ANIL KUMAR MANGAL Vs. UPENDER KAUL

JUDGEMENT

(1.) In this case, the complainant who is petitioner herein has filed a complaint before the State Consumer Disputes Redressal Commission, Delhi alleging medical negligence against OPs -1, 2 & 3. The Insurance Co. has also been included as OP-4. Even as the original complaint is pending before the State Commission, it appears that OP-3 filed an application requesting the State Commission that in view of judgement of the Hon ble Supreme Court in the case of Martin F. D Souza Vs. Mohd. Ishfaq [(2009) 3 SCC1], the alleged medical negligence in question has to be first referred to a panel of doctors to see that a prima facie case of medical negligence exists. This application came to be allowed by the State Commission vide its order dated 13.05.2010, a copy of which is placed on record at page 22. The complainant who is the petitioner herein filed an application for review of this order dated 13.05.2010 under which the complainant had also been asked to furnish points of reference along with all relevant medical papers to send them to the medical experts for giving their opinion. In the review application, the complainant submitted that in the case of V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr., 2010 5 SCC 513, the Apex Court has held that the consumer fora is not obliged to send complaint for medical opinion in all cases, but may exercise its discretion upon facts of each case and, therefore, order dated 13.05.2010 passed on the basis of pronouncement by the Apex Court in the case of Martin F. D Souza should be withdrawn. The review application of the complainant, however, was dismissed by the State Commission vide its impugned order dated 24.12.2010 since it does not have power to review its own order. Aggrieved by the impugned order, the petitioner has now challenged the same through the present revision petition.

(2.) We have heard learned counsel for the petitioner. He has relied on the order passed by the Apex Court in the case of V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr. He submitted that keeping in view the ratio of this later case, the consumer fora are not bound to refer each and every matter for expert opinion to a panel of doctors. In view of this, the earlier direction of the State Commission given on 13.05.2010 granting the request of OP-3 to first refer the alleged medical negligence to a panel of doctors to see that a prima facie case of medical negligence exists based on the case of Martin F. D Souza is not an appropriate order and cannot be sustained unless the request is looked into by the State Commission in the light of the facts and circumstances of the present case.

(3.) Having considered the submissions made by the counsel in the light of the judgement of the Apex Court in the later case of Nikhil Super Speciality Hospital, the order of the State Commission passed on 13.05.2010 needs reconsideration. Since the State Commission does not have power to review its own order, the orders passed by the State Commission on 13.05.2010 and also on 24.12.2010 are hereby set aside and the State Commission is directed to consider the request made by OP-3 afresh after giving an opportunity of hearing to the parties in the light of ratio laid down by the Hon ble Supreme Court in the case of Nikhil Super Speciality Hospital and take a view thereon accordingly. Both the parties are directed to appear before the State Commission for further consideration of the matter on 04.04.2011. The revision petition stands disposed of in terms of these directions with no order as to costs.