Ismail v. State Consumer Disputes (Redressal) Commission
1993-10-06
K.SREEDHARAN, M.JAGANNADHA RAO
body1993
DigiLaw.ai
Judgment :- Jagannadha Rao, CJ. In this batch of Writ Petitions, the question for consideration is whether this Court should interfere under Art.226of the Cons tuition of India with the disposal of cases filed by various persons, claiming to be consumers, against doctors or hospitals seeking relief under the Consumer Protection Act, 1986 (Central Act 68 of 1986). 2. As the question is a general question, it will not be necessary for us to mention facts relating to all cases. Cases have been filed by various persons claiming to be consumers seeking various reliefs under the Consumer Protection Act, 1986 before the District Forum or before the State Commission. The Consumer Forum concerned has issued notices to the petitioners who are either doctors or hospitals requiring them to contest the cases. Soon after the receipt of the notices, the doctors or the hospitals have approached this Court and obtained orders of stay. 3. It is contended by various learned counsel appearing for the petitioners that this Court must hold that cases relating to services rendered by doctors or hospitals are outside the purview of the Consumer Protection Act, 1986. Reference in this connection is made to the definition of 'consumer' in S.2(b) and the definition of 'service' in S.2(1)(o) of the said Act and other provisions therein to submit that at no stretch of imagination service rendered by doctors or hospitals should be brought within the purview of the Act. Yet another contention raised before us is that when this Court admitted some of these Writ Petitions in 1991 and granted slay, it will not be permissible or proper for this Court to dismiss the Writ Petitions at this juncture and direct the parties once again to go before the Forum concerned under the Consumer Protection Act. The third point that is urged before us is that cases relating to alleged negligence of doctors or hospitals are very complicated, and whenever such complicated questions arise, the Consumer Court should not be allowed to decide the matter, and the parties should be allowed to approach the Civil Court. In this context it is contended that the National Consumer Disputes Redressal Commission itself stated in several cases that when the cases involved complicated questions of fact, the parties should be relegated to their remedies before the ordinary civil court. 4.
In this context it is contended that the National Consumer Disputes Redressal Commission itself stated in several cases that when the cases involved complicated questions of fact, the parties should be relegated to their remedies before the ordinary civil court. 4. On the other hand, it is submitted for the respondents (complainants before the various Consumer Courts) that the State Consumer Disputes Redressal Commission as well as the National Consumer Disputes Redressal Commission have already decided, in so far as doctors and hospitals are concerned, that they squarely come within the provisions of the Act. The matters are now pending before the Supreme Court of India in appeals against the National Commission under $'.23 of the Act. It is contended that propriety requires that this Court should not adjudicate the question which is about to be adjudicated by the Supreme Court of India. It is also contended that there is no absolute rule that merely because the Writ Petitions had been admitted, the Court should necessarily adjudicate the dispute at the time of final hearing of the case. The nature of the case or the various subsequent events which might have taken place between the date of filing of the writ petitions, and the date of disposal, may require the parties to pursue their alternative remedies. In such a case, it is contended, there is no prohibition or illegality in this Court relegating the parties to their alternative remedies under the Special Act. So far as the contention that complicated questions of fact cannot be adjudicated by the Consumer Courts under the Act is concerned, it is argued for the respondents that matters relating to negligence of doctors or hospitals cannot be said to involve complicated questions of fact. In fact, even though the National Commission has held that complicated questions can be relegated to a civil suit, the National Commission has itself decided, so far as the doctors and hospitals are concerned, that the various Consumer Courts under the Act could decide the same. It is therefore contended that this objection of the petitioners cannot be accepted.
In fact, even though the National Commission has held that complicated questions can be relegated to a civil suit, the National Commission has itself decided, so far as the doctors and hospitals are concerned, that the various Consumer Courts under the Act could decide the same. It is therefore contended that this objection of the petitioners cannot be accepted. It is also pointed out that if such a contention is permitted, it will become necessary for this Court as a parallel body to decide in each case that is brought before the Consumer Court whether the particular case raised complicated questions of fact, and any such decision would lead to unending parallel litigation. 5. At the outset, it must be stated that subsequent to the filing of some of the Writ Petitions in 1991, the State Commission in Kerala has decided in the matter relating to Cosmopolitan Hospital that doctors and hospitals are covered by the Consumer Protection Act. The said decision was carried in appeal before the Nations Commission, and the appeal was dismissed in the decision reported in Cosmopolitan Hospital v. Vasantha P. Nair, 1992 (1) CPR 820 (NCDRC). Against the decision in Cosmopolitan Hospital's case, Special Leave Petition has been filed before the Supreme Court of India, the Supreme Court has directed the Consumer Court concerned to go ahead with the enquiry, but directed that it should not pass final orders. 6. Writ Petitions before us have to be decided taking note of the above said subsequent events including the decision of the National Commission, and the pendency of appeals before the Supreme Court and the stay orders granted by the Supreme Court. 7. This Court in Georgekutty v. State of Kerala, 1993 (2) KLT 755 = (O.P.).No.2929 of 1993) by judgment-dated 10-3-1993 has taken they've what normally this Court will not entertain a Writ Petition to consider any question of jurisdiction arising before the consumer court concerned. We held that it was for the consumer court to decide even the jurisdictional issue. In that connection, we followed the decision of the Andhra Pradesh High Court in Tulasi Enterprises v. Andhra Pradesh State Consumer Commission, Hyderabad, AIR 1991 AP 326, and the decision of the Delhi High Court in M/s. Ansal Properties and Industries (P) Ltd. v. Sliri. Chancier Blian KoliU, 1991 (1) CP 679.
