LAW FOR ALL

Friday, November 15, 2013

Sec.25,26 and 27 of Consumer Act = Builder failed to provide amenities , Club House etc., and made constructions against the rules of Municipal Nagara Palika - Deficiency in service - consent decree to pay interest on failure to full fill obligations - Executions filed - Appeal lies but not revision - On merits also the builder is at deficiency of service = M/s. Sunny Brooks -vs - Aparajitha Bhandary = published in http://164.100.72.12/ncdrcrep/judgement/0013111410493830RP386238762010.htm

Sec.25,26 and 27 of Consumer Act = Builder failed to provide amenities , Club House etc., and made constructions against the rules of Municipal Nagara Palika - Deficiency in service - consent decree to pay interest on failure to full fill obligations - Executions filed - Appeal lies but not revision - On merits also the builder is at deficiency of service =

The State Commission vide consent order dated 5.11.2007, directed the petitioner to comply with clause 14 of the agreement within 3 months, failing which the petitioner shall be liable to pay interest @ 12% p.a. on the amount paid by the respondents from the date of order till realization.

Petitioner filed objections to the execution petition contended that it has discharged all its obligations by providing civic amenities and club house.

Therefore, it is not liable to pay interest as claimed by the respondents. =

Section 25, 27 and 27A of the Act read as under;

“Sec.25. Enforcement of orders of the District Forum, the State Commission or the National Commission

(1) Where an interim order made under this Act, is not complied with the District Forum or the State Commission or the National Commission, as the case may be, may order the property of the person, not complying with such order to be attached.

(2) No attachment made under sub-section (1) shall remain in force for more than three months at the end of which, if the non-compliance continues, the property attached may be sold and out of the proceeds thereof, the District Forum or the State Commission or the National Commission may award such damages as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto.

(3) Where any amount is due from any person under an order made by a District Forum, State Commission or the National Commission, as the case may be, the person entitled to the amount may make an application to the District Forum, the State Commission or the National Commission, as the case may be, and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the district (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue.

Sec.27. Penalties

(1) Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousands rupees but which may extend to ten thousand rupees, or with both:

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974).

(3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be.

Sec.27A Appeal against order passed under

Section 27

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal under section 27, both on facts and on law, shall lie from -

(a) the order made by the District Forum to the State Commission;

(b) the order made by the State Commission to the National Commission; and

(c) the order made by the National Commission to the Supreme Court.

(2) Except as aforesaid, no appeal shall lie to any court from any order of a District Forum or a State Commission or the National Commission.

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of an order of a District Forum or a State Commission or, as the case may be, the National Commission :

Provided that the State Commission or the National Commission or the Supreme Court, as the case may be, may entertain an appeal after the expiry of the said period of thirty days, if, it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days.”

11. Section 25 and 27 of the Act have been enacted for speedy enforcement of the orders of the District Forum, the State Commission or the National Commission, as the case may be. These sections are in the nature of execution proceedings of the orders made by the three Redressal Agencies. While Section 25 of the Act visualizes the enforcement of such orders by a civil process, as if they were a decree or order made by a Court of law, whereas, Section 27 of the Act confers a quasi-criminal sanction for their enforcement by way of punishment with imprisonment or imposition of monetary penalties.

12. Since, the impugned order of the State Commission has been passed in the execution proceedings under Section 25 and 27 of the Act, only appeal lies against such order under Section 27A of the Act.

13. When an equally efficacious remedy has been provided by way of appeal against the impugned order, the present revision petitions under such circumstances are not maintainable. Hence, these petitions are liable to be dismissed on this short ground.

14. Even on merits, petitioner has no case at all for the reasons mentioned hereunder.

15. As apparent from the record, it is quite clear that order dated 5.11.2007 passed by the State Commission has become final as no revision was filed against that order. Now in the execution proceedings, petitioner /J.D. cannot be permitted to challenge the same and introduce any new case.

16. It is well settled that the executing court cannot go behind the decree. Order dated 5.11.2007 passed by the State Commission was a consent order and the same has attained finality. Be that as it may, petitioner in its objections dated 25.7.2008 filed in response to the Execution Petition of the Respondents/Decree Holder has categorically stated that;

“It is pertinent to state here that except the facility of the Club House, all other civic amenities have been provided and there is no deficiency of service in providing the civic amenities.”

17. Thus, as per petitioner’s own case it did not provide the Club House which it was bound to provide within the specified period as per terms of the conditions of the agreement. However, on 26^thFebruary, 2013 learned counsel for the petitioner on instructions stated before this Commission that Club House, Swimming Pool and Badminton Court have been duly constructed and sought time to file affidavit, photographs and the completion certificate. Accordingly, 6 weeks time was granted. Though petitioner had filed an affidavit, but no completion certificate to this effect has been filed till date. However, as per information dated 12.7.2013, obtained under the Right to Information Act from Bangalore Mahanagar Palika placed on record by the respondents, it is manifestly clear that; “As per the sanctioned plan, building is not constructed, the Swimming Pool is unauthorisedly constructed”.

18. Further, as per provisional order dated 1.6.2013, issued under Section 321(1) of the Karnataka Municipal Corporation Act, 1976, it has been confirmed that; “Commercial building is found to have been constructed against the Karnataka Municipal Corporation Act, 1976 and rules and byelaws”.

19. Since, petitioner has so far not complied with the order dated 5.11.2007 passed by the State Commission, hence the present revision petitions have no merit and are legally not sustainable. These petitions are nothing but gross abuse of the process of law and are totally frivolous. Consequently, we dismiss all the above noted revision petitions.

20. No order as to cost.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

(1) REVISION PETITION NO.3862 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 192 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

1. Aparajitha Bhandary

2. Sudnya Shenava

Both R/o No.189,

Amarjyoti Layout, Domlur,

Ring Road,

Bangalore - 560 071 …..Respondents

(2) REVISION PETITION NO.3863 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 193 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Anusuya Y.M.

