Medical negligence, = a. Opposite Party Nos. 2 & 3 failed and neglected to diagnose properly, which aggravated the problems of the Complainant. (Para 30). b. Sub-standard quality of implant material was used in the surgery for fixing the fracture. (para 13). c. The OPs claimed to have high qualification but indulged in professional and intentional negligence. Otherwise, failed or improper implant could not have occurred (para 14).= “Although osteoporosis is a generalized disorder of the skeleton, the major sequelae result from fractures of the vertebrae, wrist, hip humerus, and tibia......... Hip fractures are the most severe complication. They may be the consequence of trauma, most resulting from a fall from standing height. The likelihood of fracture in a particular location is related in part to the site where the bond density is most reduced, such as the femoral neck or inter-trochanteric region.”= Complainant has completely failed to establish his allegations of medical negligence against the Opposite Parties.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

                                                         

ORIGINAL PETITION NO.396 OF 2000

Shri Mehernosh Kersi Khambatta,

S/o Kersi Minocher Khambatta,

By faith Parsi, by occupation

Ex-Employee of M/s. Tata Iron & Steel

Co. Ltd., Jamshedpur,

R/o No.6 Parsi Colony,

Pipe Line Road,

P.O. & P.S. Bistupur,

Town Jamshedpur,

Dist. East Singhbhum (Bihar)                                                                                                                                                        ……….Complainant

                                                                            

Versus

1. Venkatrama Nursing Home,

    D. No. 47-7-43,

    Nehru Market Road,

    Dwarkanagar,

    Vishakapatnam

2. Dr. A. Dayasagar

    Proprietor,

    Venkatrama Nursing Home,

    D. No. 47-7-43,

    Nehru Market Road,

    Dwarkanagar,

    Vishakapatnam

3. Dr. C. Dharma Rao (since deceased)

   Through LRs:-

i)             Smt. C. Vimala Devi (Urmila Devi) wife,

ii)            Dr. C. Srinivas, son

iii)          Sri C. Srinivas, son

iv)          Dr. C. Sridevi, daughter, (married)  

All residents of D No. 30-1-3 Vivekananda Marg, Vishakhapatnam                                                                                             .........Opposite party

BEFORE

HON’BLE MR. JUSTICE  J. M. MALIK,

                              PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

For the Complainant                      :   In person

For the Opposite parties NO.1 & 2:   Mr. G Ramakrishna Prasad,

                                                          Advocate

For the Opposite Party No.3         :   NEMO

 

PRONOUNCED ON:  06.12.2012

ORDER

PER MR.VINAY KUMAR, MEMBER

Shri M.K.Khambatta filed this original complaint in November 2000.  The complaint is against Venkatrama Nursing Home, Vishakapatnam (OP-1), its proprietor Dr. A. Dayasagar (OP-2) and Dr. C. Dharma Rao, the Orthopedic Surgeon of the Nursing Home (OP-3). 

2.      Proceedings before this Commission show that OP-3, having failed to respond to the notices from the Commission, was set ex-parte on 12.5.2003. In 2009 the Commission was informed that OP-3 had passed away and therefore, the Complainant was directed to bring LRs of OP-3 on record.  Notices were subsequently issued to them but elicited no response.  In between, the Commission considered the request of both parties to cross-examine each other. Accordingly, on 26.8.2004, Mr. Ravi Kumar Addl. District Judge (Retd.) was appointed as the Local Commissioner to record evidence. The Local Commissioner has recorded the two cross-examinations on 15^th and 16^th December, 2004, which are available in Part II of the record of this case.

3.      The case, as seen from the complaint petition and the affidavit evidence of the complainant, is that the Complainant, an employee of M/s. Tata Iron and Steel Company Limited. (TISCO) Jamshedpur, was travelling by train through Vishakapatnam on 24.1.1998.  

While walking on the platform at Vishakapatnamstation, Complainant’s left leg suddenly snapped from the tibia.  He could not even stand and fell down.  

He was taken to the Railway Hospital, who advised him to consult some nursing home, as the Railway Hospital did not have the required infrastructure.  

The Complainant was admitted to OP-1 Nursing Home and was assured best possible treatment by OP-2.  

He was attended to by OP-3 /Dr. C. Dharma Rao, who advised him to undergo a corrective surgery for proper reunion of the bone.  

The operation was performed by OP-3 on 25.1.1998 in OP-1 Nursing Home.  He was discharged on 9.2.1998 and was advised by OP-3 to take the post-operative care and treatment at Tata Memorial Hospital in Jamshedpur.  

The Complainant became medically fit and resumed his duties on 21.4.1998. 

4.      Allegedly, the problem returned in July, 1999, with severe pain and swelling at the same spot in the leg where the surgery had been performed at OP-1. 

Fresh X-ray of the leg showed that the implant was broken and tibia was cracked.  

The Complainant was admitted to Apollo Hospital, Chennai for treatment on 14.8.1999.  

Another surgery was performed on 17.8.1999 to remove the broken implant and to put Illizarov Ring Fixator on the leg. 

5.      The allegations levelled  in the complaint petition against the OPs, are that—

a. Opposite Party Nos. 2 & 3 failed and neglected to diagnose properly, which  aggravated  the problems of  the Complainant. (Para 30).

b. Sub-standard quality of implant material was used in the surgery for fixing the fracture. (para 13).

c. The OPs claimed to have high qualification but indulged in professional and intentional negligence.  Otherwise, failed or improper implant could not have occurred (para 14).

d. In the discharge-slip no weight bearing was advised and there was no mention of position of the fracture, whether open or compound, displaced or undisplaced.  This shows medical negligence on the part of the OPs. 

e. The report of Dr. Rajgopal Krishnan of Apollo Chennai Hospital reveals non-union of the left tibia with failed implant.  This shows that Dr. C. DharmaRao was not competent to perform this kind of operation.                                        

6.      According to the affidavit evidence of the Complainant, he was physically fit and normal when the rail journey was commenced on 23.1.1998.  The next morning when the train reached Vishakapatnam, he got down to buy some snacks at the platform.  It is stated that while proceeding towards the vendor his left leg suddenly snapped from the tibia and he could not walk even a single step and fell down. He was admitted to VenkatramanNursing Home on the advice of the Railway Hospital.     

