BINOD BEHARI DAS Vs. SOMA ROY
LAWS(CAL)-1996-1-2
HIGH COURT OF CALCUTTA
Decided on January 18,1996

BINOD BEHARI DAS Appellant
VERSUS
SOMA ROY Respondents


Referred Judgements :-

UNITED BANK OF INDIA V. HIRAK MUKHERJEE [REFERRED TO]
STATE OF MADHYA PRADESH VS. BABU LAL [REFERRED TO]
BIMAL SAHOO SECRETARY BASUDEBPUR GIRLS HIGH SCHOOL VS. GOURI RANI PAHARI [REFERRED TO]
ANZ GRINDLAYS BANK VS. PRESIDENT D C D R FORUM [REFERRED TO]



Cited Judgements :-

NARENDRA MOHAN LAKHOTIA VS. PINAKI BHUSAN SINHA [LAWS(CAL)-2002-8-24] [REFERRED TO]
TEJ BAHADUR THAPA VS. BRANCH MANAGER OF DISTRICT CENTRAL CO-OPERATIVE BANK LTD. & ANR. [LAWS(CAL)-2016-8-36] [REFERRED TO]


JUDGEMENT

- (1.)Heard the submission of the learned Senior Advocate Mr. Bhaskar Bhattacharjee appearing with learned Advocate Mr. P. Sinha and the learned Advocate for the opposite parties Mr. S. S. Mukherjee appearing with the learned Advocate Mr. Debasis Das. Mr. Mukherjee at this stage undertakes to file his power in course of this day. Let it be recorded. Considered the materials on record.
(2.)By the instant application under Art. 227 of the Constitution of India, O. P. No. 2 before the State Commission has come up before this Court challenging the order 2 dated 8-6-95 (not filed) whereby the said State Commission directed issuance of notice or summons upon the O. Ps. in that proceeding wherein O. P. No. 2 figured as one of the opposite parties. The relevant necessary facts on which this revisional application arises is that Smt. Soma Roy, widow of late Tarit Kumar Roy, as a complainant filed an application for compensation for deficiency of medical service under S. 17 of the Consumer Protection Act, 1986, before the West Bengal State Commission Disputes Redressal Commission, Bhabani Bhavan, Calcutta, on 8-6-95 and the same was registered there as State Commission Case No. 166/O/1995. Allegation has been made in that petition that Smt. Soma Roy O. P. herein is the widow of Tarit Kr. Roy and they have two daughters namely, Miss Patrali Roy and Miss Sarmili Roy alias Dia and both of them are minors. The said Tarit Kr. Roy was a lecturer in Accountancy in Rabindra Mahavidyalaya, P. O. Champadanga, P. S. Tarakeswar, district Hooghly, in the scale of Rs. 3,000/- to Rs. 4,750/- and during the time of his death he was drawing an amount of Rs. 7,738.50 paise as his monthly pay and his age of superannuation was 58 years. But he died at the age of 42 years. Due to certain ailment of the said Tarit Kr. Roy, he was taken to Dr. Jagannath Mondal, O. P. No. 1 in the said petition for compensation at his chamber at Arambagh on 4-10-94 and he was accompanied by his wife Smt. Soma Roy and elder brother Tapan Kr. Roy. The doctor was shown the prescriptions given by Dr. Sunil Kundu his attending physician and he was also told of the nature of ailment. The said Dr. Jagannath Mondal examined him and advised him surgical operation of hydrocele and further advised him admission to a nursing home. As per that advice the said Tarit Kr. Roy was admitted to Arambagh Nursing Home, Link Road, Arambagh on 15-11-1995 for operation by the said Dr. Jagannath Mondal. The service charge which was paid was against remuneration and not as personal service. On his admission to the said nursing home certain medicines were prescribed by the said Dr. Jagannath Mondal and those were purchased and given to the said nursing home and Tarit Kr. Roy was administered intravenous injection namely, Lasix and Calmpose before administration of anaesthesia and the patient Tarit Kr. Roy became unconscious and started convulsion. Ultimately he was released on 16-11-1994 in an unconscious state and thereafter on that date he was admitted to Calcutta Medical Research Institute, Diamond Harbour Road, where his condition further deteriorated and never he gained consciousness and ultimately he died on 30-11-94. In this background Mr. Bhattacharjee contended for the petitioner that no cause of action has been disclosed in the petition of complaint for compensation against the petitioner and as such issuance of notice or summons dated 8-6-95 on him is not warranted and an order for such issuance by the Consumer Dispute Redressal Commission, West Bengal, is not called for. Mr.Bhattacharjee at the very outset made it clear that though a point has been taken in the petition of revision that the doctors are not covered under the Consumer Protection Act, 1986. But subsequently after the decision of Supreme Court he is not taking that point and urging the same before this Court. In support of his submission that Art. 227 of the Constitution of India is available against an order of the State Commission, Mr. Bhattacharjee relied on two decisions to wit. The State of Madhya Pradesh v. Babulal, reported in AIR 1977 SC 1718 and Bimal Sahoo, Secretary, Basudebpur Girls' High School v. Gouri Rani Pahari, reported in AIR 1991 Cal 120, which is a Single Bench decision.
(3.)Mr. S. S. Mukherjee, on the other hand contended that the constitutional remedy under Art. 227 of the Constitution of India is not available against an order of State Forum or for that any order made under the Consumer Protection Act, 1986 by the authority mentioned in that Act. In support of his submission Mr. Mukherjee placed reliance on two Calcutta decisions to wit, United Bank of India v. Hirak Mukherjee, reported in (1995) 1 Cal LJ 124 (a Division Bench decision) and A.N.Z. Grindlays Bank v. The President Consumer Dispute Redressal Forum, reported in AIR 1995 Cal 104 (a Single Bench 3 decision).
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