ORDER J.K. Mehra, Member
1. This original petition is filed by Smt. Geetu Sapra, the wife of the deceased and her two children alleging negligence against the opposite parties. To decide this complaint though it is not necessary to go deep into the matter, still for convenience sake we feel it appropriate to give brief facts of the case which are as follows :
The complainant's husband, Mr. Rajeev Sapra, (hereinafter referred to as the deceased) was an young business man. On 1.11.1992 at about 4.30 p.m. the vehicle, i.e. Maruti Car, in which he has travelling was hit by a tempo, as a result of which he was unconscious, and, immediately he was rushed to Safdarjung Hospital where he was given emergency treatment. The X-ray taken showed fracture of mid shaft of right femur. On the next day morning he was shifted to the opposite party No. 1's hospital under the care of Dr. K.P. Mishra, an Orthopaedic Surgeon for better and personal care. At the time of admission, i.e. on 2.11.1993, Mr. Rajeev Sapra was found to be conscious and his pulse was 100 per minute. The opposite party No. 2, Dr. K.P. Mishra, after examination of the deceased decided for open reduction of fracture and internal fixation under Anaesthesia. One Dr. S.P. Singh an Anaesthetist of the hospital also examined the deceased and found him fit for operation and administration of Anaesthesia. On 3.11.1992 the deceased was operated by opposite party No. 2 for open reduction with Dr. Mrs. J. Sethi, Senior Consultant and Anaesthetist and Dr. Lamba, Junior Consultant and Anaesthetist. It is alleged in the complaint that due to negligence on the part of the opposite parties and due to the delay in carrying out the operation and failure to administer the correct dosage of Anaesthesia and the administration of wrong drugs, the deceased suffered from tachycardia and his pulse became imperceptible and he went into coma from which he never recovered in spite of best possible treatment subsequently given. It is also alleged that the opposite party No. 1 could not provide the respirator to the deceased which was an essential and critical requirement. On 3.11.1992 the deceased was shifted to Ashok Hospital when he was in comatose state and the examination revealed that his pulse rate was 160 per minute and temperature was 103.50F. He was having crepts. He was not even responding to the deepest painful stimuli. As is alleged in the complaint, in spite of intensive treatment and being put on a ventilator, he could not be saved. Thus, claiming a compensation of Rs. 54,04,000/- against the opposite parties, the complainant filed this complaint. On notice being issued, the opposite parties filed their replies denying any negligence on their part. The arguments of the opposite parties are that the opposite party No. 1 Hospital is a charitable hospital and that no fee was charged from the complainants; that after the operation it was felt that the patient might require respirator for substantial period and a bed in Ashok Hospital with proper respirator was arranged within 8 to 9 hours even though hospital had a functional operator. During the intervening period artificial ventilation was done with the help of boyles apparatus and ambubas as the general practice is; that Ashok hospital has not been impleaded as a party though the deceased stayed for a period of 19 days and died there; complainant has relied upon Dr. Mushraf Ali's opinion who is neither anaesthetist nor surgeon. The said opinion is also not filed in the shape of any affidavit; that the deceased might have been an unfortunate victim of Fat Embolism Syndrome (FES) which means that bone has bone marrow inside bone cavity which comes out when fracture occurs enters in the blood vessel and circulates in the blood vessel with blood. These fat particles (embolus) block the blood said vessels of brain and lung and thereby stopping supply of blood to the brain and the lungs. This particular syndrome can be detected through post-mortem. Negligence on the part of Doctors to continue with the operation when deceased's limb was turning blue due to loss of oxygen in the blood, that the complaint was bad for non-joinder of parties, as neither the Safdarjung Hospital nor Ashlok Nursing Home were impleaded. Complainant also does not show any cause of action; that the complaint is barred by limitation since not filed within 1 year as the Act before the Amendment in the year 1993 that complainant is not a consumer; that no post-mortem of deceased was done which could reveal the cause of death; that the complicated questions cannot be decided in a summary procedure in the consumer Forum; that a case is pending before the Motor Accident Claims Tribunal for same cause of action; that, further regarding the period of duration of operation opposite party No. 2 had performed two operations in one sitting, one was reduction of fracture and the other one was bone grafting which is necessary for early union of bone. No medical test or literature prescribes any specific time period for operation; that the operation was performed with full diligence and there was negligence on the part of the doctors and that the patient on examination by Senior Anaesthetist was in full conscious oriented no clinical signs and symptoms or head injury. The deceased before operation was* tested in accordance with standard scale.
2. We have gone though the complaint, replies filed by the opposite parties, rejoinder, evidence by way of affidavit filed by the complainant evidence by way of affidavit by the opposite party No. 4 and written submissions by the parties. In this case the point to be decided in the first instance is, whether the consumer for a can adjudicate a matter when a similar claim is pending before the Motor Accident Claim Tribunal. Moreover, during the course of arguments it was brought to our notice by the learned Counsel for the opposite party No. 1, that the complainant had been awarded interim compensation along with the interest at 12% w.e.f. 5.3.1993 and the case is pending before Mr. Vinod Goel, Judge, M.A.C.T. and most of petitioner's witnesses were examined in that case and that petition was filed much before filing a claim before this Commission. On this ground that learned Counsel for the opposite party No. 1 prayed that the complaint may be dismissed for suppression of fact in this connection.
3. In this connection, it will be appropriate to quote here the observations of the Hon'ble Supreme Court in the case of Chairman, Thiruvalluvar Transport Corporation v. Consumer Protection Council, AIR 1995 SC 1384, (Coram : Hon'ble Mr. Justice A.M. Ahmadi, C.J.I. and Hon'ble Mr. Justice S. Mohan), which reads as under :
"Clearly the Claims Tribunal constituted for the area in question, had jurisdiction to entertain any claim for compensation, arising out of the fatal accident since such a claim application would clearly fall within the ambit of Section 165 of the 1988 Act. The 1988 Act can be said to be a special Act in relation to claims of compensation arising out of the use of a motor vehicle. The 1986 Act being a law dealing with the question of extending protection to consumers in general, could, therefore, be said to be a general law in relation to the specific provisions concerning accidents arising out of the use of motor vehicle found in Chapter XII of the 1988 Act. Ordinarily, the general law must yield to the special law.
The third clause relates to the services hired or availed of or agreed to be hired or availed of by a consumer. Therefore, at best it can be said the complaint in question related to the service hired or availed of by the deceased. The complaint in the instant case cannot be said to be in relation to any service hired or availed of by the consumer because the injury sustained by the consumer had nothing to do with the service provided or availed of by him but the fatal injury was the direct result of the accident on account of which he was thrown out of his seat and dashed against an iron handle of the seat in front of him. We have, therefore, no manner of doubt that this case squarely fell within the ambit of Section 165 of the 1988 Act and the Claims Tribunal constituted thereunder for the area in question had jurisdiction to entertain the same. As pointed out earlier, the 1988 Act and, in particular, the provisions in Chapter XII thereof creates a Forum before which the claim can be laid if it arises out of an accident caused by the use of a motor vehicle. That being a special law would prevail over the relevant general law such as the 1986 Act but in the instant case even that question does not arise for the simple reason that the dispute in question did not attract the jurisdiction of the National Commission, whatsoever, and the National Commission has not shown how it had jurisdiction. The issue was pointedly raised and for reasons best known to the National Commission it failed to come to grip with it. Surprisingly, there is no discussion whatsoever in the order of the National Commission in this behalf. We are, therefore, of the opinion that the National Commission did not have jurisdiction and as Counsel for the appellant put it this was a case of unwarranted exercise of jurisdiction."
4. In the light of the law laid down by the Hon'ble Supreme Court in the aforesaid case, we are afraid that this Commission or any of the For a constituted under this Act will have no jurisdiction to entertain such complaint. For that reason, this original petition must fail and it is dismissed. In the facts and circumstances of the case, there will be no order as to costs.