Tripura

StateCommission

CC/1/2016

Arithrik basak - Complainant(s)

Versus

Apollo Hospital Enterprise Ltd. - Opp.Party(s)

Mr. A.L Saha, Mr. K.Nandi, Miss. S.Datta, Mr. A.Saha

16 Dec 2016

ORDER

State Consumer Disputes Redressal Commission, Tripura.

 

 

Case No.CC.1.2016

 

1. Arithrik Basak,

S/o Sri Gopal Chandra Basak,

Resident of Padmapur, Dharmanagar,

P.O. & P.S. Dharmanagar,

District – North Tripura, Pin – 799250

 

A minor represented by his father & natural guardian

 

Sri Gopal Chandra Basak,

S/o Late Narayan Chandra Basak,

Resident of Padmapur, Dharmanagar,

P.O. & P.S. Dharmanagar,

District – North Tripura, Pin – 799250.

… … … … Complainant

 

•  

 

1. Apollo Hospital Enterprise Ltd.,

19 Bishop Gardens,

Raja Annamalaipuram, Chennai – 600028.

 

2. Apollo Children’s Hospital,

No.15, Shafee Mohammed Road,

Thousand Lights, Chennai – 600006.

 

3. Apollo Gleneagles Hospital Kolkata,

No.58, Canal Circular Road,

Kolkata – 700054, West Bengal.

 

4. Apollo Gleneagles Hospital (Information Centre)

IGM Hospital Lane, Rabindra Pally Road,

Agartala – 799001.

… … … … Opposite Parties

Present

 

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Sharma,

Member,

State Commission, Tripura.

 

For the Complainant: Mr. Amrit Lal Saha, Adv.

For the Opposite Party No.1 & 2: Mr. K.K. Roy, Adv. & Mr. Bhabatosh Debnath, Adv.

For the Opposite Party No.3 & 4: Mr. Prabir Basu, Adv. & Miss Kathakali Roy Barman, Adv.

Date of Hearing & Delivery of Order: 16.12.2016

O R D E R [O R A L]

 

 

U.B. Saha,J,

This complaint petition is filed by the complainant Arithrik Basak under section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as C.P. Act.) against the opposite parties for a direction to pay compensation of Rs.50,00000/- lakhs with interest for their negligence and deficiency in service.

Today is fixed for hearing on question of maintainability of the instant petition raised by the opposite parties.

Heard Mr. Amrit Lal Saha, Ld. Counsel for the complainant. Also heard Mr. Prabir Basu, Ld. Counsel assisted by Ms. Kathakali Roy Barman, Ld. Counsel for the opposite party nos.3 & 4. Mr. K.K. Roy and Mr. Bhabatosh Debnath, Ld. Counsel for the opposite party nos.1 & 2 are also present.

Opposite party nos.3 & 4 have filed an objection as to the maintainability of the complaint petition questioning the territorial jurisdiction of the Commission to entertain this complaint petition. The opposite party nos.1 & 2 have also adopted the contention of the opposite party nos.3 & 4.

Mr. Basu, Ld. Counsel appearing for the opposite party nos.3 & 4 has raised the question of territorial jurisdiction of this Commission on the ground that no cause of action or part of cause of action could have been arisen within the territorial jurisdiction of this Commission. He has also submitted that the treatment of the complainant was done at Apollo Hospital, Chennai and subsequently, at Apollo Gleneagles Hospital, Kolkata i.e. opposite party nos.1 to 3. He further submits that the opposite party no.4 is an Information Centre of the opposite party no.3 and the same is not the Branch of opposite party no.3. He has also contended, even if for the sake of argument, it is admitted that the opposite party no.4 is a Branch of opposite party no.3, then also no cause of action has arisen so far the petitioner is concerned at the said centre. He has further contended that admittedly, the complainant was initially treated by the Apollo Hospital, Chennai, the opposite party nos.1 & 2 and thereafter he went for further treatment at Apollo Gleneagles Hospital, Kolkata, the opposite party no.3, and mere subsequent treatment at Kolkata would not give the subsequent Fora any territorial jurisdiction, far to Consumer’s Commission at Tripura. In support of his aforesaid contention, he has placed reliance on a decision of the National Consumer Disputes Redressal Commission, New Delhi in Dr. Mohd. Ayub Vs Smt. Mehfuzun Nisa 2008 (4) CPR 363 (NC) and the decision of this Commission in Sri Bimal Kumar Chanda Vs Dr. V.R. Ramanan, Director, Medical Services, Apollo Gleneagles Hospital, Kolkata (Appeal No.FA.10/2006). He has also placed an order dated 15.10.2009 of Consumer Disputes Redressal Commission, Maharashtra State, Mumbai in Mrs. Gouri Paul Vs Apollo Gleneagles Hospital and another (Consumer Complaint No.105 of 2009). He has finally placed reliance on a decision of Supreme Court in Sonie Surgical Vs National Insurance Company Ltd., 2010 CTJ 2 (Supreme Court) (CP).

