Point of Law: Medical negligence - In absence of a proper challenge before District Forum, SCDRC or NCDRC as court have seen above, even before this Court, it would be inappropriate for this Court to render a conclusive opinion - Court not inclined to entertain the appeal only on the ground of smallness of quantum involved.

JUDGMENT

Dr Dhananjaya Y Chandrachud, J. - Leave granted.

2. The appeal arises from an order of the National Consumer Disputes Redressal Commission [NCDRC.] dated 7 October 2016. The Union of India, through the Secretary in the Ministry of Health and Family Welfare, and Safdarjung Hospital have challenged the order of the NCDRC. The first respondent was the original complainant in a consumer complaint [Case No. 55/2005.] instituted before Consumer Disputes Redressal Forum - II [District Forum.] , New Delhi. The complaint alleged medical negligence against Sarvodaya Hospital and Safdarjung Hospital. The NCDRC allowed the revision of Sarvodaya Hospital. While exonerating it of the finding of medical negligence, it held Safdarjung Hospital liable to pay the compensation of Rs 2 lakhs imposed by the State Consumer Disputes Redressal Commission [SCDRC.] .

3. The spouse of the complainant who was pregnant, was admitted to Sarvodaya Hospital in a medical emergency at about 5 am on 9 March 2004. She delivered a baby at about 8 am, a few hours after admission. The baby was delivered prematurely and, according to the complainant, required medical care in a Nursery ICU. The complainant and his spouse were referred to Safdarjung Hospital for admission of the child for emergency medical care. The grievance against Sarvodaya hospital was that prior to the delivery, it had been represented that the Hospital was fully equipped with a Nursery ICU and that when the complainant came to realise that this was not the case, he felt cheated. The complainant proceeded to Safdarjung Hospital with his spouse and child between 12 and 1 pm on 9 March 2004. The grievance of the complainant was that at Safdarjung Hospital, the baby was not placed in a Nursery ICU, but was initially admitted to the General Ward and thereafter to a General ICU. The child died in the last week of April 2004. A complaint was presented before the District Forum seeking damages against Sarvodaya Hospital and Safdarjung Hospital.

4. The District Forum dismissed the consumer complaint. As regards, Sarvodaya Hospital, it arrived at the finding that there was no misrepresentation of fact and that the Hospital had an independent facility of a Nursery and ICU available. The District Forum held that the spouse of the complainant was operated upon in an emergency to save the lives of the mother and the child. Hence, there was no deficiency on the part of Sarvodaya Hospital in referring the complainant to a specialized facility. As regards Safdarjung Hospital, the complaint was held not to be maintainable on the ground that treatment had been afforded free of cost to the patient. Relying on the decision of this Court in Indian Medical Association vs. V P Shantha, (1995) 6 SCC 651 , the complaint was held not to be maintainable.

5. An appeal [FA-429/07] was filed before the State Consumer Disputes Redressal Commission by the original complainant. The SCDRC, by its judgment dated 10 December 2013, came to the conclusion that Sarvodaya Hospital was guilty of medical negligence and directed it to pay a sum of Rs 2,00,000 as compensation and costs quantified at Rs 20,000. However, the complaint was held not to be maintainable against Safdarjung Hospital. The SCDRC relied upon an affidavit of Dr K C Aggarwal who deposed in support of the plea that the treatment had been provided free of cost without charging any fees. Finding that there was no denial of this assertion and relying on the decision of this Court in Indian Medical Association, the complaint was rejected as against Safdarjung Hospital. However, the SCDRC had also found negligence on the part of Safdarjung Hospital.

6. A revision [Revision Petition No 1299 of 2014] was filed against the judgment of the SCDRC by Sarvodaya Hospital before the NCDRC. The NCDRC, by its judgment dated 7 October 2016, allowed the revision and came to the conclusion that Sarvodaya Hospital was not guilty of medical negligence. The finding of fact was that t