Karnataka

Kolar

CC/33/2019

Mr.Priyadarishanum - Complainant(s)

Versus

Dr.Mythily Mannan - Opp.Party(s)

Sri.K.V.Shankarappa

31 Jul 2020

ORDER

Date of Filing: 14.05.2019

Date of Order: 31.07.2020

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 31^st DAY OF JULY 2020

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., …… PRESIDENT

SRI. B.M. NAGARAJA, B.A., LLB., ….. MEMBER

 

CONSUMER COMPLAINT NO. 33 OF 2019

Mr. Priyadarishanum,

No.1050/1, Main Road,

Sumathi Nagar, Robertsonpet,

K.G.F-563 122.                                                 ….  COMPLAINANT.

(Rep. by Sri. K.V. Shankarappa, Advocate)

- V/s –

1) Dr. Mythily Mannan, Gynecologist,

Mannan Hospital,

(Maternity, Infertility & Surgical Hospital)

Behind Bharath Petroleum Corporation Limited,

Dr. B.R. Ambedkar Road,

Robertsonpet, K.G.F.-563122.

(Rep. by Sri. D.V. Vishwanatha Gowda, Advocate)

 

2) Dr. Mohammad Shabbir,

Consultant critical care,

Motherhood Hospitals,

514/1-2-3, Kaikondra Village,

Opp Total Mall, Sarjapur Road,

Bangalore-560 103.

(Exparte)

 

3) Dr. Anand Mamdapur,

Consultant and Head, Critical Care Medicine

Sakra World Hospital Bangaluru,

52/2 & 52/3, Deverabeeranahalli,

Outer Ring Road, Marathahalli,

Varthuru Hobli, Bangalore-560 103.                  

(Rep. by Sri.S.V. Joga Rao, Advocate)                         …. OPPOSITE PARTIES.

ORDER

BY SRI. K.N. LAKSHMINARAYANA, PRESIDENT

01.   The complainant has filed this complaint against OPs Under Section 2(1) d, e, & g of the Consumer Protection Act, 1986 and prays to award compensation of Rs.15,00,000/-(Rupees Fifteen Lakhs only) and such other reliefs.

02.   The brief facts of the complainant case is that, the complainant has filed the above consumer complaint against three opposite parties as per amendment complaint for their negligence in treating the complainant’s daughter by name Pricilla and filed this complaint for the alleged relief.  The complainant has contended that, his daughter confirmed pregnancy on 07.03.2016 by OP and took follow-up treatment till 08.08.2016.  The complainant’s daughter had severe fever, cold and body pain on the night of 23.08.2016 and on the next day she was brought to OP hospital for check-up, it was found that, the baby was normal with 31 week, 05 days of gestation period, but the mother was suffering from fever.  On 25.08.2016 she was admitted to the hospital.  The blood sample was taken and conducted examination on the said blood at their own lab.  The reports of Positive Dengue was diagnosed on 25.08.2016 itself and in spite of that, OP has not bothered to start any treatment or did not get reference from any other qualified Doctor to treat such disease and discharged the patient.  On 28.08.2016 the patient was admitted with severe chills and sweatting and even then OP did not bothered to refer to any doctor who is capable of treating Dengue fever.  When the condition worsened, in the record of OP hospital the reading the blood count was 1,37,000 cu/mm and they were not confident of their own lab report and took second opinion from Akash Hi-tech Computerized Diagnostics, Robertsonpet, K.G.F, where the same blood came out with 53,000 cu/mm.  At that stage the complainant daughter stared deteriorating and the OP advised the complainant to take to other hospital when the patient went to serious condition.  The patient was taken to Motherhood Hospital, Sarjapur Road, Bangalore, within two hours at 06.45 PM, but the complainant’s daughter not recovered in the said hospital and on 29.08.2016 at 9.00 AM, when the pulse rate went down and BP come down along with platelet count and the doctors called the complainant and informed that, they have no specialized in cardio and other equipments and took the patient to Sakra World Hospital, Opp. Intel, Outer Ring Road, Marathahalli, Bangalore.  Wherein five team of Doctors said that, the baby is no more, they can save the patient and not assured of her survival and at about 09.00 PM the Doctors informed the complainant about the failure of multiple organs like Kidney, lever, Lungs, Brain and the heart and the complainant’s daughter collapsed at 11.35 PM.  Thereafter the complainant filed this complaint against OPs for claiming compensation for the negligence and deficiency of service against the OPs.

