Chandigarh Nursing Home vs Sukhdeep Kaur

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5931 OF 2022

Chandigarh Nursing Home and Anr. …Appellant(s)

Versus

Sukhdeep Kaur …Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 03.01.2022 passed by the National Consumer Disputes

Redressal Commission, New Delhi (hereinafter referred to as the

“National Commission”) in Revision Petition No. 4677 of 2013 by which

in a revision petition preferred by the appellants herein – original

respondents, the National Commission has enhanced the amount of

compensation from Rs. 1 lakh awarded by the District Forum to Rs. 10

lakhs, the original respondents have preferred the present appeal.

2. The issue involved in the present appeal is in a very narrow

compass.

Signature Not Verified Digitally signed by SNEHA Date: 2022.09.09 16:58:51 IST Reason:

3. The facts leading to the present appeal in nutshell are as under:-

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3.1 The respondent herein – the original complainant, a minor filed a

consumer complaint before the District Forum through her father alleging

medical negligence against the appellants herein, who suffered from

wrong diagnosis and wrong treatment, which led to rashes on her body,

and which became beyond control. It was alleged that the doctor, who

treated her was a BAMS (Ayurveda Doctor) and was not competent to

prescribe allopathic medicines, which amounts to medical negligence.

3.2 The District Forum by order dated 11.03.2010 directed the

appellants to pay an amount of Rs. 1 lakh alongwith interest @ 9% from

the date of order holding that there was a negligence on the part of the

appellants.

3.3 Feeling aggrieved and dissatisfied with the order passed by the

District Forum, the appellants preferred an appeal before the State

Consumer Disputes Redressal Commission, Punjab (hereinafter referred

to as “State Commission”) . At this stage, it is required to be noted that

so far as the original complainant is concerned, it is an admitted position

that the original complainant did not prefer any appeal before the State

Commission to enhance the amount of compensation and it was the

appellants, who preferred the appeal before the State Commission. The

State Commission dismissed the said appeal with cost of Rs. 10,000/-.

3.4 Being aggrieved by the judgment and order passed by the State

Commission dismissing the appeal and confirming the order passed by

2 the District Forum awarding a sum of Rs. 1 lakh towards the

compensation, it was the appellants, who preferred the revision

petition/application before the National Commission.

3.5 While dismissing the revision petition/application preferred by the

appellants herein, the National Commission has enhanced the amount of

compensation to Rs. 10 lakhs. Being aggrieved by the order passed by

the National Commission enhancing the amount of compensation to Rs.

10 lakhs, that too, in the revision petition/application preferred by the

appellants, the original opponents/appellants have preferred the present

appeal.

4. Shri Gopal Sankaranarayana, learned Senior Advocate has

appeared on behalf of the appellants and Shri K.K. Mohan, learned

counsel has appeared on behalf of the respondent – original

complainant.

5. Shri Gopal Sankaranarayana, learned Senior Advocate appearing

on behalf of the appellants has assailed the findings recorded by the

District Forum, confirmed by the State Commission and the National

Commission, on the negligence held to be proved on the part of the

appellants. However, as there are concurrent findings recorded by the

District Forum, the State Commission and the National Commission on

the negligence on the part of the appellants, we see no reason to

3 interfere with the said finding of facts in exercise of powers under Article

136 of the Constitution of India.

5.1 However, at the same time, learned Senior Advocate appearing on

behalf of the appellants is right in submitting that in a revision application

preferred by the appellants aggrieved by the order passed by the District

Forum, awarding a sum of Rs. 1 lakh towards compensation, and that

when neither any appeal was preferred by the original complainant

before the State Commission, nor thereafter any further appeal and/or

revision application was filed by the original complainant before the

National Commission, the National Commission was not justified in

enhancing the amount of compensation in the revision

application/petition preferred by the appellants. It is also the case on

behalf of the appellants that even otherwise and as such while awarding

an enhanced compensation of Rs. 10 lakhs, the National Commission

has not at all considered any disability and according to the learned

Senior Advocate appearing on behalf of the appellants as such there is

no basis at all to award Rs. 10 lakhs towards the compensation.

5.2 Learned Senior Advocate appearing on behalf of the appellants

has submitted that while enhancing the amount of compensation to

Rs. 10 lakhs, the National Commission has considered some decisions

of this Hon’ble Court referred to in paragraph 14 of the impugned

judgment and order. However, according to the learned Senior Advocate

4 appearing on behalf of the appellants, the amount of compensation

depends upon the facts and circumstances of each case and depends

upon the disability and/or suffering by the complainant and it varies from

case to case. It is submitted that merely because in some cases, the

amount of compensation has been enhanced in other cases, the amount

of compensation is not required to be enhanced automatically.

6. On the other hand, Shri K.K. Mohan, learned counsel appearing on

behalf of the original complainant – respondent has heavily relied upon

Section 21(b) of the Consumer Protection Act, 1986. Relying upon

Section 21(b) of the Consumer Protection Act, 1986, it is submitted that

the National Commission has suo moto revisional jurisdiction and

therefore, even in absence of any appeal and/or revision application

preferred by the complainant, the National Commission can enhance the

amount of compensation in exercise of suo moto revisional jurisdiction

conferred under Section 21(b) of the Consumer Protection Act, 1986. In

the alternative, it is submitted by Shri Mohan, learned counsel appearing

on behalf of the respondent that looking to the physical condition of the

complainant and even today she is suffering, therefore, this Court may

not interfere with the impugned judgment and order passed by the

National Commission enhancing the amount of compensation.

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7. Having heard the learned counsel appearing on behalf of the

respective parties, it emerges that the District Forum awarded a sum of

Rs. 1 lakh as compensation to the original complainant. However, the

original complainant did not carry the matter further to the State

Commission and the appellants herein – original opponents being

aggrieved by the order of District Forum preferred the appeal before the

State Commission. The State Commission dismissed the appeal and

the appellants herein – original respondents being aggrieved by the

order passed by the State Commission preferred the revision

petition/application before the National Commission. At no point of time,

the original complainant challenged the order passed by the District

Forum aggrieved by the quantum of compensation determined by the

District Forum. Therefore, as such, the order passed by the District

Forum attained finality insofar as the original complainant is concerned.

In a revision application preferred by the original respondents –

appellants herein challenging the order passed by the District Forum

confirmed by the State Commission, the National Commission while

dismissing the revision application has enhanced the amount of

compensation. At the most, the National Commission could have

dismissed the revision application unless the National Commission

specifically exercises a suo moto revisional power in exercise of the

powers under Section 21(b) of the Consumer Protection Act, 1986. In

6 the present case, from the impugned judgment and order passed by the

National Commission, it does not appear that the National Commission

exercised the suo moto revisional power. Even the appellants herein –

original revisionists were not put to notice that the National Commission

is to enhance the amount of compensation in exercise of the revisional

power - the suo moto revisional jurisdiction. The appellants herein –

original revisionists are taken by surprise and the National Commission

without giving any opportunity to them has enhanced the amount of

compensation. Therefore, on this ground also, the impugned judgment

and order passed by the National Commission enhancing the amount of

compensation in the revision application preferred by the appellants

herein is unsustainable.

7.1 Even otherwise, in absence of any cogent reasons and/or material,

the National Commission is not justified in enhancing the amount of

compensation to Rs. 10 lakhs. While enhancing the amount of

compensation to Rs. 10 lakhs, the National Commission has just

referred to few decisions of this Court in paragraph 14 and thereafter has

straightaway enhanced the amount of compensation. It is to be noted

that the amount of compensation varies from person to person, looking

to the damages and/or disability suffered/sustained. Merely because in

some cases, the amount of compensation has been enhanced, in other

cases, the amount of compensation cannot be enhanced. While

7 enhancing the amount of compensation to Rs. 10 lakhs as such, the

learned National Commission has not at all discussed the disability

suffered by the complainant. Therefore, also, the impugned judgment

and order passed by the National Commission enhancing the amount of

compensation to Rs. 10 lakhs is unsustainable.

7.2 However, at the same time, we are of the opinion that looking to

the negligence held to be proved and the trauma and the sufferings by

the complainant, and that at the relevant time the compensation

determined was Rs. 1 lakh only and it is stated that the family has spent

thousands of rupees for her treatment and medicines and so stated in

the counter affidavit that even today the complainant has not recovered

completely and is under treatment, we are of the opinion that the amount

of Rs. 1 lakh awarded by the District Forum is required to be enhanced

in exercise of the powers under Article 142 of the Constitution of India so

as to do the substantial justice to the complainant. We are of the

opinion that if the amount of compensation is enhanced to a total sum of

Rs. 4 lakhs (instead of Rs. 1 lakh awarded by the District Forum), the

same shall meet the ends of justice.

8. In view of the above and for the reasons stated above, the

impugned judgment and order passed by the National Commission

enhancing the amount of compensation to Rs. 10 lakhs is hereby

8 quashed and set aside. However, in exercise of the powers under Article

142 of the Constitution of India and for the reasons stated herein above,

we direct the appellants to pay a total sum of Rs. 4 lakhs (instead of Rs.

1 lakh awarded by the District Forum) to the respondent herein, after

deducting whatever amount as deposited by the appellants. We direct

the appellants to pay to the original complainant balance amount after

deducting the amount already deposited, within a period of six weeks

from today, failing which, it shall carry an interest @ 7.5%. The original

complainant is permitted to withdraw the amount already deposited by

the appellants with interest accrued thereon, which shall be paid to the

original complainant by account payee cheque and/or on giving the

particulars of the bank account, the same be deposited/credited in the

bank account of the original complainant.

The present appeal is disposed of accordingly in the aforesaid

manner.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J. SEPTEMBER 09, 2022. [KRISHNA MURARI]

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