For the Complainant: Mr. K.K. Mahanta, Advocate
Mr. A.K. Singha, Advocate
For the Opposite Party Nos.1 & 2: Mr. P. Basu, Advocate
For the Opposite Party No. 3: Mr.D. Das, Advocate
Ms. K. Kalita, Advocate
Date of Hearing: 19-09-2019
Date of Order: 30-09-2019
B E F O R E
THE HON’BLE PRESIDENT DR. (MRS.) JUSTICE INDIRA SHAH
THE HON’BLE MEMBER MR. D. K. MAHANTA, AJS (RETD.)
THE HON’BLE MEMBER MS. RENU PRAVA MAHANTA, ACS (RETD.)
O R D E R
BY DR. (MRS.) JUSTICE INDIRA SHAH, PRESIDENT,
This complaint has been filed against the opposite parties alleging medical negligence/deficiency of service on their part and claiming compensation of Rs. 95,00,000/-. Opposite Party No. 1 is a practicing doctor in Apollo Hospital, Chennai. Opposite Party No. 2 is Apollo Hospital situated at Chennai and Opposite Party No. 3 is Apollo Hospital at Guwahati.
2. The opposite parties at the threshold have raised the issue of maintainability of the complaint case here in the Assam State Consumer Disputes Redressal Commission.
3. The facts in brief are;- The complainant in the month of August, 2013 suffered from lower abdominal discomfort. On 26-08-2013, he consulted Dr. P. M. Deka who advised him to go to Super Specialty Centre like Apollo Hospital, Chennai for treatment. Accordingly, the complainant went there and was treated by opposite party No. 1 Dr. Ramesh K, Department of Urology, Apollo Hospital, Chennai. In the complaint filed by the complainant, it is alleged that opposite party No. 1 did not take proper care while treating him, was not diligent and was negligent etc. To bring the case within the territorial jurisdiction of this Commission, the complainant in para 32 of the complaint has stated that “ the Apollo Hospital has opened its 214 bedded Unit i.e. one of 25 Apollo Hospitals in India at Guwahati and is doing its business under the name and style “Apollo Hospital, Guwahati Unit, International Hospital.”
4. Heard Mr. A.K.Singha, learned counsel, appearing for the complainant. Also heard Mr. P. Basu, learned counsel, appearing for the opposite parties.
5. It is submitted by the learned counsel appearing for the complainant that, Apollo Hospital at Guwahati is a Branch Office within the meaning of Section 17(2) of the Consumer Protection Act, 1986. Therefore, the Assam State Consumer Disputes Redressal Commission at Guwahati has territorial jurisdiction.
6. It is further argued by the learned counsel that in the case of medical negligence, the cause of action will be deemed to have arisen on the date on which the act of negligence was done. If on the other hand, the effect of negligence is latent, the cause of action will arise on the date when the patient or his representative/complainant discovers the harm/injury due to such act or the date when the patient or his representative/complainant could have, by exercise of reasonable diligence discovered the act constituting negligence. He has relied on the case of V.N. Shrikhande Vs Anita Sena Fernandes. In the cited case, the issue raised was whether the complaint was barred by limitation and the Apex Court held that, the date on which the negligence occurred and also the date when the factum of negligence was discovered, may be the date for computation of period of limitation.
7. Admittedly, the cause of action i.e. wrong treatment arose at Chennai. The complainant was treated by Dr. P. M. Deka on 13-09-2013 and 23-11-2013. The complainant consulted Dr. Arvind Kelkar, Gastroenterologist & Hepatologist, International Hospital, Guwahati. He consulted Dr. C. Bhuyan, Oncologist, Nightingale Hospital,Guwahati. He also consulted Sr. Bank Medical Officer, Reserve Bank of India, Health Care Global Enterprise Ltd., Bangalore etc. At no point of time he consulted any physician at Apollo Hospital at Guwahati. In fact, at the relevant period, the Apollo Hospital, Guwahati was not in existence. As per the complainant’s document, the Apollo Hospital at Guwahati was inaugurated on 17th June, 2017.
8. In the case of Sonic Surgical vs National Insurance Company Ltd, 2010 CTJ 2 (Supreme Court), C.P, it was held that the expression ‘Branch Office’ in the amended Section 17(2) would mean the Branch Office where the cause of action has arisen. Similarly, in the case of Pradeep Singh vs Fortis Hospital & Ors. 2019 (I) CPR 281 (NC), it was held that the complainant should have filed the complaint where the cause of action arose. In the similar case of Bimal Kumar Chanda vs Dr. V. R. Ramanan in Appeal NC F.A. 10/2006, the State Consumer Disputes Redressal Commission, Tripura, observed that the appellant was admitted in Apollo Hospital at Kolkatta and has undergone by-pass surgery and if during post operation any complication arise for which complainant has a grievance against the hospital or against the surgeon or physician, he will have to seek redress in Consumer Forum in Koklata and not in any other place.
9. The learned counsel appearing for the complainant relying on the case of Managing Director Air Deccan Vs Ram Gopal Agarwal in FA 7/2007 passed by the State Consumer Disputes Redressal Commission, Meghalaya, has submitted that the complainant contacted Dr. K. Ramesh on 11-09-2013 through SMS from his mobile phone requesting for an appointment and Dr. K.Ramesh replied “ You do not have any malignancy, your bleedings is due to the stone all checked now. You are fine now. You do USG after one month.” It is the contention of the complainant that as he was later on detected with Folicular Lymphoma, the medical advice rendered by Dr.K. Ramesh that the complainant did not suffer from any malignancy was quite a wrong finding for which, there was considerable delay in treatment of his Lymphoma. According to the learned counsel for the complainant, as the said wrong medical opinion was received by him through message sent by mobile phone, at Guwahati, this Commission has the territorial jurisdiction to entertain his complaint as the act of medical negligence of wrong treatment continued or discovered at Guwahati.
10. In the cited case of Ram Gopal Agarwal (Supra) the complainant booked air ticket over internet which was sent to his email. It was observed that in suits arising out of contract the cause of action arises within the meaning of Section 20 (c) of the Civil Procedure Code any of the following places namely (1) the place where the contract was made (2) the place where the contract was performed or performance thereof completed, (3) the place wherein performance of the contract any money to which suit relates was expressely or implied payable. It was held that the request to bookings of the air ticket would be an offer and the emailing of ticket to the consumer would be acceptance. The facts and circumstances of the aforementioned cited case is not at all applicable to the present case. There was neither offer, nor acceptance of the offer nor any money in performance of the contract was payable within the jurisdiction of this Commission.
11. We have carefully gone through the complaint petition and the provision of Section 17(2)(a)(b) of the Act. We do not find even a whisper in the complaint that any part of cause of action with regard to treatment of the complainant had arisen in the Branch Office in Assam, although as discussed earlier Opposite Party No. 3 was not in existence at the relevant time, even if we assume that opposite party No. 3 is the Branch Office of opposite party No. 1.
12. In view of the above discussion, we are constrained to hold that no cause of action has arisen within the territorial jurisdiction of this Commission and therefore, this complaint can not be entertained for want of territorial jurisdiction. Accordingly, the complaint is dismissed. However, it is made clear that the complainant is at liberty to approach the appropriate forum completely uninfluenced by any observation made here-in-above.
