensation had to be paid to the farmers whose land had been acquired in this Scheme.   Appellant was also liable to pay interest on this delayed payment as per the laid down policy of Respondent/Authority.   Appellant’s demand for interest on the tentative amount deposited by him was not justified as this was not a part of the terms and conditions or the declared policy of the Respondent/Authority.  The Appellant’s request for compensation of  Rs.7,00,261.80p because of increase in the cost of construction over the years is not borne out by any specific evidence to this effect and the certificate filed in evidence from the Architect and Valuers in support is general and does not give specific details of how the cost of escalation has been worked out.  It was also contended that since Appellant had already filed an Appeal on the same issue before the Civil Court/High Court therefore, the present Appeal was not admissible and may be dismissed.

          We have heard learned Counsel for both parties and have carefully gone through the evidence on record.  The fact that the Appellant had been allotted a plot measuring 299 Sq.Mtrs. in Sector-13, Bhiwani in the year 1995 for which the possession was offered only in 2001 and for which he paid the tentative cost of Rs.1,60,450/- is not in dispute.  It is also an admitted fact that Appellant did not pay the enhanced amount of Rs.1,60,422.50p nor the interest thereon as demanded by the Respondent/Authority on the ground that he was not required to do so till a possession letter was issued to him.  We find force in this contention of the Appellant keeping in view the judgment of the Hon’ble Supreme Court in Shanti Devi (supra), the relevant portion of which reads as follows:

“As they (HUDA) were not in a position to deliver possession they cannot expect parties like the Respondent i.e. allottees to keep on paying installments to them. In such cases i.e. where Appellants are not in position to deliver possession they cannot charge interest on delayed payments till after they offer possession.”

          We have also gone through the terms and conditions of the allotment and we agree with the Appellant’s contention that as per Clause 2(ii)(b) of allotment, interest is to be payable on the unpaid amount only from the date of offer of possession (i.e. from 09.10.2001).    Keeping in view these facts, interest on the delayed payment of enhanced price could only be levied by Respondent from 09.10.2001 when the offer of possession was made and not from any earlier date.  In view of these facts and respectfully following the judgment of the Hon’ble Supreme Court in Shanta Devi (supra), we set aside the order of the State Commission upholding the levying of penal interest on the enhanced amount from 14.10.1996 to 09.10.2001.   

Regarding Appellant’s demand for compensation of Rs.7,00,261.80p on grounds of enhanced cost of construction, we agree with the Respondent/Authority that certificate of the Architect & Valuers filed in support is of a general nature and does not specify the enhanced costs of the major construction materials e.g. bricks, iron etc. in the absence of which, we are unable to accept this certificate.   Appellant’s contention that he be paid interest on the initial deposit of Rs.160,422/- being the tentative price of the plot allotted to him is also not acceptable since there is no provision for payment of interest in the policy of the Respondent/Authority in this connection. 

To sum-up, we partly allow the First Appeal and direct the Respondent/Authority to refund the penal interest paid by the Appellant on the delayed payment of Rs.1,60,422/- from 14.10.1996 to 09.10.2001 i.e. from the date of demand of this amount till the date of offer of the possession to the Appellant, within a period of 8 weeks from the date of receipt of this order failing which it will carry interest @ 9% per annum from the date of default.  We further direct that the Appellant be paid Rs.20,000/- for mental agony and harassment and Rs.5,000/- as costs.

The First Appeal is disposed of on the above terms.

Sd/-

…………..…………………

(ASHOK BHAN   J.)

PRESIDENT

Sd/-

………….……………….

(VINEETA RAI)

MEMBER

/sks/  

the Respondents were undoubtedly guilty of medical negligence because during the course of a caesarean operation, they caused injury to the urinary bladder leading to multiple complications and death which was totally avoidable had due care been taken especially since caesarean sections are fairly common surgical procedures. In view of the above circumstances, applying the principle of res ipsa loquitur, no expert opinion is required to prove the apparent medical negligence in this case. We, therefore, uphold the order of the State Commission that Respondents No.1 and 2 and are jointly and severally guilty of medical negligence in the instant case. since three young children have been rendered motherless, two of them at infancy, and in the interest of securing their future, there is a case for enhancing the compensation. We, therefore, direct that the compensation of Rs.1 lakh given to each of the three minor Appellant be enhanced by Rs.50,000/- each and the total amount of Rs.1,50,000/- each be put in the name of the minor Appellants in a Nationalized Banks under fixed deposits till they attain age of majority. Counsel for Respondents state that 50% of the amount awarded earlier has already been deposited by Respondents No.1 and 2 before the State Commission. If that be so, this amount be adjusted towards the awarded amount and the remaining amount be paid to the three minor Appellants by Respondents No.1 and 2 jointly and severally, to be put in the fixed deposits as ordered above within six weeks from the date of receipt of this order. The First Appeal No.203/2007 is disposed of on the above terms.

