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Friday, June 14, 2013

MEDICAL NEGLIGENCE - JURISDICTION- LIMITAION - LOCUS STANDI OF THIRD PARTY TO CONTINUE AFTER THE DEATH OF COMPLAINANT= initially complaint was filed before Delhi Forum and subsequently, complaint was filed before Mumbai Forum. But, both fora had no territorial jurisdiction to try the complaint. Late Ms.Mohsena in her complaint has stated that she had undergone Ayurvedic treatment in the year 2001, at Calicut, Kerala. Further, as per Ms.Mohsena’s case, she did not get desire relief for treatment, hence, she came to Mumbai and had undergone some treatment. Thereafter, she shifted to Delhi for further treatment. The mere fact that Ms. Mohsena after getting her initial treatment at Calicut, got further treatment at Mumbai and Delhi will not give these two fora any territorial jurisdiction. Hence, on this short point alone, consumer complaint ought to have been rejected. 15. The second question for consideration is as to whether petitioner has any locus standi to file the present revision petition. It is an admitted case that it was late Ms.Mohsena, who initially had under gone medical treatment provided by Taj Residency at Calicut. There is nothing on record to show that petitioner is the legal heir of Ms.Mohsena, as per Hindu Succession Act. Moreover, it has nowhere been stated by the petitioner as to when parents of Ms.Mohsena died, nor their death certificates have been filed. Thus, we have no hesitation in holding that petitioner is not the legal heir of Ms.Mohsena and as such she does not fall within the definition of “Consumer” as defined in the Act. 16. Next question to be seen is as to whether complaint was filed within the period of limitation. 17. As observed hereinabove, Ms.Mohsena got her initial treatment in Taj Residency, Calicut, in the year 2001. However, complaint was filed only in the year 2008 before the Mumbai forum. Thus, the complaint was hopelessly barred by limitation. = Petitioner who was having no locus standi to file the complaint has been pursuing this meritless litigation from day one, just to harass eight respondents out of whom seven are doctors. During last ten years, petitioner has taken the respondents to different consumer fora by filing one petition or the other, just to cause harassment to them. 22. Under these circumstances, present revision petition is liable to be dismissed with punitive cost. Accordingly, we dismiss the present revision petition with punitive cost of Rs.40,000 (Rupees Forty thousand only).

PUBLISHED IN http://164.100.72.12/ncdrcrep/judgement/00130606113118111RP23492011.htm

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI

REVISION  PETITION NO.   2349   OF  2011

 (Against the order dated   24.06.2010   in Appeal No. A/10/267
of the State Commission,   Maharashtra)

Ms. Raika Bandukwalla
D/o Abdeali
25, Colaba causeway
Mumbai - 400039                                                       ....... Petitioner

Versus

1.    Dr. Anuradha
Nayyar Samaj Ayurvedic Centre
14, Kohinoor Road
Dadar East
Mumbai – 400014

2.    Dr.G.RVerma
The Arya Vaidya Pharmacy (Cbe) Ltd.
8-A/42, W.E.A. Karol Bagh
New Delhi-110005

3.    Ayurvedic Trust & Research Centre
Division of the Arya Vaidya Pharmacy (Cbe) Ltd.
Through its President
984 Trichy Road,
Ram Nath Puram,
Coimbatore – 641045
                              
4.    Dr. Ram Kumar
Ayurvedic Trust & Research Centre
Division of the Arya Vaidya Pharmacy (Cbe) Ltd.
984 Trichy Road,
Ram Nath Puram,
Coimbatore – 641045

5.    Dr. Varsha
Ayurvedic Trust & Research Centre
Division of the Arya Vaidya Pharmacy (Cbe) Ltd.
984 Trichy Road,
Ram Nath Puram,
Coimbatore – 641045


6.    Dr. Indulal
Ayurvedic Trust & Research Centre
Division of the Arya Vaidya Pharmacy (Cbe) Ltd.
984 Trichy Road,
Ram Nath Puram,
Coimbatore – 641045               

7.    Dr. Vinod
Ayurvedic Trust & Research Centre
Division of the Arya Vaidya Pharmacy (Cbe) Ltd.
984 Trichy Road,
Ram Nath Puram,
Coimbatore – 641045

8.    Dr. Mahadevan
Ayurvedic Trust & Research Centre
Division of the Arya Vaidya Pharmacy (Cbe) Ltd.
984 Trichy Road,
Ram Nath Puram,
Coimbatore – 641045                                                …... Respondents
-                                                                                                                                   
BEFORE:

      HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

      HON'BLE MRS. REKHA GUPTA,  MEMBER

     
For the Petitioner             :         In person  


Pronounced on : 4th June,  2013


ORDER


PER MR. JUSTICE V.B.GUPTA,  PRESIDING MEMBER


Being aggrieved by impugned order dated 24.6.2010, passed by Maharashtra State Consumer Disputes Redressal Commission, Mumbai (short, “State Commission”),Petitioner/Complainant no.2 has filed the present revision petition.
2.       Brief facts are that, initially Complainants namely Ms.Mohsena (since deceased) and Ms.Raika Bandukwalla-petitioner herein (who is niece of Ms.Mohsena and resides with her) filed a complaint before District Consumer Disputes Redressal Forum, Kashmere Gate, New Delhi (short, “Delhi Forum”) 
on the grounds that Ms. Mohsena is a patient of breathlessness, leg pain in both legs and skin discoloration, being influenced by the advertisement of Respondent No.3/O.P. No.3, Ms.Mohsena got treatment at Taj Centre, Calicut from Respondent Nos.1 and 3 to 8/O.P. Nos.1 and 3 to 8 for above mentioned ailments for 35 days at a cost of Rs.1,26,906.35 paisa.  
It is stated that it was the petitioner who had paid fees to respondent no.3. Instead of improvement in the condition of Ms.Mohsena, her condition had deteriorated.  

None of the respondents took the deteriorating condition ofMs.Mohsena seriously.  The suffering of Ms.Mohsena continued.  
Finally, respondent nos.1 and 3 to 8 referred Ms. Mohsena to Respondent No.2/O.P. No.2 being their franchise in Delhi.
 It is further alleged that Ms.Mohsena visited respondent no.1 on 26.9.2002, who after complete check-up prescribed medicine on the same day with assurance that she would get relief soon. 
However, all the assurance of respondents failed. 
 It is alleged that by making false representation, respondents cheated Ms.Mohsena and it amounts to deficiency in service on the part of the respondents. 
 Ms.Mohsena prayed for direction to the respondents to pay a sum of Rs.17,04,621/- on several grounds.
3.       On appearance, respondent no.2 (Dr.G.R.Verma, before the Delhi Forum) filed reply stating that he has been impleaded in the complaint only to bestow jurisdiction of Delhi Forum. It was further alleged by respondent no.2 that nothing has been pleaded against him and he denied any relationship with respondent nos.1 and 3 to 8 and prayed for dismissal of complaint.
4.       Respondent nos.1 and 3 to 8 (before the Delhi Forum) filed joint reply and denied the jurisdiction of Delhi forum and also denied any deficiency of service on their part.
5.       Delhi Forum, vide its order dated 4.7.2007, rejected the prayer of respondent nos.1 and 3 to 8 to decide the issue of territorial jurisdiction first.  
Against that order,  respondent nos.1 and 3 to 8 moved to State Commission, Delhi, which vide order dated 26.9.2007, directed Delhi Forum to decide the application of the respondents first in view of section 11 of the Consumer Protection Act, 1986 (short, “Act”). 
6.       Delhi Forum, vide order dated 10.12.2007, allowed the application of respondent nos.1 and 3 to 8 and dismissed the complaint against them for want of jurisdiction, with liberty to the Complainant No.1 to proceed against respondent nos.1 and 3 to 8 in a Competent Forum, if so desired.
7.       Thereafter, Ms. Mohsena and Petitioner filed Consumer Complaint (No.50 of 2008) before Central Mumbai District Consumer Disputes Redressal Forum (short, Mumbai Forum).  
During pendency of the complaint, Ms. Mohsena - complainant no.1 died on 25.11.2008.  
However, it appears that name of complainant no.1 was not deleted by Mumbai Forum.  
Be that as it may, Mumbai Forum, vide order dated 15.2.2010 dismissed the complaint.
8.       Being aggrieved by the order of Mumbai Forum, petitioner filed an appeal before the State Commission, which was dismissed, vide impugned order.
9.       Petitioner herself has appeared in person and argued her case and has also filed written arguments.
10.     We have gone through the record carefully.
11.     It is stated by the petitioner that she had filed the complaint jointly with Ms.Mohsena during her life time and petitioner being the niece and only relative and legal heir ofMs.Mohsena, does have the right to continue with the case.  
Further, it is she who had paid the amount for the treatment of Ms.Mohsena.  As such, present petition is maintainable and she is entitled to claim the amount spent over the treatment of Ms.Mohsena.
12.     The first question which arise for consideration is as to 
whether Delhi Forum had the jurisdiction to try the complaint.  
In this regard, it was held by Delhi Forum ;
“The forum perused the prescription of OP-1.  It is Annexure  filed by the complainant. This prescription slip clearly proves that this prescription slip was on the letterhead of the Arya Vaidya Pharmacy (Coimbatore) Ltd.  The complainant took treatment from Ayurvedic Trust and Research Centre, Coimbatore.  O.P. nos.2 to 8 are the persons who are related to Ayurvedic Trust and Rese arch Centre. 
Shri Mahipal, learned counsel for complainant submitted that both Ayurvedic Trust and Research Centre and Arya Vaidya Pharmacy (Coimbatore) Ltd. are the same concern for the following reasons;
1.    E-mail address of both companies are the same.
2.    Founder trustee of the OP-3 is Shri P.R.Krishan Kumar, who is the son of late Shri P.V. Mamavarier.  Arya Vaidya Pharmacy was also headed by lateShri P.V. Mamavaier.  Hence, OP-8 is  the offspring of AVP. But, the forum is not convinced with the contentions of Shri Mahipal.  OP-3 is the juristic person created under Indian Trust Act.  While Arya Vaidya Pharmacy (Coimbatore) Ltd. is a juristic person created under companies.  These are two independent entitled.  An individual may be director of several juristic entitles but all enjoy separate independence. 
There is no evidence to suggest that OP-1 is the branch office of OP-3.
In view of the above discussion, the application of OP-2 to 8 is allowed.
The complaint against OP-2 to 8 is hereby dismissed for want of jurisdiction, with liberty to complainant to proceed against OP-2 to 8 in a Competent Forum, if so desired.”
13.     The State Commission, while dismissing the appeal has observed ;
    “Now coming to the locus standi of appellant/complainant no.2 Ms.Raika Bandukwala, it is not disputed that Ms. Raika was not present at all at Calicut when late Mohsena had received a treatment there.  She preferred to receive the treatment as per the medical facilities available at Taj Ayurvedic Centre, which is a part and parcel of Taj Residency Hotel at Calicut.  The bills of Taj Residency, copies of which are produced on record, for the relevant period accordingly charged late Mohsena for her stay in the hotel mentioning Ayurvedic Centre as one of the facilities provided there.  Said spa or Ayurvedic centre is managed by the Hotel with the Ayurvedic expertise of ‘Ayushman Ayurvedic Trust, Coimbatore’ as reflected from the letter head which is Annexure-E at page 210 of the appeal compilation.  Neither Taj Residency, Calicut nor ‘Ayushman Ayurvedic Trust’ are made parties to the consumer complaint.  All these parties are distinct juridical persons within the meaning of section 2 (1) (m) of the Consumer Protection Act, 1986.
Only because after receiving the Ayurvedic treatment, if late Mohsena did not get desired results then, certainly, that ipso facto will not amount to any deficiency in service on the part of treating doctors vis-à-vis medical negligence on the part of treating doctors.   There is absolutely no material placed on behalf of the complainant to substantiate their case for any such medical negligence.  Therefore, forum was right in making observation to that effect.
Appellant/complainant no.2 – Ms.Raika Bandukwalla has described herself as relative to late Mohsena.  She is not near relative of late Mohsena.  The alleged deficiency in service is in respect of treatment received by late Mohsena.  Therefore, after death of late Mohsena whether appellant/ complainant no.2 –Ms.Raika Bandukwalla can continue the consumer complaint and her locus standi to continue either as original complainant or appellant can be well questioned.  From the material placed on record, we find that appellant - Ms.Raika Bandukwalla herself cannot be treated as ‘Consumer’ within the meaning of the Act in the background the present case.
Considering all these aspects, we find that appellant failed to make out any case to admit the appeal.  No reason to disturb the impugned order passed by the forum.  We hold accordingly and pass the following order :-
ORDER
Appeal is not admitted.  Appeal stand dismissed”.
14.    It would be pertinent to point out, that initially complaint was filed before Delhi Forum and subsequently, complaint was filed before Mumbai Forum.  
But, both fora had no territorial jurisdiction to try the complaint.  
Late Ms.Mohsena in her complaint has stated that she had undergone Ayurvedic treatment in the year 2001, at Calicut, Kerala. 
Further, as per Ms.Mohsena’s case, she did not get desire relief for treatment, hence, she came to Mumbai and had undergone some treatment.  
Thereafter, she shifted to Delhi for further treatment.  
The mere fact that Ms. Mohsena after getting her initial treatment at Calicut, got further treatment at Mumbai and Delhi will not give these two fora any territorial jurisdiction. 
Hence, on this short point alone, consumer complaint ought to have been rejected.
15.     The second question for consideration is as to 
whether petitioner has any locus standi to file the present revision petition.  
It is an admitted case that it was late Ms.Mohsena, who initially had under gone medical treatment provided by Taj Residency at Calicut.  
There is nothing on record to show that petitioner is the legal heir of Ms.Mohsena, as per Hindu Succession Act.  Moreover, it has nowhere been stated by the petitioner as to when parents of Ms.Mohsena died, nor their death certificates have been filed. Thus, we have no hesitation in holding that petitioner is not the legal heir of Ms.Mohsena and as such she does not fall within the definition of “Consumer” as defined in the Act. 
16.     Next question to be seen is as to whether complaint was filed within the period of limitation.
17.     As observed hereinabove, Ms.Mohsena got her initial treatment in Taj Residency, Calicut, in the year 2001. 
 However, complaint was filed only in the year 2008 before the Mumbai forum.  
Thus, the complaint was hopelessly barred by limitation. 
With advantage, we rely upon decision of Apex Court on this point in Kandimalla Raghavaiah & Co. versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) where Court took view of the observations made in case State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, as under:
“12.     Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the same provision, has held:

“8.        It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”

18.     It is well settled that under Section 21 (b) of the Consumer Protection Act, 1986 (for short ‘Act’), the scope of revisional jurisdiction is very limited. Under Section 21 of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.  
19.     Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654   has observed ;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in whichrevisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

20.     Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act.  Since, two Fora below have givendetailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction.  
21.     Petitioner who was having no locus standi to file the complaint has been pursuing this meritless litigation from day one, just to harass eight respondents out of whom seven are doctors.  During last ten years, petitioner has taken the respondents to different consumer fora by filing one petition or the other, just to cause harassment to them. 
22.     Under these circumstances, present revision petition is liable to be dismissed with punitive cost. Accordingly, we dismiss the present revision petition with punitive cost of Rs.40,000 (Rupees Forty thousand only).
23.     Petitioner is directed to remit Rs.5,000/- to each of the respondents, by way of demand draft in their respective names, within eight weeks from today.  In case, petitioner fails to remit the aforesaid cost within the prescribed period, then she shall also be liable to pay interest @ 9% p.a., till realization.
24.     List on 16.8.2013 for compliance.
…………………..………..J
     (V.B. GUPTA)

                                                                                                        PRESIDING MEMBER



…………………..………..
     (REKHA GUPTA)
                                                                                                                              MEMBER  

Sonia/  



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