DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.



Complaint no. 778 of 3.10.2005. Date of Order 26.3.2009.



Balbir Singh s/o Sh. Bachan Singh resident of VPO Bhagarana, Tehsil & Distt. Fatehgarh Sahib.

….Complainant.

Versus



1- Aman Clinic near Women College, Amloh Road, Khanna, Distt. Ludhiana.

2- Dr. Inderjit Singh Proprietor/Partner of Aman Clinic near near Women College, Amloh Road, Khanna, Distt. Ludhiana.



….Opposite parties.



COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.



Quorum:

Sh. T.N. Vaidya, President.

Sh. Rajesh Kumar, Member.



Present: None for complainant.

Sh. A.K. Jindal Adv. opposite parties.

O R D E R



T.N. VAIDYA, PRESIDENT:



1- Opposite party no.2 is running clinic under the name and style of M/s Aman Clinic at Khanna. Complainant was suffering from piles, availed services of opposite party no.2 proprietor of Aman Clinic opposite party no.1 on 19.12.2004. Opposite party started treating him, by administering allopathic medicines, though he was not empowered to prescribe allopathic medicines, being an Ayurvedic practitioner. Despite treatment, there was no recovery and again visited clinic of opposite party on 28.12.2004 and suggested operation of his piles and demanded Rs.25000/- as expenses. On 10.1.2005, deposited Rs.25000/- with opposite party no.2, but issued no receipt. He was operated and thereafter, discharged. After 3 days of the operation, complainant came to know that operation conducted by opposite party, was a total failure, as he started feeling pain and piles started discharging water. So, claimed that opposite party no.2 was negligent while operating his piles. Thereafter, got admitted in Sohal Nursing Home at Sirhind on 19.1.2005. Dr. Sohal concluded that opposite party no.2 conducted the operation of the piles in negligent manner and consequently, operated him again on 22.1.2005. Also averred that opposite party had no appropriate infrastructure for conducting surgery at his nursing home. Consequently, for such negligence of opposite party, instituted this complaint u/s 12 of the Consumer Protection Act, 1986, claiming compensation of Rs.4.75 lacs from opposite party.

2- Opposite party claimed that this complaint is not maintainable, as the complainant had earlier filed a complaint before the Consumer Fora, Fatehgarh Sahib, which was returned to the complainant. But returned complaint was never presented in this Fora. Hence, no new complaint could have been filed by him. Complainant has levelled fresh allegations in this new complaint, which were not alleged by him in his previous complaint. Also claimed that case involves complex questions of law, which can not be decided by the Fora. He had intentionally filed complaint at Fatehgarh Sahib and filing of said complaint is abuse of process of law. Compensation claimed is highly exaggerated. Complaint is filed out of sheer greed to extract money. It is averred that opposite party no.2 has studied modern subjects such as Anatomy, Physiology, Pharmacology, Pathology, Gynaecology, Obstetrics, ENT, Ophthalmology, Surgery and Medicines etc. and he is authorized to practise art of medicines surgery and obstetrics by virtue of the degree. He is fully trained in fundamental principles of medicines. Has been empowered by circular dated 18.6.2004 of the Punjab Govt., to practise Indian System of medicines and modern medicines, surgery etc. So, contrary allegations are denied. He has controverted allegations of the complainant, by denying the same. But admitted that complainant took treatement from him and was prescribed medicines. But denied acting negligently. Complainant suffered from piles due to longer constipation. Conservative line of treatement by prescribing medicines, laxatives etc. were given for a week. Thereafter, on 28.12.2004, when complainant complained of burning sensation, after thoroughly checking him, prescribed medicines for further 7 days. Thereafter on 10.1.2005, he again cam and was examined. So, the best treatment of rubber band legation was provided after explaining the procedure and its facts. Such procedure is manual, requiring anesthesia and can be performed in OPD with minimum complication. After such procedure, noting satisfactory condition, complainant was allowed to go. Complainant was then advised to come after 3 days, but he never came back for consultation. There was no negligence on his part. Denied that complainant deposited Rs.25000/- with the opposite party. Only a sum of Rs.8000/- was charged. It is denied that the complainant took treatement from Sohal Nursing Home.

3- Parties adduced evidence in support of their claims. At the time of arguments, none appeared from complainant. Hence, ld. counsel for opposite party stood heard and record perused.

4- Preliminary objection of opposite party is qua maintainability of the complaint, on the ground that previous complaint of the complainant filed in Consumer Fora, Fatehgarh Sahib, was dismissed vide order dated 18.7.2005. Hence, again filed fresh complaint. The second grievance is that no evidence of any sort, is adduced by the complainant, in support of his allegations. The evidence so led by him in this complaint, is not admissible evidence and no attempt was made to prove charges against the opposite party. So, on these grounds, complaint deserves dismissal.

5- We have considered submissions so advanced by the opposite party. In Para no.11 of the complaint, it is mentioned by the complainant that had filed a complainant at Fatehgarh Sahib on 27.1.2005, which was returned by that Fora, because it was lacking territorial jurisdiction and complainant was directed to present the same before appropriate Fora having jurisdiction. Such order was passed by that Fora on 18.7.2005. Opposite party has not disputed that allegation. But claimed that fresh complaint is barred. Copy of that order, passed in previous complaint instituted before Consumer Fora, Fatehgarh Sahib, copy of which is Ex.C1 and reply Ex.C2, has not seen light of the day. So, there is nothing on the record that the complainant was permitted to file fresh complaint before another Fora, having jurisdiction, after dismissal of his earlier complaint.

6- This case has another legal angle. Complainant in the present complaint, has filed copies of evidence, which he had led before the Consumer Fora, Fatehgarh Sahib. Ex.C3 is copy of his affidavit, Ex.C4 copy of affidavit of his son Jagdev Singh, Ex.C5 copy of affidavit of Sh. Jasbir Singh, Ex.C6 copy of affidavit of Dr. Kulwinder Singh, Ex.C7 his cross examination, Ex.C8 OPD prescription slip of complainant issued by opposite party, Ex.C9 copy of certificate of opposite party, Ex.C11 copy of OPD chit of Sohal Nursing Home and Ex.C12 to Ex.C15 is the record of Dr. Sohal, from where subsequent treatement was taken. All these documents from Ex.C3 to Ex.C15 relied by the complainant, to prove his allegations, are the certified copies obtained from the file of Consumer Fora, Fatehgarh Sahib. These documents are certified copies made from copies of documents. But it is pertinent to note that the evidence of Ex.C3 to Ex.C15 was given by the complainant before a Fora, having no territorial jurisdiction to entertain, try or decide the complaint. This Fora which according to complainant, has jurisdiction, was not provided any evidence in support of his allegations by the complainant. So, copies of the documents obtained from Fatehgarh Sahib Fora, would be no evidence, as it was adduced in the Fora, having no territorial jurisdiction.

7- Hon’ble Supreme Court in Mantoo Sarkar Vs Oriental Insurance Co. Ltd. 2009(1) RCR (Civil)-417(SC), has held that a decision without jurisdiction, would be coram non juris. Further held that a decree passed by a court, without jurisdiction, is a nullity.

8- In another case reported in Smt.J. Yashoda Vs Smt. K. Shobha Rani 2007(1)RCR-466(SC), while dealing with section 63 and 64 of Evidence Act, it is held that photo stat copies of original documents, can not be received as secondary evidence.

9- It is, as such, evident that Consumer Fora, Fatehgarh Sahib, had no territorial jurisdiction to entertain the complaint of the complainant. So, evidence adduced in that Fora by the complainant, was before a Fora, having no jurisdiction. Therefore, copies of such evidence, would not be admissible in this Fora. In other words, no admissible legal evidence is adduced by the complainant, to prove his allegations. On this ground, complaint deserves dismissal.

10- Opposite party even otherwise, has brought on record, copy of his degree Ex.R1, registration certificate Ex.R3, copy of instructions of Punjab Govt. Ex.R4, empowering Ayurvedic doctors, to practise Indian System of Medicines. So, it means opposite party no.2 was competent and empowered to practise Indian System of Medicines or prescribe allopathic medicines. There is nothing on the record that opposite party no.2 was negligent while treating the complainant.

11- In view of aforesaid discussions, it is manifest that complainant has not been able to prove his allegations of giving negligent treatment to him by opposite party. Hence, finding no merits in the complaint, the same stands dismissed. Parties are left to bear own costs. Copy of order be made available to the parties free of costs. File be completed and consigned.



Announced on 26.3.2009. T.N. Vaidya, President.

(Gurmeet Singh).