Con Dr Rep. By Its Managing Partner vs Smt. Smritikana Ghose And Anr.

on 16 April, 2002
Equivalent citations: II (2003) CPJ 34 NC Bench: D W Member, B Taimni

ORDER

D.P. Wadhwa, J. (President)

1. It is the opposite party who is petitioner before us. Respondents (Complainants) had given him the job of interior decoration of their flat and their complaint against the petitioner alleging deficiency in services was allowed by the District Forum which order was affirmed by the Andhra Pradesh State Consumer Disputes Redressal Commission. Petitioner now challenges the order of the State Commission on three grounds:

(i) He was not given right to cross-examine the local commissioner, a lawyer, who was appointed to report on the work done by the petitioner in the flat.

(ii) The local commissioner did not postpone the date of inspection of the flat though the petitioner had requested for the same.

(iii) District Forum had no power to make an interim order appointing a local commissioner.

2. Complainants, who are husband and wife, purchased a flat in a residential complex in the town of Visakhapatnam, possession of which was given to them in April/May, 1999. They wanted to occupy the flat after some internal decoration by December, 1999. They invited quotations for the purpose and the petitioner gave his quotation for a sum of Rs.6,38,795/-. That was in May 1999. Petitioner wanted advance payment in the name of one Mr. K. Bipin Kumar. Complainant did pay a sum of Rs.3,19,397/- being the 50% of the amount as quoted by the petitioner. This was paid by cheque dated 17.5.1999. After receiving this amount petitioner did start the work of interior decoration. Complainants who were residents of Calcutta were visiting flat in Visakhapatnam. They were not satisfied with the quality of work and the material used by the petitioner. They found various defects in the working and required the petitioner to make changes. On 8.6.1999 petitioner sent a letter requesting to the complainants to pay a sum of Rs.2.00 lakhs as further advance payment. He sent details of expenditure so far incurred by it which amounted to Rs.3,16,500/-. Complainants by means of their cheque dated 23.6.1999 paid a sum of Rs.1,50,000/-. Petitioner sent another quotation for Rs.9,88,950/-. By this time petitioner had already been paid Rs.4,69,397/-. Petitioner sent yet another quotation now for Rs.11,13,380/-. Complainants wanted the bills for the work done by the petitioner. It is not necessary for us to detail further facts in this petition except to note that complaining deficiency in service, complainants went to the District Forum. They said only work of Rs. 1.00 lakh had been executed and they therefore, wanted Rs.3,69,397/- back.

3. Since there was a dispute as to the quality and quantity of the work done by the petitioner, complainants requested the District Forum to appoint a local commissioner for the purpose. A local commissioner was appointed who filed her report. She had submitted that so far expenditure incurred by the petitioner was Rs.1,09,600/-. District Forum concluded that at the most petitioner would have incurred an expenditure of Rs.2.00 lakhs. It was, therefore, held that petitioner was liable to refund Rs.2,69,397/- out of the amount of Rs.4,69,397 received by it. District Forum observed that three quotations were given one after another would raise certainly a suspicion and that the bills submitted by the petitioner were not supported by any material, receipts etc. Complaint was fixed for hearing after number of adjournments petitioner came up with an application for permission to cross-examine the local commissioner. District Forum noticed that when order was made appointing local commissioner, petitioner went in appeal before the State Commission also filed writ petition in the Andhra Pradesh High Court which was dismissed and that petitioner tried to delay execution of the warrant of appointment of local commissioner. District Forum also noticed that petitioner did not co-operate with the local commissioner in executing warrant. Time was granted to the petitioner to file objection to the report of the local commissioner. District Forum did not agree to the request of the petitioner for cross-examination of the local commissioner. It was observed that there was no evidence placed by the petitioner to show that the observations of the local commissioner were wrong or that estimate was incorrect. After detailed examination of the facts of the case, District Forum allowed the complaint and directed the petitioner to pay to the complainants the sum of Rs.2,69,397/- with interest @ 12% per annum from the date of the complaint till payment. Complainants were also allowed cost of Rs.1,000/-.

4. Petitioner went in appeal before the State Commission. State Commission reappraised the evidence and found no merit in the appeal. State Commission also noticed that it was on the request of the petitioner himself local commissioner fixed the date 22.4.2000 for execution of the warrant and asked both the parties to file their memos and be present at the flat with their respective advocates. However, on the notice so issued by the local commissioner, advocate for the appellate wrote on the notice that he had informed the petitioner but he had left for Kerala and would be back only on 30.4.2000. He, therefore, wrote that date be fixed after giving due notice to the petitioner. The matter before the District Forum had been posted for 4.5.2000. Local commissioner, however, executed the warrant by visiting the flat on 22.4.2002. State Commission also noticed that as per the air ticket shown by the petitioner, he left Visakhapatnam on 21.4.2000 when he was aware that the warrant was to be executed by the local commissioner on the next day and the report was to be submitted to the District Forum by 4.5.2000. State Commission was, therefore, of the view that petitioner should have made arrangements for somebody to be present at the time of visit of the local commissioner. Even the advocate of the petitioner failed to appear at the appointed time and place. State Commission also observed that instead of persisting his right to cross-examine the local commissioner, petitioner should have filed his own estimate of the work done with supporting evidence. This the petitioner did not do. State Commission also noticed that plea of the petitioner that as per the oral contract, he was not obliged to give any bills or produce any receipt was not found acceptable by the District Forum. Before the State Commission as well in the material papers filed by the petitioner, the only documents filed by him were receipts of money received by him. Finding no merit in the appeal, State Commission dismissed the same and affirmed the order of the District Forum.

5. Aggrieved, petitioner has challenged the order of the State Commission on the grounds aforementioned. It could not be said that the order passed by the District Forum appointing the local commissioner was without jurisdiction. When it said that forum under the Consumer Protection Act has no power to pass interim order that refers to the grant of any interim relief to the party. Appointing local commissioner is a part of proceedings and cannot be said to be an order granting any relief to the complainants. This objection is quite frivolous.

6. The conduct of the petitioner shows that he was trying to delay proceedings. He was aware of the date of the visit of the local commissioner to the flat on 22.4.20000 and yet he left Visakahapatnam and went a day earlier. He had challenged the order of appointment of local commissioner in the High Court in the writ petition which was dismissed. He was represented by an advocate who could have been instructed to be present at the time of inspection by the local commissioner. In any case he could have instructed any other representative to be present at that time. It must be noticed that the date for return of the commissioner was 4.5.1999 on which date the report was to be submitted.

Conduct of the petitioner shows that he wanted to delay the proceedings before a forum under Consumer Protection Act which is to decide the dispute in a summary proceeding. In our view, local commission was right in not agreeing to the request of the petitioner to adjourn the date of her inspection and visit any other day. If the petitioner or his representative was not present it is the petitioner who is himself to blame.

