FIRST APPEAL NO. 1263 OF 2018 RATNA GHOSH versus DR. P.K. AGARWAL & ORS. Decided by the Hon’ble NCDRC on: 24th December, 2021
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FACTS:
(i) Dr. P. K. Agarwal, (OP-1) moved a Miscellaneous Application M.A. No. 245 of 2012 before the State Commission seeking stay of the proceedings before it on the ground that a criminal proceeding on the same charges was also initiated by the Complainant in CR No. 528 of 2011, same was still pending.
(ii) On 13.02.2013 the State Commission allowed the M.A. No. 245 of 2012 and stayed all proceedings before it till disposal of criminal proceedings bearing CR No. 528 of 2011.
(iii) Thereafter before the State Commission the Complainant filed an IA No. 365 of 2017 on 20.11.2017 for vacation of stay granted vide Order 13.02.2013, it was dismissed on 08.02.2018.
OBSERVATIONS:
We have perused the Application for Condonation of Delay in filing the IA No. 365 of 2017. The relevant para is reproduced as below:
“3. That the Impugned Order in MA No. 245 of 2017 dated 13.02.2013 the Petitioner was under the impression that the Criminal proceedings will conclude very soon and therefore she decided to wait for the decision in the criminal proceedings, However, even after 5 years there is no conclusion in the criminal proceedings and the Civil proceedings also remained stayed. Therefore the applicant decide to file IA No. 365/2017. However the said IA No. 365/2017 was also dismissed on 08.02.2018.
- That the Petitioner is a women and have difficulties in arranging for money and other things needed for filing revision petition before this Hon’ble Commission and it has resulted in some delay in filing the present Revision Petition. The Petitioner was not advised to challenge the Order of the State Commission dated 13.02.2013 immediately after passing of the aforesaid order.”
HELD: In the case of alleged medical negligence, the simultaneous criminal proceeding is no bar to the initiation, continuation and adjudication in the Complaints filed under the Consumer Protection Act, 1986 more so, when the standard of proof in proceedings under the Act, and Criminal proceedings is entirely different. We would like to put reliance on the decisions of the Hon’ble Supreme Court in Guru Granth Saheb Sthan Meerghat Vanaras Vs. Ved Prakash & Ors. (2013) 7 SCC 622, wherein the question of simultaneous prosecution of the criminal proceedings with civil suit, came up for consideration. Relying on the observations of the Constitution Bench of the Supreme Court in M.S. Sheriff Vs. State of Madras AIR 1954 SCC 397, the Court held that no hard and fast rule could be laid down in this regard. Nonetheless the possibility of conflicting decisions in the civil and criminal courts is not a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, which is not even the case of the Opposite Party here. This is the case of alleged medical negligence and in our considered view fair opportunity to be given to both the sides for holistic adjudication. The aggrieved Consumer has right to seek legal remedy initiate proceedings before Civil and Criminal Courts including Consumer Courts and Professional Regulatory Bodies(PRB). As a matter of fact, having regard to the object and intent of the Act, summary trial of Consumer Complaint has to be given precedence over other cases, be it civil or criminal in nature. The question of double jeopardy, self-incrimination or the binding effect of the findings in summary proceedings under the Act, does not arise on facts, at hand. It is pertinent that, neither the rigors of the Evidence Act 1872, nor of the Criminal Procedure Code, 1908 are attracted in the proceedings under the Act, which provides for an alternative system of consumer justice by summary trial. We are, therefore, of the view that the trial in criminal cases against the Opposite Party, is no ground for stay of proceedings before the Consumer Fora. Without touching to the merits of this case, the orders of the State Commission dated 13.02.2013 in MA No. 245 of 2012 and Order dated 08.02.2018 in IA No. 365 of 2017 are set aside. The instant Appeal is allowed. The Parties are directed to appear before the State Commission on 03.02.2022 for further proceedings. Considering that the Complaint was filed in 2010, we are now in 2022, we request the State Commission to decide this matter expeditiously preferably within six months from today.
