HON’BLE DR. S. M. KANTIKAR, PRESIDING MEMBER Heard arguments from both sides. 1. This is a case of alleged medical negligence, which resulted in the death of the patient. 2. The complaint has been filed by the father (complainant no. 1) of the deceased together with the minor son (complainant no. 2) of the deceased through his guardian (his grandfather i.e. the father of the deceased). 3. The present first appeal has been filed against the Order dated 22.09.2017 passed in complaint case no. 294 of 2014 by the State Commission. 4. The complainants i.e. the appellants herein went before the State Commission to seek the following relief : RELIEF(S) a. To direct the opposite party to pay all the expenses incurred by the complainants during treatment of deceased at the hospital of Opposite Party along with compoundable interest @18%; and b. To pay Rs.40,00,000/- (Rupees Forty Lakhs) along with compoundable interest @18% from the date of filing the complaint as compensation towards loss suffering and mental agony caused to the complainants; and ---- (para 11 of the complaint) 5. The State Commission dismissed the complaint vide its impugned Order dated 22.09.2017: Dated :22.09.2017 Complainant has neither paid cost imposed on the last date nor filed evidence by affidavit. Rather he has already moved an application for amendment of complaint. Copy of said application supplied to OP. Counsel for OP states that he does not want to file reply to the above application but orally oppose the same. Heard. The plea of the complainants is that they are of rural heritage and are not well versed with the working of laws and courts. That is immaterial because the complainants were represented by an advocate. The other plea of the complainants is that previous counsel has no experience in the cases of medical negligence. Again this is not ground for amendment. The complainant wants to add para-1A, substitute para-3 & 6 of the complaint, delete para-7, add para 6A to 6K. In fact, the application is aimed at filing a denovo complaint. The same cannot be allowed particularly when amended complaint would be barred by limitation u/s 24 (A) Consumer Protection Act. Death of the victim took place on 02.04.2013, now to entertain the complaint in September, 2017 would defeat the limitation prescribed under the Act. The application is dismissed. The right of complainant to file evidence by affidavit is closed due to non payment of cost. Counsel for OP states that since complainants have not adduced any evidence, he also does not want to file any evidence. Since complainants have failed to establish their case, the complaint is dismissed. File be consigned to Record Room. 6. It is noted that vide its impugned Order, the State Commission has dismissed an application for amendment of the complaint, closed the right of the complainants to file their evidence, and dismissed the case for lack of evidence. 7. We may first observe that when the complainants were not allowed to file an amended complaint and their right to file evidence was also closed, it was but natural that the complainants would fail to establish their case. The questions material to the case, thus, are: one : whether an amended complaint should be allowed. two : whether right to file evidence should be allowed. 8. We have carefully perused the impugned Order and all the material on record. We inter alia note that the sum and substance and the import of the allegations of medical negligence / deficiency in service do not materially and substantively change in the amended complaint, the opposite party is not put to any prejudice or disadvantage. 9. We are of the considered view that a case of alleged medical negligence, and especially so when it resulted in the death of the patient, should, as far as (lawfully) feasible, be comprehensively and holistically examined on merit, with the affording of the due opportunity to all the parties involved, including, inter alia, the complainants, to profess their respective cases professionally. And in a matter of such nature, imposition of cost on the complainants should ordinarily be avoided. 10. In the light of the above brief discussion, and in the interest of justice, the appeal is allowed. The impugned Order dated 22.09.2017 of the State Commission is set-aside and the complaint is restored to its original number before the State Commission. The complainants are granted opportunity to amend their complaint and to file their amended complaint before the State Commission within 30 days of pronouncement of this Order. The State Commission is requested to thereafter grant 30 days to the respondent to file its written version under Section 13(2) of the Act 1986, and to then complete the pleadings in the normal wont and adjudicate the case on merit as per the law. 11. We make it explicit that we have consciously refrained from making an elaborate critique on the matter brought before us in first appeal, since the case is as yet to be adjudicated on merit by the forum of original jurisdiction (State Commission), and since we do not want to in any manner color the vision of the State Commission, as may put either side, including, inter alia, the respondent, to disadvantage. 12. All the parties are directed to appear before the State Commission on 06.05.2019 for further proceedings. 13. Let a copy each of this Order be sent by the Registry to all parties within seven days of its pronouncement. | 