7. Mr. Sharma, learned counsel for the petitioner submitted that the principles of natural justice have been violated inasmuch as local commissioner did not adjourn his visit and petitioner was denied the right of cross-examination.

8. We must state that any request for adjournment in the proceedings before consumer forum unless circumstances are beyond the control of the party is quite abhorrent. There was no justification whatsoever for the petitioner to seek another date from the local commissioner and for postponement of her visit to the site. State Commission had recorded that it was on the request of counsel for the petitioner the date 22.4.2000 was fixed and when formal notice was issued for this date, counsel for the petitioner recorded of nonavailability of the petitioner for 22.4.2000 and stating that he would be back only on 30.4.2000. The complaint itself was posted for 4.5.2000 for filing the report. It was for the petitioner to make arrangement to appear either himself or through counsel or any authorised representative. In our view, local commissioner rightly did not agree to the postponement . No fault can be found with that. The order of the District Forum appointing local commissioner was challenged by the petitioner in the High Court in writ petition. Then there was number of adjournment for filing arguments when application for cross-examination of the local commissioner was made. The conduct of the petitioner shows that he wanted to delay the proceedings at all levels. District Forum with which State Commission agreed observed that petitioner could himself have filed his own estimate of the work done with evidence which he failed to do so.

9. Mr. Sharma referred to an earlier decision of this Commission in the case of Narmada Cement Co. Ltd. Vs. Hotel Nandadeep & Ors.- I(1992) CPJ 299 (NC) to contend that to deny the right to cross-examine a crucial witness is violation of the rules of natural justice. In this case, the petitioner wanted to cross-examine one Dr. Krishnaswamy an expert who had given the report of the quality of the cement. The local commissioner had been appointed to record the evidence of expert. Cross examination was to be done before the local commissioner. It could not be done on that particular day because expert himself was not present. It was submitted that no proper notice of the postponement of the date was given for the cross examination of the expert. It was in these circumstances that this Commission said proper opportunity was not given to cross-examine by the local commissioner. We are unable to appreciate how this judgment helps Mr. Sharma. But there is another judgment of this Commission in the case of Salgaocar Medical Research Centre & Ors. Vs. R.B. Raikar & Ors. - II(1996) CPJ 209 (NC) . This case pertains to medical negligence. An operation was performed on the complainant at the Salgaocar Medical Research Centre by Dr. Narendra Parulekar . Complainant had suffered multiple injuries due to an accident. Even after the operation complainant suffered physical agony and ultimately he was again operated upon by Dr. Bhansali at Jaslok Hospital, Bombay. Cause of suffering of the complainant was that during the first operation a gauze towel of 6"x6" was left in the stomach of the complainant. Complainant alleged medical negligence by the hospital and Dr. Parulekar. Both the hospital and Dr. Parulekar alleged that they were not given opportunity to cross-examine Dr. Bhansali who though had flown from Bombay and was present in the Court and had filed an affidavit. It was stated that State Commission did not give permission to cross-examine Dr. Bhansali on the ground that under Section 13(4)(iii) of the Consumer Protection Act, 1986 evidence on affidavit was legal and further held that affidavit was sufficient to establish negligence on the party of hospital and Dr. Parulekar. This Commission was of the view that opportunity to cross-examine Dr. Bhansali should have been given and went on further to hold that cross-examination was a part of principle of natural justice. It will be seen that it was the reputation of the hospital and Dr. Parulekar who were accused of medical negligence on account of the affidavit of Dr. Bhansali who had later operated upon the complainant. Both the hospital and Dr. Paruler certainly had right to seek cross-examination of Dr. Bhansali and that is certainly not the case here.

10. Whether right to cross-examine a witness is a part of the principle of natural justice reference may be made to the to a Constitution Bench decision of the Supreme Court in the case of State of Jammu and Kashmir v. Bakshi Ghulam Mohammad [1966] Supp. SCR 401. In this case the very question of right of cross examination as a principle of natural justice was involved. This case arose out of the provisions of Jammu and Kashmir Commission of Inquiry Act 1962 which are in pari materia with the provisions of Commission of Inquiry Act, 1962 . We may quote the relevant Sections 4(c ) and Section 10 of that Act as under:

"4(c ) The Commission shall have the power of a Civil Court, while trying a suit under the Code of Civil Procedure Svt. 1977, in respect of the following matters, namely:-

(a) summoning and to enforce the attendance of any person and examing him on oath;

(b) .....

(c) receiving evidence on affidavits."

"10. (1) If at any stage of the inquiry the Commission considers it necessary to inquire into the conduct of any person or is of opinion that the reputation of any person is likely to be prejudicially effected by the inquiry, the Commission shall give to that person a reasonable opportunity of being heard in the inquiry and producing evidence in his defence;

Provided that nothing in this sub-section shall apply when the credit of a witness is being impeached.

(2) The Government, every person referred to in sub-section (1) and with the permission of the Commission, any other person whose evidence is recorded by the Commission:-

(a) may cross-examine any person appearing before the Commission other than a person produced by it or him as a witness,

(b) may address the Commission

(3) ..................................

11. The question before the Supreme Court was the right to cross-examine based on statutory provisions as contained in Section 4(c) of the Act. Supreme Court also referred to the provisions of Order 19 Rule 1 of the Civil Procedure Code which may be quoted as under:

"Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:

Provided that it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit."

12. It was contended before the Supreme Court that power of the Commission of Inquiry therefore, to order a fact to be proved by affidavit are subject to proviso that power cannot be exercised when a party desires the production of the persons swearing the affidavits for cross-examining them.

