The judgment establishes the importance of territorial jurisdiction under the Consumer Protection Act and the principle that the amount of compensation claimed should align with the relief clause.

ORDER

Raghunath Prasad, Member - This is an appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter called the "Act") against the judgment and order dated 1.6.2000 passed by District Consumer Forum, Kushinagar in Complaint case No. 467 of 1998.

2. Heard Mr. M.H. Khan, learned Counsel for the appellant and Mr. R.K. Gupta, learned Counsel for the respondent and have perused the records.

3. With a view to criticize the impugned judgment and order, Mr. Khan placed the following submissions: firstly, the cause of action had accrued at Gorakhpur and not at Kushinagar and as such the District Consumer Forum, Kushinagar had no jurisdiction to adjudicate the complaint in question; secondly, in a mechanical way without affording reasonable opportunity of hearing the impugned judgment has been passed and thirdly, the judgment in question is not sustainable on merit and it is not based on proper appraisal of materials available on record and attending circumstances which are relevant in nature have not been at all taken into consideration while passing the impugned judgment and order, Mr. Gupta on the other hand submitted that the cause of action accrued at Kushinagar and deficiencies in service were found at Kushinagar and, therefore, the District Consumer Forum, Kushinagar had jurisdiction. Over and above the learned District Forum has passed the impugned judgment and order, which in law is sustainable as the same is passed on just and proper evaluation of the materials available on record.

4. The brief facts emerging out of the pleadings of the parties amply made it clear that a complaint was filed with the averment by the complainant that he sustained fracture injuries in the first week of July 1997 by fall and he approached the appellant at his hospital at Gorakhpur on 22.7.1997 where he was examined and advised for many tests as well as for admission in his hospital for the treatment and operation. He was admittedly consequently on 23.10.1997 in the hospital and he was discharged after the operation and the treatment on 16.8.1997 and during this period he was charged Rs. 30 per day for the bed and Rs. 20,000 regarding operation expenses and his left hand was operated on 4.8.1997. It is further pleaded that after the operation he again visited the doctor at his hospital at District Gorakhpur for medicines being provided and then only the bandage was removed and the complainant was advised to come after one month. The second operation was done on 19.12.1997 after realizing Rs. 20,000 and the fixation of the fracture was done by nut/bolt to his left hand and thereafter he was discharged. Other expenses were also incurred to a tune of Rs. 50,000 in respect of charges for blood and urine tests as well as x-ray from time-to-time and thus in all a sum of Rs. 1,10,662 was realized by the appellant and over and above a further sum of Rs. 12,000 was incurred in approaching the doctor by hiring jeep, etc. A further sum of Rs. 50,000 was also claimed as compensation for mental agony. Consequently a complaint for claiming a relief of Rs. 1,22,662 and compensation of Rs. 50,000 was filed.

5. In the written statement the receipt of the amount as alleged by the complainant was denied and it was stated that the hand being fractured in the first week of July is wrong in view of the entry in the bed head ticket mentioned 23rd June, 1997. The plea of medical negligence was totally denied and it was stated in para 21 that on 22nd July, 1997 when he inspected for the first time the complainant, it was found that there was fracture of the bone and inside the bone was stunk. It was also pleaded that the appellant only fixed the screw and K-wire in the first operation conducted on 4th August, 1997.

6. Unless the medical negligence is per se, it is the obligation of the complainant to prove the case of medical negligence through consistent, clinching and reliable and surviving evidence that the medical deficiency has been committed. In the instan