STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                                                First appeal No.160 of 2015

Date of the Institution: 10.02.2015

Date of Decision: 26.02.2015

Gugan Ram S/o Sh.Moola Ram @ Mool Chand, Caste Chamar, R/o Village dulana, Tehsil & District Mahendergarh.

Versus

1. E.C.H.S. Polyclinic Employee Colony, Narnaul through its Branch Manager/Chairperson/Officer Incharge.
2. E.C.H.S. Polyclinic, Jaipur through its Branch Manager/Chairperson/Officer Incharge.
3. S.K.Sony Hospital, Sector-5, Vidhyadhar Nagar Jaipur-13 through its director/Chairperson/Officer Incharge/Chief Medical Officer.
4. United India Insurance Company Ltd. Digambar Jain Dharamshala Building, M.I.Road, Jaipur through its Manager.

                                                                             .….Respondents

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

Present:-    Mr.Mukesh Yadav, Advocate for the appellant.

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

Delay of 03 days in filing the appeal is condoned for the reasons stated in the application for condonation of delay.

This appeal has been preferred against the order dated  29.12.2014        passed by the District Consumer Disputes Redressal Forum (in short ‘District Forum’), Narnaul vide which the complaint was dismissed.

          Complainant alleged that in the month of September 2010 he felt pain in chest and stomach.  As there was no improvement, he got himself admitted at Metro Hospital, New Delhi where he remained admitted upto 30.09.2010.  There was no improvement in his condition, so on 01.10.2010 he went to Parkash Hospital at Noida, where he remained admitted upto 07.10.2010. When there was no improvement he went to  ECHS Polyclinic Hospital, Narnaul on 16.10.2010 and from there he was referred to ECHS Polyclinic, Jaipur.  On 16.10.2010 he was referred to Sony Hospital, Sector-5, Vidyadhar Nagar, Jaipur where he was admitted in the unit of Dr.Bharat Raj Sharma.  On 17.10.2010 an injection was given, due to which pain started in the right thumb and right figure.  He complained about the same, but, they did not pay any attention.  On 20.10.2010 he discharged from Sony Hospital, Jaipur.  On that very day he again went to ECHS Polyclinic, Jaipur and from there he was again referred to S.K.Sony Hospital, Jaipur and was admitted in the unit of Dr.Ram Singh Yadav.  He remained admitted upto 25.10.2010. When there was no improvement, he went to Mamta Hospital, Gurgaon on 29.10.2010 and remained admitted upto 02.11.2010, but, there was no improvement.  On 10.12.2010 he was referred to Batra Hospital, New Delhi by ECHS Polyclinic, Delhi.  There was no improvement and he was discharged from the hospital. Ultimately his right fingure and right thumb were amputated due to negligence on the part of the doctor of Sony Hospital, Jaipur  where wrong injection was given due to which he came to this situation. All the aforesaid hospitals were on the panel of ECHS scheme. He be awarded compensation, as mentioned in the complaint.

          During pendency of complaint, O.P.No.3 filed an application to decide question of territorial jurisdiction before other points.

          After hearing both the parties, the District Forum dismissed the complaint for want of jurisdiction with liberty to file fresh complaint before the competent fora.

          Feeling Aggrieved, therefrom, the appellant-complainant has preferred this appeal alleging that District Forum has not appreciated the law and facts properly.

          Arguments heard.  File perused.

          Learned counsel         for the complainant vehemently argued that he was resident of district Mahendergarh and initially went to ECHS Polyclinic, Narnaul that is why District Forum, Narnaul was having territorial jurisdiction to decide this matter.

This argument is of no avail.  As per his averments, wrong injection was given on 17.10.2010 at Sony Hospital, Jaipur.  In this way cause of action accrued to him at Jaipur and not at Narnaul.  Respondent Nos.2,3 and 4 are not situated at Narnaul. For the purpose of territorial jurisdiction Section 11 of the Consumer Protection Act, 1986 (In short “Act”) is to be looked into which is reproduced as under:-

“11. Jurisdiction of the District Forum-(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed [does not exceed rupees twenty lakhs].

(2) A Complaint shall be instituted in a district Forum within the local limits of whose jurisdiction.

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or [carries on business, or has a branch office, or] personally works for gain; or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or [carries on business or has a branch office, or] personally works for gain: Provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or [carry on business or have a branch office, or] personally work for gain, as the case may be, acquiesce in such institution; or

                    (c ) the cause of action, wholly or in part, arises.”

          From the perusal of this section, it is clear that the service provider should have it’s head office or branch office at the given place. In the present case, the complainant has miserably failed to prove that Opposite parties against whom he is having grouse, are having head office or branch office at District, Narnaul. 

Such a controversy has been decided by the Hon’ble Supreme Court of India in case cited as Sonic Surgical versus National Insurance Company Ltd. 2010 CTJ 2 (Supreme Court) (CP), wherein it was held that:-

“Incidence of fire in the appellant’s godown at Ambala –Complaint claiming compensation from the respondent allowed by the State Commission, Union Territory, Chandigarh – National Commission set aside the said order accepting the appeal of the respondent on the ground that the State Commission, Union Territory had no jurisdiction to entertain and adjudicate the complaint –Hence, the present appeal –Admittedly no cause of action arose at Chandigarh – Insurance policy taken at Ambala, fire broke out in the godown at Ambala, and the claim for compensation also made at Ambala –Cause of action arose in 1999 and the complaint regarding the same filed in 2000- Amendment to Section 17(2) not to apply as the amended Section came into force with effect from 15.3.2003 – Contention that the respondent-insurance company having a branch office at Chandigarh, the complaint could have been filed in Chandigarh under the amended Section 17(2) rejected as unacceptable –It would have led to absurd consequences of bench hunting, meaning thereby that even if a cause of action has arisen in Ambala, then too the complainant can file a complaint in Tamil Nadu or Guwahati or anywhere in India –Cause of action having arisen at Ambala, the State Commission, Haryana alone to have jurisdiction to entertain the complaint-Impugned order of the National Commission agreed with –Appeal dismissed.”

In para Nos.3 and 4 of the above said judgment, the Hon’ble Supreme Court has held that:

“3. ……………On appeal, the NCDRC allowed the appeal of the respondent herein on the ground that the Consumer Commission at Chandigarh had no jurisdiction to entertain and adjudicate the complaint. We are in agreement with the view taken by the NCDRC.”

“4. In our opinion, no part of the cause of action arose at Chandigarh. It is well settled that the expression ‘cause of action’ means that bundle of facts which gives rise to a right or liability. In the present case admittedly the fire broke out in the godown of the appellant at Ambala. The insurance policy was also taken at Ambala and the claim for compensation was also made at Ambala. Thus, no part of the cause of action arose in Chandigarh.”

In para No.9 and 10 of the above said judgment, the Hon’ble Supreme Court has held that:

“9.     ……….It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression ‘branch office’ in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity.

10. In the present case, since the cause of action arose at Ambala, the State Consumer Disputes Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint.”

The above said judgement is fully applicable in the present case.

That complaint can be filed where cause of action has occurred or where the OP against whom relief is claimed is having it’s head office/branch office.

     No cause of action accrued to complainant at Narnaul and the office of the Ops, against whom allegations of negligence are leveled, are not having their office at Narnaul.  District Forum Narnaul was not having territorial jurisdiction to try this complaint. So the impugned order dated 29.12.2014 cannot be set aside. Hence the appeal is hereby dismissed in limine.

     In terms of judgment of the Hon’ble Supreme Court in Laxmi Engineering Works Versus PSG Industries Institute (1995) 3 SCC 583, the petitioner/complainant may seek exemption/condonation of the time spent before the Consumer Fora to seek remedy before the Civil Court, if so advised.

It is to be presumed that Ex. R-2 was signed and accepted by the complainants. Hon’ble Supreme Court  has opined in M/s Grasim Industries Ltd. & Anr. Vs. M/s Agarwal Steel 2010 (1) SCC 83 as under:-

“Evidence Act, 1872, Section 114-Document signed by  party-there is a presumption, unless there is proof of or fraud, that he has read the document properly and understood-Presumption is stronger in case of businessmen they being careful people.”

15.              So it is to be presumed that proposal form was singed at Chandigarh and not of Panchkula.