7.      It is alleged that OP-3, who examined him on the same day i.e. 24.1.1998, advised him to undergo a surgery for proper reunion of the bone.  This advice was given without proper examination and allegedly only to make money from the Complainant.  However, trusting the advice of the doctor, he gave consent for surgery, which was performed by OP-3 on 25.1.1998.  He was discharged on 9.2.1998, returned to Jamshedpur on 10.2.1998 and got admitted in Tata Memorial Hospital (TMH) on 11.2.1998.  TMH had discharged him on 23.2.1998, advising bed rest for two months.  On his recovery, para 17 of the affidavitsays:-

“I say that I was under regular check-up by doctors of Tata MAIN Hospital and on 21.04.1998  I was found medically fit to resume my duties Original of the fitness certificate is exhibited as Exhibit C/4.” 

8.      The affidavit of the Complainant also mentions the problem which occurred in July, 1999 i.e. about 15 months later. But, it does not mention what exactly had happened to cause this sudden problem.  

It merely states that a fresh X-ray was taken in Tata Main Hospital (TMH), which showed broken implant and fracture of the tibia.  

Apparently, he was discharged from TMH on 19.7.1999 and got admitted to Apollo Hospital Chennai on 14.8.1999. 

9.      Both, in his affidavit and the complaint petition, the Complainant has relied upon the Discharge Summary issued by Apollo Hospital, Chennai, under the signature of Chief Orthopaedic Surgeon, Dr. R. Gopalakrishnan, for his allegation that the operation conducted by OP-3 was not proper and that the latter was not competent to conduct such an operation. 

10.    A perusal of this Discharge Summary shows that it is a very brief document where the operative portion reads as follows:-

“DATE OF ADMISSION    :  14.08.99

DATE OF SURGERY     :  17.08.99

DATE OF DISCHARGE   : 04.09.99

DIAGNOSIS    :  NON UNION LEFT TIBIA WITH FAILED

                          IMPLANT

OPERATIVE PROCEDURE :  REMOVAL OF IMPLANT

                                       ILIZAROV RING FIXATOR

                                      FIXATION

INVESTIGATIONS             :   ENCLOSED

COURSE IN THE HOSPITAL : He had an uneventful surgical recovery.  Wound routinely inspected and dressings done.  Wound found healthy.  Pin tracts were routinely dressed.  Patient was mobilized with crutches from 5^th post operative day.  Bone transport was initiated from 10^th post operativeday.

DISCHARGE ADVICE:

-Pin tract dressings to be done twice a week with betadine and surgical spirit”      

         

11.    Per contra, the case of Dr A Dayasagar for OP-1/OP-2 is that he cannot comment on what had transpired between the Complainant and  OP-3.  However, the allegation of medical negligence is denied.  Significantly, a reference is made to the discharge report of TISCO (TMH) Hospital, Jamshedpur, showing that the Complainant had suffered fracture of the left leg (shaft of the left femur and trochanter) in 1989 itself. Because of this old history of fracture, the Complainant was advised by OP-2 (in the discharge slip) to wash the wound with normal saline and apply ensamycin cream till the wound healed and also advised to consult specialist in TISCO Hospital. 

12.    The written response also denies the allegations that the sub-standard material was used for implant.  It is claimed that the implants used were from INOR Company, which is based at Mumbai, which supplied instruments to International market and is one of the oldest and leading companies in India for Orthopaedic implants.  The allegation of the Complainant that the diagnosis at Apollo Hospital Chennai proves that OP-2 and 3 were negligent and had aggravated the problem due to improper diagnosis, is also denied on behalf of the opposite parties.  

         

13.    The affidavit evidence of the Dr. Dayasagar on behalf of OP-1 makes a specific reference to the discharge report of TISCO Hospital (TMH), filed by the complainant and states:-

“THIS shows that THE COMPLAINANT HAS SUSTAINED BOTH BONES FRACTURE OF LEFT LEG, CLOSED FRACTURE OF SHAFT OF LEFT FEMUR AND TROCHANTICE FRACTURE OF LEFT FEMUR DURING 1989. AGAIN, COMPLAINANT HAS SUSTAINED BOTH BONES FRACTURE OF LEFT LEG MIDDLE 1/3^rd AND WAS ADMITTED IN MY HOSPITAL IN JANUARY’ 1998.”

14.    The affidavit of Dr Dayasagar for OP-1/OP-2 refers to their own Discharge Slip and says that “I have advised the complainant under the discharge slip to wash the wound with normal saline and apply Ensamycin crème till the wound heals and suggested certain precautions to be taken by the complainant and also specifically advised the complainant to consult a specialist.........Therefore, I have taken all the required steps and advised the complainant suitably as a post –operative care.”

15.    We have heard the Complainant Shri M.K. Khambatta at length and carefully perused the voluminous records and case law filed in evidence by him. ShriG. Ramakrishna Prasad, Advocate has been heard on behalf of the Opposite parties 1 and 2.  OP-3 as already noted, did not respond and was treated ex-parte.  Consequent upon his death notices have been served on his legal heirs but they have chosen to remain unrepresented. The case of the OPs is found to be based primarily on their affidavit evidence, arguments, medical literature and on the records of treatment filed by the complainant. However, full record of treatment at OP-1/Venkatrama Nursing Home for the duration 14.1.1998 to 9.2.1998, has not been filed by either party. 

16.    During the course of oral submissions, the Complainant pointed out that discharge summary of 9.2.1998, given by OP-1, is in the name of OP-3/Dr. C. Dharma Rao.  But it has not been signed by OP-3 and has been signed by someone else on his behalf. Learned counsel for OPs 1 and 2 clarified that the discharge summary as well as the discharge slip have both been signed by the proprietor of the Nursing Home/OP-2, himself.  The Complainant emphatically argued that his case is that he has lost 18 years of service due to deficiency in the treatment of his leg by the OPs. He therefore, submitted that his claim should be considered for the amount mentioned in the complaint petition and not as subsequently reduced in the proceedings of 8.2.2002.

