# Dr. B.K. Misra & anr v. State Consumer Disputes Redrresal Commission & anr

- **Citation:** (2008) 2 ILRA 662
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008
- **Case number:** Civil Misc. Writ Petition No. 29385 of 1999
- **Bench:** V.M. Sahai, R.N. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-b-k-misra-anr-v-state-consumer-disputes-redrresal-commission-anr-41089
- **Pages:** 3

## Headnote

Constitution
of
India-Article-226
-
petitioner a Doctor facing civil as well as
criminal proceeding for negligence in
treatment-complainant
launched
proceeding
before
State
Consumer
Forum-held-proceeding
before
State
Consumer Forum is neither criminal nor
civil
proceeding-cannot
be
quashed
under writ jurisdiction.

Held: Para 6

As regards the jurisdiction is concerned,
there is no such law that the Consumer
Forum cannot be approached when a
civil or criminal proceedings is pending.
This fact is not disputed that the services
of the medical practitioners got after
payment come within the jurisdiction of
Consumer Forum. Section 2(d) of the
Consumer Protection Act, 1986 defines
the word 'Consumer', according to which
every persons who hires or avails the
services consideration come within the
ambit of consumer.
Case law discussed:
1995(3) Consumer Protection Reports 412,
1992 (1) Consumer Protection Reports 133,
2006 (2) Consumer Protection Journal 269,
Judgment Today 2005(6) SC 584.

## Text

662 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
said calculation shall be made and the
amount disbursed by the authorities
within three months from the date of
furnishing a certified copy of this order.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.05 2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE R.N. MISRA, J.

Civil Misc. Writ Petition No. 29385 of 1999

Dr. Brijesh Kumar Misra and another

 ...Petitioners
Versus
State
Consumer
Disputes
Redressal
Commission, U.P. & another ...Respondents

Counsel for the Petitioners:
Sri. R.B. Singhal.

Counsel for the Respondents:
Sri. V.M. Sahai.
Sri. MS Dikshit.
S.C.

Constitution
of
India-Article-226
-
petitioner a Doctor facing civil as well as
criminal proceeding for negligence in
treatment-complainant
launched
proceeding
before
State
Consumer
Forum-held-proceeding
before
State
Consumer Forum is neither criminal nor
civil
proceeding-cannot
be
quashed
under writ jurisdiction.

Held: Para 6

As regards the jurisdiction is concerned,
there is no such law that the Consumer
Forum cannot be approached when a
civil or criminal proceedings is pending.
This fact is not disputed that the services
of the medical practitioners got after
payment come within the jurisdiction of
Consumer Forum. Section 2(d) of the
Consumer Protection Act, 1986 defines
the word 'Consumer', according to which
every persons who hires or avails the
services consideration come within the
ambit of consumer.
Case law discussed:
1995(3) Consumer Protection Reports 412,
1992 (1) Consumer Protection Reports 133,
2006 (2) Consumer Protection Journal 269,
Judgment Today 2005(6) SC 584.

(Delivered by Hon'ble R.N. Misra, J.)

1. This petition has been filed by the
petitioners for quashing the proceedings
of complaint no. 105 of 1998 pending
before
State
Consumer
Disputes
Redressal Commission, U.P. Lucknow
(hereinafter referred to as 'Consumer
Forum') for compensation filed by the
respondent no.2.

2. We have heard Shri R.B. Singhal,
learned counsel for the petitioners. None
appeared for the respondents.

3. From the contents of the writ
petition, it appears that Shuja Alia, the
grandson of respondent no.2 fell ill and
was treated by the petitioners free of cost
because the respondent no.2 was their
family friend and when his condition
deteriorated, he was advised to be shifted
to some better hospital in Meerut. He was
admitted in Lok Priya HospitaJ,Meerut
and in the intervening night of 1415/9/1996 he died there. The .respondent
no.2 lodged a criminal complaint no.
502/9/1997 against the petitioners in the
Court
of
Judicial
Magistrate,
Muzaffarnagar, who summoned them for
trial vide order dated 13.2.1997. The
petitioners moved High Court under
Section 482 Cr.P.C. for quashing the
proceedings of criminal case. Proceedings
No. 3641 of 1998 is pending before the
2 All] Dr. B.K. Misra & anr. V. State Consumer Disputes Redrresal Commission & anr.
663
High Court, Allahabad. In the meantime,
the respondent no.2 filed complaint before
the Consumer Forum for compensation
and refunds of the amount spent on the
treatment.

4. In the counter affidavit filed by
Shri Firoz AIi, son of respondent no.2., it
has been alleged that the patient was
treated by the petitioners negligently,
causing serious complications and in the
last moment he was advised to be shifted
to some better hospital in Meerut. There
was acute negligence on the part of the
petitioners while treating the patient.
Further it has been alleged that payment
was made to the petitioners for treatment.