D/o Y.B. Mathumani,

No.79/8F, Sunny Brooks,

Sarjapur Road,

Bangalore 0- 560 035 …..Respondent

(3) REVISION PETITION NO.3864 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 194 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Anitha R. Shetty

W/o Dr. S.R. Shetty

No.186, Amarjyothi Layout,

Domlur, Bangalore …..Respondent

(4) REVISION PETITION NO.3865 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 195 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Paul Christdas Salins

W/o Dr. S.R. Shetty

No.186, Amarjyothi Layout,

Domlur, Bangalore …..Respondent

(5) REVISION PETITION NO.3866 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 196 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

1. Sushil Eapen

2. Rekha Eapen,

W/o Sushil Eapen

Both R/o No.78-D,

Sunny Brooks,

Sarjapur Road,

Bangalore - 560 035 …..Respondents

(6) REVISION PETITION NO.3867 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 197 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Cyril Zachariah

S/o Eapen Zachariah,

R/o No.79/4, Sunny Brooks,

Sarjapur Road,

Bangalore - 560 035 …..Respondent

(7) REVISION PETITION NO.3868 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 198 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

1. Geniuneness V.C. Jain

2. Manju Jain,

W/o Geniuneness V.C. Jain

Both residing at No.C-9,

Inderpuri,

New Delhi – 110 012 …..Respondents

(8) REVISION PETITION NO.3869 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 199 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Sameer Gupta,

S/o Col. N.N. Gupta,

No.734, 8^th B Main,

4^th Block, Koramangala,

Bangalore 0 560 034. …..Respondent

(9) REVISION PETITION NO.3870 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 200 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

1. Capt. Pal Pradeep

2. Deepa Lal, W/o Capt. Pal Pradeep,

Both are R/o No.201-B,

Versova, Four Bunglow Road,

Andheri West, Mumbai …..Respondents

(10) REVISION PETITION NO.3871 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 201 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Manoj Lal

S/o Mr. Ratan Lal

R/o C-9, Indar Puri,

New Delhi …..Respondent

(11) REVISION PETITION NO.3872 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 202 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Rakesh Goel,

S/o Mr. S.M. Goel,

R/at T.U. 26,

Pitampura,

New Delhi - 110 034. …..Respondent

(12) REVISION PETITION NO.3873 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 203 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Rajat Gupta

R/o No.604, 2^nd Cross,

3^rd Block, Karamangala,

Bangalore – 560 071 …..Respondent

(13) REVISION PETITION NO.3874 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 204 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

1. Sanjay Jalona

2. Parul Jalona

Both are R/o No.869,

12^th Main, 3^rd Block,

Karamangala,

Bangalore – 560 034. …..Respondents

(14) REVISION PETITION NO.3875 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 205 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

1. Capt Pradeep Lal

2. Mona Lal,

Both are R/o No.869,

12^th Main, 3^rd Block,

Karamangala,

Bangalore – 560 034. …..Respondents

(15) REVISION PETITION NO.3876 OF 2010

(Against the order dated 16.7.2010 in Appeal No. 206 of 2010 of the State Commission, Karnataka)

M/s. Sunny Brooks

No.99/100, Sunny Brooks,

Doddakenahalli, Sarjapura Road,

Bangalore – 560 035

Now called as Samarkhand

Property Management Private Limited

Represent Through its

Managing Director …. Petitioner

Versus

Asha L. Shetty

W/o Mr. Leeladhar Shetty

No.318, 4^th Block

7^th B Main,

Koramangala

Bangalore – 560 034 …..Respondent

BEFORE:

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

HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. S.C. Maheshwari, Senior

Advocate with Mr. Bikas

Kar Gupta and Mr. B.M. Sudesh, Advocates

For the Respondents

in 3863,3865, 3866 &

3867 of 2010 : Mr. John Mathew, Advocate

Mr. Kapil Kher, Advocate

with Mr. Ankur Bansal

Advocate for R-6,8,9,10,11 &12

Mr. Anil Mishra, Advocate

for R-1,2 and 19

Pronounced on: 13^th November, 2013

ORDER

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

Present revision petitions have been filed by the Petitioner/Opposite Party challenging impugned order dated 16.7.2010, passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short, ‘State Commission’) in Appeal Nos.192 to 206 of 2010.

2. Brief facts are that respondents/complainants filed consumer complaints before the District Forum, Bangalore. The complaints were contested by the petitioner. District Forum after hearing the parties, allowed the complaints vide order dated 9.1.2007 and directed the petitioners to provide the amenities as promised under the agreement within 3 months from the date of communication of the said order.

3. Being not satisfied with the order of the District Forum, respondents/complainants filed appeals before the State Commission seeking direction to pay interest as per the terms of the agreement.

4. The State Commission vide consent order dated 5.11.2007, directed the petitioner to comply with clause 14 of the agreement within 3 months, failing which the petitioner shall be liable to pay interest @ 12% p.a. on the amount paid by the respondents from the date of order till realization.

5. Thereafter, respondents filed execution petitions before the State Commission and certain execution petitions were filed before the District Forum which were ultimately transferred to the State Commission and clubbed together. Petitioner filed objections to the execution petition contended that it has discharged all its obligations by providing civic amenities and club house. Therefore, it is not liable to pay interest as claimed by the respondents.