17.    Learned counsel for OPs 1 and 2 challenged the claim of the Complainant that the fracture had occurred on 24.1.1998 when the Complainant was merely walking at the platform at Vishakapatnam.  He referred to two documents submitted before this Commission by the Complainant himself.  The first is the record of treatment at TISCO Hospital (TMH) at Jamshedpur, relating to the period 11^th to 23^rd February, 1998.  This document clearly shows that the patient had fallen down at Vishakapatnam Railway Station on 24.1.1999.  It also refers to the previous history of fracture and operation of 1989.  The second document is the case summery at TMH, when the patient reported again there on 13.7.1999 with sudden pain and swelling in the left leg.  This document also refers to a fracture of left femur and grade three open fracture of tibia left leg, which had occurred in 1989.  The counsel  arguedthat this fact of previous fracture, at the same spot in the same leg, was concealed by the Complainant and not reveal to the OPs on 24.1.1998.  In this behalf, counsel also referred to the affidavit of Dr. A. Dayasagar/proprietor of OP-1 in which the history of previous fracture of 1989 mentioned above, has been referred to.        

18.    We have earlier referred to the cross examination of OP-2 and the Complainant, by each other. Here, the complainant admits for the first time that—

“My same leg was also fractured in a road accident in 1989. After operation at that time, there was a bit of shortening of leg about 1.75 centimeters. Because of that I had a little limping while walking. The limp was cured in 1991 when the implant was removed.”  This material fact was not revealed either in the complaint petition or in the affidavit evidence of the complainant.  Similarly, Dr Dayasagar/OP-2, has made a sudden change in his position after OP-3 was set ex parte by this Commission on 12.5.2003. In his cross-examination conducted on 16.12.2004, he has said that Dr Dharma Raohimself brought the implant. OP-1 added the price of the implant in the consolidated bill as the complainant was in hurry to go to Jamshedpur. This being in direct contradiction of their specific evidence, is rejected at the threshold itself.

19.    We now need to consider the evidence from the treatment records of TMH, Jamshedpur and Apollo Hospital, Chennai where the complainant was subsequently treated. The Case Summary of Tata Main Hospital (TMH) also states that the X Ray report showed broken Tibia implant and crack fracture of Tibia.  But, we do not find anything in this report which can relate this fracture and failure of the implant to the quality of treatment provided at OP-1, including the quality of implant and other materials used by them. On the contrary, it was argued on behalf of the OPs that it was caused due to the condition of osteoporosis, which the complainant suffered from and which is disclosed in the Case Summary of TMH.

20.    The complainant has stated in his cross examination that he was not suffering from osteoporosis. This claim is found to be in conflict with the documentary evidence produced by the complainant himself.  In the CASE SUMMARY of hospitalisation at Tata Main Hospital from 19.7.1999 to 27.7.1999, signed by Dr A Sengupta,  Orthopaedic Surgeon,  it is clearly noted that Skeletal survey shows evidence of osteoporosis”.  There is no explanation why he chose to deny it in the cross examination conducted on 15.12.2004. However, proceedings of 30.10.2006 before this Commission,show that the complainant later tried to bring on record a certificate to show that he is not suffering from osteoporosis now. He was not permitted, on the ground that the cause of action arose much before and therefore, the report of 5.4.2006 has no relevance to it.

21.    It was argued on behalf of the OPs that the problem of the complainant was due to his condition of osteoporosis which had rendered his bones porous and therefore, weak. It was not due to any deficiency in his treatment by OPs. In the affidavit of Dr. A. Dayasagar filed on 25.10.2006, reference is made to repeat fracture of the left leg at the same spot in 1998 where the earlier fracture had occurred in 1989, in support of the argument that the subsequent fracture was on account of osteoporosis.  Medical literature filed in this behalf (Harrison’s Principles of Internal Medicine 14^th Edition) shows that osteoporosis is a disease that causes reduction in bone density.  It defines the degree of skeletal fragility sufficient to increase the risk of fracture. “Although osteoporosis is a generalized disorder of the skeleton, the major sequelae result from fractures of the vertebrae, wrist, hip humerus, and tibia.........  Hip fractures are the most severe complication.  They may be the consequence of trauma, most resulting from a fall from standing height.  The likelihood of fracture in a particular location is related in part to the site where the bond density is most reduced, such as the femoral neck or inter-trochanteric region.”

22.    The word ‘osteoporosis’ literally means ‘porous bone’.  It is a condition where the person gradually looses bone material which makes his bones more fragile.  As a result, they are more likely to break even after a simple fall.  On this point, the Complainant, in his written argument claims:-

“The explanation as to why the implant broke has to come from a person having special knowledge- the treating surgeon who performed the surgery at OP No 1 having ocular evidence.  This wasn’t done by Dr. C. Dharma Rao or any one from the operating team and he chose to become exparte vide order dated 12/5/2003.  Breaking of an implant assuming it did break- was at best a neutral;-circumstance.”  

This argument amounts to asking the OPs to give evidence against themselves. The onus to prove medical negligence lies on the person who alleges it i.e. the complainant.  One of the allegations is that requisite preoperative investigations were not carried out. But on the contrary, material placed on record by the complainant itself shows that preoperative tests, including X Ray of the leg, were done on 24.1.1998.

23.    The fact remains that the Complainant has not produced any evidence of an independent medical expert. In fact, the proceedings of 9.4.2002 show that a question did arise in this behalf, but the position taken by the then counsel for the Complainant was that no report of any expert was to be filed in evidence at that stage. The complainant’s argument is that no doctor agreed to give evidence against a colleague. We do not accept it. Without placing reliance on any expert opinion, the Complainant appears to have made his own surmises, as is evident from the following in the rejoinder of 17.12.2003 to the proof affidavit of OP-2 :-

a)    Referring to the statement that the Complainant was an employee of TISCO as mentioned in the discharge summary, the Complainant says “it further makes evident that Opposite Party is in a habit of committing negligence”.

b)    “It is submitted that a doctor who did not attend the operation according to his own statement, how he can he said to be a competent person to say whether the improper implantation was due to rashness or negligence or not.”   This is strange logic.  By this, no independent medical expert can give an assessment, as he would not have been a part of the medical team that treated or operated upon the patient.

c)     “The act of negligence of the Opposite Party came to the notice of the Complainant only after the Complainant had been asked to undergo a fresh surgery by Apollo Hospital Chennai, which proved that the operation as conducted by Opposite Party was handled in a very casual and negligent manner.”     