13. This is how the Supreme Court dealt with the contention:

"The contention was accepted by the High Court. We take a different view of the matter. We first observe that the inquiry before the Commission is a fact-finding inquiry. Then we note that s.10 which, in our opinion, applies to a person whose conduct comes up for inquiry by the Commission directly, has a right to cross-examine only those persons who give viva voce evidence before the Commission against him. If s. 4 (c ) conferred a right to cross-examine every one who swore an affidavit as to the facts involved in the inquiry, then s.10(2) would become superfluous. An interpretation producing such a result cannot be right. It also seems to us that O.19 r. 1 has to be read with O.18 r. 4 which states that the evidence of the witness in attendance shall be taken orally in open court. It would appear, therefore, that O.19 r. 1 is intended as a sort of exception to the provisions contained in O.18 r. 4. The Act contains no provision similar to O.18 r.4. Therefore, when s.4 (c ) of the Act gave the Commission the power of receiving evidence on affidavits, it gave that as an independent power and not by way of an exception to the general rule of taking evidence viva voce in open court. It would be natural in such circumstances to think that what the Act gave was only the power to take evidence by affidavit and did not intend it to be subject to the proviso contained in O.19 r. 1. If it were not so, then the result really would be to require all evidence before the Commission to be given orally in open court. If that was intended, it would have been expressly provided for in the Act. We should here refer to Khandesh Spinning etc. Co. Ltd. V. Rashtriya Girni Kamgar Sangh[1960]2 SCR 841 where this Court dealing with a somewhat similar section like s. 4(c ) observed that facts might be provided by an affidavit subject to O. 19 R. (1). The observations appear to have been obiter dicta. In any case that case was dealing with a statute different from the one before us. The observation there made cannot be of much assistance in interpreting the Jammu and Kashmir Inquiry Act. The number of witnesses swearing affidavits on the side of the Government may often be very large. In fact, in this case the number of witnesses swearing affidavits on the side of the Government is, it appears, in the region of four hundred. The statute could not have intended that all of them had to be examined in open court and subjected to cross-examination, for then, the proceedings of the Commission would be interminable. We feel no doubt that the Act contemplated a quick disposal of the business before the Commission, for otherwise the object behind it might have been defeated. While on this topic we would impress upon the Commission the desirability of speedy disposal of the inquiry. For these reasons, in our view, s. 4(c) of the Act does not confer a right on a party appearing before the Commission to require a witness giving evidence by an affidavit to be produced for his crossexamination. The Commission would, of course, permit cross-examination in a case where it thinks that necessary. The view that we take should not put any party in any difficulty. He can always file affidavits of his own denying the allegations made in affidavits filed on behalf of the other party. If the evidence on both sides is tendered by affidavits, no one should be at any special disadvantage. We have also to remember that s.9 of the Act gives the Commission power to regulate its own procedure subject to any rules made under the Act. We find that the rules provide that evidence may be given by affidavits and the Commission may after reading it, if it finds it necessary to do so, record the evidence of the deponents of the affidavits and also of others; see rr.6,7, and 8. Rule 10 reproduces the restricted right of cross-examination given by s.10. Rule 11 says that in all matters not provided by the rules, the Commission may decide its own procedure. One of the matters covered by the rules is cross-examination of witnesses. So the rule contemplate cross-examination as a matter of procedure and the Commission is free to decide what cross-examination it will allow provided that in doing so it cannot go behind the rules relating to cross-examination. Section 9 of the Act has to be read in the light of these rules. All this, we think, supports the interpretation we have put on s. 4(c). We also feel that the procedure before a body like the Commission has necessarily to be flexible. We, therefore, reject the last contention:".

14. It will, therefore, be seen as per the law laid down by the Supreme Court that provisions of 4(c ) are similar to the provisions contained in Section 13(4) (i), (ii) and (iii). It may also be noticed that sub-section (3) of Section 13 of the Consumer Protection Act provides that when a procedure under sub-sections (1) and (2) had been followed the proceedings cannot be set aside on the ground that principles of natural justice had not been complied with.

15. As noticed above, when reputation of a person is involved he may insist on the right of cross-examination. But that principle cannot be extended in each and every case. It is for the Forum under the Consumer Protection Act to consider whether at all cross-examination is required or the matter could be disposed of on the basis of evidence by means of affidavits. Each case, therefore, will depend on the facts of that case and to read the judgment of this Commission in the case of Salgaocar Medical Research Centre vs. R.B. Raikar & Ors. otherwise would not correct in view of the law laid down by the Supreme Court in the case of Bakshi Ghulam Mohammad.

16. We would, therefore, hold that cross-examination of a witness or a party before a forum under the Consumer Protection Act is not a rule. It is only an exception. When reputation of a person, like a medical practioner in the case of alleged medical negligence is involved, he will have a right to cross-examine any person alleging professional negligence against him. When it is merely a question as to veracity of the statement of the witness, cross-examination cannot be permitted. In that case to contradict a party can certainly file his own affidavit or of any other witness. If cross-examination of a person is to be permitted in every case under the Consumer Protection Act, the whole object of this Act would be lost and there would hardly be any difference in proceedings before a Forum under the Act and a Civil Court. Many disputes involving high stakes and huge values are decided in writ jurisdiction by the High Courts and Supreme Court merely on the basis of affidavits. It, therefore does not appeal to reason that when Consumer Protection Act permits evidence to be led by means of affidavits right of cross-examination must be resorted to in every case. A forum under Consumer Protection Act must exercise extreme caution in permitting cross-examination.

17. We, therefore, do not find any merit in any of the questions raised by the petitioner. This petition is, therefore, dismissed

Dr. K. Mathiharan (Consultant Legal Medicine) Institute of Legal Medicine 53/27, 5th Street, Padmanabha Nagar, Adayar, Chennai - 600 020

The NCDRCs order did not accept the claim of medical professionals who argued that the doctor-patient relationship is similar to master servant relationship, which is a contract of personal service that should be exempted from CPA. But the NCDRCs order decreed that the doctor patient relationship is a contract for personal service and it is not master servant relationship. It is also said that the doctor is an independent contractor and the doctor, like the servant, is hired to perform a specific task. However, the master or principal (the hirer) is allowed to direct only what is to be done, and done, and when. The how is left up to the specific discretion of the independent contractor (doctor). So, the doctorpatient relationship is a contract for personal service and as such, cannot be excluded from CPA. Highlights of the Supreme Court of India judgment in Indian Medical Association Vs V.P. Shantha and Others

As a result of this judgment, medical profession has been brought under the Section 2(1) (o) of CPA, 1986 and also, it has included the following categories of doctors/hospitals under this Section: 1. All medical / dental practitioners doing independent medical / dental practice unless rendering only free service. 2. Private hospitals charging all patients. 3. All hospitals having free as well as paying patients and all the paying and free category patients receiving treatment in such hospitals. 4. Medical / dental practitioners and hospitals paid by an insurance firm for the treatment of a client or an employment for that of an employee. It exempts only those hospitals and the medical / dental practitioners of such hospitals which offer free service to all patients. Further, this judgment concedes that the summary procedure prescribed by the CPA would suit only glaring cases of negligence and in complaints involving complicated issues requiring recording of the evidence of experts, the complainant can be asked to approach the civil courts. Also, this judgment says that the deficiency in service means only negligence in a medical negligence case and it would be determined under CPA by applying the same test as is applied in an action for damages for negligence in a civil court. As a result of this judgment, virtually all private and government hospitals and the doctors employed by them and the independent medical / dental practitioners except primary health centers, birth control measures, anti malaria drive and other such welfare activities can be sued under the CPA.

