Anirudh Aggarwal vs Dharam Bir Bhatia

Anirudh Aggarwal ...Appellant(s)

Versus

Dharam Bir Bhatia ...Respondent(s)

JUDGMENT

Dr. ARIJIT PASAYAT, J.

Leave granted.

2. Challenge in this appeal is to the order passed by the National

Consumer Disputes Redressal Commission (in short `the Commission')

dismissing the petition which was filed by the appellant seeking revision

of the order of the State Commission, Rajasthan (in short the `State Commission')

3. The respondent filed a claim petition before the District

Consumer Protection Forum - Second, Jaipur (in short the `District

Forum') under Section 12 of Consumer Protection Act, 1986 (in short the

`Act'). It was alleged in the complaint that the present appellant started

treatment of the teeth of the complainant's daughter on the basis of the

recommendation made by Dr. Anjali Dave Tiwari who was respondent

No.1 in the complaint petition.

4. It was alleged that that the present appellant did not complete

the treatment of the teeth and in fact left the treatment midway which

caused pain and agony to the daughter of the complainant. Both the

respondents before the District Forum filed their objections. The District

Forum held that the petition was not maintainable vis-a-vis the

respondent No.1. However, it held that since the present appellant did

not solve the problem and inconvenience suffered by the daughter of the complainant during the course of the treatment of her teeth and stopped

the treatment midway on baseless and on imaginary grounds it was just

and fair to award compensation to the complainant and, therefore, the

appellant herein was directed to pay compensation of Rs.25,000/- and

cost of Rs.3,000/- to the complainant. Both the present appellant and the

complainant approached the State Commission. While the present

appellant questioned the legality of the direction for payment of

compensation, the present respondent No.1-complainant sought for

enhancement of the amount. The State Commission recorded the

findings that no affidavit was filed in the present case by the

complainant's daughter to show as to whether she had suffered any pain

and/or suffered physical hardship. It was also noted by the State

Commission that in a case of this nature, since bulged and crooked teeth

are put into the right position, age limitation in this regard could be an

important factor. The State Commission also noted that, in the present

case, the daughter of the complainant was told that considering her age the treatment could take a long time. It was found that the daughter of the

complainant had not produced the basis on which it was said that she

suffered intolerable pain and she brought it to the notice of the Doctor

and even thereafter, the Doctor did not do anything. It was noted that in

the notice produced by the complainant it had not been mentioned

anywhere that braces were tied up tightly because of which his daughter

suffered problem. No opinion of any expert had been produced so that it

could be said that appellant showed negligence in the treatment. The

Bench during the hearing of the arguments asked the complainant as to

whether his daughter could be sent to some expert even then so that it

could be learnt as to whether the present appellant had committed any

negligence in the treatment of her teeth and that the present appellant

tied up the teeth of the complainant so tightly that it made the life of

complainant's daughter like a living hell. Complainant showed negative

attitude in this regard and stated that the braces of his daughter have

been removed and he did not want examination by any Expert. After referring to the factual aspects the State Commission observed as

follows:

"If any inconvenience is suffered in eating and drinking because of braces, negligence on the part of respondent could not be held mere on this ground. Complainant visited the respondent till nine months after fitting of the braces. In the meantime, if she had any problem, she could have discussed it with the respondent definitely."

5. In other words, it was conclusively held that there was no

medical negligence involved but it was directed that the complainant

should be paid Rs.14,000/- which was the amount purported to have been

paid by the complainant to the Doctor for treatment. Both the

complainant and the present appellant filed revision petitions before the

National Commission. By the impugned order the National Commission

dismissed the revision petition filed by the appellant on the ground that

medical negligence was writ large and no interference was called for. It

was held that there was concurrent finding that the appellant was

negligent in not treating the patient who was to be treated. Revision petition field by the complainant has been admitted and notice has been

issued.

6. Learned counsel for the appellant submits that the National

Commission has recorded incorrect finding that there is concurrent

finding by the District Forum as well as the State Commission about the

appellant being negligent and having not treated the patient. The

complainant, who appears in person, supported the order of the National

Commission.

7. We are of the opinion that, prima facie, the National Commission

was not justified in dismissing the revision petition filed by the appellant.

Its conclusions that the forums below had recorded concurrent finding

about the appellant being negligent and not treating the complainant's

daughter is contrary to the conclusion recorded by the State

Commission. That being so, we set aside the impugned order and direct

that the revision petition of the appellant shall be heard along with the revision petition filed by the complainant which is numbered as Revision

Petition No. 4294/2007. We make it clear that we have not expressed any

opinion on the merits of the case.

8. The appeal is accordingly disposed of with no order as to costs.

..................J. (Dr. ARIJIT PASAYAT)

...................J. (ASOK KUMAR GANGULY) New Delhi, April 15, 2009.