CONCLUSIONS

24.    The genesis of the complaint lies in the recurrence of the problem in July, 1999, one and half years after surgery at Venkatrama Nursing Home, in 1998. Detailed consideration of the evidence on record in the forgoing paras, shows that- 

1.   The X-ray at Tata Main Hospital, Jamshedpur shows broken tibia implant and crack fracture of tibia.  Similar is the finding of Apollo Hospital Chennai, which calls it “non-union of left tibia with failed implant”.  But no evidence has been led by the Complainant to show that it was due to any negligence on the part of the OPs in his treatment.

2.   Evidence produced by the Complainant itself shows that after the treatment at OP-1 in January-February, 1998, followed by bed rest of two months, he was medically fit to perform his official duties for the next 15 months, till July, 1999. 

3.   The problem occurred in the same place of the Complainant’s left leg in 1989 due to an accident and 1998 due to a fall at the railway station. But, the Complainant has not disclosed the cause for its recurrence in 1999.  In this background, the finding of osteoporosis at TMH in 1999 acquires a special significance.

4.   His medical condition of osteoporosis was not revealed in the complaint and the supporting affidavits by the complainant.  In fact, in his cross examination, it was specifically denied.      

5.   The complainant has not disproved the medical finding that he was suffering from osteoporosis in 1999.  His subsequent attempt was only to show that in 2006 he was not suffering from it.  This was not permitted by the Commission, as it was not relevant to the cause of action.

6.   Medical literature brought on record shows a definite possibility of osteoporosis being the cause of recurrent fractures of the tibia.

7.   There is no evidence to show that the problem in 1999 was caused due to poor quality of the implant material.

8.   There is no evidence on record to show that OP-3, Dr. C. Dharma Rao, did not have the requisite professional qualification to perform the surgery on the Complainant.

25.    The above findings of fact have to be seen with reference to the law on the subject.  The Complainant himself refers to the Bolam test for determination of medical negligence. It came in a decision by McNair J. in Bolam Vs. Friern Hospital Management Committee  [1957] 1 WLR 258, in the following words-

“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill.  The test is the standard of the ordinary skilled man exercising and professing to have that special skill... A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

26.    It is fully endorsed by Hon’ble Supreme Court of India in the following landmark decisions which have laid down the law on the subject of medical negligence.  In Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1, the Apex Court has summed it up in eight conclusions. Of them, the following conclusions will directly apply to the matter now before us :-

“1.  Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.

2.  Negligence in the context of medical profession necessarily calls for a treatment with a difference.  To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply.  A case of occupational negligence is different from one of professional negligence.  A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional.  So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.  When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.  So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial.

3.  A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.  The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession.  It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices.  A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

   

4.  The test for determining medical negligence as laid down in Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.”

In Martin F D’Souza Vs. Mohd. Ishfaq  (2009) 3 SCC 1, the above principles for determination of negligence by a medical practitioner were reaffirmed byHon’ble Apex Court. It was observed that:-

“From the principles mentioned herein and decisions relating to medical negligence it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful.

27.    Considering the requirements of the law as laid down by Hon’ble Supreme Court of India, together with the conclusions on facts reached earlier in this order, we come to an inescapable conclusion that the Complainant has completely failed to establish his allegations of medical negligence against the Opposite Parties.  The complaint is therefore, held to be devoid of any merit and is dismissed as such.  No order as to costs.

.……………Sd/-……………

(J. M. MALIK, J.)

PRESIDING MEMBER

……………Sd/-…………….

(VINAY KUMAR)

S./-                                                                                                                                                                                                                                                 MEMBER

Retaining of the degree certificate is otherwise compelling the complainant to serve under them. Such kind of practice is not fair. – Petitioners have placed on record copy of “Service Agreement” dated 23.05.2005, executed between the parties. This Agreement does not contain any condition or clause by virtue of which petitioners’ University is entitled to retain the degree/certificate of the respondent as a lien till respondent performs the terms of the aforesaid agreement. Under these circumstances, provisions of Section 51 of the Indian Contract Act, 1872 and decision of Bihar School Examination (supra) are not applicable to the facts of the present case. 13. Present revision petition has been fil

         NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

  REVISION PETITION NO.  3388 OF 2010

                                                                Along with

                                               (M. A. No. 1 of 2010)

 (From order dated 20.07.2010 in Appeal No. 297 of 2010  of Karnataka State Consumer Disputes Redresdsal  Commission, Bangalore)

1.           The Registrar of Manipal

University, Madhav Nagar,

Manipal-576 104

Reptd. by Sri. G. K. Prabhu                 

2,           The Dean,

              Kasturba Medical College,

              Mangalore,

              Reptd. By Sri Rajgopal.                           …… Revisionists

         

                                                   Versus

             Dr. Sushith,

             S/o S. Rajiv Puttur,

             Aged 32 years,

            “Anugraha”

             P.O. Panjimogaru,

             Kuloor, Mangalore.                            ….. Respondent

BEFORE:

HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

For the Petitioners                        :    Mr. Vivek Singh, Advocate

For the Respondents                   :   Mr. B. Subramanya Prasad, Advocate with

                       Mr. H. Chandra Sekhar, Advocate 

 Pronounced on:      6^th December,  2012

ORDER

PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

                   Aggrieved by order dated 20.7.2010, passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore  (for short, ‘State Commission”) petitioners/o.ps no.1 and 2 have filed present petition .

2.       Brief facts are that respondent/complainant got admission to Post Graduate Degree Course in MD in Biochemistry in petitioners’ institution for Academic year 2005-06. Respondent completed and passed the said course in the year 2008. Petitioners are required to issue him a degree certificate confirmed by Manipal Academy of Higher Education. In spite of repeated requests and demand made by respondent to petitioners, it refused to issue  the said certificate and withheld the same without any substantial reason or cause. Respondent  issued the legal notice but there was no proper response. Hence, respondent felt deficiency in service on the part of the petitioners.

3.       On appearance petitioners in their written statement denied all the allegations made by the respondent in toto. According to the  petitioners, respondent was selected for the said MD Course for the year 2005. As he had no fund to pay the tuition fee, petitioners gave concession by waiving the payment of the fee. In addition, petitioners paid stipend to him during the course of his studies. There was an understanding between the respondent and petitioners that, respondent should undertake to serve the petitioners for a period of 5 years after completion of the course, failing which he should repay the entire tuition fee. Respondent agreed for the same and executed an agreement on 23.05.2005 alongwith two sureties. Thereafter, respondent failed to abide the said conditions incorporated in the agreement and absented from the duty. Repeated demand made by the petitioners to report to the duty by respondent, went in vain. Petitioners did address a letter to the respondent for compliance but there was no proper response. There is no deficiency in service on the part of the petitioners and they have no objection to hand over the original certificate provided respondent pays Rs.9,30,000/- or furnish a bank guarantee or any other surety for the satisfaction of the Court concerned. Further, it is stated that petitioners have retained the original degree certificate as a lien till the respondent performs the terms of the aforesaid agreement.

4.          Dakshina Kannada District Consumer Disputes Redressal Forum, Mangalore (for short, ‘District Forum’) vide order dated 31.12.2009, allowed the complaint and passed the following directions ;

“Opposite Party is hereby directed to handover the original Medical Degree Certificate issued by the Manipal Academy of Higher Education to the complainant. And further to pay Rs. 1,000/-(Rupees one thousand only) as cost of the proceedings. Compliance shall be made within 30 days from the date of this order.

           On failure to comply the above said order, the Opposite Party is hereby directed to pay Rs.25,000/- (Rupees twenty five thousand only) as compensation.”.

5.          Order of District forum was challenged before the State Commission by the petitioners. The State Commission, dismissed their appeal.

6.          Hence, this revision.

7.       I have heard the learned counsel for the parties and gone through the record.

8.       It has been argued by learned counsel for the petitioners that deficiency of service would arise only in case of breach of agreement by a party providing the service. In this case, there is no breach of contract by the petitioners but it is by the respondent.  Further, petitioner was under no liability to perform its part of contract when it has not received the consideration for the same. It is also contended that petitioners could not be forced to provide the certificate for which it has not received any consideration and the same would be in contravention of the provisions of Section 51 of the Indian Contract Act, 1872. Learned counsel has relied upon a  decision of Supreme Court in Bihar School of Examination Board Vs. Suresh Prasad Sinha, JT 2009 (11) SC 541.

9.       On the other hand, it is contended by learned counsel for the respondent that, petitioners’ university cannot retain the certificate of respondent as per guidelines of the University Grants Commission. Lastly, it has been contended that under no law, petitioners can retain the certificate of the respondent.

10.          District Forum in its order held ;

“However, we have gone through the agreement i.e., Ex C5 and R8. On careful scrutiny of the terms and conditions of the said agreement the Opposite Parties waived the tuition fees as well as paid the stipend fee.  The Complainant has to serve 5 years in their institution and if the Complainant failed to serve in their institution or violated any of the conditions mentioned in clause No.3 of the said agreement then Complainant is liable to pay Rs.9,30,000/-. According to clause No.4 the Opposite Party has to proceed to recover the said amount only by initiating the proceeding.  The entire agreement do not disclose that the Opposite Parties have right to withhold the MD certificate if the Complainant violates the condition of clause No.3 of the agreement.  The main contention of the Opposite Party is that as per the terms of the agreement the Complainant has to serve 5 years in their institution and appointment order dated 1.12.2008 was issued and the Complainant was absented from 9.12.2008 and filed leave application and not fulfilled the terms and conditions of the agreement and stated that the MD certificate has retained as general lien.  The Section 171 of the Indian contract is not at all applicable to the Opposite Party in which it clearly mentioned to whom the said provision is applicable and under what circumstances.  It is not the case of the Opposite Party that the Complainant has handed over the MD certificate to the Opposite Party as security.  Hence the question of lien does not arise in this case.  In the entire service agreement nowhere mentioned that if the Complainant violates any of the conditions mentioned in clause No.3 the Opposite Parties have got right to retain the MD certificate till the recovery of amount of Rs.9,30,000/-.  It is also not proved that the Opposite Party has terminated the Complainant or the Complainant rejected their appointment order.  In this case, it is further proved that the Complainant has paid Rs.65,000/- in each year towards the college fees but according to the Opposite Party the above said amount is not covered as tuition fees.  Since there is no conditions to retain the Degree certificate of the Complainant in the alleged agreement the question of withholding the certificate does not arise.  At the same time the retaining of the degree certificate is compelling the Complainant to serve under the Opposite Party hospital/institution will not meet the ends of justice. 

            In view of the above stated reasons the MD certificate pertaining to the Complainant retained by the Opposite Party amounts to deficiency in service. Therefore the Opposite Party shall handover the original Medical Degree Certificate issued by the Manipal Academy of Higher Education to the Complainant. And further to pay Rs.1,000/- (Rupees one thousand only) as cost of the proceedings.  Compliance shall be made within 30 days from the date of this order”.

11.     State Commission while concurring with the reasoning given by the District Forum, in its impugned order observed ;

“ On going through the pleadings of the parties, one thing is clearly established that the complainant completed his course and the Manipal Academy has confirmed him the MD degree in Biochemistry. OPs got the said degree but they failed to give the same to the complainant. Even if it is held for a while that there is breach of the said agreement complainant is liable to refund the tuition fee the remedy is still open to the OP to recover the same be approaching an appropriate Civil Court for the recover of the same. When such an equally efficacious remedy is readily available to the OPs they cannot illegally retain the said degree certificate.

   On going through the entire agreement it does not disclose that the OPs have a right to withheld the MD certificate if complainant violates any terms and conditions of the agreement namely either Clause –3 or Clause –4. It is not the case of the OP that complainant has pledged the said MD certificate as a security. Under such circumstances, OP cannot exercise lien over the said certificate. There is no proof that OP terminated the complainant from his service or that he rejected their appointment. On the other hand there is a proof that complainant paid nearly about Rs. 65,000/- each year, towards the college fee.

The DF has properly considered both oral and documentary evidence and rightly come to the conclusion. Retaining of the degree certificate is otherwise compelling the complainant to serve under them. Such kind of practice is not fair. Under such circumstances, we find the appellant  has failed to show before this Commission that the impugned order under appeal is erroneous, unjust and improper and that it suffers from legal infirmity, unsustainable in the law and there is error apparent apparent  on the face of record requiring our interference. Appeal appears to be devoid of merit”

12.  Petitioners have placed on record copy of “Service Agreement” dated 23.05.2005, executed between the parties.  This Agreement does not contain any condition or clause by virtue of which petitioners’ University is entitled to retain the degree/certificate of the respondent as a lien till respondent performs the terms of the aforesaid agreement. Under these circumstances, provisions of Section 51 of the Indian Contract Act, 1872 and decision of Bihar School Examination (supra) are not applicable to the facts of the present case.