Structure of Consumer Forums / Commissions and Their Jurisdictions SUPREME COURT

(Final Appeal)

Appellate Authority over State Commission Revisional Jurisdiction

NATIONAL COMMISSION

Original Jurisdiction OverRs.20,00,000

Appellate Authority for District Forum Suo moto Revision

STATE COMMISSION

Original Jurisdiction over Rs. 5,00,000 up to Rs. 20,00,000

DISTRICT FORUM

Original Jurisdiction up to Rs. 5,00,000

The maximum time limit for a claim to be filed under CPA is 2 years from the date of occurrence of the cause of action. There is no court fees to be paid to file a complaint in a Consumer Forum / Commission. Further, a complainant/opposite party can present his case on his own without the help of a lawyer. As per the Consumer Protection Rules, 1987, a complaint filed in the Consumer Forum / Commission shall be adjudicated, within a period of 90 days from the date of notice by opposite party and within 150 days if it requires analysis or testing of commodities.

THE LEGAL AVENUES (other than CPA) AVAILABLE TO AGGRIEVED PATIENTS TO SUE AGAINST HEALTH PROFESSIONALS. a) Medical Council of India and Dental Council of India. b) Civil Courts. c) MRTP (Monopolies and Restrictive Trade Practices Commission) d) Public Interest Litigation. e) Sections of Indian Penal Code, 1860
LANDMARK CASE

Regulation of The Practice of Medicine Indian Medical Council Act,1956 Regulates the profession of Allopathic medicine by constituting Medical Council of India (MCI) and the State Medical Councils.

Authorizes the Medical Council of India (MCI) to recognize the medical qualifications granted by any Authority or Institution of India or other countries. Authorized the MCI to maintain a register of medical practitioners to be known as the Indian Medical register, which consists of the entries of all the State Registers of medical practitioners. Empowers the State Medical Councils to punish persons who falsely claim to be registered or misuse titles and when medicine is practiced by unregistered persons, with fine or imprisonment or both. Authorizes the MCI to prescribe standards of professional conduct and etiquette or Code of Ethics for medical practitioners. The violations of these standards constitute infamous conduct (professional misconduct). State Medical Councils are empowered to take disciplinary action when prescribed standards of professionals conduct and etiquette or Code of Ethics are not observed by the doctors and violations of which constituteprofessional misconduct / Infamous conduct. Under the following circumstances, a doctor can be temporarily or permanently debarred from practicing medicine.

Improper or indecent conduct towards the patient Conviction in a Court of Law Failure or dereliction of duty in giving professional certificates, reports and other documents Contravening the Drugs and Cosmetics Act, 1940 Selling scheduled poison Performing or abetting an illegal operation Receiving or giving commission or using touts Employing unqualified persons Associations with (drug) manufacturing firms Advertisements Running shops (dispensing chemists) etc. Failure to give professional service for certain things on religious grounds. An aggrieved patient can complain to the State Councils about a registered medical practitioner about an alleged wrong committed by him. The Council initiates proper hearing where the concerned doctor is given adequate opportunities to represent his side. If it arrives at the conclusion that the doctor has indeed committed an act, which involves an abuse of professional position that might reasonably by regarded as disgraceful or dishonourable by professional men of good repute and competence, the doctor is either given a warning notice or temporarily or permanently debars him for practicing medicine. The Council does not have any statutory powers to award any compensation to the aggrieved patient or legal heirs. The Indian Medical Council Act, 1956 also provides certain privileges to all the registered medical practitioners. Rights and Privileges of Registered Medical Practitioners Conferred by the Indian Medical Council Act, 1956.

Right to choose a patient Right to add title, descriptions of the academic qualifications to the name Right to practice medicine

Right Right Right Right Right Right

to dispense medicines to possess and supply dangerous drugs to the patients to recovery of fees for appointment to public and local hospitals to issue medical certificates to give evidence as an expert in a Court of Law LANDMARK CASE

Civil Courts The aggrieved patients can file a case against the doctor for monetary compensation for which the patient to pay court fees that depends upon the compensation sought. Probably, due to near acceptance of medical negligence as inevitable by the patients and their relatives or local settlements, not many cases have reached the apex court of law in the past. The legal remedies are based on the law of Torts, Section 1-A of the Fatal Accidents Act, 185536 and the Section 357 of Cr. P.C., 197337. But to avail it, an aggrieved patient have to wait for years and spend considerable amount of money on litigations. The civil court cases take care the route of Sub-Court, District Court, High Court and Supreme Court. Monopolies and Restrictive Trade Practices Act (MRTP), 1969 This Act is the precursor of CPA, 1986. Before the advent of CPA, this Act was the only resource to consumers against the unfair trade practices. The commission that looks into the disputes brought under MRTP Act based in New Delhi. LANDMARK CASE Public Interest Litigation (PIL) An aggrieved patient can directly approach the High Court or the Supreme Court when his/her grievances was not properly redressed. PILs are usually resorted when public health programmes are not implemented properly. Some of the landmark judgements on Supreme Court on health are the result of PILs.
LANDMARK CASE

Indian Penal Code and Medical Negligence Indian Penal Code, 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 contain the law of medical malpraxis in India. A physician can be charged with criminal negligence when a patient dies from the effects of anesthesia during, an operation or other kind of treatment, if it can be proved that the death was the result if malicious intention, or gross negligence. Before the administration of anaesthesia or performance of an operation, the medical man is expected to follow the accepted precautions. In such cases, the physician should be able to prove that he used reasonable and ordinary care in the treatment of his patient to the best of his judgment. He is, however, not liable for an error judgment. The law expects a duly qualified physician to use that degree of skill and care which an average man of his qualifications ought to have, and does not expect him to bring the highest possible degree of skill in the

treatment of his patients, or to be able to guarantee cures. It has long been recognized that criminal liability of a physician may result from a high degree of negligent conduct. What the law calls criminal negligence is largely a matter of degree; it is incapable of a precise definition. To prove whether or not it exists is like chasing a mirage. It requires that any of the following to be established in a case of criminal medical negligence. "Gross Lack of competency or gross inattention, or wanton indifferences to the patient's safety, which may arise from gross ignorance of the science of medicine and surgery or through gross negligence, either in the application and selection of remedies, lack of proper skill in the use of instruments and failure to give proper attention to the patient." (Hampton v State 38; State v Lester)39 In R. v Bateman (1925)40, Dr. Bateman was prosecuted for manslaughter and the charges of negligence made against him were: i) Causing the internal ruptures in performing the operations of 'version'; ii) Removing part of the uterus along with the placenta; iii) Delay in sending the patient to the infirmary. The trial court convicted him. But the Court of Appeal held: " ... in order to establish criminal liability, the facts must be such that, .. the negligence of the accused went beyond a mere matter of compensation between subjects and should such disregard for the life and safety of others as to amount to a crime against the state and conduct punishment."41 When a FIR (First Information Report) is filed against a doctor for the death of a patient who was under his treatment, under this Indian Penal Code Section 304A42 the doctor can be arrested. A doctor charged under this section can obtain bail and if proved guilty, the doctor can be punished with a maximum of two years imprisonment or fine or both. But, if the patient is alive, the doctor is charged under the Indian Penal Code Section 337 and 33843. The Indian Courts have been very careful not to hold qualified physicians criminally (instances of quacks for criminal negligence are there) liable for patients' deaths that are the result of a mere mistake of judgment in the selection and application of remedies and when the death resulted merely from an error of judgment or an inadvertent death44.
LANDMARK CASE RELATED CASES