5. The only point which has been
argued before us is that when the criminal
proceeding is already pending before the
Magistrate concerned, no remedy can be
sought before the Consumer Forum. It has
also been argued that the petitioners did
not charge any amount for the treatment
of the patient because the respondent no.2
was their family friend but respondent
no.2 has alleged that payment was made.
As regards the payment for the treatment
is concerned that is subject matter of
evidence.

6. As regards the jurisdiction is
concerned, there is no such law that the
Consumer Forum cannot be approached
when a civil or criminal proceedings is
pending. This fact is not disputed that the
services of the medical practitioners got
after
payment
come
within
the
jurisdiction of Consumer Forum. Section
2(d) of the Consumer Protection Act,
1986 defines the word 'Consumer',
according to which every persons who
hires or avails the services consideration
come within the ambit of consumer. In the
case of Indian Medical Association Vs.
V.P.
Shantha
and
Others
1995(3)
Consumer Protection Reports 412, it has
been held by the Apex Court that the
services of Medical Practitioners come
under the definition of 'service' as defined
under Section 2(o) of the Consumer
Protection Act, 1986.

7. No doubt the criminal complaint
was filed earlier by the respondent no.2
against
the
petitioners
and
after
sometimes the complaint before the State
Commission was filed for compensation
and refunds of money paid to the Doctors.
But on this very basis the Consumer
Forum cannot be deprived of its rights to
entertain such complaint on the same
facts. The criminal proceeding launched
by the complainant on the same cause of
action is no bar to the maintainability of a
complaint under the Consumer Protection
Act. This view has been taken by Madras
High Court in the case of M.K.S.
Balsubramainain
Vs.
Jayalakshmi
Planers 1992 (1) Consumer Protection
Reports 133. In the case of Powerware
India Private Limited Vs. Economic
Transport
Organisation
2006
(2)
Consumer Protection Journal 269, the
same view has been taken. In that case the
petitioner had booked raw material for
transportation,
which
was
misappropriated by the transporter and the
FIR was lodged with the police. The
criminal case under Section 407 IPC was
pending. The petitioners filed complaint
before the Consumer Forum also seeking
relief for the value of the goods on the
basis of deficiency in service on the part
of the transporter. The National Consumer
Disputes Redressal Commission, while
allowing the revision, held that the nature
of two proceedings being different, the
pendency of criminal case would not
664 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
come in the way of Consumer Forum in
granting the relief in the complaint.

8. The learned counsel for the
petitioners has cited Judgment Today
2005(6) SC 584, Jacob Mathew Vs. State
of
Punjab
and
Another
and
has
contended that the norms for fixing the
liability of negligence on the Doctors
have been given in the said judgement. He
has further contended that the proceeding
before the Consumer Forum cannot be
allowed to continue in the light of the said
judgement. We have perused the aforesaid
judgement. In that case the appellant had
challenged the order passed under section
482 Cr.P.C. by the Punjab & Haryana
High Court. The appeal was allowed and
certain observations were made for fixing
the liability of medical practitioners in
respect of negligence. The proceedings
before the Consumer Forum are not
treated as criminal proceedings. The
respondent no.2 has moved the Consumer
Forum
for
compensation
regarding
negligence. The petitioners can take the
help of the decision given in Jacob
Mathew's case in the criminal case
pending against them. In the case of
Indian Medical Association Vs. V.P.
Shantha and Others 1995(3) Consumer
Protection Reports 412, referred to earlier
the Hon'ble Supreme Court found itself
unable to subscribe the view that merely
because the medical practitioners belong
to the medical profession, they are outside
the purview of the provisions of the
Consumer Protection Act. The Court held
that
medical
practitioners
though
belonging to the medical profession, are
not immune from a claim for damages on
the ground of negligence. The fact that
they are governed by the Indian Medical
Council Act and are subject to the
disciplinary control of the Medical
Council of India and/or State Medical
Councils is no solace to the person who
has suffered due to their negligence and
the right of such person to seek redress is
not affected.

9. In view of above discussions, we
are of the opinion that this petition is
devoid of merits and is liable to be
dismissed.
Hence,
the
petition
is
dismissed. No order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2008

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No.31389 of 2008

Virendra Kumar Bansal
...Petitioner
Versus
Kanhaiya Lal Agarwal and another

...Respondents

Counsel for the Petitioner:
Sri Madhav Jain

Counsel for the Respondents:

Code of Civil Procedure-Order II Rule 2
(3)-Amendment of plaint-initial suit for
eviction-subsequently
by
proposed
amendment the relief regarding arrears
of rent sought-allowed by courts belowheld-proper-considering bar of Second
Suit.

Held: Para 5

However, in my opinion, if subsequent
suit will be barred for a relief on the
basis of Order II Rule 2, C.P.C., then in
the same suit amendment may be sought
for adding the said relief. In this regard,
reference may be made to AIR 1940
Privy Council 70, in which it has been
held that the rule does not preclude the