03.   The OP No.1 & 3 appeared and engaged their counsel.  OP No.2 placed exparte.  OP No.3 has not filed version.

04.   OP No.1 has filed version and so also filed amended version by denying the entire allegations made by the complainant except which are admitted at Para-2 of the complaint and specifically denied other allegations as false, baseless and put the complainant to prove the same.  The OP No.1 has specifically contended that, the petition is not maintainable as the complainant cannot file any case before this District Commission either claiming compensation or damages of any amount.  The complainant is not at all a legal representative, especially preferential legal representative of his married daughter and he has no locus-standi.  The petition is also not maintainable as on the last day of treatment of Priscilla i.e., on 28.08.2016 on which day she was brought to the hospital of OP No.1 and OP No.1 has not charged her anything, since it is a case of emergency.  The OP No.1 has treated Pricilla on the basis of medical ethics in view of emergency and the question of deficiency of service does not arise.  The husband of the deceased who had accompanied the deceased Pricilla has given statement in writing to the Sub-Inspector of Police, Robertsonpet, K.G.F, stating that, there was no fault of whatsoever on the part of OP No.1 in treating the deceased during her lifetime.  The husband of the deceased by name Arun Prabhakaran accompanied the patient on 28.08.2016.  The complainant has not at all shown any basis to claim a sum of Rs.15,00,000/- from OP No.1.  The complainant Priyadarshanum never come to the hospital of OP No.1 at any point of time during the treatment of deceased Pricilla and there is no negligence on the part of OP No.1 in treating the patient and prays to dismiss the complaint in the ends of justice and equity.

05.   On 26.11.2019 the complainant has submitted his affidavit evidence by way of examination-in-chief and submitted following documents which are marked as Annexure-1 to Annexure-11 i.e.,

(1) Xerox copy of Mannan Hospital case sheet-Annexure-1

(2) Xerox copy of Akash Hi-Tech computerized diagnostics-Annexure-2

(3)Xerox copy of case sheet of Mother hood specialty-Annexure-3

(4) Xerox copy of case sheet of Sarkar Old Hospital-Annexure-4

(5)Xerox copy of complaint in superintendent of police –Annexure.5

(6) Xerox copy of the complaint in Deputy Commissioner, Kolar.-Annexure-6

(7) Xerox copy of the complaint in Director of Health of Family Welfare Service, Bangalore-Annexure-7

(8) Xerox copy of the complaint in the Circle Inspector of Police-Annexure-8

(9) Xerox copy of the News papers 4 in numbers-Annexure-9

(10) Xerox copy of the FIR and acknowledgment four in numbers-Annexure-10

(11) Xerox copy of the Mannan Hospial, Case sheet-Annexure-11

 

06.   On 17.02.2020 the OP No.1 has submitted his affidavit evidence by way of examination-in-chief and examined as DW-1 and produced following documents i.e.,

(1) Copy of the opinion of the Medical Board, SNR Hospital, Kolar.

(2) Copy of the letter addressed by Arun Prabhakar to Sub-Inspector of Police, Robertsonpet Police Station, KGF.

(3) Copy of the ‘B’ Report,

(4) Copy of the Chapter-V of the National Guidelines.

(5) National Guidelines for Clinical Management of Dengue Fever.

 

07.   Heard arguments of the counsel for the complainant and so also the counsel for OP No.1 in length.  We have perused the complaint, version and amended version, written arguments filed by the complainant and OP No.1 and the citations referred by OP No.1

08.   Now the points that do arise for our consideration are that:-

(1)    Whether the complainant is the legal representative of his deceased daughter Pricilla in the presence of her husband one Mr.Arun Prabhakaran ?

 

(2) What order?

 

09.   Our findings on the above points are:-

POINT (1):-      In the Negative.

POINT (2):-      As per the final order

for the following:-

REASONS

10.   POINT (1):- At the outset it is relevant to state here that, the OP No.1 in her amended written version dated: 24.01.2020 has specifically contended at Para-18 that, the complainant is not at all a legal representative, especially preferential legal representative of his married daughter, since he has no locus-standi.  And in spite of taking the said contention the complainant has not at all filed any objections to that effect and neither the OP No.1 nor the complainant pressed the said point till addressing arguments on merits of the case.  Such being so, it is just and necessary to take up the matter on the point raised to dispose the case without going to the merits of the case.