The complainant alleged that her husband died due to the complications arising after kidney biopsy. The State Commission held that the complainant had suppressed the crucial facts in her complaint. Besides serious life threatening diseases, the deceased was already suffering from tuberculosis and staphylococcus aureus septicaemia (a serious infection of the blood by bacteria). These are very serious diseases with a very high mortality rate especially when the heart, lung and brain get infected. Hence, the complainant had not come with clean hands and thus disentitled herself to relief under this jurisdiction of the C.P. Act. Complaint dismissed with Rs. 1,500/- as costs (SUBH LATA v. CHRISTIAN MEDICAL COLLEGE (Punjab SCDRC O.C. No. 14 of 1994 decided on 15.6.1994; 1994 (2) CPR 691; 1995 (1) CPJ 365; 1995 CCJ 512

The complainants 18-year-old son was suffering from chronic renal failure and was advised renal transplantation. He was admitted in the hospital and dialysis was done for which a venous catheter was introduced in the right thigh and kept in situ (same position of the body) as he would require frequent dialysis. But due to lack of proper care like frequent dressing and medical attention, this site developed pus formation leading to A.V. Fistula, which resulted in gangrene of the right leg. In order to save the life of the patient, amputation of the leg was necessary. The patient died after 20 days. The opposite did not appear in the State Commission. The case was decided in favour of the complainant on the basis of the affidavits filed by the complainant and another experienced doctor who testified in favour of the complainant. A compensation of Rs. 2,00,000/- with Rs. 1,000/- as costs to be paid by the opposite party within 30 days from the receipt of this letter, failing which the amount shall carry interest at the rate of 18% per annum till realization. SHIVAJI GENDEO CHAVAN v. CHIEF DIRECTOR, WANLESS HOSPITAL & Anr. (Maharashtra SCDRC Complaint No. 451 of 1993 3.12.1994 (3) CPJ 43) The complainant was operated for gallstones but subsequently he developed structure near the bulbous urethra due to which he could enjoy sex and could not pass urine easily. He ultimately had to be operated at a Urological Hospital for relief and heavy amount had to be spent due to negligent performance of his first operation. The State Commission observed as under and the complaint was dismissed. There is absolutely no evidence to establish that there was any negligence on the art of the opponent in performing the operation on July 30,1992 and that it was a result of such negligence that second operation became necessary. First operation was on account of multiple gallstones whereas the second operation became operation became necessary. First operation was on account of small strictures near bulbous urethra. Connection between the two operations has not been established. In other words, it is not proved that the second operation became necessary on account of negligence in the performance of the first operation. There is no certificate of the doctor of the urological hospital at Nadiad wherein it is alleged to have been stated that the second operation became necessary on account of the first operation on record. In the absence of any expert evidence, we cannot hold the opponent who has stated that he had performed the operation on the complainant carefully and that the complainant had not complained of pain when he was discharged from the hospital and thereafter. There is also some force in the opponents submissions that if the complainant was suffering from intense pain as alleged by him, he would not have waited for seven months to consult Dr. Rajguru. There is nothing in the documentary evidence placed on record, which would support the allegations made by the complainant. The complaint dismissed without costs. JAYANTILAL GOVINDALAL PARMAR v. MANAGING TRUSTEE & Ors. (1997 (1) CPJ 295:1997 (2) CPR 9 (Gujarat SCDRC) The complainant was admitted in a private hospital for pain in the neck on the right shoulder. Investigations reveled that he was a diabetic and had right hydronephrosis with obstruction at right uretrovesical junction. The complainant underwent surgery by retroperitoneal approach. The affected portion of the ureter was removed and uretric reimplantation was done. During the postoperative period, the complainant developed high fever and further investigations showed that a stapler pin was seen in the gastrointestinal tract. The complainant got discharged against medical advice. The allegation was that the pin was left there during the operation. The surgeon stated that the surgical staplers are V or U shaped and used in clusters in surgeries involving large intestine. The stapler pin seen in the x-ray is not a stapler pin. It resembles the stapler pins used un food pockets. Evidently, this stapler pin should have been swallowed. The State Commission held that there is no negligence or deficiency of service on the part

of the hospital and dismissed the complaint without costs. C.J. LAWRENCE v. APOLLO HOSPITALS (Tamilnadu SCDRC O.P. No. 8/94 Decided on 05.08.1998).

Judgments
All Odisha Steel Federation vs Orissa Mining Corporation [APPELLATE TRIBUNAL FOR ELECTRICITY, 18 Jun 2012]

State of Gujarat vs Nagainbhai Apabhai Amin [GUJARAT HIGH COURT, 13 Jun 2012]
Criminal - Practice & Procedure - Health & Drug - Essential Commodities Act, 1955, ss. 7(I)(a)(II) r/w 3 (26) - Drugs (Price Control) Order, 1987 - Sale of goods - Higher price - Acquittal Sustainability - Respondent/accused allegedly sell the medicinal formulations at a higher price than the price fixed by the Government - Case was registered against respondent/accused for the offence punishable u/ss. 7(I)(a)(II) r/w 3 (26) of the Act - Trial Court after appreciating the oral as well as documentary evidence, acquitted the respondent - Hence, instant appeal - Appellant contended that by notification the Govt. had fixed the ceiling price of said drug and respondent had charged the price of said drug higher than the ceiling price fixed by the Govt. - Further contended that the drugs in question falls in the category of Schedule-I and was exempted from the excise duty - Further contended that from the labels affixed on the bottles it can be said that the intention of the accused was to sell the aforesaid medicines at higher price and thus the public at large will be sufferer - Whether trial court rightly acquitted respondent-accused from the offence punishable u/ss. 7(I)(a)(II) r/w 3 (26) of the Act Held, from cl. 17 of the D.P.C.O. 1987 it become very much clear that only the retail price was required to be displayed on the label of the container of the formulation and the minimum pack thereof offered for retail sale, the maximum retail price of that formulation etc - According to Cl. 2 (r) of of the D.P.C.O. 1987 'retail price' means the retail price of a drug arrived at or fixed in accordance with the provisions of this order included the ceiling price - Thus, retail price includes the ceiling price - Impugned judgment and order was upheld - Appeal dismissed.

