HC Sets Aside NCDRC Order Slapping Rs 93 Lakh Compensation on Doctor
Allahabad High Court
Lucknow: The Lucknow bench of the Allahabad High Court bench recently set aside an order by the National Consumer Disputes Redressal Commission (NCDRC) directing the doctors and a hospital-owner to pay Rs 93 lakh compensation to a patient who had to suffer while undergoing c-section at the facility.
Earlier the State Commission had granted Rs 95 lakh compensation in the patient's favour. However, later, one member of NCDRC dismissed the complaint while the other reduced it to Rs 93 lakh. When the matter was referred to a third member, the order of R 93 lakh compensation was upheld.
When the matter was challenged before the High Court, the bench noted that "In terms of the proviso of Section 58(3), the powers of the President or the other member to whom the points have been referred for opinion can only delve and decide on those questions alone, he cannot act as a 3rd member to decide the lis. In the present case, from the impugned order, it appears that he has decided the lis and has favoured the view taken by one of the members instead of deciding the five questions referred to them, which is clearly not a proper exercise of power specifically relating to proviso of Section 58 (3) of the Consumer Protection Act."
The history of the case goes back to 2005 when the petitioner doctor was running a nursing home named Surya Medical Centre. The patient (complainant number 2) was undergoing regular check-ups at the Medical Centre during pregnancy. Her expected date of delivery was 15th October, 2005. However, as per the patient, during her visit to the Nursing Home on 24.09.2024, she was examined by Dr. Pandey and the doctor advised for a C-section operation to save the child's life.
As per the patient, based on this opinion, she underwent a c-section operation in the said Nursing Home and during the performance of the said operation, she developed complications. Allegedly, even though the patient required oxygen at the time of surgery, it was not available at the said nursing home because of which she suffered critically.
Following this, the patient was taken to another nursing home namely Sanjivani Nursing Home where the follow-up treatment was given. The patient alleged that for further advice the patient approached SGPGI, where it was diagnosed that she was suffering from Hypoxia Ischemic Encephalopathy (HIE).
Accusing the treating doctors of medical negligence, the patient filed a complaint before the State Consumer Forum seeking damages. Through an order dated 04.12.2012, the SCDRC passed an order in favour of the complainant awarding an amount of Rs 95 lakh. Challenging this order, three appeals were filed before NCDRC, one by the petitioner and two by the other doctors.
During the hearing before the National Commission before a two-judge bench, there was a difference of opinion between two members, one of the presiding members passed an order on 19.03.2021, finding favour with the appellant and quashed the State Commission order.
The other member, who was part of the Bench, differed with the view taken by the Chairman and passed the separate order on the same date. In the said order, he upheld the complainant's contention. However, reduced the award from Rs 95 lakh to Rs 93 lakh and the interest was also reduced from 15 per cent to 12 per cent.
In terms of the mandate of Section 58(3) of the Consumer Protection Act, a reference was drawn for being referred to the 3rd member. In the said reference order as many as five questions were framed for being answered by the member. In terms of the said reference, the NCDRC passed an order, while recording both the orders passed by the members of the Bench, and from Para 13 onwards, the member, before whom the reference was placed, proceeded to uphold the view taken by one of the members and rejected the view taken by one of the members. Accordingly, the Apex Consumer Court ordered the hospital and its doctors to pay Rs 93 lakh compensation further specifying that 85% of the entire amount would be paid by the Proprietor of Surya Medical Centre Dr Dinesh Kumar.
Consequently, challenging the NCDRC Order, Dr. Kumar approached the Allahabad High Court. His counsel argued that it was a case of no evidence and also argued that all the factual averments were denied by the petitioners and no evidence was there except for the evidence in the form of affidavits by both parties, which did not indicate or testify the averments as pleaded in the complaint.
Therefore, he contended that the State Consumer Forum had erred in granting the compensation to the complainant. Further, reference was also made to the difference in opinion between two members. The counsel also pointed out that five points were referred to for determination and instead of deciding the points as referred to the 3rd member, the 3rd member concurred with one of the views taken by one of the members, which was contrary to the mandate of Section 58(3) of the Consumer Protection Act and specifically of the proviso of Section 58(3) of the Consumer Protection Act.
The HC bench noted that the mandate of Section 58(3) of the said Act states the following:
"(3) Where the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it:
Provided that the President or the other member, as the case may be, shall give opinion on the point or points so referred within a period of two months from the date of such reference."
Relying on this, the HC bench noted, "In terms of the proviso of Section 58(3), the powers of the President or the other member to whom the points have been referred for opinion can only delve and decide on those questions alone, he cannot act as a 3rd member to decide the lis. In the present case, from the impugned order, it appears that he has decided the lis and has favoured the view taken by one of the members instead of deciding the five questions referred to them, which is clearly not a proper exercise of power specifically relating to proviso of Section 58 (3) of the Consumer Protection Act. It is equally fairly well settled that the reference Court, is in the form of a Court giving opinion and essentially it does not perform the adjudicative function."
Referring to the previous orders passed by the Supreme Court, the HC bench concluded that there was an improper exercise of jurisdiction by the member, to whom the question had been referred and therefore, the NCDRC order could not be sustained.
"In the present case, the order impugned has gone in excess of the powers conferred on the referring member. On the said limited ground, there being an improper exercise of jurisdiction by the member, to whom the question has been referred, the impugned order cannot be sustained and is quashed. The matter shall now be heard afresh by the 3rd member who shall give his opinion on the questions referred and send the matter back to the Division Bench of the National Commission to be decided accordingly," ordered the HC bench.
To view the order, click on the link below:
