CHANDIGARH NURSING HOME AND ANR. versus SUKHDEEP KAUR on 9 September 2022

SUPREME COURT REPORTS

[2022] 7 S.C.R.

CHANDIGARH NURSING HOME AND ANR.

A

v.

SUKHDEEP KAUR

(Civil Appeal No. 5931 of 2022)

B

SEPTEMBER 09, 2022

[M. R. SHAH AND KRISHNA MURARI, JJ.]

Consumer Protection Act, 1986 – s.21(b) – Constitution ofIndia – Article 142 – Respondent, a minor suffered from wrongdiagnosis and treatment leading to rashes on her body beyond controlC– Complaint filed by her through her father alleging medicalnegligence against appellants – District Forum directed theappellants to pay Rs.1 lakh with interest – Appeal by appellants,dismissed by State Commission with cost – Revision application filedby appellants, dismissed by National Commission, compensationDenhanced to Rs.10 lakhs – On appeal, held: At no point of time, therespondent challenged the order passed by the District Forumaggrieved by the quantum of compensation – Therefore, the orderpassed by the District Forum attained finality insofar as therespondent is concerned – Further, at the most, the NationalCommission could have dismissed the revision application unless itEspecifically exercises a suo moto revisional power u/s.21(b) –In thepresent case, it does not appear that the National Commissionexercised the suo moto revisional power – Even otherwise, in absenceof any cogent reasons and/or material, the National Commission isnot justified in enhancing the amount of compensation – Amount ofFcompensation varies from person to person, looking to the damagesand/or disability suffered – Merely because in some cases, thecompensation has been enhanced, it cannot be enhanced in othercases – Impugned order passed by the National Commission setaside – However, on facts, in exercise of the powers u/Article 142,compensation enhanced to Rs.4 lakhs.G

Disposing of the appeal, the Court

HELD: 1. The District Forum awarded a sum of Rs. 1 lakhas compensation to the original complainant. However, theoriginal complainant did not carry the matter further to the StateHCommission and the appellants herein – original opponents being

Conclusion

aggrieved by the order of District Forum preferred the appealbefore the State Commission. The State Commission dismissedthe appeal and the appellants herein – original respondents beingaggrieved by the order passed by the State Commission preferredthe revision petition/application before the National Commission.At no point of time, the original complainant challenged the orderpassed by the District Forum aggrieved by the quantum ofcompensation determined by the District Forum. Therefore, assuch, the order passed by the District Forum attained finalityinsofar as the original complainant is concerned. In a revisionapplication preferred by the original respondents – appellantsherein challenging the order passed by the District Forumconfirmed by the State Commission, the National Commissionwhile dismissing the revision application has enhanced the amountof compensation. At the most, the National Commission couldhave dismissed the revision application unless the NationalCommission specifically exercises a suo moto revisional powerin exercise of the powers under Section 21(b) of the ConsumerProtection Act, 1986. In the present case, from the impugnedjudgment and order passed by the National Commission, it doesnot appear that the National Commission exercised the suo motorevisional power. Even the appellants herein – originalrevisionists were not put to notice that the National Commissionis to enhance the amount of compensation in exercise of therevisional power - the suo moto revisional jurisdiction. Theappellants herein – original revisionists are taken by surpriseand the National Commission without giving any opportunity tothem has enhanced the amount of compensation. Therefore, onthis ground also, the impugned judgment and order passed bythe National Commission enhancing the amount of compensationin the revision application preferred by the appellants herein isunsustainable. Even otherwise, in absence of any cogent reasonsand/or material, the National Commission is not justified inenhancing the amount of compensation to Rs. 10 lakhs. Whileenhancing the amount of compensation to Rs. 10 lakhs, theNational Commission has just referred to few decisions of thisCourt in paragraph 14 and thereafter has straightaway enhancedthe amount of compensation. The amount of compensation variesfrom person to person, looking to the damages and/or disability A

BC

D

E

FG

H

434SUPREME COURT REPORTS

A

BC

D

E

FG

H

434SUPREME COURT REPORTS

[2022] 7 S.C.R.