6. Thereafter, District Forum on the basis of interim application (IA) filed by the respondents appointed a Court Commissioner to conduct the local investigation of the layout and directed the said Commissioner to submit his report as to whether petitioner has carried out the directions issued by the State Commission, vide its order dated 5.11.2007. Accordingly, the Court Commissioner submitted his report. Thereafter, District Forum passed order dated 2.12.2009 in the execution proceedings in which it was held ;

“In view of the forth going reasons, we are of the view that OP/JDR has not complied with the orders of the Hon'ble State Commission as such JDR is liable to pay interest at 12% p.a. on the amounts paid by the complainants from the date of order of the State Commission, till realization. Accordingly, we proceed to pass the following:

ORDER

OP/JDR is directed to pay interest @ 12 % p.a. on the amounts paid by the complainants/JDR from the date of order till realization in compliance of the order of theHon'ble State Commission dated 5.11.2007.”

7. Above order of the District Forum was challenged by the petitioner before the State Commission, Bangalore, which dismissed its appeal vide impugned order, observing as under;

“We have gone through the appeal memorandum filed by the appellant/ JDR and also we have given our anxious consideration to the arguments advanced by both the counsel for the parties. The point now that arises for our consideration is that whether the District Forum direction to the appellant/JDR to pay interest @ 12% per annum is correct or not?

As stated earlier we have gone through the documents and appreciate the said documentary evidence placed on record by both the parties which includes the photographs produced by both the parties and also the report of the Commissioner.

The counsel for the appellant /JDR argued that the Court Commissioner appointed by the District Forum is not a qualified person to inspect and submit the report. When the Court Commissioner has been appointed with the consent of both the parties, at this stage, it is not proper to contend by the appellant that the Court Commissioner is not an expert to submit such a report.

The photographs itself clearly indicates that the roads are very zigzag, narrow and the width of the road is less than 30 ft. which is visible to the naked eye. The appellants have not seriously disputed about the said facts. Therefore, we do not find any perverse or illegality in the orders passed by the District Forum in the execution side.

Though, this Commission passed the order on 5.11.2007 granting three months’ time to the appellant to provide the amenities as agreed between the parties, within three months, the appellant protract to provide the civic amenities have not fully complied. After having heard both the parties in detail and also on consideration of the impugned order passed by the District Forum in the execution, we are of the view that there is no merit in these appeals and the same are liable to be set aside. Accordingly, we pass the following:

ORDER

Appeals are dismissed. The parties are directed to bear their own costs.

The amount deposited by the appellant/OP in these appeals shall be transferred to the District Forum enabling the District Forum to pay the same to the complainants after due notice to them.”

8. Hence, these revision petitions.

9. We have heard the learned counsel for both the parties. Both parties have filed written submissions also. We have gone through the same.

10. At the outset, we may point out that no revision petition in the present circumstances lies, since impugned order was passed in the execution proceedings which were initiated under Section 25 and 27 of the Consumer Protection Act, 1986 (for short as’Act’). Section 25, 27 and 27A of the Act read as under;

“Sec.25. Enforcement of orders of the District Forum, the State Commission or the National Commission

Sec.27. Penalties

(3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be.

Sec.27A Appeal against order passed under

Section 27

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal under section 27, both on facts and on law, shall lie from -

(a) the order made by the District Forum to the State Commission;

(b) the order made by the State Commission to the National Commission; and

(c) the order made by the National Commission to the Supreme Court.

(2) Except as aforesaid, no appeal shall lie to any court from any order of a District Forum or a State Commission or the National Commission.

14. Even on merits, petitioner has no case at all for the reasons mentioned hereunder.

“It is pertinent to state here that except the facility of the Club House, all other civic amenities have been provided and there is no deficiency of service in providing the civic amenities.”

20. No order as to cost.

…………………………………….J

(V.B. GUPTA)

PRESIDING MEMBER

……………………………………………

(REKHA GUPTA)

MEMBER

Sg.

Theft of a car - Immediate issuing of notice of theft is must = No notice was given immediately after the theft was occurred so the complainant is not entitled to any insurance claim = New India Assurance Co. Ltd.-vs- Ram Avtar= Published in http://164.100.72.12/ncdrcrep/judgement/00131111121816967FA14109.html

Theft of a car - Immediate issuing of notice of theft is must = No notice was given immediately after the theft was occurred so the complainant is not entitled to any insurance claim =

It appeared that the Respondent/Complainant took almost one month to give intimation about the alleged theft with a view to hide various facts and avoid detection of the fraud played by him on the Appellant/Insurance Company. Specifically it was contended that the Respondent/Complainant’s contention that the vehicle was stolen outside Guru Teg Bahadur Hospital, where his brother was admitted for treatment, was not correct because the brother had actually expired 9 months prior to the theft. Further, it came to light during enquiries made by the Investigator that the vehicle which was hypothecated by the Respondent/Complainant in favour of M.G.F. India Ltd. had a specific clause that it could not be used for hire or reward whereas enquiries revealed that it was being used for hire and reward i.e. for commercial purpose and not for his personal use. In fact, the enquiries also revealed that the Respondent/Complainant was not running a soap factory and had a very modest financial status. The above facts were communicated to the Respondent/Complainant by the Appellant/Insurance Company vide letter dated 12.02.1999 specifically bringing to his notice the various anomalies and contradictions found in the statements made by him from time to time. It was also pointed out that the inordinate delay in informing the Appellant/Insurance Company about the theft of the vehicle was clearly against the terms and conditions of the insurance policy, according to which information about the theft should have been immediately conveyed to the Appellant/Insurance Company. Respondent/Complainant, however, did not reply to this letter and, therefore, the claim was rightly repudiated by the Appellant/Insurance Company.

“CONDITIONS

1. Notice shall be given in writing to the Company immediately upon the occurrence of any accident or loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require.”

We are unable to accept the finding of the State Commission that this provision in the insurance policy is not mandatory but directory in nature since this issue is squarely covered and decided by the Hon’ble Supreme Court in Parvesh Chander Chadha (supra), in which case also pursuant to a vehicle having been stolen between 18.01.1995 and 20.01.1995 an FIR was lodged with the Police on 20.01.1995 but the Insuree did not inform the Insurance Company immediately about the incident as required under the terms and conditions of the insurance policy.

