STATE CONSUMER DISPUTES REDRESSAL COMMISSION

WEST BENGAL
11A, Mirza Ghalib Street, Kolkata - 700087

First Appeal No. A/1041/2015

(Arisen out of Order Dated 20/08/2015 in Case No. Complaint Case No. CC/20/2014 of
District Purba Midnapur)

1. Dr. Timir Baran Pal

Abasbari, P.O & P.S - Tamluk, Dist - Purba Medinipur.
2. The Superintendent of MAS Clinic & Hospital,
Minimal Access Surgery Pvt. Ltd.
Vill - Padumbasan, P.O & P.S - Tamluk, Dist - Paschim
Medinipur. ...........Appellant(s)
Versus
1. Sri Surajit Das
S/o, Sri Shyam Baran Das, Vill - Santipur, Paschim Para,
P.O - Mechada, P.S - Kolaghat, Dist - Purba Medinipur. ...........Respondent(s)

BEFORE:
HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT
HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER

For the Ms. Binota Roy, Advocate

Appellant:
For the
Mr. Himangshu Sekhar Samanta, Advocate
Respondent:
Dated : 24 Oct 2017
Final Order / Judgement

HON’BLE MR. TARAPADA GANGOPADHYAY, MEMBER

This Appeal u/s 15 of the Consumer Protection Act, 1986 has been filed by the OP No. 1
challenging the judgment and order dated 20.8.2015 passed by the Ld. District Consumer Disputes
Redressal Forum, Purba Medinipur, in Consumer Case No. 20/2014, directing the Ops to pay
jointly and severally to the Complainant Rs. 10,00,000/- as compensation and Rs. 10,000/- each as
litigation cost within 40 days from the date of the order, failing which the decretal amount of Rs.
10,00,000/- shall attract interest @ 9% per annum for the period of default, and non-compliance of
the order would entitle the Complainant to take recourse to execution as mandated in the Act.

The brief facts of the case, as revealed from the materials on records, are that the
Respondent/Complainant, after meeting a motor-cycle accident on 20.5.2013, visited the
Appellant No. 1/OP No. 1-Doctor on the same day and the Appellant/OP No. 1-Doctor conducted
an operation at Appellant No. 2/OP No. 2-Clinic and fixed Steel-plate in the Left Tibia. But after
such operation the Respondent/Complainant felt fever when the Appellant No. 1/OP No. 1-Doctor

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removed the implanted plate on 30.5.2013. After the second operation, the left leg of the patient
concerned became stiff, insensitive and movementless. Then the Respondent/Complainant visited
Riverine Hospital at Cuttack on 2.6.2013 and Aswini Hospital at Cuttack on 11.6.2013 for better
treatment when the Complainant was diagnosed “(Left) Tibia Condyle with sepsis and necrosis of
leg muscle, complete exposure of the left tibia” and given due treatment. But even after such
treatment, the Respondent/Complainant could not move without support and could not fold his left
leg. With the aforesaid factual background, the Complainant moved the Complaint concerned
before the Ld. District Forum concerned which passed the order in the aforesaid manner.
Aggrieved by such order the OP Nos. 1 & 2 have approached this Commission with the instant
Appeal.

The Ld. Advocate for the Appellants/OP Nos. 1 & 2, in the very beginning, submits that the Ld.
District Forum passed the order impugned beyond its pecuniary jurisdiction as stipulated u/s 11(1)
of the Consumer Protection Act, 1986 when the cost of treatment, i.e. Rs. 5,231/-, as observed by
the Ld. District Forum in the impugned order, apart from Rs. 16620/- as revealed from the
documents produced before the Ld. District Forum, is added to the claim of compensation and
cost being Rs. 19,90,000/- and Rs. 10,000/- respectively and hence, the order impugned is a
nullity.

The Ld. Advocate continues that it is well-settled that the issue of pecuniary jurisdiction being a
question of law can be raised at any stage of the proceeding even at execution stage. In this
context, the Ld. Advocate refers to a decision of the Hon’ble National Commission in Raj Kumar
Vs. M.G.Motors, reported in 2012 (3) CPR 352 (NC).

The Ld. Advocate adds that for valuation value of service plus compensation is to be taken into
consideration. In this connection, the Ld. Advocate refers to the decision of the Hon’ble National
Commission in Dharmendra Kumar Vs. M/s. Nitishree Infrastructure Pvt. Ltd. & Ors., reported in
2016 (4) CPR 56 (NC).

The Ld. Advocate further submits that the Ld. District Forum erroneously passed the order
impugned without taking into consideration the report dated 2.5.2014 of the Expert-committee of
the Office of the CMOH, Government of West Bengal, as available on records, which clearly
reported that there was no gross negligence on the part of the doctor concerned.

The Ld. Advocate concludes that in view of the aforesaid submission, the instant Appeal should
be allowed and the impugned order be set aside and the Complaint be dismissed.

On the other hand, the Ld. Advocate for the Respondent/Complainant, without challenging the
cost of treatment pointed out by the Ld. Advocate for the Appellants/Ops, submits that the amount
of relief claimed being Rs. 20,00,000/- the Complaint concerned falls within the pecuniary
jurisdiction of the Ld. District Forum and the Ld. District Forum passed the order within its
pecuniary jurisdiction.

The Ld. Advocate further submits that the Ld. District Forum passed the order impugned taking
into consideration and analyzing in detail the injury of the Respondent/Complainant.

The Ld. Advocate concludes that in view of the aforesaid submission, the instant Appeal should
be dismissed and the order impugned be affirmed.

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Heard both the sides, considered their respective submission and perused the materials on records.

The Petition of Complaint reveals that the Respondent/Complainant claimed Rs. 19,90,000/- as
compensation and Rs. 10,000/- as litigation cost, the aggregate of which stands at Rs. 20,00,000/-.

The observation of the Ld. District Forum at Para-3 from the bottom of the order impugned
reveals that the cost of treatment incurred by the Respondent/ Complainant is Rs. 5,231/- apart
from Rs. 16620/- (Rs. 2,800/- plus Rs. 5,231/- as per Form-VI dated 30.5.2013 + Rs. 2,100/- plus
Rs. 6,489/- as per Form VI dated 30.5.2013) as referred to by the Ld. Advocate for the
Appellants/Ops before.

If the cost of treatment, as observed by the Ld. District Forum in its order concerned, i.e. Rs.
5,231/- apart from the cost of treatment being Rs. 16,620/- as referred to by the Ld. Advocate for
the Appellants/Ops, is added to the value of the relief claimed in the Petition of Complaint, i.e. Rs.
19,90,000/- as compensation and Rs. 10,000/- as cost, then the total value of the Complaint Case
stands at Rs. 20,05,231/-, which clearly exceeds the pecuniary jurisdiction of the Ld. District
Forum as specified u/s 11(1) of the Consumer Protection Act, 1986.

The aforesaid fact clearly indicates that the Complaint Case was beyond the pecuniary jurisdiction
of the Ld. District Forum as prescribed u/s 11(1) of the Consumer Protection Act, 1986 which
reads as follows:

“….the District Forum shall have jurisdiction to entertain complaints where value of the
goods or service and the compensation, if any, claimed does not exceed Rs. 20 lacs”

In this context, the decision of the Hon’ble National Commission in Dharmendara Kumar Vs. M/s.
Nitishree Infrastructure Pvt. Ltd. & Ors (supra) is relevant, wherein it was held “….for the
purpose of valuation, the value of the service plus the compensation has to be taken into
consideration”.

Another decision of the Hon’ble Supreme Court in K.Sagar Vs. Bal Reddy & Anr., reported in
2008 7 SCC 166 is also relevant.

It is also well-settled by the Hon’ble Supreme Court in Dr. Jagmitter Sain Bhagat Vs. Director,
Health Services, Haryana, reported in 2013 (3) CPR 514 (SC) that law point can be raised at any
stage of the proceedings.

The foregoing facts, evidence on records and decisions referred to hereinbefore lead us to
conclude that the Complaint Case concerned was beyond the pecuniary jurisdiction of the Ld.
District Forum and hence, the order passed is a nullity.

Consequently, the instant appeal is allowed, the order impugned is set aside and the Complaint is
dismissed.

In above view of the case, we do not express any opinion on other issues involved in the case.

The Respondent/Complainant is at liberty to move the appropriate forum for redressal of his
grievances.

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[HON'BLE MR. JUSTICE ISHAN CHANDRA DAS]
PRESIDENT

[HON'BLE MR. TARAPADA GANGOPADHYAY]

MEMBER

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