In that connection, we followed the decision of the Andhra Pradesh High Court in Tulasi Enterprises v. Andhra Pradesh State Consumer Commission, Hyderabad, AIR 1991 AP 326, and the decision of the Delhi High Court in M/s. Ansal Properties and Industries (P) Ltd. v. Sliri. Chancier Blian KoliU, 1991 (1) CP 679. We dissented from the decision of the Calcutta High Court in Calcutta Metropolitan Development Authority v. Union of India, AIR 1993 Cal. 4. We also observed that though this Court will not normally interfere with the cases pending before the Consumer Court merely because jurisdictional questions are raised, in exceptional cases this Court would not hesitate to interfere, but such contingencies would be rare. This is clear from the following observation in our judgment: "What we have stated above is to be the normal rule. There may indeed be rare cases which are expressly excluded by the very provisions of the Consumer Protection Act or other rare cases which may warrant interference by the High Court. But that should be a rare exception and not the rule," Padmanabhan, J. has taken a similar view in Padmanabhan v. Consumer D.R. Forum, 1991 (2) KLT 367 on 6-8-1991. In the light of the above said decisions, we have to decide whether the question of jurisdiction of the Consumer Court raised by doctors and hospitals should be gone into by this Court, at the present juncture. 8. We are unable to hold that the question of jurisdiction relating to doctors and hospitals should be treated as falling within the exception mentioned in our above said judgment in O.P.No.2929 of 1993 = 1993 (2) KLT 755. Even otherwise, when the State Commission and the National Commission constituted under the Act have already decided in a case arising from the State of Kerala that doctors and hospitals will come with tin the purview of the Act, it will not be proper for this Court to try to lake a contrary view, for that will amount indirectly to quashing the decisions of the said Consumer Courts and we will be practically encroaching into the jurisdiction of the Supreme Court. In other words, we will be practically exercising the appellate jurisdiction conferred on the Supreme Court in regard to these matters. Such an action on our part will be highly improper and inappropriate.
In other words, we will be practically exercising the appellate jurisdiction conferred on the Supreme Court in regard to these matters. Such an action on our part will be highly improper and inappropriate. Therefore, for all the aforesaid reasons, we decline to interfere with the question as to whether doctors or hospitals are covered by the Consumer Protection Act, 1986, in exercise of our discretion. 9. It is then argued for the petitioners that some of the Writ Petitions-having been admitted in 1991, it is not permissible for this Court now to drive the parties in 1993 to defend the cases before the Consumer Courts concerned. This question has been considered by us in a batch of cases in O.P.No.4847 of 1991-B and connected cases. There, we have clearly held that there is no such absolute rule which prohibits this Court at the time of final hearing from directing the parties to pursue their alternative remedies under the Special Act. We adopt the reasons given by us in that batch of cases, and hold that there is no absolute rule that once the Writ Petitions are admitted, we cannot relegate the parties to their alternative remedies under the Special Statute, at the time of final hearing of the cases. Events subsequent to the filing of some of the present Writ Petitions in 1991 cannot be ignored. The events are that the same question has already been decided by the State Commission against the doctors and hospitals, and the said matter was taken in appeal before the National Commission, and the National Commission has confirmed the view of the State Commission in Cosmopolitan Hospital's case, and the matter is now pending before the Supreme Court, and even the Supreme Court thought it fit .to allow the enquiry to go on before the consumer court concerned in the State but it only directed that final orders should not be passed. In view of the above said subsequent events, if we now entertain the question of jurisdiction to be raised before us, we will be indirectly interfering with the decision of the National Commission, which is pending before the Supreme Court. Such an enquiry, as already staled, is not permissible. Therefore this contention of the petitioners is rejected. 10.
In view of the above said subsequent events, if we now entertain the question of jurisdiction to be raised before us, we will be indirectly interfering with the decision of the National Commission, which is pending before the Supreme Court. Such an enquiry, as already staled, is not permissible. Therefore this contention of the petitioners is rejected. 10. It is then argued that cases relating to negligence of doctors or hospitals raise very serious and complicated questions of fact, and that the National Commission has itself decided in several cases that if such complicated questions of fact arise, the consumer court should relegate the parties to their remedy before the ordinary civil court. It is therefore contended that this Court should go into-the question as to whether which of the Writ Petitions, raises complicated questions of fact or not and on that basis prohibit the consumer court concerned to decide the case if this Court comes to the conclusion that the case involves complicated questions of fact. In our opinion, the above' said contention cannot be accepted. Firstly, though the National Commission has, in some cases, come to the conclusion that if complicated questions arise, the parties should' be relegated to their remedy before a civil court, it has already taken the view that the matter relating to doctors and hospitals is within the purview of the Consumer Protection Act. It will be for the consumer court concerned, as and when such cases relating to doctors and hospitals come up, to decide for itself whether they should decide the case or to relegate the parties to their remedy before a civil court. It is not for this Court to entertain a Writ Petition and go into the question whether any case pending before the consumer court concerned involves complicated questions of fact or not, and decide whether the consumer court concerned should go ahead with the matter or not. It is for the concerned consumer court to. decide that question and that question cannot be brought up before this Court in a separate writ petition. It will lead to unnecessary and uncalled for parallel litigation involving lot of waste of time and the very purpose of providing speedy remedy before the Consumer Courts will be rendered nugatory. 11.
It is for the concerned consumer court to. decide that question and that question cannot be brought up before this Court in a separate writ petition. It will lead to unnecessary and uncalled for parallel litigation involving lot of waste of time and the very purpose of providing speedy remedy before the Consumer Courts will be rendered nugatory. 11. A contention regarding the legislative competence was raised in some of these cases, but the same was not seriously pressed in view of the various entries in the Concurrent List in the 7th Schedule of the Constitution of India. For all the aforesaid reasons, these Writ Petitions are dismissed.