Hemant Jayanti Shah vs Managing Committee of Borivali Nandkuvar Co-operative Housing Society [APPELLATE TRIBUNAL FOR ELECTRICITY, 31 May 2012]

Dilip Thakkar vs (1) Mahrashtra Industrial Development Corporation(MIDC); (2) Embassy Property Development Limited (EPDL); (3) Dynasty Developers Private Limited (DDPL); (4) Pune Dynasty Projects Private Limited (PDPPL); (5) Pune Embassy Projects Private Limited (PEPPL) [APPELLATE TRIBUNAL FOR ELECTRICITY, 30 May
2012]

R. Krishnaiah vs Union of India, Represented by its Secretary, General Administration [ANDHRA PRADESH HIGH COURT, 28 May 2012]
Constitution - Socio-Economic - Administrative - Practice & Procedure - Constitution of India, 1950, arts. 15(1), 15(5), 16(2), 16(4) - National Commission for Minorities Act, 1992, s. 2(c) - National Commission for Backward Classes Act, 1993 - Central Educational Institutions (Reservation in Admission) Act, 2006 - Reservation of OBCs - Carving of Sub-quota - Constitutionality - Central Govt. under 2006 Act made 27% reservation for Other Backward classes (OBCs), as notified by Govt. in accordance with Office Memorandum (OM) dt.8-9-1993, in admission to central educational institutions - Govt. of India passed a resolution dt.22-12-2011 for reservation in admissions to educational institutions for OBCs - Central Govt. by its first OM dt.22-12-2011, w.e.f.1-1-2012, had carved out of a sub-quota of 4.5% for socially and educationally backward classes of citizen belonged to minorities as defined u/s. 2(c) of 1922 Act from within the 27% reservation for OBCs as notified by Govt. in OM dt.8-9-1993 - Central Govt. by its Second OM dt.22-12-2011 had carved out similar sub-quota of 4.5% reservation out of 27% reservation for OBCs, for minorities as defined u/s. 2(c) of 1922 Act, in appointments and posts under Govt. of India, based on report dt. 10-5-2007, made by National Commission for Religious and Linguistic Minorities (NCRLM) - Hence, instant PIL challenging constitutionality of OMs - Petitioners contended that sub-quota reservation was minority religion-based and therefore it was in violation of art. 15(1) of Constitution with regard to first OM and art. 16(2) of Constitution with regard to second OM Further contended that sub-quota reservation was not saved by art. 15(5) of Constitution with regard to first OM and that second OM was not saved by art. 16(4) of Constitution - Whether impugned subquota of 4.5% out of 27% of reservation meant for OBCs, for minorities in both OMs was constitutionally permissible or not - Held, first OM stated that 4.5% sub-quota was carved out of socially and educationally backward classes of citizens 'belonging to minorities' as defined in s. 2(c) of 1992 Act - Resolution and second OM carved out a sub-quota 'for minorities', very use of words 'belonging to minorities' or 'for minorities' indicated that sub-quota was carved out only on religious lines and not on any other intelligible basis - Identified minorities were Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) as per notification issued under provisions of 1992 Act - No empirical evidence was placed to enable to conclude or to support requirement of carving out a special class of beneficiaries from existing backward classes - No material was placed to demonstrate that persons belonging to religious groups were more backward than any other category of backward classes or that they need any preferential treatment as compared to other OBCs - Language of OMs, seemed that sub-quota was created only on grounds of religion and nothing else - That was clearly impermissible in view of specific language of art. 15(1) of Constitution as well as art. 16(2) of Constitution - In absence of any factual basis, making a special provision for religious minorities for admission in some central educational institutions and for employment in appointments and posts under GOI, Central Govt. had exceeded constitutional boundaries - Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) did not form a homogenous group but a heterogeneous group - Report of NCRLM, stated that lists of SC/ST and OBC was not scientifically prepared either on basis of a proper survey or reliable data on socio-economic status of a particular caste or class and entire system of reservation, including that for SC/STs and OBCs needed to be overhauled - It was difficult to appreciate any rational basis for Central Govt. in making classification for preferential treatment between non-minorities and minorities - Disparate groups were sought to be clubbed together on religious lines and without any homogeneity amongst them - There was a statutorily prescribed mode for identifying backward classes, namely through National Commission for Backward Classes (NCBC) under 1993 Act, and that procedure should mandatorily be followed - Central Govt. could not unilaterally add to the list of backward classes nor could it cull out a more backward class from the list, without reference to NCBC - NCBC was totally ignored and by-passed by Central Govt. in culling out some categories of citizens from generic class of OBCs, which was not permissible - U/s. 9(2) of 1993 Act, advice of NCBC should ordinarily be binding upon Central Govt. - It was only thereafter that Central Govt. might prepare lists for SC/STs or OBCs for making provision for reservations - First OM was nothing more than an executive instruction and that could not be a substitute for 'law' postulated by art. 15(5) of Constitution - There was no law to sustain creation of a sub-quota of 4.5% out of the 27% reservation for OBCs - Second OM was issued consequent to report submitted by NCRLM, that did not sanctify second OM - NCRLM was not a statutory body and consultation with it was as efficacious or non-efficacious a consultation as with any third party and had no relevance to provisions of 1993 Act - Report might be useful per se but it had no relevance to art. 16(4) of Constitution - That was clear from terms of reference of NCRLM which wer quite different from what art. 16(4) of Constitution required - Relying solely on report of NCRLM, Central Govt. had failed to apply its mind to constitutional requirements - Impugned OMs dt.22-12-2011 and resolution dt.22-12-2011 were set aside - Petition allowed.

