CHANDIGARH NURSING HOME AND ANR.versusSUKHDEEP KAUR

432                      [2022]REPORTS
               SUPREME COURT    7 S.C.R. 432              [2022] 7 S.C.R.


A              CHANDIGARH NURSING HOME AND ANR.
                                       v.
                             SUKHDEEP KAUR
                        (Civil Appeal No. 5931 of 2022)
B                           SEPTEMBER 09, 2022
               [M. R. SHAH AND KRISHNA MURARI, JJ.]
             Consumer Protection Act, 1986 – s.21(b) – Constitution of
      India – Article 142 – Respondent, a minor suffered from wrong
      diagnosis and treatment leading to rashes on her body beyond control
C
      – Complaint filed by her through her father alleging medical
      negligence against appellants – District Forum directed the
      appellants to pay Rs.1 lakh with interest – Appeal by appellants,
      dismissed by State Commission with cost – Revision application filed
      by appellants, dismissed by National Commission, compensation
D     enhanced to Rs.10 lakhs – On appeal, held: At no point of time, the
      respondent challenged the order passed by the District Forum
      aggrieved by the quantum of compensation – Therefore, the order
      passed by the District Forum attained finality insofar as the
      respondent is concerned – Further, at the most, the National
      Commission could have dismissed the revision application unless it
E
      specifically exercises a suo moto revisional power u/s.21(b) –In the
      present case, it does not appear that the National Commission
      exercised the suo moto revisional power – Even otherwise, in absence
      of any cogent reasons and/or material, the National Commission is
      not justified in enhancing the amount of compensation – Amount of
F     compensation varies from person to person, looking to the damages
      and/or disability suffered – Merely because in some cases, the
      compensation has been enhanced, it cannot be enhanced in other
      cases – Impugned order passed by the National Commission set
      aside – However, on facts, in exercise of the powers u/Article 142,
      compensation enhanced to Rs.4 lakhs.
G
            Disposing of the appeal, the Court
            HELD: 1. The District Forum awarded a sum of Rs. 1 lakh
      as compensation to the original complainant. However, the
      original complainant did not carry the matter further to the State
H     Commission and the appellants herein – original opponents being
                                     432
 CHANDIGARH NURSING HOME AND ANR. v. SUKHDEEP                        433
                    KAUR

aggrieved by the order of District Forum preferred the appeal        A
before the State Commission. The State Commission dismissed
the appeal and the appellants herein – original respondents being
aggrieved by the order passed by the State Commission preferred
the revision petition/application before the National Commission.
At no point of time, the original complainant challenged the order
                                                                     B
passed by the District Forum aggrieved by the quantum of
compensation determined by the District Forum. Therefore, as
such, the order passed by the District Forum attained finality
insofar as the original complainant is concerned. In a revision
application preferred by the original respondents – appellants
herein challenging the order passed by the District Forum            C
confirmed by the State Commission, the National Commission
while dismissing the revision application has enhanced the amount
of compensation. At the most, the National Commission could
have dismissed the revision application unless the National
Commission specifically exercises a suo moto revisional power
                                                                     D
in exercise of the powers under Section 21(b) of the Consumer
Protection Act, 1986. In the present case, from the impugned
judgment and order passed by the National Commission, it does
not appear that the National Commission exercised the suo moto
revisional power. Even the appellants herein – original
revisionists were not put to notice that the National Commission     E
is to enhance the amount of compensation in exercise of the
revisional power - the suo moto revisional jurisdiction. The
appellants herein – original revisionists are taken by surprise
and the National Commission without giving any opportunity to
them has enhanced the amount of compensation. Therefore, on
                                                                     F
this ground also, the impugned judgment and order passed by
the National Commission enhancing the amount of compensation
in the revision application preferred by the appellants herein is
unsustainable. Even otherwise, in absence of any cogent reasons
and/or material, the National Commission is not justified in
enhancing the amount of compensation to Rs. 10 lakhs. While          G
enhancing the amount of compensation to Rs. 10 lakhs, the
National Commission has just referred to few decisions of this
Court in paragraph 14 and thereafter has straightaway enhanced
the amount of compensation. The amount of compensation varies
from person to person, looking to the damages and/or disability
                                                                     H
434           SUPREME COURT REPORTS                      [2022] 7 S.C.R.