The relevant part of the judgment of the Hon’ble Apex Court is as follows :

“Admittedly, the respondent had not informed the appellant about the alleged theft of the insured vehicle till he sent letter dated 22.5.1995 to the Branch Manager. In the complaint filed by him, the respondent did not give any explanation for this unusual delay in informing the appellant about the incident which gave rise to cause for claiming compensation. Before the District Forum, the respondent did state that he had given copy of the first information report to Rajender Singh Pawarthrough whom he had insured the car and untraced report prepared by police on 19.9.1995 was given to the said Shri Rajender Singh Pawar, but his explanation was worthless because in terms of the policy, the respondent was required to inform the appellant about the theft of the insured vehicle. It is difficult, if not impossible, to fathom any reason why the respondent, who is said to have lodged First Information Report on 20.1.1995 about the theft of car did not inform the insurance company about the incident. In terms of the policy issued by the appellant, the respondent was duty bound to inform it about the theft of the vehicle immediately after the incident. On account of delayed intimation, the appellant was deprived of its legitimate right to get an inquiry conducted into the alleged theft of vehicle and make an endeavor to recover the same. Unfortunately, all the consumer foras omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle his claim on non-standard basis. In our view, the appellant cannot be saddled with the liability to pay compensation to the respondent despite the fact that he had not complied with the terms of the policy.”

10. Respectfully following the above judgment of the Hon’ble Supreme Court, we are unable to accept the order of the State Commission that the claim was wrongly repudiated and, therefore, set aside the same in toto. The present First Appeal is, accordingly, allowed. No order as to costs.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

FIRST APPEAL NO. 141 OF 2009

(Against the order dated 27.11.2008 in Complaint No. 170/2001 of the

Delhi State Consumer Disputes Redressal Commission)

New India Assurance Co. Ltd.

Registered & Head Office

New India Assurance Building

87, Mahatma Gandhi Road

Fort, Mumbai-400001

Also at

J-129, Kirti Nagar

New Delhi-110075

Also at

Delhi Regional Office-I

Jeevan Bharti Building

Connaught Circus

New Delhi … Appellant

Versus

Ram Avtar

S/o Shri Khachauri Mal

R/o 4/420, Bhola Nath Nagar

Shahdara, Delhi-110032 … Respondent

BEFORE:

HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

For Appellant : Mr. P.K. Seth, Advocate

For Respondent : Mr. A.K. Verma, Advocate

Pronounced on 11^th November, 2013

ORDER

PER VINEETA RAI

This First Appeal has been filed by New India Assurance Co. Ltd., Appellant herein and Opposite Party before the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) against the order of that Commission which had allowed the complaint filed against it on grounds of deficiency in service by RamAvtar, Respondent herein and Complainant before the State Commission.

2. In his complaint before the State Commission, Respondent/Complainant had contended that his Tata Sumo vehicle which was financed by M.G.F. India Ltd. and insured by Appellant/Insurance Company for a period of one year i.e. from 19.08.1997 to 18.08.1998, was stolen on 24.02.1998 when it was parked near Guru Teg Bahadur Hospital, Shahdara, Delhi. Respondent/Complainant on the same date lodged an FIR under Section 379 IPC at Police Station Seemapuri, Delhi. On 20.03.1998 Respondent/Complainant also submitted a claim form to the Appellant/Insurance Company and requested that an Investigator be appointed to look into the case of theft of the insured vehicle. On receipt of this information, Appellant/Insurance Company appointed one Sanjeev Nijhawan as Investigator, who sought certain clarifications of the theft of the insured vehicle which were replied to by the Respondent/Complainant. However, despite this, vide letter dated 19.03.1999 Appellant/Insurance Company unjustifiably repudiated the claim, after which Respondent/Complainant made a complaint to the Grievance Cell of the Appellant/Insurance Company, which was also rejected. It was further contended that the Police also could not recover the stolen vehicle and sent an untraced report on 25.05.1998. Being aggrieved by the deficiency in service on the part of Appellant/Insurance Company, Respondent/Complainant filed a complaint before the State Commission seeking a total compensation of Rs.5,35,000/- from the Appellant/Insurance Company, which included Rs.4,65,000/- being the insured value of the vehicle, Rs.50,000/- on account of tension and mental agony and Rs.20,000/- as litigation costs.

3. Appellant/Insurance Company, on being served, filed a written rejoinder denying the allegation that the claim was wrongly rejected. It was stated that the Respondent/Complainant informed the Appellant/Insurance Company about the theft of the vehicle only on 30.03.1998 i.e. approximately one month after the vehicle was allegedly stolen which was against the terms and conditions of the insurance policy which required the Insuree to give immediate intimation about the theft. The Investigator appointed by the Appellant/Insurance Company to enquire into the nature, cause, circumstances and genuineness of the claim after conducting the necessary enquiries concluded that there were serious reasons to doubt the genuineness of the claim. It appeared that the Respondent/Complainant took almost one month to give intimation about the alleged theft with a view to hide various facts and avoid detection of the fraud played by him on the Appellant/Insurance Company. Specifically it was contended that the Respondent/Complainant’s contention that the vehicle was stolen outside Guru Teg Bahadur Hospital, where his brother was admitted for treatment, was not correct because the brother had actually expired 9 months prior to the theft. Further, it came to light during enquiries made by the Investigator that the vehicle which was hypothecated by the Respondent/Complainant in favour of M.G.F. India Ltd. had a specific clause that it could not be used for hire or reward whereas enquiries revealed that it was being used for hire and reward i.e. for commercial purpose and not for his personal use. In fact, the enquiries also revealed that the Respondent/Complainant was not running a soap factory and had a very modest financial status. The above facts were communicated to the Respondent/Complainant by the Appellant/Insurance Company vide letter dated 12.02.1999 specifically bringing to his notice the various anomalies and contradictions found in the statements made by him from time to time. It was also pointed out that the inordinate delay in informing the Appellant/Insurance Company about the theft of the vehicle was clearly against the terms and conditions of the insurance policy, according to which information about the theft should have been immediately conveyed to the Appellant/Insurance Company. Respondent/Complainant, however, did not reply to this letter and, therefore, the claim was rightly repudiated by the Appellant/Insurance Company.