Bharti AXA General Insurance Company Limited vs Pinky Kaushal W/o Krishan Baldev Kaushal [NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, 17 May 2012]

Narne Construction Private Limited Etc. vs Union of India and others Etc. [SUPREME COURT OF INDIA, 10 May 2012]
Consumer Protection - Land & Property - Consumer Protection Act, 1986, s. 2 - Service provider - Meaning of - Appellant-company promoted ventures for development of lands into house-sites and invited the intending purchasers through paper publication and brochures to join as members - Respondents responded and joined as members on payment of fees - Terms and conditions stipulated for sale of only developed plots and registration of the plots would be made after the sanction of lay out by the concerned authorities - Sale price was not for the virgin land but included the development of sites and provision of infrastructure - Appellant-company undertook the obligations to develop plots and obtain permissions/approvals of the lay - However, it did not fulfilled the obligation - Hence, petition was filed before HC - HC held that the respondents were 'consumers' and the appellant-company was a 'service' provider within the meaning of the Act, hence amenable to the jurisdiction of the fora under the Act - Hence, instant appeal - Whether the appellant-company was, in the facts and circumstances of the case, offering any 'service' to the respondents within the meaning of the Act so as to make it amenable to the jurisdiction of the fora established under the said Act - Held, activities of the appellant-company involving offer of plots for sale to its customers/members with assurance of development of infrastructure/amenities, lay-out approvals etc. was a 'service' within the meaning of s. 2(1)(o) of the Act and would, therefore, be amenable to the jurisdiction of the fora established under the statute Further, assurance was made to the purchasers as to the nature and the extent of development that would be carried out by the appellant-company as a part of the package under which sale of fully developed plots with assured facilities was to be made in favour of the purchasers for valuable consideration - To the extent the transfer of the site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant-company had indeed undertaken to provide a service - Any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers like the respondents - Appeals dismissed.

Shankerlal L. Sachdev vs (1) Managing Director, Skoda Auto India Private Limited; (2) Manager, Torque Automotive Private Limited [NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION, 09 May 2012] Consumer Protection - Consumer Protection Act, 1986, s. 21(b) - Unfair trade practice - Deficiency in service - Validity - Complainant/petitioner's complaint was allowed by District Forum and directed Opposite Parties/respondents to pay a sum of Rs. 12,57,150/- - On appeal State Commission reverted the order of District Forum - Hence, instant revision Petitions - Whether State Commission was justified in passing the impugned orders - Held, order passed by the District Forum in instant case granting a relief like payment of Rs.12,57,150/- and compensation of Rs.50,000/- to the complainant was not tenable - Even if the District Forum could take a view that the opposite parties had committed some act of deficiency, the kind of relief granted by the District Forum to petitioner was certainly not called for and could not be justified in any event - State Commission had given cogent reasons as to why Opposite Parties could not be held guilty of any deficiency in service or unfair trade practice on the part of Opposite Parties - The order of State Commission does not suffer from any illegality, material irregularity much less any jurisdictional error which warrants interference by this Commission in exercise of its supervisory jurisdiction u/cl. (b) of s. 21 of Act - Impugned order was upheld - Revisions dismissed.

Surjit J. Jain vs New India Assurance Company Limited [NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, 08 May 2012]
Consumer Protection - Insurance - Consumer Protection Act, 1986 - Burglary - Claim - Repudiation - Challenged - Petitioner had obtained an insurance policy from respondent/Insurance Company to indemnify loss for burglary, house breaking etc. - Burglary of computer stocks had taken place in his office premises - Respondent instead of indemnifying the claim, repudiated the same on the ground that claim was not payable as per Exclusion Clause (viii) of the Policy which petitioner had breached by leaving the premises unprotected for more than 7 days - Petitioner filed a complaint before the District Forum on grounds of deficiency in service and wrong interpretation of the Exclusion Clause - District Forum allowed said complaint - Aggrieved, respondent filed an appeal before the State Commission which allowed the same by observing that there was a clear breach of the policy conditions - Hence, instant revision petition - Whether order of the State Commission could be upheld - Held, the District Forum was right in holding that respondent should not strictly implement the exclusion clause and also accepting Petitioner's contention that a copy of the terms and conditions of the Policy were never made available to him - State Commission which had not accepted this finding had not given any grounds for rejecting the same except for some conjectural observations - Respondent was not justified in repudiating the claim - Referred to M/s Mono Industries v. New India Assurance Co. Ltd. 2008 Indlaw NCDRC 3 - Impugned order of State Commission was set aside and the order of the District Forum was restored - Revision allowed.

A.B.N.A. and others vs Managing Director, U.P.S.I.D.C. Limited, Kanpurand another [SUPREME COURT OF INDIA, 08 May 2012]
Competition - MRTP - Land & Property - Monopolies and Restrictive Trade Practices Act, 1969, s. 13(2) - Jurisdiction of MRTP Commission - Recalling of Order - Pursuant to advertisement published

by respondents inviting applications for allotment of industrial land in Greater NOIDA, petitioners applied for a plot and a plot of 800 square metres was allotted and petitioners paid 10 percent of the cost of the plot - However, physical possession of the plot was not given to the petitioners on the ground that the petitioners had not paid all the dues for the plot - Petitioners filed a complaint before the MRTP Commission - MRTP Commission directed that the respondent shall handover possession of the allotted plot to the petitioner - Respondents filed review application and by the impugned order, MRTP Commission recalled the earlier order insofar as it directed the respondents to handover possession of the plot to the petitioners - Aggrieved, the petitioners filed review application before the Competition Appellate Tribunal, which was dismissed - Hence, instant petition - (A) Whether order of MRTP Commission directing the respondents to handover physical possession of the allotted plot to the petitioners was a consent order - Held, it could not be said that the directions in the said order to the respondents to handover the possession of the plot to the petitioners was based on the consent of the advocates appearing for the respondents - Thus, the contention of the petitioners that the order of the MRTP Commission was a consent order was misconceived - (B) Whether MRTP Commission could not have entertained the review application for recalling the order beyond the period of 30 days - Held, as per s. 13(2) of the Act MRTP Commission may amend or revoke any order in the manner in which it was made 'at any time' - Expression 'at any time' would mean that no limitation was prescribed by the legislature for the MRTP Commission to amend or revoke an order passed by it - MRTP Commission could entertained the Review Application for recalling the order beyond the period of 30 days - Further, order of the MRTP Commission was only an interim order and the MRTP Commission could modify or revoke the interim order directing the respondents to handover physical possession of the plot to the petitioners if it thought that such a direction could only be considered at the time of finally deciding the complaint - No infirmity in the order of the MRTP Commission recalling the direction to handover physical possession of the allotted plot to the petitioner saying that this direction could be considered at the stage of final adjudication of the complaint - Petition dismissed.

