CASE LAWS ON CONSUMER PROTECTION

1.Sympathy should not influence compensation

Nizam Institute of Medical Sciences v Prasanth S. Dhananka & Ors.

In this case, the complainant claimed for compensation due to alleged medical negligence before, during and after a
medical procedure that led to a partial paralysis of the patient. The National Tribunal ruled medical negligence stating
various lapses in all three phases mentioned including on the ground that consent of the patient was taken only for the
examination of the tumor and not for its removal.

In the appeal, the Supreme Court confirmed the findings of the Commission and stated that the removal of the tumor
was deferred through discussion on record and therefore an implied consent cannot be inferred.

The court recognised that a balance has to be struck between the inflated demands of the victim and the unreasonable
claim of the opposition party that on compensation needs to be paid. It recognised that sympathy for the victim should
not come in the way while deciding compensation but the court should not refuse to provide “adequate compensation”.
In light of this and the peculiar facts of the case, it increased the sum of compensation to twenty-five lakhs each for the
continuous medical expenses that need to be borne and the loss of employment that the petitioner had suffered.
Additionally, compensation for the pain and suffering that the appellant had undergone amounting to ten lakhs, for the
expenses of a driver-cum-attendant for thirty years amounting to seven lakhs and twenty thousand, for nursing care
amounting of fourteen lakhs and forty thousand and physiotherapy expenses of thirty years amounting to ten lakhs and
eighty thousand along with interest of 6% was also granted.

2.Discovery rule for medical negligence

V.N.Shrikhande vs Anita Sena Fernandes

The petitioner alleged negligence by a medical practitioner, claiming that he left a mass of gauge in her abdomen during
a procedure to remove stones from the gallbladder. However, the petition was raised nine years after the procedure
when the petitioner underwent a second operation, in another hospital, to remove the mass.

The Supreme Court recognized that in cases of medical negligence no straightforward formulae is present to determine
when the cause of action has accrued. The court, following ‘Discovery Rule’ evolved by the courts in the United States,
stated that in the case where the effect of the negligence is obvious, the cause of action is deemed to have arisen at the
time of negligence. However, in case the effect of negligence is dormant, the cause of action arises when the patient
figures out about the negligence with reasonable diligence. The court noted that the petitioner had been experiencing
pain and discomfort since the time of the operation for which she continued to take painkillers for nine years without
consulting the doctor. In the light of this and the fact that she herself was an experienced nurse who can reasonably be
expected to possess more knowledge than a layman, the court set aside the Commission’s order and dismissed the
complaint.

3.Both parents and minor can claim for compensation under Consumer Protection Act

Spring Meadows Hospital & Anr v Harjol Ahluwalia

This appeal was filed before the Supreme Court by a hospital defending the negligence of its nurses and a doctor which
resulted in a minor being in a permanent vegetative state subsequent to a brain haemorrhage. The issues revolved
around whether the parents of the child, not being the patient themselves, can ask for compensation for mental agony
caused to them. The court held that the definition of services in the CPA is wide enough to include both the parents who
pay for the services and the child who is the beneficiary of the services. The National Commission was found correct in
its approach as it granted compensation to the child for the cost of equipments and recurring expenses that he would
have to bear owing to his vegetative state, whereas the compensation provided to the parents was for the agony caused
and the lifetime care that the parents would have to provide.

4.Compensation to the complainants for frivolous appeals

Delhi Development Authority v D.C. Sharma

In the case of an accidental double allotment of a plot by the Delhi Development Authority, the State Commission
refused to accept the defence that the plot had not been provided to the complainant only for his failure to pay the cost.
It was found from the records that the plot had been allocated to another person. It, therefore, ordered the Delhi
Development Authority to either provide another plot of the same description to the appellant under the same
conditions or pay the escalated price of the plot.

The National Commission dismissed the revision petition for lack of infirmity in the State Commission’s judgment and
ordered the payment of five lakhs for indulging in unfair trade practices and unduly harassing the respondent for more
than eighteen years

5.HDFC Bank Limited v Balwinder Singh [III (2009) CPJ 40 (NC)]

Date of Decision: 16.03.2009

The complaint was of the bank, or its loan recovery agent, employing musclemen to take forcible repossession of the
hypothecated vehicle and thus causing physical harassment and mental trauma to the complainant. The District Forum
allowed the complaint and directed the bank to pay compensation of Rs. 4 lakh for repossessing the vehicle in this
manner and reselling it to a third party. The State Commission confirmed the order in appeal. Dealing with the bank’s
revision petition, the National Commission expressed shock that the bank had hired musclemen directly or through its
recovery agents to recover the loan/repossess the vehicle. The Commission also referred to the State Commission’s
order, which had observed that the alleged letter produced by the bank purporting to the complainant voluntarily
handing over possession of the vehicle was unreliable and that no notice was given to the complainant at the stages of
repossession and sale of vehicle. In dismissing the petition, the Commission relied upon its judgment in Citicorp Maruti
Finance Limited v S. Vijayalaxmi [III (2007) CPJ 161 (NC)] where it had strongly deprecated such practices. The
Commission dismissed the petition and awarded Rs.

25,000/- as exemplary costs in this case.