4. The State Commission, after hearing the parties, allowed the complaint and held the Appellant/Insurance Company guilty of deficiency in service. In its detailed order, the State Commission inter alia concluded that the delay in informing the Insurance Company was not a ground for rejecting the claim since this provision in the insurance policy was of a “directory nature” and not a mandatory requirement. The relevant part of the order of the State Commission is reproduced:

“20. The provision of informing the insurance company or lodging the report with the police immediately after the occurrence is of directory nature and not of mandatory nature. What is relevant and material for adjudicating the claim whether the theft had taken place or not and whether the occurrence took place within the subsistence of the insurance policy or not. The grounds raised are confused and immaterial and not to be taken into consideration as the insurance cover is against the theft of the vehicle.

21. Once a criminal offence takes place and a report is lodged with the police, the police is the only statutory authority to investigate the case and no other authority and the final report of the police has to be acted upon. Some delay of few days in intimating about the information and lodging the claim by the insured to the appellant-company cannot form a ground for doubting the theft or burglary. If the insurance company finds that the report lodged by the insured was false it can always approach the police u/s 182 of the Cr.P.C.

22. As regards the objection that the vehicle was being used as a commercial vehicle and not a private vehicle, the facts of each and every case have to be scrutinized and scanned on its own. It was a simple case of theft of vehicle and not a case where the breach of some provisions of Motor Vehicle Act were committed and if at all this was a case, the complainant could have been prosecuted under the Motor Vehicle Act but cannot deny the insurance claim covering the risk of theft.”

The State Commission, therefore, directed the Appellant/Insurance Company to pay to the Respondent/Complainant (i) the insured value of the vehicle less 5% as depreciation value; (ii) Rs.50,000/- as compensation towards mental agony and trauma and (iii) Rs.10,000/- as litigation costs. The State Commission also directed the Respondent/Complainant to take necessary steps to transfer the ownership of the vehicle in the name of the Appellant/Insurance Company.

5. Hence, the present First Appeal by the Appellant/Insurance Company.

6. Counsel for the parties made oral submissions.

7. Counsel for the Appellant/Insurance Company contended that the State Commission erred in allowing the Respondent/Complainant’s complaint despite accepting the fact that the Respondent/Complainant had taken almost a month to inform the Insurance Company about the theft of the vehicle by observing that the provision in the insurance policy requiring theInsuree to immediately inform the Insurance Company was of a directory nature and not of mandatory nature. On the other hand, it is well settled through a catena of judgments (including of the Hon’ble Supreme Court in Oriental Insurance Co. Ltd. V. Parvesh Chander Chadha rendered in Civil Appeal No. 6739 of 2010) that an insurance policy being a contract between the two parties, its terms and conditions are binding on both parties. Therefore, in accordance with the terms and conditions of the insurance policy, Respondent/Complainant was required to immediately inform the Appellant/Insurance Company about the theft of the insured vehicle, which he failed to do. Respondent/Complainant also had not been able to successfully refute various contradictions and anomalies regarding the facts of the theft as also his financial status, which further lent credence to the fact that the claim was not genuine.

8. Counsel for the Respondent/Complainant on the other hand stated that the Respondent/Complainant had orally informed an officer of the Appellant/Insurance Company about the theft of the vehicle on the same date and denied that he had filed a bogus and fabricated claim. It was further reiterated that the vehicle was purchased by the Respondent/Complainant for his personal use. The State Commission on the basis of credible evidence produced before it had rightly allowed his complaint. The present First Appeal may, therefore, be dismissed.

9. We have heard the submissions made by the Counsel for the parties and also considered the evidence on record. The fact regarding the vehicle being insured by the Appellant/Insurance Company for a period from 19.08.1997 to 18.08.1998 is not in dispute. It is also an admitted fact that although an FIR was lodged with the Police on the same date, information in writing was conveyed to the Appellant/Insurance Company 35 days after the theft of the vehicle. When we specifically asked the Counsel for the Respondent/Complainant whether there was any plausible explanation for this delay, he stated that the information about the theft was conveyed to the Appellant/Insurance Company orally on the same date. However, we note that this fact was not mentioned in the complaint and no evidence to support this contention was produced either before the State Commission or before this Commission; not even the name of the official to whom the complaint was purportedly made was stated. We have perused the terms and conditions of the insurance policy and we note that the relevant provision inter alia reads as follows :

“CONDITIONS

Thus, as per the terms and conditions of the insurance policy, the Insuree was required to immediately inform the Appellant/Insurance Company about the theft of the vehicle which he admittedly failed to do. We are unable to accept the finding of the State Commission that this provision in the insurance policy is not mandatory but directory in nature since this issue is squarely covered and decided by the Hon’ble Supreme Court in Parvesh Chander Chadha (supra), in which case also pursuant to a vehicle having been stolen between 18.01.1995 and 20.01.1995 an FIR was lodged with the Police on 20.01.1995 but the Insuree did not inform the Insurance Company immediately about the incident as required under the terms and conditions of the insurance policy. The relevant part of the judgment of the Hon’ble Apex Court is as follows :

Sd/-

(D.K. JAIN, J.)

