IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CONTEMPT PETITION (CIVIL) NO. 158 OF 2012 IN. CIVIL APPEAL NO.

Transcription

1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CONTEMPT PETITION (CIVIL) NO. 158 OF 2012 IN CIVIL APPEAL NO. 868 of 2003 In the matter of:- People for Better Treatment (PBT).Petitioner Vs. Mr. H.D. Nautiyal, Registrar National Consumer Disputes Redressal Commission (NCDRC) Respondent And in the Matter of: Mr. C. Venkatachalam.. Petitioner Ajitkumar C. Shah & Ors Vs..Respondents

2 PAPER BOOK [FOR INDEX PLEASE SEE INSIDE] ADVOCATE FOR THE PETITIONERS: T. V. GEORGE INDEX SL. NO. PARTICULARS PAGE NO. 1. Contempt Petition with affidavit 2. Annexure P/1 : A copy of the final order passed by the Supreme Court of India in Civil Appeal 868 of 2003 dated Annexure P/2 : A copy of the representation dated made by the President of the petitioner organization (PBT) to NCDRC President 4. Annexure P/3 : A copy of the representation dated 27/01/2012 filed by the petitioner 5. Annexure P/4 : a copy of the receipt obtained from NCDRC dated

3 IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION CONTEMPT PETITION (CIVIL)NO 158 of 2012 IN CIVIL APPEAL NO.868 of 2003 In the matter of:- People for Better Treatment (PBT) Through its President, Dr. Kunal Saha a local resident of Subol Apartment (Flat-E1), 7 Nilgunge Road, P.O. Belghoria, Kolkata And also a resident of 2704 Bridge Watch Lane Hilliard, Ohio 43026, USA.. Petitioner National Consumer Disputes Redressal Commission (NCDRC) Through its Registrar, Mr. H.D. Nautiyal Upbhokta Nyay Bhawan, 'F' Block, GPO Complex, INA, New Delhi Respondent/Alleged Contemnor Vs And in the matter of:- C. Venkatachalam...Appellant Versus Ajitkumar C. Shah and others...respondents PETITION UNDER ARTICLE 129 OF THE CONSTITUTION OF INDIA READ WITH SECTION 2 (B),12 OF THE CONTEMPT OF COURT ACT To The Hon ble the Chief Justice of India, And His Companion Judges of the Hon ble Supreme Court of India.

4 The humble petition on behalf of the Petitioner above named. MOST RESPECTFULLY SHOWETH: 1. The applicant People for Better Treatment (PBT) is a registered humanitarian organization with head office in Kolkata. Since it s establishment in 2001, PBT has been fighting against corruption and in helping the hapless victims of medical negligence to find justice with the primary goal to promote a better healthcare delivery system in India. Dr. Kunal Saha, president of the applicant organization (PBT) is a medical doctor from India. He is also a well-known researcher working in the field of HIV and AIDS. 2. That this Hon ble Court in Civil Appeal No. 868 of 2003 in C. Venkatachalam Vs. Ajithkumar C. Shah and others (2011 SCC 9, 707) has looked into the question of the Rights of Non-advocates to appear before the Consumer Courts representing other people/consumers/complainants including the victims of medical negligence who are in search of justice. In C. Venkatachalam (Supra.), this Hon ble Court passed a final judgment on August 29, 2011 in which it provided an outline for inclusion of Nonadvocate citizens/organizations to plead cases on behalf of other litigants seeking justice before consumer courts. This Hon ble Court also directed the Hon ble National Consumer Disputes Redressal Commission (NCDRC), Respondent no. 1, to frame the specific rules and guidelines (including the rules for Accreditation) within a

5 period of three months for Non-advocates to appear on behalf of other victims/consumers/complainants in consumer courts. The relevant paragraphs of the said judgment passed in C. Venkatachalam (Supra.) by this Hon ble Court are quoted herein below for ready reference: In order to ensure smooth, consistent, uniform and unvarying functioning of the National Commission, the State Commissions and the District Forums, we deem it appropriate to direct the National Commission to frame comprehensive rules regarding appearances of the agents, representatives, registered before the National Commission, the State Commissions and the District Forums governing their qualifications, conduct organizations and advocates/representatives, registered organizations and/or agents appearing before the consumer forums. The National Commission may consider following suggestions while framing rules The Commission may consider non-advocates appearing without accreditation - A party may appoint a non-advocate asits representative provided that the representative 1) is appearing on an individual case basis 2) has a pre-existing relationship with the complainant (e.g., as a relative, neighbour, business associate or personal friend) 3)is not receiving any form of direct or indirect remuneration for appearing before the Forum and files a written declaration to that effect

6 4) demonstrates to the presiding officer of the Forum that he or she is competent to represent the party. Accreditation Process a) The National Commission may consider creating a process through which non-advocates may be accredited to practice as representatives before a Forum. b) Non-advocates who are accredited through this process shall be allowed to appear before a Forum on a regular basis c) The accreditation process may consist of 1) an written examination that tests an applicant s knowledge of relevant law and ability to make legal presentations and arguments 2) an inspection of the applicant s educational and professional background 3) an inspection of the applicant s criminal record d) the National Commission may prescribe additional requirements for accreditation at its discretion provided that the additional requirements are not arbitrary and do not violate existing law or the Constitution. Fees a) A representative who wishes to receive a fee must file a written request before the Forum b) The presiding officer will decide the amount of the fee, if any, a representative may charge or receive

7 c) When evaluating a representative s request for a fee, the presiding officer may consider the following factors : 1) the extent and type of services the representative performed 2) the complexity of the case 3) the level of skill and competence required of the representative in giving the services 4) the amount of time the representative spent on the case; and 5) the ability of the party to pay the fee d) If a party is seeking monetary damages, its representative may not seek more a fee of more than 20% of the damages Code of Conduct for representatives - The National Commission to create a code of conduct which would apply to non-advocates, registered organizations and agents appearing before a Forum. Disciplinary Powers of a Forum (a) The presiding officer of a Forum may be given specific power to discipline non-advocates, agents, authorized organizations and representatives for violating the code of conduct or other behaviour that is unfitting in a Forum (b) In exercising its disciplinary authority, the presiding officer may 1) revoke a representative s privilege to appear before the instant case 2) suspend a representative s privilege to appear before the Forum

8 3) ban a representative from appearing before the forum 4) impose a monetary fine on the representative direct 111. We direct the National Commission to frame comprehensive Rules as expeditiously as possible, in any event, within three months from the date of communication of this order. The copy of this judgment be sent to the National Commission (emphasis added). A copy of the final order passed by the Supreme Court of India in Civil Appeal 868 of 2003 dated is annexed hereto and marked as Annexure P/1(Pages: to ) 3. There is no argument that medical negligence is a social evil of the worst kind which violates the fundamental rights to life and personal liberty protected under Article 21 of Indian Constitution. The ailing citizens who are victims of medical negligence are absolutely defenseless before the treating doctors/hospitals. Incidence of medical negligence has increased in leaps and bounds in the recent years in India as evident from the frequent news of shocking deaths of innocent patients in hospitals and nursing homes. The surge in medical negligence is ultimate fallout of a combination of lack of compassion for the patients and endless greed for money by the affluent members of the medical community. As this Hon ble Court has observed in Martin F. D Souza vs. Mohd. Ishfaq (2009 SCC 3, 1):

9 The truth of the matter, sadly, is that today in India many doctors (though not all) have become totally money-minded, and have forgotten their Hippocratic oath. 4. That there is no denying that the only realistic place for the countless victims of medical negligence to find justice is the Consumer Court in India. Unfortunately, it has become virtually impossible for many victims of medical negligence and other consumer-related misdeeds to afford the long-drawn legal battle due to the heavy legal expenses involved with these litigations. This Hon ble Court was also able to appreciate this difficult predicament that most ordinary citizens have been facing in India and thus, passed an appropriate judgment for public interest in C. Venkatachalam (Supra.) directing the Hon ble NCDRC to take the necessary steps by framing new Rules to allow Non-advocates to represent the victims/justiceseekers in the Consumer Courts as expeditiously as possible, in any event within 3 months. 5. It is most respectfully submitted that your petitioner, being a premier humanitarian organization dedicated to help the victims of medical negligence, submitted a representation to the Respondent No. 1 on requesting for framing of the necessary Rules for Nonadvocates to appear for other victims/complainants as specifically directed by the Hon ble Supreme Court in C. Venkatachalam (Supra.) since no steps were taken by Respondent No. 1 even after

10 the lapse of more than 3 months. A copy of the said representation dated made by the President of the petitioner organization (PBT) is annexed hereto and marked as Annexure P/2.(Pages: to ) 6. That having received no response whatsoever from the Respondent No. 1, your petitioner filed a follow-up representation with Respondent No. 1 through a letter dated i.e. almost 5 months after the judgment passed by the Hon ble Apex Court in C. Venkatachalam (Supra.) in which the Respondent No. 1 was reminded once again about the specific directions issued by this Hon ble Court that new Rules for allowing Non-advocates to plead for other victims/complainants before the consumer courts in India must be framed without any further delay. Your petitioner further reminded Respondent No. 1 that the total inaction on their part to frame the necessary Rules for allowing Non-advocates to represent other victims/complainants was not only depriving many hapless victims access to equitable justice but it was also in clear transgression of the categorical directions issued by the Hon ble Supreme Court in C. Venkatachalam (Supra.) that these Rules must be framed as expeditiously as possible, in any event within 3 months. A copy of the said representation dated 27 th January, 2012 filed by the petitioner is annexed herewith and marked as Annexure/P3.(Pages: to )

11 7. That a copy of the aforementioned representations dated & (as annexure) submitted by your petitioner was delivered to the Registry of the Hon ble NCDRC (Respondent No. 1) by hand on 30 th January, 2012 and a receipt for the same was obtained which is annexed hereto and marked as Annexure P/4.(Pages: to ) 8. It is most regretfully submitted that in spite of repeated submissions as indicated above and despite a mandatory order/judgment passed on by this Hon ble Court in C. Venkatachalam (Supra.) which had to be complied within a strict time limit, the Respondent/Contemnor remained completely silent until now. 9. That even though the Respondent/Contemnors is well aware of the mandatory directions passed by this Hon ble Court, to the best of knowledge of your petitioner, the Respondent/Contemnor has not taken any step whatsoever to implement the order/judgment passed by this Hon ble Court dated in C. Venkatachalam (Supra.). 10. That abject failure of the Respondent no. 1 to take the necessary steps for implementation of the specific directions passed by this Hon ble Court in C. Venkatachalam (Supra.) is a willful and wanton disobedience of the authority of the Supreme Court of India. Further, the willful disobedience by the Respondent no. 1 to

12 implement the specific directions passed by this Hon ble Court in C. Venkatachalam (Supra.) has also deprived many victims/complainants from their legitimate rights to be represented by Non-advocates as envisaged by this Hon ble Court. Therefore, the petitioner is approaching this Hon ble Court to initiate contempt proceedings against the Respondent no. 1. Prayer It is therefore most humbly prayed that this Hon ble Court may be pleased to: a. Initiate contempt proceedings against the Respondent no. 1 for their willful disobedience to comply with the order passed by this Hon ble Court dated in Civil Appeal No. 868 of 2003 in C. Venkatachalam (Supra.). b) PASS such other reliefs as this Hon ble Court deems fit and proper in the facts and circumstances of the case. AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IS DUTY BOUND SHALL EVER PRAY DRAWN & FILED BY New Delhi Dated : [T. V. GEORGE] Advocate for the Petitioner