(1) National Insurance Company Limited Branch Jodhpur; (2) National Insurance Company Limited Delhi Regional Office; (3) Shiv Shankar Soni S/o Ram Prasad Soni vs (1) Shiv Shankar Soni S/o Ram Prasad Soni; (2) National Insurance Company Limited [NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, 07 May 2012]
Consumer Protection - Insurance - Carriers & Transportation - Motor Vehicle Act, 1988, s. 2(47) - Accident - Valid licence - Claim - Entitlement of - Complainant/respondents car was insured with petitioner/insurance co. and it got met with an accident - Surveyor assessed the loss at Rs.1,45,000/- on total loss basis - Petitioner repudiated said claim on the ground that the driver of car did not have a valid and effective driving licence to drive taxi at the time of accident - Respondent filed complaint before District Forum - District Forum dismissed said complaint - On appeal, State Commission reverted the order of District Forum and allowed the appeal - Hence, instant revision petitions - Petitioner contended that since the driving licence possessed by driver authorized him to drive a Light Motor Vehicle (LMV) only, he was not authorized to drive a passenger/transport vehicle - Whether the Commission below was justified in allowing the claim of respondent - Held, driver had a licence to drive LMV only and there was no endorsement on the licence authorizing him to drive the taxi, which was a transport vehicle to carry passengers - Since the driver of the vehicle did not have a valid licence to drive a transport vehicle, the insurance company was not liable to reimburse for the loss caused to the vehicle in the accident - SC as well as instant Commission in various judgments where the owner had engaged a driver after verifying that the he had a driving licence which turned out to be fake later on, has held that the Insurance Company could not be made liable to reimburse the loss - Impugned order was set aside Revisions disposed of.

B. Venkat Reddy vs (1) Shri Ram Transport Finance Company Limited Tarnaka Main Road, Secunderabad; (2) Shri Ram Transport Finance Company Limited, Southern Regional Office, Mylapore, Chennai; (3) Shri Ram Transport Finance Company Limited, Regional Head Office, Nariman Point Mumbai [APPELLATE TRIBUNAL
FOR ELECTRICITY, 10 Apr 2012]

Daddys Developers and Builders vs S. Kannan S/o V. N. Subramaniam [NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, 04 Apr 2012]

(1) Regional Manager (C-2) Scooter India Limited; (2) Service Manager Scooter India Limited vs (1) Momna Gauri D/o Maksood Gori; (2) Nawal Auto Sales [NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION, 04 Apr 2012]

Tata Motors Limited vs (1) Sunil Kumar; (2) Sikand and Company [NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, 04 Apr 2012]

Ashok Kumar Mittal vs (1) Shanti Devi; (2) National Insurance Company Limited [NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, 04 Apr 2012]

Chambal Fertilisers and Chemicals Limited vs (1) IFFCO-TOKIO General Insurance Company Limited; (2) Oriental Insurance Company Limited; (3) ICICI Lombard General Insurance Company Limited [NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, 04 Apr 2012]

Gautam Barua vs Abhi Technologies [NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, 03 Apr 2012]

Indiabulls Financial Services Limited vs (1) Varghese Skaria; (2) Darly Varghese [NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, 02 Apr 2012]

Devinder Kumar S/o Ahmna Kumar vs National Insurance Company Limited, Punjab [NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, 02 Apr 2012]

Shivaji Tulshiram Thakre vs (1) State of Maharashtra, through Minister, Department of Food and Civil Supply, Mantralaya, Mumbai; (2) Deputy Commissioner (Supply), Amravati Division, Amravati; (3) District Supply Officer; (4) Sukhdeo Amrut Kumbhar, R/o Akola Thakare [BOMBAY HIGH COURT, 14 Mar 2012]

Consumer Protection Council Represented by its Secretary, Tiruchirappalli vs (1) National Highways Authority of India, Represented by its Chairman, New Delhi; (2) Chief General Manager, National Highways Authority of India, Chennai; (3) Divisional Railway Manager, Southern Railways, Tiruchirappalli; (4) Commissioner, Tiruchirappalli City Municipal Corporation, Tiruchirappalli [MADRAS HIGH COURT, 13 Mar 2012]

R. Mukhopadhyay vs Coal India Limited and another [CHHATTISGARH HIGH COURT, 13 Mar 2012]

Mahisagar Mataji Samaj Seva Trust through President vs State of Gujarat through Secretary and others [GUJARAT HIGH COURT, 12 Mar 2012]
Socio-Economic - Cattle Trespass Act, 1871, s. 11 - Public Nuisance - Stray Cattle - Seizure - Release - Sustainability - Case of petitioner is that respondent authorities seize cattle straying on public road and send them to cattle pounds managed by corporation and when cattle owner approach authority for release of their cattle on payment of fine, cattle is not being released - Authorities contended that detention of such cattle beyond time prescribed under Act on ground that during period of important festival such cattle would cause lot of inconvenience and nuisance to general public at large Respondent authorities action was very highhanded and arbitrary in not releasing cattle impounded under provisions of Act - Whether action of respondent is arbitrary in not releasing cattle impounded Held, Public nuisance should not be overlooked at expense of animal rights - Public nuisance must be taken care of but same must be taken care of only in accordance with law and not otherwise - It was open for authorities concerned to curb menace of cattle straying on public roads and causing nuisance, but when it decides to take steps under law, then at that stage authorities are expected and are dutybound to treat such cattle with compassion even while keeping them at cattle-pound or at 'Panjrapole' - Many cases have been reported where out of hundreds of seized cattle, hardly one cattle remains alive - Having importance of issue HC, disposed writ petition in nature of Public Interest Litigation, by issuing directions - Petition disposed of.

O. K. Gaur S/o Late B. R. Gaur vs Choithram Hospital and Research Centre [NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, 09 Mar 2012]
Consumer Protection - Consumer Protection Act, 1986 - Unfair trade practices - Compensation - Delay in filing complaint - Maintainability - Appellant suffered from polycystic kidney disease - Respondent hospital was the only authorized hospital in the State for transplantation surgeries - Various tests were conducted and large amount of money was extorted from appellant for tests by respondent - At last surgery was done and appellant was in hospital for 2 months - It was also alleged by appellant that at the time of discharge, the discharge card was purposely not given - As such appellant could not take treatment elsewhere, and had to repeatedly go for follow-ups - Thus, there was gross negligence on the part of respondent - On complaint filed by appellant for compensation State Commission dismissed the same - Hence, instant appeal - Appellant contended that respondent acted in negligence and extracted money from appellant by showing unfair trade practices - Whether complaint filed by appellant before the State Commission was within time or the same was time barred - Held, appellant was operated for kidney transplant on 25-8-2005, whereas complaint before the State Commission was filed on 30-7-2008 - Complaint filed was barred by limitation and no application for condonation of delay was filed by appellant - There was no force in the plea that there was delay in performing kidney transplant As per material available on record, letter given for permission to respondent hospital was sent on 5-7-2005 and transplant was to be done within one month - If there had been some procedural delay, it could not be said that delay amounted to any negligence on the part of respondent - Operation for kidney transplant was carried out successfully and there was no evidence that any excessive amount was charged or unnecessary tests were done - Impugned order was upheld - Appeal dismissed.