PRESIDENT

Sd/-

(VINEETA RAI)

MEMBER

Mukesh

No medical negligence = False claim alleging that operation was done over the dead body by playing mellow drama patient was joined with heart ailment for two days for claiming operation charges -No medical negligence Dismissed = Surinder Singh -verses -1. Escorts Heart Institute & Research Centre and others = published in http://164.100.72.12/ncdrcrep/judgement/00131111150515946OP46402.htm

No medical negligence = False claim alleging that operation was done over the dead body by playing mellow drama patient was joined with heart ailment for two days for claiming operation charges -No medical negligence Dismissed =

Opposite parties have proved on record the nurses charts / notes maintained by Duty nurses who attended to the patient Virendr Kaur after the surgery till 26.11.2001 12.30 p.m. when she was declared dead. Perusal of the nurses chart would show that as per the progress notes of the patient on 24.11.2001 at 7.15 p.m, the nurse has recorded “relative of the patient has seen her and talked with Dr. Naresh Trehan”. In the same chart, night shift nurse has recorded the progress note confirming having taken over the charge of aforesaid female patient who had underwent CABG x 2 + MV repair on the same day. Further perusal of the nurses chart entry dated 25.11.2001 at 6 p.m. reveals that on the said evening the relative of the patient had visited her and her condition was explained to the relative by the doctor. The aforesaid progress notes recorded by the respective duty nurses have been recorded from time to time on 24.11.2001 and 25.11.2001. From this, it is evident that the progress notes on the nurses chart have been recorded by the nurses in due course of business. Therefore, there is no reason to disbelieve the entries recorded in the aforesaid nurses chart. Not only this, opposite parties have also placed on record photocopy of the treatment record of the patient Varinder Kaur which also indicate that Varinder Kaur had a successful surgery and she was given follow up treatment but unfortunately she died on 26.11.2001 at 12.30 p.m. From this it is clear that Ms. Varinder Kaur underwent surgery and was very much alive till 26.11.2001 afternoon. As regards the plea of the complainant that no videography was done with a view to conceal that the patient had actually died on 24.11.2001 before the surgery, it would be relevant to have a look on the copy of the bill pertaining to the treatment of Varinder Kaur dated 27.11.2001, which is annexure R-7. This bill records break-up of package deal wherein no mention of video filming of the surgery. Therefore, we are not inclined to believe the aforesaid claim of the complainant. We may note that during the course of arguments, a query was put to learned counsel for the complainant as to when the complainant realised that his wife had died before the surgery. In answer to that query, learned counsel for the complainant submitted that complainant came to know about this fact on the receipt of the dead body when he noticed that there were no blood stains on the incision done for the by-pass surgery which raised a suspicion that the incisions were made on the dead body. If that explanation of the complainant is true, then we may fail to understand as to why the complainant did not insist for post-mortem of the dead body of the deceased as it would have clinched the issue by establishing duration / time of the death of deceased. In view of the above noted circumstances, we do not find any merit in the plea of the complainant that his wife had died before the commencement of surgery. Our aforesaid opinion gets strengthened from the fact that the complaint has been filed by the complainant after a lapse of almost a year from the date of death of his wife. Had the version of the complainant been true and had he been suspicious about the death of his wife before the commencement of surgery, under normal course of circumstances, he would not have waited for a year to file a complaint against the opposite parties.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

ORIGINAL PETITION NO. 464 OF 2002

Surinder Singh .… COMPLAINANT

S/o S. Gurba Singh

R/o 20, Vidya Nagar

Govind Puri Road

Yamuna Nagar, Haryana

Versus

1. Escorts Heart Institute &

Research Centre

Okhla Road

New Delhi-110025

2. Dr. A.K. Omar

Managing Director

Sr. Consultant Cardiology

Escorts Heart Institute &

Research Centre

Okhla Road

New Delhi-110025

3. Dr. Naresh Trehan

Chief Cardiac Surgeon

Escorts Heart Institute &

Research Centre Okhla Road

New Delhi-110025 .... OPPOSITE PARTIES

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER

For the Complainant : NEMO

For the Opposite Party : Mr.Sajad Sultan, Adv. for OP no.1 & 2

Mr.Vivek Jain, Adv. for OP no.3

PRONOUNCED ON : 11^th NOVEMBER, 2013

ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

Surinder Singh has filed the present complaint under section 21 r/w Section 12 of the Consumer Protection Act, 1986, ( in short, the ‘Act’) seeking compensation to the tune of Rs.32,00,000/- with interest alongwith cost alleging medical negligence on the part of the OP / Hospital and Doctors. Initially a complaint was preferred against M/s Escorts Heart Institute & Research Centre, New Delhi and Dr. A.K. Omar but subsequently by way of amendment the complainant impleaded Dr. Naresh Trehan also as OP No.3.

2. Briefly stated allegations in the complaint are that on 14.11.2001 the complainant took his wife Varinder Kaur to the OP No.1 Hospital for treatment. She was examined at the hospital and a package deal of Rs.3,35,000/- was offered which included the treatment as also the heart surgery besides costs of tests required and preparation of video film. The complainant deposited the same amount with OP No.1 and his wife was admitted. She was put to various examination and ultimately it was declared that wife of the complainant required by-pass surgery but before that her blood glucose level was to be brought under control. It is alleged that on 24.11.2001 Varinder Kaur was taken to the operation theatre and was operated upon inspite of the fact that she had suffered a cardiac arrest. It is the case of the complainant that after sometime, he was told that operation was successful and the patient had been removed to the ICU. However, no relative including the complainant as also sons and daughters of the patient were allowed to see her. Complainant, however, was asked to bring medicines on various occasions till 26.11.2011 which were supplied. It is alleged that from 14.11.2001 till 26.11.2001 all the family members of the complainant remained at the Institute’s waiting hall taking turns. After the so-called surgery, the complainant and other relations were told that patient was progressing very well. Surprisingly on 26.11.2001 at 12.30 p.m., the hospital authorities informed the complainant that his wife Varinder Kaur had expired. It is alleged that complainant and relations came to know that Varinder Kaur had expired on 24.11.2001 before she could be operated. Despite that her dead body was given incisions to give an impression that the surgery was actually conducted. There were no blood stains on the body which indicated that the body was cut after the death. The complainant then demanded video clip of the alleged by-pass surgery but he was told that no video film was prepared. It is also alleged that out of total sum charged by OP No.1, a sum of Rs.50,000/- was refunded on the plea that video film was not prepared.