A     suffered/sustained. Merely because in some cases, the amount
      of compensation has been enhanced, in other cases, the amount
      of compensation cannot be enhanced. While enhancing the
      amount of compensation to Rs. 10 lakhs as such, the National
      Commission has not at all discussed the disability suffered by
      the complainant. Therefore, also, the impugned judgment and
B
      order passed by the National Commission enhancing the amount
      of compensation to Rs. 10 lakhs is unsustainable. However, at
      the same time, looking to the negligence held to be proved and
      the trauma and the sufferings by the complainant, and that at the
      relevant time the compensation determined was Rs. 1 lakh only
C     and it is stated that the family has spent thousands of rupees for
      her treatment and medicines and that even today the complainant
      has not recovered completely and is under treatment, the amount
      of Rs. 1 lakh awarded by the District Forum is required to be
      enhanced in exercise of the powers under Article 142 of the
      Constitution of India to do the substantial justice to the
D
      complainant. The impugned judgment and order passed by the
      National Commission enhancing the amount of compensation to
      Rs. 10 lakhs is quashed and set aside. However, in exercise of
      the powers under Article 142 of the Constitution of India and for
      the reasons stated, the appellants to pay a total sum of Rs. 4
E     lakhs (instead of Rs. 1 lakh awarded by the District Forum) to
      the respondent herein, after deducting whatever amount as
      deposited by the appellants. The appellants to pay to the original
      complainant balance amount after deducting the amount already
      deposited, within a period of six weeks from today, failing which,
      it shall carry an interest @ 7.5%. [Paras 7-7.2, 8][437-F-H; 438-
F
      A-H; 439-A-B, D-E]
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5931
      of 2022.
             From the Judgment and Order dated 03.01.2022 of the National
G     Consumer Disputes Redressal Commission, New Delhi in Revision
      Petition No. 4677 of 2013.
            Gopal Sankaranarayana, Sr. Adv., Mayank Pandey, Adv. for the
      Appellants.
            K. K. Mohan, Adv. for the Respondent.
H
  CHANDIGARH NURSING HOME AND ANR. v. SUKHDEEP                                435
                     KAUR

      The Judgment of the Court was delivered by                              A
      M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 03.01.2022 passed by the National Consumer Disputes
Redressal Commission, New Delhi (hereinafter referred to as the
“National Commission”) in Revision Petition No. 4677 of 2013 by which         B
in a revision petition preferred by the appellants herein – original
respondents, the National Commission has enhanced the amount of
compensation from Rs. 1 lakh awarded by the District Forum to Rs. 10
lakhs, the original respondents have preferred the present appeal.
     2. The issue involved in the present appeal is in a very narrow          C
compass.
      3. The facts leading to the present appeal in nutshell are as under:-
        3.1 The respondent herein – the original complainant, a minor
filed a consumer complaint before the District Forum through her father       D
alleging medical negligence against the appellants herein, who suffered
from wrong diagnosis and wrong treatment, which led to rashes on her
body, and which became beyond control. It was alleged that the doctor,
who treated her was a BAMS (Ayurveda Doctor) and was not competent
to prescribe allopathic medicines, which amounts to medical negligence.
                                                                              E
      3.2 The District Forum by order dated 11.03.2010 directed the
appellants to pay an amount of Rs. 1 lakh alongwith interest @ 9% from
the date of order holding that there was a negligence on the part of the
appellants.
       3.3 Feeling aggrieved and dissatisfied with the order passed by
                                                                              F
the District Forum, the appellants preferred an appeal before the State
Consumer Disputes Redressal Commission, Punjab (hereinafter referred
to as “State Commission”). At this stage, it is required to be noted that
so far as the original complainant is concerned, it is an admitted position
that the original complainant did not prefer any appeal before the State
Commission to enhance the amount of compensation and it was the               G
appellants, who preferred the appeal before the State Commission. The
State Commission dismissed the said appeal with cost of Rs. 10,000/-.
       3.4 Being aggrieved by the judgment and order passed by the
State Commission dismissing the appeal and confirming the order passed
by the District Forum awarding a sum of Rs. 1 lakh towards the                H
436             SUPREME COURT REPORTS                            [2022] 7 S.C.R.


A     compensation, it was the appellants, who preferred the revision petition/
      application before the National Commission.
             3.5 While dismissing the revision petition/application preferred by
      the appellants herein, the National Commission has enhanced the amount
      of compensation to Rs. 10 lakhs. Being aggrieved by the order passed
B     by the National Commission enhancing the amount of compensation to
      Rs. 10 lakhs, that too, in the revision petition/application preferred by the
      appellants, the original opponents/appellants have preferred the present
      appeal.
            4. Shri Gopal Sankaranarayana, learned Senior Advocate has
C     appeared on behalf of the appellants and Shri K.K. Mohan, learned
      counsel has appeared on behalf of the respondent – original complainant.
             5. Shri Gopal Sankaranarayana, learned Senior Advocate appearing
      on behalf of the appellants has assailed the findings recorded by the
      District Forum, confirmed by the State Commission and the National
D     Commission, on the negligence held to be proved on the part of the
      appellants. However, as there are concurrent findings recorded by the
      District Forum, the State Commission and the National Commission on
      the negligence on the part of the appellants, we see no reason to interfere
      with the said finding of facts in exercise of powers under Article 136 of
      the Constitution of India.
E
              5.1 However, at the same time, learned Senior Advocate appearing
      on behalf of the appellants is right in submitting that in a revision
      application preferred by the appellants aggrieved by the order passed by
      the District Forum, awarding a sum of Rs. 1 lakh towards compensation,
      and that when neither any appeal was preferred by the original
F     complainant before the State Commission, nor thereafter any further
      appeal and/or revision application was filed by the original complainant
      before the National Commission, the National Commission was not
      justified in enhancing the amount of compensation in the revision
      application/petition preferred by the appellants. It is also the case on
G     behalf of the appellants that even otherwise and as such while awarding
      an enhanced compensation of Rs. 10 lakhs, the National Commission
      has not at all considered any disability and according to the learned Senior
      Advocate appearing on behalf of the appellants as such there is no basis
      at all to award Rs. 10 lakhs towards the compensation.

H
  CHANDIGARH NURSING HOME AND ANR. v. SUKHDEEP                                 437
              KAUR [M. R. SHAH, J.]

       5.2 Learned Senior Advocate appearing on behalf of the appellants       A
has submitted that while enhancing the amount of compensation to
Rs. 10 lakhs, the National Commission has considered some decisions
of this Hon’ble Court referred to in paragraph 14 of the impugned
judgment and order. However, according to the learned Senior Advocate
appearing on behalf of the appellants, the amount of compensation
                                                                               B
depends upon the facts and circumstances of each case and depends
upon the disability and/or suffering by the complainant and it varies from
case to case. It is submitted that merely because in some cases, the
amount of compensation has been enhanced in other cases, the amount
of compensation is not required to be enhanced automatically.
        6. On the other hand, Shri K.K. Mohan, learned counsel appearing       C
on behalf of the original complainant – respondent has heavily relied
upon Section 21(b) of the Consumer Protection Act, 1986. Relying upon
Section 21(b) of the Consumer Protection Act, 1986, it is submitted that
the National Commission has suo moto revisional jurisdiction and
therefore, even in absence of any appeal and/or revision application           D
preferred by the complainant, the National Commission can enhance
the amount of compensation in exercise of suo moto revisional jurisdiction
conferred under Section 21(b) of the Consumer Protection Act, 1986.
In the alternative, it is submitted by Shri Mohan, learned counsel appearing
on behalf of the respondent that looking to the physical condition of the
complainant and even today she is suffering, therefore, this Court may         E
not interfere with the impugned judgment and order passed by the National
Commission enhancing the amount of compensation.
       7. Having heard the learned counsel appearing on behalf of the
respective parties, it emerges that the District Forum awarded a sum of
Rs. 1 lakh as compensation to the original complainant. However, the           F
original complainant did not carry the matter further to the State
Commission and the appellants herein – original opponents being aggrieved
by the order of District Forum preferred the appeal before the State
Commission. The State Commission dismissed the appeal and the
appellants herein – original respondents being aggrieved by the order          G
passed by the State Commission preferred the revision petition/application
before the National Commission. At no point of time, the original
complainant challenged the order passed by the District Forum aggrieved
by the quantum of compensation determined by the District Forum.
Therefore, as such, the order passed by the District Forum attained
                                                                               H
438            SUPREME COURT REPORTS                          [2022] 7 S.C.R.


A     finality insofar as the original complainant is concerned. In a revision
      application preferred by the original respondents – appellants herein
      challenging the order passed by the District Forum confirmed by the
      State Commission, the National Commission while dismissing the revision
      application has enhanced the amount of compensation. At the most, the
      National Commission could have dismissed the revision application unless
B
      the National Commission specifically exercises a suo moto revisional
      power in exercise of the powers under Section 21(b) of the Consumer
      Protection Act, 1986. In the present case, from the impugned judgment
      and order passed by the National Commission, it does not appear that
      the National Commission exercised the suo moto revisional power. Even
C     the appellants herein – original revisionists were not put to notice that
      the National Commission is to enhance the amount of compensation in
      exercise of the revisional power - the suo moto revisional jurisdiction.
      The appellants herein – original revisionists are taken by surprise and
      the National Commission without giving any opportunity to them has
      enhanced the amount of compensation. Therefore, on this ground also,
D
      the impugned judgment and order passed by the National Commission
      enhancing the amount of compensation in the revision application preferred
      by the appellants herein is unsustainable.
             7.1 Even otherwise, in absence of any cogent reasons and/or
      material, the National Commission is not justified in enhancing the amount
E     of compensation to Rs. 10 lakhs. While enhancing the amount of
      compensation to Rs. 10 lakhs, the National Commission has just referred
      to few decisions of this Court in paragraph 14 and thereafter has
      straightaway enhanced the amount of compensation. It is to be noted
      that the amount of compensation varies from person to person, looking
F     to the damages and/or disability suffered/sustained. Merely because in
      some cases, the amount of compensation has been enhanced, in other
      cases, the amount of compensation cannot be enhanced. While enhancing
      the amount of compensation to Rs. 10 lakhs as such, the learned National
      Commission has not at all discussed the disability suffered by the
      complainant. Therefore, also, the impugned judgment and order passed
G     by the National Commission enhancing the amount of compensation to
      Rs. 10 lakhs is unsustainable.
             7.2 However, at the same time, we are of the opinion that looking
      to the negligence held to be proved and the trauma and the sufferings by
      the complainant, and that at the relevant time the compensation determined
H
  CHANDIGARH NURSING HOME AND ANR. v. SUKHDEEP                                 439
              KAUR [M. R. SHAH, J.]

was Rs. 1 lakh only and it is stated that the family has spent thousands       A
of rupees for her treatment and medicines and so stated in the counter
affidavit that even today the complainant has not recovered completely
and is under treatment, we are of the opinion that the amount of Rs. 1
lakh awarded by the District Forum is required to be enhanced in exercise
of the powers under Article 142 of the Constitution of India so as to do
                                                                               B
the substantial justice to the complainant. We are of the opinion that if
the amount of compensation is enhanced to a total sum of Rs. 4 lakhs
(instead of Rs. 1 lakh awarded by the District Forum), the same shall
meet the ends of justice.
       8. In view of the above and for the reasons stated above, the
impugned judgment and order passed by the National Commission                  C
enhancing the amount of compensation to Rs. 10 lakhs is hereby quashed
and set aside. However, in exercise of the powers under Article 142 of
the Constitution of India and for the reasons stated herein above, we
direct the appellants to pay a total sum of Rs. 4 lakhs (instead of Rs. 1
lakh awarded by the District Forum) to the respondent herein, after            D
deducting whatever amount as deposited by the appellants. We direct
the appellants to pay to the original complainant balance amount after
deducting the amount already deposited, within a period of six weeks
from today, failing which, it shall carry an interest @ 7.5%. The original
complainant is permitted to withdraw the amount already deposited by
the appellants with interest accrued thereon, which shall be paid to the       E
original complainant by account payee cheque and/or on giving the
particulars of the bank account, the same be deposited/credited in the
bank account of the original complainant.
     The present appeal is disposed of accordingly in the aforesaid
manner.                                                                        F


Divya Pandey                                             Appeal disposed of.
(Assisted by: Roopanshi Virang, LCRA)


                                                                               G




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