13.   Present revision petition has been filed under Section 21(b) of the  Consumer Protection Act 1986 (for short, ‘Act’). It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order. 

14.       Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view   than what was taken by   the   two   Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora”.

15.     Thus, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Act, since two Fora below have given cogent reasons in their order, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.

16.     It is not that every order passed by the Fora below is to be challenged by a litigant even when the same is based on sound reasoning.

17.      Under these circumstances, present petition is without any legal basis and same is hereby dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only), to be paid to the respondent.

18.          Petitioners are directed to deposit demand draft for a sum of Rs. 10,000/- in the name of respondent, within eight weeks from today. Same shall be paid to the respondent after expiry of period of appeal/revision preferred, if any.

19.     In case, petitioners fail to deposit the  above said demand draft within the prescribed period, then they shall also be liable to pay the interest @ 9% p.a. till realization. 

19.     List on 15.02.2013 for compliance.

                                                                             ……………………………J.

      (V.B. GUPTA)

   PRESIDING MEMBER

SSB

      

                    

Since, possession of the plot was not handed over to the petitioner, he filed a complaint before the District Forum which was allowed in his favour. However, State Commission modified the order of the District Forum on the ground that since possession of the plot in question could not be handed over to the petitioner due to the litigation pending in the High Court, the order passed by District Forum with regard to allotment of plot was set aside by the State Commission.= when other allottees have been allotted alternative plots then why respondent did not allot an alternative plot to the petitioner, who as per respondent’s own case initially had been allotted a specified plot in the year 1973. Respondent cannot discriminate petitioner’s case with other allottees. Hence, the order passed by the State Commission cannot be sustained under the law and same is hereby set aside. Order passed by the District Forum stands restored. 19. Respondents are directed to allot an alternative plot to the petitioner in terms of order dated 25.7.2001 passed by the District Forum , on the same terms and conditions on which the initial plot was allotted , vide allotment letter dated 16.11.1973 and as per agreement dated 4.2.1974 executed between the parties. The alternative plot should be allotted to the petitioner within three months from today, failing which District Forum shall initiate proceedings under Section 25/27 of the Consumer Protection Act, 1986, against the respondent.= the question which arise for consideration is as to how much costs should be imposed upon the respondent for causing harassment to the petitioner for over three decades.=“ Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law’s delay and bringing bad name to the judicial system.”

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION  PETITION  NO.   257    OF   2009

 (From the order dated  4.11.2008  in  RBT No.430 of 2008 in Appeal No.3208 of 2001  

  of the State Commission,  Chandigarh UT)

Sh. Dina Nath

Aged 80 years

(Senior Citizen)

S/o Sh. Dhannu Ram,

R/o 102-A, DDA Flats,

Gulabi Bagh,

Delhi – 110 007.                                                     …Petitioner

Vs.

1.       Yamunanagar Improvement Trust

Through its   Chairman,

Yamuna Nagar, Haryana

2.       Municipal Committee

Through its President

Yamuna Nagar, Haryana                              ...Respondent

  

BEFORE:

HON’BLE MR. JUSTICE  V.B. GUPTA, PRESIDING MEMBER

           

For the Petitioner             :         In person

 

For the Respondent         :         Mr. Sanjay Singh, Advocate with

Mr. Jagnarayan Kaushik, SDM, Jagadhri &

Chairman of Respondent no.1 Trust  

 

Pronounced on:  7^th   December, 2012             

ORDER

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

          By way of the present revision petition filed by the petitioner (who is more than 80 years old) has challenged order dated 4.11.2008 passed by State Consumer DisputesRedressal Commission, Chandigarh UT (for short ‘State Commission’).

2.       Brief facts are that petitioner/complainant was allotted Plot No.103 measuring 160 sq. yards by respondent no.1/O.P. No.1, vide allotment letter No.1470 dated 6.9.73 in SarojniNagar Scheme at Yamuna Nagar.  The plot was allotted @ Rs.35/- per sq. yard and the tentative price of the plot was Rs.5,600/-. The final price was subject to actual allotment at site. Subsequently, the allotment of said plot was changed and plot No.59 measuring 200 sq. yard was allotted to the petitioner vide allotment letter No.2184 dated 16.11.73 at the same rate i.e. Rs.35/- per sq. yard, thus, the total cost being Rs.8,750/-.  Petitioner paid the earnest money of Rs.500/- on 27.4.73 and the security amount of Rs.450/- was also paid.  The firstinstalment of Rs.1,688/- was paid on 27.11.73 and subsequently, 2^nd and 3^rd instalments were paid on 11.12.74 and 9.1.76.  Respondents were to further take the final balance price from the petitioner after handing over possession and calculating the cost of actual measurement of the plot.  In this manner, petitioner had already paid respondent no.1, a sum of Rs.7,877/- against the total price of R.8,750/-.  The agreement between the petitioner and respondent no.1 was got singed on 4.2.74 and petitioner paid all the charges.  The possession of the plot was to be handed over to the petitioner within 30 days of the payment of first instalment but possession of the pot was not handed over.  Petitioner  served a legal notice upon respondent no.1 and petitioner was asked to get the possession of the plot, vide memo No.263 dated 18.4.74 and get the building plans approved.  However, in spite of repeated efforts, no possession of the plot was delivered to the petitioner.  Subsequently, respondent no.1 wrote a letter to the petitioner stating that the layout plan of the colony is under approval and the possession will be delivered after the approval is accorded.  In March/April, 1995, petitioner came to know that towards end of 1994, the acquisition of the land was set aside by the Hon’ble Apex Court.  Consequently, representation was given to allot an alternative plot at the same price but the same was not done.  The petitioner who had paid a sum of Rs.7,877/- out of the total price of the plot amounting to Rs.8,750/- had not received the possession of the plot despite his best efforts. Therefore, petitioner filed a complaint praying that respondents be directed to deliver the possession of the plot measuring 250 sq. yards and they be also directed to compensate him regarding increase in the cost of construction, which occurred due to non delivery of the possession and also compensate him for the loss of rent for that period.  It further prayed for directions to be given to the respondents to compensate him for mental agony and physical harassment caused.

3.       The version of respondents is that the complaint is hopelessly time barred.  On merits, it has been stated that the plot could not be delivered   to the petitioner since there was no proper development of the area at that time. Thereafter, a  dispute arose and stay was granted by the Hon’ble  High Court.  As per respondents, neither the possession could be delivered nor the amount  was refunded to the petitioner because respondent no.1 was not in a position to refund the same.  Subsequently, petitioner was informed that the case has been lost by respondent no.1 and furthermore there was no alternative plot and therefore, petitioner was asked to get the refund of money.  Thus, there is no deficiency on the part of respondents.

4.       District Consumer Disputes Redressal Forum, Yamuna Nagar (for short, ‘District Forum’)  vide order dated 25.7.2001, allowed the complaint and passed the following direction;

                   “We therefore, direct the respondents to allot an alternative plot at Yamuna Nagar to the complainant and also to pay a compensation of Rs.50,000/- due to the escalation in construction charges, cost of materials and also Rs.2,000/- on account of litigation charges within one month from the date of this order, otherwise, penal action under section 27 of the Act will be initiated against the respondents.”

5.       Aggrieved by the order of District Forum, both parties filed separate appeal before the State Commission.  Appeal No.3766 of 2001 filed by petitioner was for enhancement, whereas Appeal No.3208 of 2001, filed by respondents was for dismissal of the complaint.

6.       Vide impugned order, State Commission partly allowed the appeal of  respondents and dismissed the appeal of petitioner for enhancement observing as under;

“In view of the foregoing discussion, Appeal No.3208 of 2001 (R.B.T. No.430 of 2008) is partly allowed, the impugned order is set aside and OPs are directed to refund the amount paid by the complainant alongwith  interest @ 12% per annum from the date of deposit till actual payment. OPs are also directed to pay the complainant a sum of Rs.5,000/- as costs of litigation.  They are  further directed to comply with the directions within a period of 30 days from the date of receipt of certified copy of the order.  Appeal No.3766 of 2001 (R.B.T. No.986 of 2008) as well as the complaint are disposed of in the aforesaid terms.” 

7.       This is how the matter has reached before this Commission.

8.         Petitioner himself has argued it case and has also filed written arguments, whereas Shri Sanjay Singh, Advocate on behalf of the respondents has argued the matter.

9.         It is an admitted fact that, vide allotment letter dated 16.1.1973, petitioner was allotted Plot No.59 measuring 250 sq. yard, instead of Plot no.103 at the tentative cost at Rs.35/- per sq. yard and on given terms and interest. Further, Agreement for Sale dated 4.2.1974, was also executed between the parties with regard to the above noted plot.  Respondent, vide its letter dated 18.4.1974 had asked the petitioner to take possession and present the building plan so that construction can be started.  Thereafter, vide its letter dated 31.3.1975, respondent  informed the petitioner that plot in Phase-1 of Sarojini Colony had been demarcated and same can be inspected and petitioner was asked to take physical possession on 13.4.1975.  Thereafter, respondent informed petitioner, vide letter dated 1.5.1979 that the lay out plan of Sarojini Colony has been sent for permission for important changes and acceptance of District Town Planner and possession will be handed over after receiving the same. It appears that thereafter till date, possession of the pot in question has not been handed over to the petitioner.

10        Since, possession of the plot was not handed over to the petitioner, he filed a complaint before the District Forum which was allowed in his favour.  However, State Commission modified the order of the District Forum on the ground that  since possession of the plot in question could not be handed over to the petitioner due to the litigation pending in the High Court, the order passed by District Forum with regard to allotment of plot was set aside by the State Commission.

11.       As per record of the present revision petition, respondent has not filed the copy of the petition as well as order passed by the High court.

12.       Be that as it may, at the time of admission of the present petition, this Commission  passed the following order;

            “Dated the 20^th day of February, 2009

                                                       ORDER

           Learned counsel for petitioner seeks time to file affidavit within a period of four weeks stating that subsequent to the reversion of the land to the owner in compliance with the verdict of the High Court, Yamunanagar Improvement Trust has allotted plots to a large number of applicants disregarding the claim of the petitioner. Prayer granted.

                    Stand over to 23.3.2009.                                                                                                   Sd/

                                                                             …..…………………………J                          

                     PRESIDING MEMBER

                                                                                          

 Sd/

                                                                                …..…………………………

                                    MEMBER”

           

13.       Accordingly, petitioner filed his affidavit dated 19.3.2009, stating as under;

            “1.   That the allottees of the disputed plot were given the   alternative plots in lieu of the original allotted plots and thereafter physical possession was also given along with the allotment letter.  Some of allotment letters are dt. 8.10.01 and 9.3.02 whose true photocopies are annexed as Annexure A-26 and A-27 and their true English translation are annexed as A-26A and A-27A and the possession letter as A-28.

2.     That the opp. parties have wrongly stated that there was no  alternative plot available with them.”

14.       As per Annexures A-26A and 27A, these are copies of the letter of allotment dated 8.10.2001/9.3.2002,  allotted to Shri Ved Prakash Ahuja and Shri Mulakh Raj Malla, respectively, allotting alternative plot to them in Sarojini Colony.

15.       Thereafter, on 9.7.2009 this Commission inter alia ordered;

“Though some affidavits were put on record by the Ld. counsel for the petitioner to impress us that similarly situated persons whose lands were reverted back to the original owners in the light of the directions contained in the order of Hon’ble High Court. We are not satisfied with the affidavit put on record for which learned counsel seeks short adjournment to file another affidavit. Fresh affidavit be filed well in advance before the scheduled date with a copy to the learned counsel for the respondent to enable him to go through the affidavit and to do the needful in the matter.”

16.     On 4.8.2009, petitioner appeared in person before this Commission and stated that he is not in a position to file the proper affidavit.  So, following order was passed on 4.8.2009;

“Petitioner in person and also Ld. Counsel for respondent present. Petitioner states that he is not in a position to file proper affidavit as directed by the Commission as Ld. Counsel has withdrawn from the proceedings and all necessary papers are with him.  On our asking as to whether he requires assistance of any other counsel to be appointed by this Commission, he shows reluctance.  We on consideration of the affidavit put on record direct Ld. Counsel for respondent to verify from record about allotment of plot these persons under the said Schemes and also to file affidavit alongwith their reply.”

17.     Thereafter, respondent filed affidavit dated 25.10.2010 of Shri Devender Kaushik, SDO (Civil), Chairman, Improvement Trust, Yamuna Nagar, Haryana, stating interalia;

“5.     That it is most respectfully submitted that in reply to the affidavit dt. 19.03.2009 filed by the petitioner regarding alternate allotment of the plot it is submitted that the respondent-Improvement Trust has allotted the alternative plot to the concerned allottee subject to the terms and conditions of re-allotment letter and enhancement costs.”

18.     As per above affidavit of the respondent, when other allottees have been allotted alternative plots then why respondent did not allot an alternative plot to the petitioner, who as per respondent’s own case initially had been allotted a specified plot in the year 1973.  Respondent cannot discriminate petitioner’s case with other allottees.  Hence, the order passed by the State Commission cannot be sustained under the law and same is hereby set aside.  Order passed by the District Forum stands restored.

19.     Respondents are directed to allot an alternative plot to the petitioner in terms of order dated 25.7.2001 passed by the District Forum , on the same terms and conditions on which the initial plot was allotted , vide allotment letter dated 16.11.1973 and as per agreement dated 4.2.1974 executed between the parties. The alternative plot should be allotted to the petitioner within three months from today, failing which District Forum shall initiate proceedings under Section 25/27 of the Consumer Protection Act, 1986, against the respondent.

20.     Now the question which arise for consideration is as to how much costs should be imposed upon the respondent for causing harassment to the petitioner for over three decades.

21.     It is a well-known fact that Courts across the country are saddled with large number of cases.  Public Sector Undertakings indulgences further burden them.  Time and again, Courts have been expressing their displeasure at the Government/Public Sector Undertakings compulsive litigation habit but a solution to this alarming trend is a distant dream.  The judiciary is now imposing costs upon Government/Public Sector Undertaking not only when it pursue cases which can be avoided but also when it forces the public to do so.

22.     Public Sector Undertakings spent more money on contesting cases than the amount they might have to pay to the claimant.  In addition thereto, precious time, effort and other resources go down the drain in vain.  Public Sector Undertakings are possibly an apt example of being penny wise, pound-foolish.  Rise in frivolous litigation is also due to the fact that Public Sector Undertakings though having large number of legal personnel under their employment, do not examine the cases properly and force poor litigants to approach the Court.

23.     The Apex Court in Bikaner Urban Improvement Trust Vs. Mohan Lal 2010 CTJ 121 (Supreme Court) (CP) has made significant observations which have material bearing, namely,

“4.     It is a matter of concern that such frivolous and unjust litigation by Governments and statutory authorities are on the increase.  Statutory Authorities exist to discharge statutory functions in public interest.  They should be responsible litigants.  They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner.  They cannot behave like some private litigants with profiteering motives.  Nor can they resort to unjust enrichment.  They are expected to show remorse or regret when their officers act negligently or in an overbearing manner.  When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation.  Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to the corrected.

5.         This Court has repeatedly expressed the view that the Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice.  We may refer to some of the decisions in this behalf.

           5.1      In Dilbagh Rai Jarry V. Union of India, 1973 (3) SCC   554, where this Court extracted with approval, the following statement (from an earlier decision of the Kerala High Court.):

“The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals.  But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State’s interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity.  The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak.  Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations, which move private parties to fight in Court.  The lay-out on litigation costs and execution time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf.  I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.”

       5.2   In Madras Port Trust vs. Hymanshu International by its   Proprietor V. Venkatadri (Dead) by L.R.s (1979) 4 SCC, 176, held:

“2.      It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens.  Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable.”

5.3 In a three-Judge Bench judgment of Bhag Singh & Ors.v.Union Territory of Chandigarh through LAC, Chandigarh, (1985) 3 SCC 737.

“3.  The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen.”

6.     Unwarranted litigation by Governments and statutory authorities   basically stem from the two general baseless assumptions by their officers. They are:

(i)           All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest Court of the land.

(ii)          If taking a decision on an issued could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secure a decision.

           The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of the Governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers-in-charge of litigation.  Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision-making.  Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision making to Courts and Tribunals.  The Central Government is now attempting to deal with this issue by formulating realistic and practical norms for defending cases filed against the Government and for filing appeals and revisions against adverse decisions, thereby, eliminating unnecessary litigation.  But, it is not sufficient if the Central Government alone undertakes such an exercise.  The State Governments and the statutory authorities, who have more litigations than the Central Government, should also make genuine efforts to eliminate unnecessary litigation.  Vexatious and unnecessary litigation have been clogging the wheels of justice, for too long making it difficult for courts and Tribunals to provide easy and speedy access to justice tobonafide and needy litigants.

7.         In this case, what is granted by the State Commission is the minimum relief in the facts and circumstances, that is to direct allotment of an alternative plot with a nominal compensation of Rs.5,000/- .  But instead of remedying the wrong, by complying with the decision of the Consumer Fora, the Improvement Trust is trying to brazen out its illegal act by contending that the allottee should have protested when it illegally laid the road in his plot.   It has persisted with its unreasonable and unjust stand by indulging in unnecessary litigation by approaching the National Commission and then this Court.  The Trust should sensitize its officers to serve the public rather than justify their dictatorial acts. It should avoid such an unnecessary litigation.”

24.     In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed:

“ Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law’s delay and bringing bad name to the judicial system.”

 25.    Thus, keeping in view the facts and circumstances of the case, present revision petition is allowed with cost of Rs.25,000/- (Rupees Twenty Five Thousand only).  Respondent is directed to deposit the cost by way of demand in the name of petitioner with this Commission, within eight weeks from today. The cost shall be paid to the petitioner only after expiry of period of appeal/revision preferred if any.

26.     Meanwhile, respondent shall recover the cost amount from the salaries of the delinquent officers who had been pursuing this meritless and frivolous litigation with the sole aim of wasting the public exchequer.  Affidavit giving details of the officials from whose salary  the said  costs has been recovered, be also filed within eight weeks.

27.     List for compliance on 22.2.2013.

                                                                                                 

                                                                             …..…………………………J                         

                                 (V.B. GUPTA)                    

                     PRESIDING MEMBER

 Sg/