3. Claiming the above referred conduct of the OPs to be unfair trade practice as also negligence and deficiency in service, the complainant filed the complaint seeking compensation of Rs.32,00,000/- with interest besides cost.

4. OP No.1 in its written statement denied the allegations made in the complaint. According to OP No.1, the complainant’s wife was brought in ambulance from Yamuna Nagar in critical condition and she was given treatment of highest standards. It was alleged that patient Varinder Kaur was brought to the respondent / hospital for the first time on 05.04.2001 for consultation with the history of mitral regurgitation with family history of coronary artery disease. She was advised to undergo angiography and the result of angiography reveal the following :

Anterior wall hypokinetic, posterior wall akinetic, apical wall hypokinetic, LVEF 35% , sever mitral regurgitation, right coronary artery – 100% proximal stenosis, left anterior descending artery – 70% proximal stenosis, left circumflex 40% proximal stenosis and 90% distal stenosis, IIIrd obtuse marginal 70% proximal stenosis.

5. On the basis of angiography report she was diagnosed as a case of Triple vessel disease, severe MR and Moderate Left Ventricular dysfunction. She was advised on the same day to undergo CABG + MVR. She was thus advised surgery. The patient did not report for surgery as advised till she was admitted on 09.11.2001 in Gupta Hospital, Yamuna Nagar with history of chest pain with radiation to left arm of 3 days duration. At Gupta Hospital she was diagnosed as a case of anterior wall myocardial infarction and was treated conservatively. She had two episodes of post myocardial infarction angina lasting 10-15 minutes. The last episode occurred on 13.11.2001 at 9.00 p.m.. She developed hypotension and was on dopamine. The patient was then referred to the OP / Hospital and admitted in the hospital in critical condition on 14.11.2001. Necessary tests were conducted and the patient was taken for surgery i.e. CABG and Mitral Valve Repair (MVR). However, before starting the surgery, the patient developed Ventricular Fibrillation. The patient was immediately resuscitated by cardiac massage and DC shock and it was decided to put her on IABP support and cardiopulmonary bypass support. Thereafter, Arota was cross clamped and cardioplegia was given. This is a conventional bypass surgical procedure. During the surgical procedure, LAD and OMI were bypassed with reversed saphenous vein grafts and mitral valve repair was done. The patient was weaned off cardiopulmonary bypass on heavy inotropes and IABP support. The patient was shifted to the recovery on the same day with IABP and inotropic support and cordarone and Xylocard infusion. Post operatively patient continued to be haemodynamically unstable despite such high support and had recurrent episodes of ventricular tachycardia (VT), most of which were self-reverting. However, open cardiac massage with electrical cardioversion was required at one time. On 1^st postoperative day, urine output decreased so she was put on Lasix infusion. The hemogynamic status remained low, so Ephinephrine infusion was increased. The patient had two episodes of self – reverting VT on 25.11.2001 at 10.30 p.m. On 26.11.2001, the patient had multiple episodes of ventricular tachycardia, which did not revert despite open cardiac massage and DC shock. Despite all cardio respiratory rescuscitative efforts, patient could not be revived and was declared dead at 12.30 p.am on 26.11.2001.

6. Regarding the package deal, OP No.1 alleged that package deal for surgery was Rs.2,50,000/- and not Rs.3,35,000/- as alleged in the complaint. It was denied that package deal included any video film and was alleged that in fact no video clip of bypass surgery is taken by the hospital. It was also denied that relatives were not allowed to see the patient and alleged that nurses notes clearly documented that the relatives came and saw the patient and also met Dr. Naresh Trehan, Chief Cardiac Surgeon on 24.11.2001 at 7.15 p.m. and that it is standing operating procedure in the institute that the relatives were called to see the patient when the patient is shifted to recovery from OT and later on twice a day. OP No.1 further denied that a sum of Rs. 4,50,000/- was charged from the complainant which also included video film. It was alleged that total bill for payment was Rs.3,83,037/- out of which a subsidy of Rs.1,03,037/- was given to the complainant on humanitarian grounds. It was also alleged that patient was operated by Dr. Naresh Trehan and there was no medical negligence on the part of the hospital or the other OPs.

7. Other OPs have also denied the allegations in the complaint and they have specifically denied that there was any medical negligence on the part of the doctors or that they had operated the dead body of the deceased after she had died at the operation table as a result of cardiac arrest.

8. Complainant Surinder Singh has filed his affidavit in support of his claim in the complaint and reiterated the allegations made in the complaint. In rebuttal OP No.1 filed the affidavit of Dr. V. R.Gupta, Medical Superintendent and proved on record copy of Angiography report dated 05.04.2001, copy of cardiac evaluation form dated 14.11.2001, copy of Echo Report dated 14.11.2001, copy of Angiography report dated 17.11.2001, copy of the high risk informed consent form, copy of the extract detailing ventricular fibrillation, copy of the breakup of package, copy of the nurses chart and notes dated 24.11.2001, copy of the detailed bill, copies of the nurses chart dated 25.11.2001 and copies of critical flow chart of 24.11.2001 to 26.11.2001.

