IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY AND THE HON’BLE MR.JUSTICE R. DEVDAS WRIT PETITION NO.15765 OF 2019 (GM-CON) BETWEEN:
Dr.Poorna Chandra K.S. S/o Suresh Chandra, Aged about 41 years, Consultant-Gastroenterology, Fortis Hospitals Limited, 154/9, Bannerghatta Road, Opp. Indian Institute of Management, Bengaluru-560076. … Petitioner (By Sri. P.N.Rajeswara, Advocate) AND:
Divya Kalyani Rai @ Divya K Rai, W/o Kalyan Rai, Aged about 41 years, R/at No.A1-301, Regency Cosmos, Opposite Hotel Amrita, Baner Main Road, Pune-411 045. ... Respondent This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 18.02.2019 in Complaint No.15/2014, o the file of Hon’ble Karnataka State Consumer Disputes Redressal Commission at Annexure-A and etc.
This petition coming on for preliminary hearing this day, NARAYANA SWAMY J, made the following:
ORDER Petitioner has filed this petition to quash the order dated 18.02.2019 in Complaint No.15/2014, on the file of Karnataka State Consumer Disputes Redressal Commission, Bengaluru (‘Commission’, for short) which is produced at Annexure-A.
2. The complaint No.15/2014 has been filed by the respondent before the Commission alleging deficiency of service against the opposite parties inter alia seeking for a total sum of Rs.99,00,000/- as compensation from the petitioner. During pendency of the complaint, the petitioner filed an application under Section 13(4)(ii) of the Consumer Protection Act, 1986 (‘Act’, for short) dated 10.06.2015 seeking direction to the complainant- respondent to produce reports of the investigations undergone by the complaintant-respondent at Columbia Asia Hospital and the said application was rejected by the Commission on 09.01.2018. On 11.07.2018, the petitioner filed one more application under Section 13(4) (ii) (iv) of the Act seeking to direct the hospitals namely, Columbia Asia Hospital and Jupiter Hospital to produce all the hospital records before the commission in regard to the treatment of the respondent at their hospitals during the dates mentioned in the application and the said application also came to be rejected on 18.02.2019. Hence, this petition.
3. We have heard learned counsel for the petitioner.
4. Learned counsel for petitioner submits that the Commission failed to exercise jurisdiction vested in it under Section 13 (4)(ii)(iv) of the Act. It is further submitted that to refute the allegation of deficiency made against the petitioner, it is necessary to have complete understanding of the treatment given by the other hospitals as the allegation of negligence is sought to be proved relying upon the treatment taken at different hospitals. One of the alleged findings appeared new during admission at the subsequent hospitals. Hence, in order to clear the shroud on the petitioner’s treatment, it is just and necessary that the petitioner be given an opportunity to go through the said hospital records before they lead their evidence and as such the impugned order is liable to be set aside.
5. Learned counsel for the petitioner cited the judgment of Hon’ble Supreme Court reported in Civil Appeal No.5654/2019 @ Special Leave Petition (C) No.29040/2018 in the case of Maharshtra Chess Association Vs Union of India and Others, and submits that the Hon’ble Supreme Court has held, while the powers the High Court may exercise under its writ jurisdiction are not subject to strict legal principles, two clear principles emerge with respect to when a High Court’s writ jurisdiction may be engaged. First, the decision of the High Court to entertain or not to entertain a particular action under its writ jurisdiction is fundamentally discretionary. Secondly, limitations placed on the Court’s decision to exercise or refuse to exercise its writ jurisdiction of a High Court cannot be completely excluded by Statute. If a High Court is tasked with being the final recourse to upholding the rule of law within its territorial jurisdiction, it must necessarily have the power to examine any case before it and make a determination of whether or not its writ jurisdiction is engaged. Judicial review under Article 226 is an intrinsic feature of the basic structure of the Constitution.
6. Learned counsel for the petitioner cited one more judgment of Hon’ble Supreme Court reported in ILR 2008 KAR 3395 in the case of Smt.O.K.Devaki and Another Vs. M/s. standard Chartered Bank and another and submitted that the scope of revision under Section 21 of Consumer Protection Act, 1996 is much narrower than either in the appeal or in a writ petition filed under Articles 226 and 227 of Constitution of India. Therefore, as against the order of the State Commission, party if so desires can avail of the remedy available under Articles 226 and 227 of Constitution of India.
7. It is true and not in dispute that the petitioner has a statutory remedy of preferring a revision before the National Commission under Section 21-B of the Consumer Protection Act, 1986. The National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. The same is gone into by the Hon’ble Supreme Court in (1991) 1 CPR 391 the National Commission between Kangara Ananth Ram Vs Telecom Distt. Engineer, held that: alternative remedy is available to approach the National Consumer Forum and when that remedy itself is not exhausted, approaching High Court under Article 227 cannot be considered as maintainable.
8. Ordinarily remedy under Articles 227 of the Constitution cannot be availed without availing an alternative remedy. The petitioner has an alternative remedy to approach the National Consumer Forum and when that remedy itself is not exhausted, approaching High Court under Article 227 cannot be considered as maintainable. Accordingly, petition is disposed of permitting the petitioner to approach the National Consumer Forum.
SD/- JUDGE JS/-
SD/- JUDGE