                                                                   NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

FIRST APPEAL NO. 538 of 2006

(From the order dated 29.06.2006 in Complaint No.89/2002 of the

State Commission, Andhra Pradesh)

Dr.Atluri Ravindranath & Anr.                                                                                                                                                               …  Appellants
Versus

Jangamgunta Balasubramanium & Ors.                                                                                                                                     …Respondents

FIRST APPEAL NO. 203 OF 2007

(From the order dated 29.06.2006 in Complaint No.89/2002 of the

State Commission, Andhra Pradesh)

Jangamgunta Balasubramanium & Ors.                                                                                                                                              …  Appellants

Versus

Dr.Atluri Ravindranath & Anr.                                                                                                                                                               …  Respondents

BEFORE:                                                          

HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON’BLE MRS. VINEETA RAI, MEMBER

For the Appellants                         :           Mr.G.V.K. Chowdary, Mr.A.

(in F.A.No.538/2006) &                                   Chandrasekhar, Advocates

For the Respondent

(in F.A.No.203/2007)

For the Respondents                     :           Ms. A. Subhashini, Advocate

(in F.A.No.538/2006) &                                   Advocates

For the Appellant

(in F.A.No.203/2007)

Pronounced on 4^th September, 2012

ORDER

PER VINEETA RAI, MEMBER

Two cross First Appeals No.538/2006 & 203/2007 have been filed by Jangamgunta Balasubramanium and others, who were the complainants before the State Commission, and Dr.Atluri Ravindranath and another, Respondent before the State Commission respectively being aggrieved by the  order of the State Consumer Disputes Redressal Commission, Hyderabad (hereinafter referred to as the ‘State Commission’) in Complaint No.89/2002.  Since the facts and the parties involved in both Appeals are the same, it is proposed to dispose of these cases by a common order by taking the facts from First Appeal No.203 of 2007.   JangamguntaBalasubramnium (hereinafter referred to as the ‘Appellant No.1’) and his three minor children are other Appellants.

FACTS

          The Appellant No.1’s wife, Smt.J.Madhavi (hereinafter referred to as the ‘patient’) conceived for the second time and underwent regular medical check-ups upto the sixth month of pregnancy in Chennai where Appellant No.1 was informed that her condition was normal.  In her seventh month of pregnancy, patient went to her parent’s home in Vijayawada and was under the medical care of Respondents No.1 and 2.  On 1.8.2000, she was admitted in Respondent No.1’s Nursing Home and underwent a caesarean section on 2.8.2000 and delivered healthy twin babies. In the evening of 03.08.2000, there was gushing of fluids from the stitches of the surgery site as also blockage of urine and Appellant’s father-in-law informed the Respondent No.1 who after examining her referred her to a Radiologist, Dr.B.Venkata Rathnam (Respondent No.6) and thereafter informed Appellant’s father-in-law that a re-operation was necessary because complications had developed due to mounting pressure upon the kidneys because of the twin pregnancy.  Respondents No.1 and 2 conducted an Exploratory Laparotomy  on 04.08.2000 and thereafter the patient was admitted in Aruna Kidney Centre for dialyses as advised by Respondent No.4, who was a Nephrologist.   Since her lungs had also got affected, Respondent No.4 also referred the patient to Respondent No.5 and Respondent No.6 and thereafter she was admitted in Respondent No.6’s hospital where she was put on ventilator and sent every two days to Aruna Kidney Centre for dialyses.  However, patient’s condition continued to deteriorate and she died on 07.08.2000.  A post-mortem conducted by a team of 3 doctors concluded that the cause of the death was Septicaemia resulting from post-operative complications.  Appellant issued a legal notice to Respondents holding them responsible for the death of his wife due to their medical negligence and demanded compensation of Rs.10 lakhs which included the heavy expenditure incurred on the medical treatment of the patient.

