RENUKA PATHAK Vs. RENUKA

JUDGEMENT

(1.) These two First Appeals (FAs) have been filed by the Appellants under Sec. 19 of Consumer Protection Act 1986, against the order dtd. 25/11/2016 of the State Consumer Disputes Redressal Commission, Maharashtra, Aurangabad, (hereinafter referred to as the State Commission), in Consumer Complaint (CC) no 28 of 2015, inter alia praying for quashing and setting aside the impugned order dtd. 25/11/2016. Respondent-1 and Respondent-2 herein were complainants and Respondent-3 was OP-1 in the said CC. Respondent-1 is the mother of Respondent-2. FA 228 of 2017 and FA 774 of 2017 have been filed by the appellants, who were OP-3 and OP-2 respectively before the State Commission in the said CC. As both the Appeals have been filed against the same order of the State Commission, parties involved are the same, and issues for consideration/determination are related, these are being taken up together under this order. However, for the sake of convenience, First Appeal (FA) No. 228 of 2017 is treated as the lead case and facts enumerated herein under are taken from FA 228/2017. Notice was issued to the Respondent(s) in both the FAs on 17/2/2017 and 12/5/2017 respectively. Parties filed Written Arguments/Synopsis on 5/12/2019 (Appellant, Dr. Renuka Pathak), 8/5/2023 (Respondent-3, Dr. Manisha Khedkar), 2/5/2023 (Respondent-4, Dr. Dhananjay) respectively in FA 228/2017.

(2.) Brief facts of the case, as emerged from the FAs, Order of the State Commission and other case records are that:-

(3.) Appellant in FA 228/2017 Dr. Renuka Pathak has contended that there was no deficiency in service on her part, State Commission despite this finding, has exceeded its jurisdiction in awarding a compensation without any finding of Appellant being deficient in service. In support of her contention she refers to para 16 of the impugned order where State Commission observed . Hence, the opponents cannot be held liable for deficiency in service and to pay compensation as claimed by the complainant. Therefore, the complainants are not entitled for the compensation as claimed in the complaint. Appellant further argued that State Commission erred in granting compensation to Respondent 1 and 2 for mental agony and harassment which was contrary to Sec. 14(1)(d) of the Consumer Protection Act and the ratio-decidendi postulated by the Honble Supreme Court in GDA Vs. Balbir Singh (2004) 5 SCC 65. Appellant contends that State Commission has unequivocally held that Appellant was not guilty of service, hence there was no occasion to award compensation. Relying on judgment of Honble Supreme Court in Intergloble Aviation Vs. N. Satchidanand (2011) 7 SCC 463, the Appellant argued that compensation cannot be awarded merely on grounds of inconvenience or hardship or on grounds of sympathy. Further, relying on judgment of Honble Supreme Court in The Chairman-cum-Managing Director, Rajasthan Financial Corporation and anr. Vs. Commander S.C. Jain and Anr. Civil Appeal No. 26774 of 2010, decided on 26/3/2010. Appellant argued that compensation can be awarded only when Consumer Forum comes to a conclusion that there is deficiency in service. Appellant argued that the State Commission on one hand while not holding the Appellant liable for any deficiency in service, on the other hand grossly erred in directing the Appellant to pay compensation for mental harassment when no loss or injury was caused to the Respondent No.1 on account of negligence directly attributable to the Appellant. Compensation U/s 14 (1) (d) of the Act can only be granted when it is clearly established that the loss or injury caused/suffered has a direct nexus to the negligence of the party resulting in loss or injury. Hence, according to Appellant, State Commission in exercise of its jurisdiction acted illegally and with material irregularity as it completely overlooked the fact that without any finding of deficiency in service, no compensation, whatsoever, can be granted. In this regard, the Appellant relied upon judgment of Honble Supreme Court in Ravneet Singh Bagga Vs. KLM royal Dutch Airlines (2000) 1 SCC 66 wherein Honble Court observed that in the absence of deficiency in service the aggrieved person may have a remedy under common law to file suit for damages but cannot insist for grant of relief under this Act. Further relying on judgment of this Commission in Knishka Vs. Dr. Vibha Dua 2014 SCC online NCDRC 291, the Appellant argued that a doctor cannot be held negligent only because something has gone wrong. Appellant contended that State Commission directed the Appellant to pay compensation on the erroneous finding that false report was given to Respondent No.1. Relying on judgment of Honble Supreme Court in Senthil Scan Centre Vs. Shanthi Sridharan and Anr. (2010) 15 SCC 193, the Appellant argued that ultrasound is not a perfect depiction of foetus and the scan result cannot be 100% conclusive.