23/06/16
HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT
This Appeal is directed against the judgment and order passed by Learned District Forum, Jalpaiguri in CC 41 of 2012 allowing the complaint ex parte against the OP with cost of Rs.5,000/- and OP was directed to pay compensation of Rs.1 lakh.
The case of the Complainant/Respondent, in short, is that his son aged 12 years fell through the window of a room on the 1st floor of his house on the old thatched fencing made of bamboo nets on 22/03/12 and suffered multiple injuries in the head, neck and chest with profuse bleeding. The primary treatment was done at Maynaguri B.P.H.C. and thereafter at Sadar Hospital, Jalpaiguri. The condition of the patient became serious and he was referred to North Bengal Medical College and Hospital. In view of the mismanagement in the North Bengal Medical College and Hospital and the required treatment being not available there, the patient was admitted in the OP Nursing Home at Siliguri and he was placed under Dr. Goka Venugopal. C.T. Scan was done. It revealed haematoma, existence of foreign body and linear fracture of body of C4. The patient was discharged on 29/03/12. The patient suffered acute pain in neck and in operated site for which he was taken to OP Nursing Home for regular check up and dressing which continued upto 05/05/12. But the suffering of the patient continued. Thereafter the patient was taken to Medica Super Specialty Hospital in Kolkata where four more pieces of foreign body were located and removed by operation. The patient was released on 18/05/12. There was deficiency in service on the part of the OP. Under such circumstances, the complaint was filed before the Learned District Forum.
The Learned Counsel for the Appellant has submitted that due to wrong posting of date in the diary and also for cease work by local bar the Appellant/OP of the complaint could not file W.V. before the Learned District Forum. It is contended that there was mistake on the part of the Advocate’s Clerk and in the interest of justice the Appellant should be given opportunity to contest the case. It is submitted that there is merit in this Appeal as there was lack of territorial jurisdiction of the Learned District Forum, Jalpaiguri.
The Learned Counsel for the Respondent has submitted that no evidence or material was filed regarding mis-posting of date and the copy of diary has not been submitted. It is contended that the OP Nursing Home could not remove the foreign body completely and there was deficiency in service and negligence on the part of the OP Nursing Home.
We have heard the submission made by both sides and perused the papers on record. In the Memo of Appeal it has been contended that the case was decided without evidence of the Respondent/Complainant and the alleged event happened at Siliguri within the District of Darjeeling and the Learned District Forum, Jalpaiguri lacked territorial jurisdiction. It has further been contended that there was mistake on the part of the lawyer or his clerk and no step could be taken for filing appropriate application challenging the territorial jurisdiction.
Since the question of territorial jurisdiction has been raised we find it expedient in the interest of justice to send back the case to the Learned District Forum to give opportunity to the Appellant/OP to contest the case.
The Appeal is allowed. The impugned judgment is set aside. The case is remanded to the Learned District Forum with the direction to give opportunity to the Appellant/OP to contest the case. Both parties are directed to appear before the Learned District Forum on 28/07/16.