          Respondents denied that there was any medical negligence in this case.  Respondents No.1 and 2 stated that the complications may have arisen after the patient was admitted in Aruna Kidney Centre since the laparotomy conducted following leakage of fluids did not reveal any urological problem.  It was only re-confirmed that the patient was having pregnancy complications such as eclampsia and kidney failure because of which a Nephrologist was also consulted.  Further, neither the post-mortem report nor the criminal complaint filed against Respondents (in which they were acquitted) indicated any medical negligence on their part.  Other Respondents i.e. Respondents No.3,4,5 and 6 stated that by the time they had seen the patient, she was already in a critical condition and despite being given the best intensive care which included dialyses and ventilator support, patient could not be saved.

          The State Commission after hearing both parties and on the basis of evidence filed before it concluded that a case of medical negligence was made out only against Respondents No.1 and 2 who conducted the caesarean operation, tubectomy and subsequently the laparotomy.  The relevant part of the order of the State Commission reads as follows:

“When the pregnancy is admittedly a twin pregnancy, opposite parties 1 and 2 ought to have shown reasonable care and caution which a doctor should according to normal medical standards and taken proper care and caution while conducting the surgery, especially, when opposite parties 1 and 2 were well aware of the complications of the surgery consequent to the operation.  The opposite parties admit that“the cause for urinary blockage is not found”.  It is held by the National Commission in Savita Garg Vs. National Heart Institute reported in Supreme Court and National Commission Judgements on Medical Negligence and Insurance Vol.II page (1) that it is the duty of the hospital and the treating doctor who should explain the line of treatment given and the burden of proof is also on them to prove that they were not negligent and that they have followed the normal medical practices as per standard medical parlance.  At the time admission, the case sheet of opposite parties 1 and 2 also does not state that the patient is a high risk one.  Here, neither the case sheet nor the material evidence filed explains the cause for the fluid leakage or the urinary blockage.  Except for stating that they there was no injury to the bladder which is contrary to the post-mortem report, no satisfactory explanation has been given by opposite parties 1 and 2, for which act, we are of the considered opinion that they are negligent.”

The State Commission, therefore, directed Respondents No.1 and 2 to jointly and severally pay an amount of Rs.4 lakhs as compensation towards medical expenses and mental agony suffered by the Appellants.  Out of this amount, Rs.1 lakh each were to be paid to each of the three Appellants who were minors.  It was further directed that Appellant No.1 who is the guardian of the three minor Appellants would put the money in respect of his minor children in a Nationalized Bank under fixed deposits till they attained the age of majority and Appellant No.1 will be at liberty to withdraw the interest on this amount every quarter and spend the same for the benefit of his children.  Rs.5,000/- was awarded as costs to be paid within 6 weeks failing which the amount will attract interest @ 9% p.a.

          Counsel for both parties made oral submissions.  Counsel for Appellant contended that prior to the caesarean operation the patient was healthy and therefore, the twins were delivered in good condition.  However, because of the negligence during the surgery which caused a wound in the urinary bladder, the patient suffered from blockage of urine as also urinary leakage resulting in Septicemia and subsequent death.  This is confirmed by the post-mortem report which revealed that the interior wall of the urinary bladder showed incised wound measuring 1.5 cm sutured with catgut partially healed with leakage of urine seen from the wound.  Therefore, the submissions of the Respondents that there was no injury caused to the bladder is contrary to the post-mortem report.  Further, no specific explanation was given by the Respondents as to why this problem occurred within 24 hours of the surgery.  The contention of the Respondents that the patient was a high risk case, has not been recorded anywhere in the case-sheet and is now being used as an excuse to hide their negligence.  The State Commission while rightly concluding that there was medical negligence, unfortunately awarded very meager compensation which was not commensurate with the loss suffered and mental agony and deprivation caused to the family including to the children.  Therefore, there was a strong case for enhancement of compensation.

          Counsel for Respondents contended that the State Commission erred in finding them guilty of medical negligence in view of the fact that there was no medical evidence that the surgery conducted by the Respondents had caused Septicemia.  Further, the patient died 40 days after the caesarean operation and she had been attended to by other doctors during this period including a Nephrologist where the problem could have occurred. Counsel for Respondents stated that Respondents are well qualified doctors and had successfully conducted the caesarean operation on the patient and healthy infants were delivered.  The pre-operative and post-operative conditions were noted and found to be absolutely normal.  When the urinary output of the patient stopped and some fluid started leaking from the site a urologist was immediately called and an abdominal scanning and blood test revealed kidney damage because of a high serum creatinine.  The urinary bladder was opened and sutured on the same day to control the fluid leakage and the exploration did not reveal any urological problem.  In fact, the patient was having pregnancy induced complications i.e. eclampsia and kidney failure which was not the result of the surgery  but a pre-existing condition which caused her death.

          We have considered the submissions made by both parties.  The fact that the patient was pregnant and that the delivery was through caesarean section is not in dispute.  It is also a fact that following the surgery, the patient for the first time had urine leakage as also urinary blockage which indicated that there was a problem with the bladder.  This problem aggravated over the next one month leading to several complications and finally Septicemia leading to multiple organ failure and death.  The fact that there was an injury to the bladder which caused leakage of urine has been confirmed by the post-mortem report which clearly states that there was an incised wound measuring 1.5 cm which sutured and partially healed and leakage of urine was seen from the wound right upto the time of death.  Since, this could have only occurred during surgery, there is an obvious nexus between the caesarean section conducted by the Respondents and subsequent problems with the bladder.  We, therefore, agree with the State Commission that there is sufficient and credible evidence to prove that this injury occurred during the course of the surgery. Further, the Respondents’ contention that patient was a high risk case with pre-eclamsia condition is nowhere noted in the case history.  The principle of what constitutes medical negligence has been established through a number of judgments including of the Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr. – (2005) 6 SCC 1.  Among the principles applied in such cases of negligence are whether a doctor would have done or have failed to do something which in the given facts and circumstances, no medical professional will do; and whether the negligence was so manifest and demonstrative that no professional or skilled person in the ordinary sense and prudence could have indulged in.  In the instant case, applying these two principles, the Respondents were undoubtedly guilty of medical negligence because during the course of a caesarean operation, they caused injury to the urinary bladder leading to multiple complications and death which was totally avoidable had due care been taken especially since caesarean sections are fairly common surgical procedures. Respondents No.1 and 2 who had conducted the surgery have not been able to satisfactorily explain the post-operative complications and their contention that the patient was seen by 4 others doctors including a Nephrologist implying that complications could have occurred because of their treatment does not inspire any confidence since no surgery was conducted by any of these doctors.  In view of the above circumstances, applying the principle of res ipsa loquitur, no expert opinion is required to prove the apparent medical negligence in this case.  We, therefore, uphold the order of the State Commission that Respondents No.1 and 2 and are jointly and severally guilty of medical negligence in the instant case.  The First Appeal No.538/2006 is dismissed accordingly.

In their cross First Appeal No.203/2007, Appellants have sought enhanced compensation keeping in view the loss suffered by the family because of the death of a young mother and wife.  The State Commission had awarded Rs.4 lakhs as adequate compensation keeping view all the facts of the case including age and status of the patient as also the loss suffered which can only be notionally quantified.

          We have considered this matter and are of the view that since three young children have been rendered motherless, two of them at infancy, and in the interest of securing their future, there is a case for enhancing the compensation. We, therefore, direct that the compensation of Rs.1 lakh given to each of the three minor Appellant be enhanced by Rs.50,000/- each and the total amount of Rs.1,50,000/- each be put in the name of the minor Appellants in a Nationalized Banks under fixed deposits till they attain age of majority.  Counsel for Respondents state that 50% of the amount awarded earlier has already been deposited by Respondents No.1 and 2 before the State Commission.  If that be so, this amount be adjusted towards the awarded amount and the remaining amount be paid to the three minor Appellants by Respondents No.1 and 2 jointly and severally,  to be put in the fixed deposits as ordered above within six weeks from the date of receipt of this order.

          The First Appeal No.203/2007 is disposed of on the above terms.

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                                                                                          (ASHOK BHAN   J.)

PRESIDENT

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(VINEETA RAI)

MEMBER

/sks/