On the other hand, Mr. Saha, Ld. Counsel for the complainant has contended to satisfy us showing some newspapers’ advertisements that the opposite party no.4, Information Centre is virtually a Branch of the opposite party no.3. He has further contended that the complaint petition filed by the complainant is maintainable as the opposite party no.3 is doing its business at Agartala through their Information Centre, the opposite party no.4 which is a Branch and as such, the same is covered by the sub-section 2 (A) of section 17. Mr. Saha taking us to the judgment of Apex Court in Sonie Surgical (supra) has submitted that the facts of that case is totally different than the case in hand and in that case, cause of action arose in the year 1999 whereas the amendment of the section 17 (2) of the Consumer Protection Act, 1986 was given effect to and from 15.03.2003. Thus, the said judgment is not applicable in the present case. Regarding the other judgments relied upon by Mr. Basu, Mr. Saha submits that those judgments are also not applicable in the instant case.

To decide the question of jurisdiction of this Commission as raised by Mr. Basu, it would be proper for us to discuss the facts narrated in the complaint petition, which are as follows:

In the month of March, 2010, the complainant, Arithrik Basak first time went to Apollo Hospital, Chennai i.e. the opposite party no.1, where after examining him, it was detected that his left kidney was 70% functional and right kidney was 30% functional and he had developed one small stone in his right kidney. The physicians of the opposite party no.1, suggested for his operation in the left side kidney for removal of blockade of left kidney junction and ultimately he was operated on 04.04.2010 and thereafter again operated on 29.06.2010. Again on 31.08.2011, he went to Apollo Hospital Chennai and consulted with some of the doctors whose names are mentioned in paragraph 8 of the complaint petition and thereafter he came back to Tripura. In the month of May, 2015, he again went to Apollo Hospital Chennai for removing of two big stones from his right kidney and in the month of September, 2015, his operation was done and one stone was removed. As there was some negligence on the part of the opposite party nos.1 & 2, he was advised to go again to Apollo Hospital for removal of stent. In the month of December, 2015, the complainant went to Apollo Gleneagles Hospital Kolkata, the opposite party no.3 and he was admitted on 28.12.2015. After investigation, it was detected by the doctors of the opposite party no.3 that there were three big stones and many small stones in the right kidney. Immediately, there was operation to remove those stones and in the operation, all the stones were successfully removed. Operation was done on 29.12.2015 and he was discharged from the hospital on 31.12.2015 and Rs.2.00 lakhs was paid by the father of the complainant to the said hospital. Thereafter, as the attending physician of the Apollo Gleneagles Hospital Kolkata opined that again there should be an operation, the complainant after about one month again went to Apollo Gleneagles Hospital Kolkata and thereafter, the complainant was admitted for removal of stent and the stent was removed in January, 2016. As during the operation dated 04.04.2010, all the stones were not removed from the right kidney and the blockade in the left kidney was not cleared, the complainant filed the present complaint petition claiming for an amount of compensation of Rs.50,00000/- lakhs against the opposite parties.

We have gone through the facts narrated in the complaint petition and also the Law Reports cited by the parties. We have also considered the submission made by the Ld. Counsels before us. Admittedly, the petitioner was initially treated at Apollo Hospital Chennai i.e. opposite party nos.1 & 2 and thereafter in the year 2015 under the opposite party no.3 at Kolkata. It is also admitted position that the opposite party no.3 has an Information Centre at Agartala in the State of Tripura.

Now the question is as to whether this Commission has the jurisdiction to decide the complaint petition filed by the complainant through his father, the natural guardian.

In Sonie Surgical (supra) the Apex Court dealt with section 17 (2) of the C.P. Act, 1986 and held that the expression within ‘branch office’ in the amended Section 17 (2) would mean the branch office where the cause of action has arisen meaning thereby, even if in a particular place there is a branch office, that itself would not give the jurisdiction unless the cause of action is there. In the instant case, admittedly, the complainant was not treated at Agartala where the Information Centre (Opposite party no.4) of the opposite party no.3 is there. Mere facts of the case is not the determining factor to consider the decision of the Apex Court, rather the Court has to see what is the ratio of the said decision. In the case of Sonie Surgical, the Apex Court interpreted the meaning of ‘Branch Office’. Therefore, we are unable to accept the contention of Mr. Saha, Ld. Counsel appearing for the complainant so far the Sonie Surgical (supra) is concerned.

In Dr. Mohd Ayub (supra) the National Consumer Disputes Redressal Commission while interpreting section 11 of the C.P. Act which is pari materia to section 17 held that a subsequent event allegedly relatable to the earlier event, will not give an independent cause of action in case of medical negligence to file a complaint by the complainant within the jurisdiction where subsequent event took place. In that case, the complainant on her own volition had gone to Gorakhpur, where surgery was carried out by the petitioner of that case and subsequent to which she was discharged. After which when she came to Varanasi, where she, allegedly, developed some complication, related to earlier surgery, she had to undergo second surgery by another doctor in Varanasi. Hence, she finally filed the complaint before the Ld. District Forum, Varanasi. As no cause of action arose in Varanasi, the Ld. District Forum, Varanasi did not entertain the complaint petition. Thereafter, she went up to National Commission and the National Commission held that the District Forum, Varanasi was quite justified in not entertaining the complaint on the question of jurisdiction.

According to us, the case in hand is fully covered by the judgment of the National Commission in Dr. Mohd Ayub (supra) as admittedly, the petitioner of this case was initially treated by the opposite party nos.1 & 2. In Mrs. Gouri Paul (supra), the Consumer Disputes Redressal Commission, Maharashtra State, Mumbai has also considered almost a similar question where the complainant Gouri Paul filed a case against the opposite parties there relating to medical negligence while performing laparoscopic surgery of the complainant at Apollo Gleneagles Hospital, Kolkata and subsequently discharged from the said hospital and thereafter, she had pain in abdomen for which she went to Jaslok Hospital, Mumbai for corrective surgery as there was a big mop stuck and surrounded by a big piece of small bowel left within her abdomen. Therefore, alleging the negligence on the part of Operating Surgeon at Mumbai, she filed a complaint at Consumer Disputes Redressal Commission, Maharashtra, Mumbai. While considering the said complaint petition, the Commission held that “Admittedly, cause of action which is always a bundle of facts relating to medical negligence arises at Kolkata only, where the complainant had undergone first operation in the hospital of opposite party  no.1 at the hands of opposite party no.2. Subsequent confirmation of the medical negligence by way of corrective surgery at Mumbai will not change the scenario as far as territorial jurisdiction relating to medical negligence in question. Therefore, in view of provisions of section 11(2) (b) of the Consumer Protection Act, 1986, the jurisdiction to entertain this consumer complaint is with the Kolkata Fora. No cause of action or part of cause of action could be said to have been arisen within the territorial jurisdiction of this Commission.”

In the instant case also, admittedly, the complainant had undergone his initial treatment and operation under the opposite party nos.1 & 2 at Chennai and thereafter, the corrective surgery was done by the doctors of the opposite party no.3 Apollo Gleneagles Hospital at Kolkata. Therefore, according to us, no cause of action arose within the jurisdiction of this Commission, as the complainant did not undergo for any treatment within the jurisdiction of Tripura. Thus, we are of the opinion that this instant complaint petition is not maintainable.

However, as the complainant raised some facts about the negligence of the doctors either at Chennai or at Kolkata, we are of the view that it would be proper to return the complaint petition to the complainant. Accordingly, the same is returned to the complainant for presenting the same before the appropriate Consumer Fora. No order as to costs.

Copy of the order be transmitted to the parties.

 

 

MEMBER State Commission Tripura MEMBER State Commission Tripura PRESIDENT State Commission Tripura