9. OP No.3 Dr. Naresh Trehan also filed his affidavit in support of his written statement indicating that the deceased patient was given the treatment of highest standards and there was no medical negligence.

10. We have heard the rival parties and perused the material on record. Shri Sunil K Kalra, Advocate, learned counsel for the complainant has contended that OPs are guilty of medical negligence as also unfair trade practice inasmuch as they operated upon the dead patient with a view to extract the surgery charges. It is contended that this is proved from the fact that though the medical package included the charges for videography of the surgery, no such clip was given to the complainant despite of demand. He further contended that from the statement of the complainant, it is evident that relatives of the patient were not allowed to meet or see her till her death was announced on 26.11.2001 and this fact leads to the conclusion that the patient had died at the operation table on 24.11.2001 before the surgery could be done.

11. Learned counsel for the opposite parties on the contrary have referred to the relevant investigation reports and the treatment record including the copy of the nurses chart and notes and submitted that Ms. Varinder Kaur was given proper treatment and there was no negligence on the part of the treating doctors or the hospital. The plea of the complainant that Ms. Varinder Kaur had actually died before the commencement of surgery is only a make belief story to extract money from the opposite parties.

12. On careful perusal of the evidence, we do not find any merit in the plea of the complainant that his wife Varinder Kaur had expired in the operation theatre before the commencement of surgery and because of that reason, no videography of the surgical procedure was done.

13. Opposite parties have proved on record the nurses charts / notes maintained by Duty nurses who attended to the patient Virendr Kaur after the surgery till 26.11.2001 12.30 p.m. when she was declared dead. Perusal of the nurses chart would show that as per the progress notes of the patient on 24.11.2001 at 7.15 p.m, the nurse has recorded “relative of the patient has seen her and talked with Dr. Naresh Trehan”. In the same chart, night shift nurse has recorded the progress note confirming having taken over the charge of aforesaid female patient who had underwent CABG x 2 + MV repair on the same day. Further perusal of the nurses chart entry dated 25.11.2001 at 6 p.m. reveals that on the said evening the relative of the patient had visited her and her condition was explained to the relative by the doctor. The aforesaid progress notes recorded by the respective duty nurses have been recorded from time to time on 24.11.2001 and 25.11.2001. From this, it is evident that the progress notes on the nurses chart have been recorded by the nurses in due course of business. Therefore, there is no reason to disbelieve the entries recorded in the aforesaid nurses chart. Not only this, opposite parties have also placed on record photocopy of the treatment record of the patient Varinder Kaur which also indicate that Varinder Kaur had a successful surgery and she was given follow up treatment but unfortunately she died on 26.11.2001 at 12.30 p.m. From this it is clear that Ms. Varinder Kaur underwent surgery and was very much alive till 26.11.2001 afternoon. As regards the plea of the complainant that no videography was done with a view to conceal that the patient had actually died on 24.11.2001 before the surgery, it would be relevant to have a look on the copy of the bill pertaining to the treatment of Varinder Kaur dated 27.11.2001, which is annexure R-7. This bill records break-up of package deal wherein no mention of video filming of the surgery. Therefore, we are not inclined to believe the aforesaid claim of the complainant. We may note that during the course of arguments, a query was put to learned counsel for the complainant as to when the complainant realised that his wife had died before the surgery. In answer to that query, learned counsel for the complainant submitted that complainant came to know about this fact on the receipt of the dead body when he noticed that there were no blood stains on the incision done for the by-pass surgery which raised a suspicion that the incisions were made on the dead body. If that explanation of the complainant is true, then we may fail to understand as to why the complainant did not insist for post-mortem of the dead body of the deceased as it would have clinched the issue by establishing duration / time of the death of deceased. In view of the above noted circumstances, we do not find any merit in the plea of the complainant that his wife had died before the commencement of surgery. Our aforesaid opinion gets strengthened from the fact that the complaint has been filed by the complainant after a lapse of almost a year from the date of death of his wife. Had the version of the complainant been true and had he been suspicious about the death of his wife before the commencement of surgery, under normal course of circumstances, he would not have waited for a year to file a complaint against the opposite parties.

14. Learned counsel for the complainant has also made a half hearted submission that the opposite parties are guilty of medical negligence in the treatment of Varinder Kaur which resulted in her death. The complainant, however, has not led any cogent evidence in support of this contention. On the contrary OP No.3 Dr. Naresh Trehan has filed his affidavit detailing the treatment given to the patient and the procedure adopted in the surgery. The opposite parties have also placed on record the copies of pre-surgery investigation reports Ex. RW 3/1 to RW3/5, copy of “high risk informed consent form” Ex. RW3/6, copy of the operation notes Ex. RW3/8, copies of the nurses charts of 24^th and 25^th November, 2001 Ex. RW3/7 as also the copy of critical care flow charts for the period 24.11.2001 to 26.11.2001. On perusal of the above record we are of the view that Ms. Varinder Kaur was given proper treatment and just because she did not survive it cannot be said that opposite parties were guilty of medical negligence particularly when there is no evidence to show. Thus, we do not find any evidence to justify the conclusion that opposite parties were guilty of medical negligence or the quality of treatment given to the patient Varinder Kaur was sub-standard.

15. In view of the discussion above, we are of the opinion that the complainant has failed to establish that either of the opposite party was guilty of medical negligence or of unfair trade practice. Complaint, is therefore, dismissed with no order as to costs.

………………………………

(AJIT BHARIHOKE, J.)

(PRESIDING MEMBER)

……………………………..

(SURESH CHANDRA)

MEMBER

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Friday, November 15, 2013

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(15) REVISION PETITION NO.3876 OF 2010

MEMBER

ORIGINAL PETITION NO. 464 OF 2002

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER