K SANKARI Vs. SHAILESH MORE

JUDGEMENT

(1.) THESE two appeals arise out of order dated 27.12.2002 of the Maharashtra State Consumer Disputes Redressal Commission. The order though disposed of six applications filed by different opposite parties being the Hospital and the Doctors, these 2 appeals have been filed only by 2 of the opposite parties before the State Commission. By the impugned order, State Commission declined to stay the proceedings in a complaint filed by the respondent complainant alleging medical negligence against the Hospital and the Doctors which according to him resulted into the death of his wife and a still born child. The complaint was against the Hospital, Dr. Balabhai Nanavati Hospital (Appellant in F.A.445 of 2003) and 7 Doctors attached to Hospital of which appellant Dr. (Mrs.) K. Sanlkari (in F.A. 427.A of 2003) was the Gynecologist and Dr. Sharad M. Seth was Anesthetist at the time of performing surgery upon the deceased wife of the complainant.

(2.) THE Hospital filed a Civil Suit in the Court of City Civil Court, Bombay against the complainant for recovery of Rs.10,514/- on account of balance payment of Hospital charges. Complainant, it is stated, raised a defence of negligence on the part of Hospital which led the Civil Court framing the issue as to "whether the defendants prove that there was a positive negligence on the part of the plaintiff leading to the death of the patient and, therefore, the defendant is not bound to pay the suit claim". It was on this issue that applications were filed seeking that the complaint be dismissed and in the alternative hearing of the complaint be stayed during the pendency of the case before the Civil Court. State Commission passed the following operative order :-

(3.) WE do not find it is a case where we should interfere. The complaint before the State Commission is for alleged deficiency in service on the part of the Hospital and the attached doctors. The Civil Suit has been filed by the Hospital which is only vicariously liable for alleged negligence on the part of the attached Doctors. From the arguments advanced, it is apparent that the complaint is for deficiency in service on the part of the attending Doctors and it is not that Hospital was deficient in providing any other service. Pending of Civil Suit cannot bar the proceedings before the Consumer Forum on this account. Supreme Court in the case where the Bank filed a Suit for recovery of the loan amount under Agreement and the defendant complainant had filed a claim alleging deficiency in service on the part of the Bank in providing loan held that complaint could lie. We set out the Supreme Court judgement hereunder :-