President Or Member Can Only Decide On Questions Referred For Opinion, Can’t Decide Lis: Allahabad HC On Sec.58(3) Consumer Protection Act

The Petition before the High Court was filed under Article 227 of the Constitution challenging the impugned order of the State Consumer Dispute Redressal Commission, U.P. as well as the order of the National Consumer Dispute Redressal Commission, New Delhi

The Single-Judge Bench of Justice Pankaj Bhatia asserted, “It is also fairly well settled that the scope of the powers under Article 227 of the Constitution of India is mainly to correct the jurisdictional errors, to check the errors in the decision making process and to rectify any glaring error committed by the Tribunal, it is certainly not an appeal entitling this Court to enter into the realm of appreciation of evidence.”

Advocates Uma Shankar Sahai represented the Appellants while CSC Rajendra Pratap Singh represented the Respondent-State.

The petitioner herein was running an institution in the name of Surya Medical Centre which was a Nursing Home and the petitioner was the director of the said Institution. The complainant-respondent was regularly visiting the said Nursing Home in connection with the pregnancy and was going for regular check-ups and treatment. The documents available on record indicated that her date of expected delivery, as was stated by the doctors, was October 15, 2005, however, when she visited the Nursing Home on September 24, 2024, she was examined and a cesarean operation was carried out to save the life of the child. During the performance of the said operation, it was alleged that she developed complications and oxygen which was required at the time of the operation was not available at the said nursing home because of which she suffered critically.

It was also pleaded that the respondent-complainant was taken to another nursing home wherein it was diagnosed that she was suffering from Hypoxia Ischemic Encephalopathy (HIE). It was claimed that the respondent suffered extensive medical issues for which, a claim was filed by filing a complaint before the State Consumer Forum seeking damages for the negligence in the treatment suffered by respondent. The State Consumer Forum passed an order in favour of the complainant awarding an amount of Rs 95 lakh against the respondents in the said claim petition.

Against the said order, three appeals were preferred before the National Consumer Forum, one by the petitioner and two by the other doctors. During the hearing before the National Commission before a two Judge Bench, there was difference of opinion between two members, one of the presiding members passed an order finding favour with the appellant and quashed the order passed by the State Commission. The other member, who was part of the Bench, differed with the view taken by the Chairman and passed a separate order on the same date. In the said order, he upheld the contention of the complainant, however, reduced the award from Rs.95,00000 to Rs.93,00000.

When a reference was made, the order impugned came to be passed. While doing so, 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. Impugning the said order, the submission of the petitioner was that all the factual averments were denied by the petitioners and no evidence whatsoever was there except for the evidence in the form of affidavits by both the parties.

It was the case of the Respondent that once the finding of medical negligence was established, that would be the final and determinative factor for deciding issue and the High Court can’t appreciate any evidence at the stage of Article 227.

The Bench observed, “In the light of the said submissions, it is fairly well settled that the scope of powers under Article 227 of this Court can be exercised against the orders passed by the State/ National Commission as has been held by the Hon'ble Supreme Court in the case of M/s Universal Sompo General Insurance Company Ltd Vs. Suresh Chand Jain (2023).”

In light of the power vested with this Court under Article 227 of the Constitution, the issue to be decided was whether the decision-making process by the National Consumer Forum was justified or not.

The Bench also clarified, “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 judgment of the Apex Court in Shriram Industrial Enterprises Limited vs. The Union of India and Others (1994) and Kesho Nath Khurana vs. Union of India and Other (1981), the Bench held that the order impugned had 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,” the Bench said while quashing the matter. The Bench also remanded the matter to 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.

Cause Title: Dr. Dinesh Kumar v. Shri Askari Hussain And 6 Others (Neutral Citation: 2024:AHC-LKO:83138)

Appearance:

Petitioner: Advocates Uma Shankar Sahai,Vinayajit Lal Verma

Respondent: CSC Rajendra Pratap Singh, Advocate Digvijay Singh

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