Asuffered/sustained. Merely because in some cases, the amountof compensation has been enhanced, in other cases, the amountof compensation cannot be enhanced. While enhancing theamount of compensation to Rs. 10 lakhs as such, the NationalCommission has not at all discussed the disability suffered bythe complainant. Therefore, also, the impugned judgment andBorder passed by the National Commission enhancing the amountof compensation to Rs. 10 lakhs is unsustainable. However, atthe same time, looking to the negligence held to be proved andthe trauma and the sufferings by the complainant, and that at therelevant time the compensation determined was Rs. 1 lakh onlyCand it is stated that the family has spent thousands of rupees forher treatment and medicines and that even today the complainanthas not recovered completely and is under treatment, the amountof Rs. 1 lakh awarded by the District Forum is required to beenhanced in exercise of the powers under Article 142 of theConstitution of India to do the substantial justice to theDcomplainant. The impugned judgment and order passed by theNational Commission enhancing the amount of compensation toRs. 10 lakhs is quashed and set aside. However, in exercise ofthe powers under Article 142 of the Constitution of India and forthe reasons stated, the appellants to pay a total sum of Rs. 4Elakhs (instead of Rs. 1 lakh awarded by the District Forum) tothe respondent herein, after deducting whatever amount asdeposited by the appellants. The appellants to pay to the originalcomplainant balance amount after deducting the amount alreadydeposited, within a period of six weeks from today, failing which,it shall carry an interest @ 7.5%. [Paras 7-7.2, 8][437-F-H; 438-FA-H; 439-A-B, D-E]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5931of 2022.

From the Judgment and Order dated 03.01.2022 of the National GConsumer Disputes Redressal Commission, New Delhi in RevisionPetition No. 4677 of 2013.

Gopal Sankaranarayana, Sr. Adv., Mayank Pandey, Adv. for theAppellants.

K. K. Mohan, Adv. for the Respondent.

H

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 03.01.2022 passed by the National Consumer DisputesRedressal Commission, New Delhi (hereinafter referred to as the“National Commission”) in Revision Petition No. 4677 of 2013 by whichin a revision petition preferred by the appellants herein – originalrespondents, the National Commission has enhanced the amount ofcompensation from Rs. 1 lakh awarded by the District Forum to Rs. 10lakhs, the original respondents have preferred the present appeal.

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

3. The facts leading to the present appeal in nutshell are as under:- 3.1 The respondent herein – the original complainant, a minorfiled a consumer complaint before the District Forum through her fatheralleging medical negligence against the appellants herein, who sufferedfrom wrong diagnosis and wrong treatment, which led to rashes on herbody, and which became beyond control. It was alleged that the doctor,who treated her was a BAMS (Ayurveda Doctor) and was not competentto prescribe allopathic medicines, which amounts to medical negligence.

3.2 The District Forum by order dated 11.03.2010 directed theappellants to pay an amount of Rs. 1 lakh alongwith interest @ 9% fromthe date of order holding that there was a negligence on the part of theappellants.

3.3 Feeling aggrieved and dissatisfied with the order passed bythe District Forum, the appellants preferred an appeal before the StateConsumer Disputes Redressal Commission, Punjab (hereinafter referredto as “State Commission”). At this stage, it is required to be noted thatso far as the original complainant is concerned, it is an admitted positionthat the original complainant did not prefer any appeal before the StateCommission to enhance the amount of compensation and it was theappellants, who preferred the appeal before the State Commission. TheState Commission dismissed the said appeal with cost of Rs. 10,000/-.

3.4 Being aggrieved by the judgment and order passed by theState Commission dismissing the appeal and confirming the order passedby the District Forum awarding a sum of Rs. 1 lakh towards the A

B

C

D

E

FG

H

Acompensation, it was the appellants, who preferred the revision petition/application before the National Commission.

3.5 While dismissing the revision petition/application preferred bythe appellants herein, the National Commission has enhanced the amountof compensation to Rs. 10 lakhs. Being aggrieved by the order passedBby the National Commission enhancing the amount of compensation toRs. 10 lakhs, that too, in the revision petition/application preferred by theappellants, the original opponents/appellants have preferred the presentappeal.

4. Shri Gopal Sankaranarayana, learned Senior Advocate hasCappeared on behalf of the appellants and Shri K.K. Mohan, learnedcounsel has appeared on behalf of the respondent – original complainant.

5. Shri Gopal Sankaranarayana, learned Senior Advocate appearingon behalf of the appellants has assailed the findings recorded by theDistrict Forum, confirmed by the State Commission and the NationalDCommission, on the negligence held to be proved on the part of theappellants. However, as there are concurrent findings recorded by theDistrict Forum, the State Commission and the National Commission onthe negligence on the part of the appellants, we see no reason to interferewith the said finding of facts in exercise of powers under Article 136 ofthe Constitution of India.

E

5.1 However, at the same time, learned Senior Advocate appearingon behalf of the appellants is right in submitting that in a revisionapplication preferred by the appellants aggrieved by the order passed bythe District Forum, awarding a sum of Rs. 1 lakh towards compensation,and that when neither any appeal was preferred by the originalFcomplainant before the State Commission, nor thereafter any furtherappeal and/or revision application was filed by the original complainantbefore the National Commission, the National Commission was notjustified in enhancing the amount of compensation in the revisionapplication/petition preferred by the appellants. It is also the case onGbehalf of the appellants that even otherwise and as such while awardingan enhanced compensation of Rs. 10 lakhs, the National Commissionhas not at all considered any disability and according to the learned SeniorAdvocate appearing on behalf of the appellants as such there is no basisat all to award Rs. 10 lakhs towards the compensation.

H

H

5.2 Learned Senior Advocate appearing on behalf of the appellantshas submitted that while enhancing the amount of compensation toRs. 10 lakhs, the National Commission has considered some decisionsof this Hon’ble Court referred to in paragraph 14 of the impugnedjudgment and order. However, according to the learned Senior Advocateappearing on behalf of the appellants, the amount of compensationdepends upon the facts and circumstances of each case and dependsupon the disability and/or suffering by the complainant and it varies fromcase to case. It is submitted that merely because in some cases, theamount of compensation has been enhanced in other cases, the amountof compensation is not required to be enhanced automatically.

6. On the other hand, Shri K.K. Mohan, learned counsel appearingon behalf of the original complainant – respondent has heavily reliedupon Section 21(b) of the Consumer Protection Act, 1986. Relying uponSection 21(b) of the Consumer Protection Act, 1986, it is submitted thatthe National Commission has suo moto revisional jurisdiction andtherefore, even in absence of any appeal and/or revision applicationpreferred by the complainant, the National Commission can enhancethe amount of compensation in exercise of suo moto revisional jurisdictionconferred under Section 21(b) of the Consumer Protection Act, 1986.In the alternative, it is submitted by Shri Mohan, learned counsel appearingon behalf of the respondent that looking to the physical condition of thecomplainant and even today she is suffering, therefore, this Court maynot interfere with the impugned judgment and order passed by the NationalCommission enhancing the amount of compensation.

7. Having heard the learned counsel appearing on behalf of therespective parties, it emerges that the District Forum awarded a sum ofRs. 1 lakh as compensation to the original complainant. However, theoriginal complainant did not carry the matter further to the StateCommission and the appellants herein – original opponents being aggrievedby the order of District Forum preferred the appeal before the StateCommission. The State Commission dismissed the appeal and theappellants herein – original respondents being aggrieved by the orderpassed by the State Commission preferred the revision petition/applicationbefore the National Commission. At no point of time, the originalcomplainant challenged the order passed by the District Forum aggrievedby the quantum of compensation determined by the District Forum.Therefore, as such, the order passed by the District Forum attained AB

C

D

E

F

G

H

Afinality insofar as the original complainant is concerned. In a revisionapplication preferred by the original respondents – appellants hereinchallenging the order passed by the District Forum confirmed by theState Commission, the National Commission while dismissing the revisionapplication has enhanced the amount of compensation. At the most, theNational Commission could have dismissed the revision application unlessBthe National Commission specifically exercises a suo moto revisionalpower in exercise of the powers under Section 21(b) of the ConsumerProtection Act, 1986. In the present case, from the impugned judgmentand order passed by the National Commission, it does not appear thatthe National Commission exercised the suo moto revisional power. EvenCthe appellants herein – original revisionists were not put to notice thatthe National Commission is to enhance the amount of compensation inexercise of the revisional power - the suo moto revisional jurisdiction.The appellants herein – original revisionists are taken by surprise andthe National Commission without giving any opportunity to them hasenhanced the amount of compensation. Therefore, on this ground also,Dthe impugned judgment and order passed by the National Commissionenhancing the amount of compensation in the revision application preferredby the appellants herein is unsustainable.

7.1 Even otherwise, in absence of any cogent reasons and/ormaterial, the National Commission is not justified in enhancing the amountEof compensation to Rs. 10 lakhs. While enhancing the amount ofcompensation to Rs. 10 lakhs, the National Commission has just referredto few decisions of this Court in paragraph 14 and thereafter hasstraightaway enhanced the amount of compensation. It is to be notedthat the amount of compensation varies from person to person, lookingFto the damages and/or disability suffered/sustained. Merely because insome cases, the amount of compensation has been enhanced, in othercases, the amount of compensation cannot be enhanced. While enhancingthe amount of compensation to Rs. 10 lakhs as such, the learned NationalCommission has not at all discussed the disability suffered by the complainant. Therefore, also, the impugned judgment and order passedGby the National Commission enhancing the amount of compensation toRs. 10 lakhs is unsustainable.

7.2 However, at the same time, we are of the opinion that lookingto the negligence held to be proved and the trauma and the sufferings bythe complainant, and that at the relevant time the compensation determinedH

was Rs. 1 lakh only and it is stated that the family has spent thousandsof rupees for her treatment and medicines and so stated in the counteraffidavit that even today the complainant has not recovered completelyand is under treatment, we are of the opinion that the amount of Rs. 1lakh awarded by the District Forum is required to be enhanced in exerciseof the powers under Article 142 of the Constitution of India so as to dothe substantial justice to the complainant. We are of the opinion that ifthe 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 shallmeet the ends of justice.

8. In view of the above and for the reasons stated above, theimpugned judgment and order passed by the National Commissionenhancing the amount of compensation to Rs. 10 lakhs is hereby quashedand set aside. However, in exercise of the powers under Article 142 ofthe Constitution of India and for the reasons stated herein above, wedirect the appellants to pay a total sum of Rs. 4 lakhs (instead of Rs. 1lakh awarded by the District Forum) to the respondent herein, afterdeducting whatever amount as deposited by the appellants. We directthe appellants to pay to the original complainant balance amount afterdeducting the amount already deposited, within a period of six weeksfrom today, failing which, it shall carry an interest @ 7.5%. The originalcomplainant is permitted to withdraw the amount already deposited bythe appellants with interest accrued thereon, which shall be paid to theoriginal complainant by account payee cheque and/or on giving theparticulars of the bank account, the same be deposited/credited in thebank account of the original complainant.

The present appeal is disposed of accordingly in the aforesaidmanner.

Divya Pandey

Appeal disposed of.

(Assisted by: Roopanshi Virang, LCRA)

AB

C

D

E

F

G

H