Per Mr.S.R.Khanzode, Hon’ble Judicial Member
This appeal arises out of order dated 15/02/2010 passed in consumer complaint no.50/2008 (complaint filed on 11/06/2008), Mohsena and another v/s. Dr.Anuradha and others by Central Mumbai District Consumer Disputes Redressal Forum (‘forum’ in short). At the outset, we may mention that complainant no.1-Mohsena died during the pendency of consumer complaint on 25/11/2008, but as it appears, her name allowed to remain on the record as it is, as reflected from the impugned order.
It is a consumer complaint relating to a medical treatment in Ayurvedic form received by late complainant no.1-Mohsena (Herein after referred as late Mohsena) at Calicut in Taj Residency (Taj Business hotel) during her 35 days stay in or about month of February 2001. Late Mohsena preferred to take Ayurvedic treatment as per her own belief for her illness of breathlessness, leg pain and skin disorder. It is the grievance of the complainant that during the above referred treatment, no proper care was taken of Late Mohsena, who was left alone for most of the time and she also did not get desired relief from the treatment. After her return from the Taj Residency Hotel, Calicut, she once again referred herself to respondent/opponent no.1 -Dr.Anuradha of Nayyar Samaj Ayurvedic Centre, Dadar, Mumbai but, thereafter, shifted herself for further treatment to Delhi. But the complaint, as per the averments made therein, relates to the alleged deficiency in service on the part of treating doctors, particularly, respondent/opponent no.5-Dr.Varsha and respondent/opponent no.8-Dr.Mahadevan. There is only one statement against respondent/opponent no.4- Dr.Ram Kumar that he had examined Late Mohsena on 10/07/2001.
Consumer complaint was filed initially before the District Consumer Disputes Redressal Forum (Central) Maharana Pratap Bus Terminal, Mezzanine floor, Kashmere Gate, Delhi (Herein after referred as “Delhi forum”). Opponents in the said complaint, namely, respondents/original opponent no.1 and 3 to 8 referring to this consumer complaint and appeal, took objection as to the territorial jurisdiction of the Delhi Forum. By its order dated 10/12/2007, said forum upheld the objection and passed the following order:-
“The complaint against O.P.2 to O.P.8 is hereby dismissed for want of jurisdiction, with liberty to complainant to proceed against O.P.2 to O.P.8 in a Competent forum, if so desired.
List on 11/02/2008 for final disposal on merit against O.P.1.”
It may be mentioned here that opponent no.1 mentioned in the said order is Dr.G.R.Verma, who is impleaded as respondent/original opponent no.2 as referred in this consumer complaint. It could be further seen that in view of section 11 of the Consumer Protection Act, 1986 (herein after referred as “Act” for brevity) since principally late Mohsena availed the medical facility at Taj Residency, Calicut in its Taj Ayurveda Centre which was managed with the Ayurvedic Expertise of Ayushman Ayurvedic Trust, Coimbatore, and which is situated in the State of Kerala; it is the Kerala State Consumer Commission or a relevant District Consumer Disputes Redressal Forum in whose jurisdiction said hotel falls, will have a territorial jurisdiction to entertain the consumer complaint. Therefore, taking advantage of the order passed by Delhi forum, supra, to file consumer complaint in the State of Maharashtra is per se not proper and the forum had no jurisdiction to entertain the same. It is tried to be stated that Nayyar Samaj Ayurvedic Centre where respondent/ opponent no.1 Dr.Anuradha is at Mumbai and it was referred as the Centre belonging to respondent /opponent no.9 The Arya Vaidya Pharmacy (Cbe) Ltd. of Coimbatore). In fact, there is no evidence to that effect and the description of respondent/opponent no.1 and her address given specifically shows that it has nothing to do with the said Arya Vaidya Pharmacy (Cbe) Ltd. Besides this, since the grievance about the alleged deficiency in service relates to the treatment received by late Mohsena at Taj Residency, Calicut; mere referring for further treatment or rechecking after completing the treatment at Taj Residency, Calicut will not give jurisdiction to the forum at Mumbai in the State of Maharashtra. It may also be mentioned that the consumer complaint, before the Delhi forum was continued against Dr.G.R.Verma and hence to file fresh consumer complaint against him in the State of Maharashtra is not permissible and such consumer complaint, as against him, cannot be entertained.
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 Center 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 a 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.
Dated 24th June, 2010.
