08.08.2012

MR. S.COARI, LD. MEMBER

MA-90/2012

          The record is placed today for passing necessary orders in respect of Misc. Application No. MA-90/2012 wherein the Misc. Applicant/ Complainant has prayed for passing of an order for substitution of the name of the heir of the deceased OP in the cause title of the petition of complaint.  The main contention of the Misc. Applicant, in brief, is that the OP, Dr. T.Y.Pemba, has died on 26.11.11 thereby leaving behind his legal representative namely his wife, Mrs. Tsering Sangmo, and that as per provisions of Order 22 of the Civil Procedure Code the wife of the deceased OP may be substituted in the present case for proper adjudication.

          At the time of hearing it is submitted on behalf of the Misc. Applicant that the OP having died thereby leaving behind his wife and his legal representative she should be impleaded in the present proceeding and hence, the Misc. Application.  The Ld. Advocate for the wife of the deceased OP while countering such submission has submitted before us that in a case of present nature, where personal liability has been involved, the same cannot devolve on the legal representative on such person.  According to the Ld. Advocate, in this case the OP has died leaving behind his wife and the wife under legal provisions cannot be substituted in this case as that would go against the established norms and principles.  In this connection, the Ld. Advocate has cited the decision reported in 1997 (1) CPR 466 wherein it has been held by the Hon’ble State Commission, Andhra Pradesh, that as the cause of action did not survive against the legal representatives of Dr. G.Sarangapani against whom the complaint was dismissed and the legal representatives could not be brought on record, the appeal was found to be not maintainable.

          We find much substance in the submissions so put forward on behalf of the wife of the deceased OP to the effect that the application to bring on record the legal representative of the deceased doctor against whom complain was filed for medical negligence, is not allowable as in such a case right to sue against the deceased does not survive.  Having considered the present matter in the light of above discussion we find practically no merit in the present Misc. Application, which, in our opinion, should be dismissed. 

          Hence, it is ORDERED that the Misc. Application stands dismissed on contest but without any order as to cost.  Since the sole Opposite Party has expired and right to sue does not survive, the complaint is dismissed.  There will be no order as to costs.