 

11.   In that regard the counsel for OP No.1 has vehemently addressed arguments and relied number of decisions to support his case on the point and in many of the decisions their lordship have held that, father is not entitled for any compensation.  In this case, the complainant has not at all stated anything in his complaint or in the amended complaint that, he is depending on the income of the deceased Pricilla.  Now the question is that, whether the complainant is a legal representative of his deceased daughter in the presence of the husband of the deceased to file this complaint ?

 

12.   Now at this juncture it is relevant to peruse Section 2(5)(vi) of Consumer Protection Act of 2019 and Under Section 2(1)(b)(v) of CPA 1986, that in case of death of a consumer his heir or representative, that in the event of death of a complainant his legal heir or legal representative can file complaint as the legal heir stands in the shoes of the deceased as his representative to enforce any cause of action.  In this regard we relay citation reported in 1992(1) CPJ 302 (NCDRC), wherein it was held that, legal heirs of a deceased person are consumer and we relay another citation reported in 1996 CPJ 239 (NC), head note (1) wherein the complaint filed by the husband on behalf of his wife and held that husband has got locus-standi to file complaint on behalf of his wife.  The said principle is attracted to the facts and circumstances of the case on hand on the point. 

 

13.   Further as per Section 15 of General rules of succession Act of 1956, in the case of female Hindus.- (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

        The counsel for OP No.1 has relied citation reported in 1983 ACJ 596 of Hon’ble High Court of Allahabad, wherein the lordship has held that, no evidence on record that, father was dependent on the earnings of the deceased, the complaint is not maintainable, in 2016 ACJ 861 of Honble High Court of Sikkim, wherein their lordship has held that, father who is getting pension is not entitled for compensation and he is not dependent on the deceased daughter, but in that regard the complainant is mum.   And in 2010 ACJ 2486 of Hon’ble Andhra Pradesh High Court, that whether father is entitled to receive any compensation for the death of son along with widow, children and mother held: no and held that, father cannot be treated as dependent of the deceased and so also relied citation reported in 1995 ACJ 474 of Hon’ble High Court of Punjab & Haryana, wherein their lordship has discussed the matter with respect to the legal representative Under Section 8 read with Schedule of Hindu Succession Act, 1925, that seven dependants including father of the deceased are claimants in a claim application for the death of the deceased wherein the father who is a class II heir is entitled to compensation-Held: no.   OP No.1 has also relied another citation reported in 2003 ACJ 278 and 2009 ACJ 856 of Hon’ble High Court of Calcutta, wherein their lordship has held that, whether father who is a class II heir is entitled to compensation along with widow and mother of the deceased who are class I heirs – Held: no.   

14.   The counsel for OP No.1 has also relied citation reported in 2001 ACJ 1674 of Hon’ble High Court of Madras, wherein their lordship has discussed the matter with respect to the legal representative that, whether the husband ceases to be a legal representative of his wife if she was not living with him at the time of her death-Held: no.  And so also relied another citation reported in 2010 ACJ 1199 of Hon’ble High Court of Calcutta, that whether father is entitled to any share of compensation for the death of his son along with widow and mother of the deceased – Held: no; father is not a legal representative in the presence of mother and widow. 

 

15.   Hence as discussed above, the complainant who is the father of the deceased has no locus-standi to file this complaint on behalf of his deceased daughter in the presence of the husband of the deceased who is class-1 heir and father is class-II heir.  Hence the complaint filed by the complainant is not maintainable and the complainant has no locus-standi to file this complaint. 

 

16.   POINT (2):-      In view of our finding on point No.1 and the discussion made thereon, it clearly discloses that, the father is not the legal representative of the deceased Pricilla in the presence of class-I heir, where the complainant is the class-II heir hence the complainant has no locus-standi to file this complaint on behalf of his deceased daughter in the presence of her husband and accordingly we proceed to pass the following:-

ORDER

01.   The complaint filed by the complainant is dismissed as not maintainable. 

02.   Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 31^ST DAY OF JULY 2020)

 

 

 

          MEMBER                                    PRESIDENT