Delhi

StateCommission

A/239/2016

S.C.SRIVASTAV - Complainant(s)

Versus

INDRAPRASTHA APOLLO HOSPITAL - Opp.Party(s)

RAJESH KUMAR

30 Aug 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

                                                             Date of Decision: 30.08.2019

 

First Appeal No. 239/2016

 

(Arising out of the order dated 22.03.2016 passed in Execution Petition No. 428/2014 by the District Consumer Disputes Redressal Forum-VII, Sheikh Sarai, New Delhi-110017)

 

In the matter of:

 

Sh. S C Srivastav (Deceased)
Through LRs

(Ms. Monica Nair, Tulika Dhulia and Sonali Vohra)

A-145, Sector-27

•                                     …….Appellant

 

Versus

 

Indraprastha Apollo Hospital

Sarita Vihar Delhi Mathura Road

New Delhi-110076

 

                                               

BEFORE:

 

SALMA NOOR               -                  PRESIDING MEMBER

 

1.       Whether reporters of local newspaper be allowed to see the judgment?                                    Yes

2.             To be referred to the reporter or not?                                                                                                      Yes

ORDER

Salma Noor, Presiding Member

 

1.     Having failed to get success in execution, LRs of complainant (deceased) have come in the present appeal. The appeal is directed against the order dated 23.03.2016 passed by District Forum VII passed in execution petition No. 438/2014. The complainant filed a complaint before the District Forum case for refund of Rs. 5,01,338/- incurred on treatment of his wife and Rs. 1,00,000/- as compensation for mental agony due to pre-mature death, Rs. 10,000/- as litigation costs. Interest @ 10% was also granted. The same was allowed vide order dated 22.05.2014.
2.     The complainant expired on 03.05.2012 during the pendency of the complaint. The complaint was decided on 22.05.2014 without bringing on record LRs of the complainant. It was only in execution when the JD filed objection that it came to notice that complainant had already expired during the pendency of the complaint. The complainant was survived by three daughters but counsel for complainant did not inform about the death of the complainant nor filed any application for bringing on record LRs of deceased complainant. Thus order was passed in favour of a dead person.
3.     The short controversy which arises is whether the decree in favour of a dead person is executable. It is a settled law that decree against a dead person is a nullity. But the counsel for DH tried to distinguish the  decree in favour of a dead person vis-à-vis decree against dead person.
4.     The District Forum after listening arguments from both the sides held that decree in favour of a dead person stands on the same footing as a decree against a dead person. In other words, decree in favour of a dead person is also un-executable. Accordingly, the objections of the JD were allowed and the execution was dismissed.
5.     Contention of counsel for appellant is that ‘complainant’ includes LRs of deceased complainant as per Section 2(b) of Consumer Protection Act. The argument is misleading. That definition is altogether in different context. It is not a case where the original consumer has already expired before filing of the complaint. In that event the LRs of the deceased become complainant and can file the complaint. It does not deal with the situation where complainant dies during the pendency of the complaint.
6.     Counsel for appellant relied upon the decision of Hon’ble National Commission in Revision Petition No. 625/2006 titled as Dr. Neeraj Awasthi v. Jagdish Bharti decided on 02.02.2010. In that case the question was whether maxim “action personalis cum moritur persona” was applicable i.e. whether the complaint for personal injury to the claimant abates or can be pursued by his LRs. That is not the situation in the present case. The appellant also relied upon the decision of Patna High Court in Tej Narain Singh v. (Dr.) Krishna Kant Singh and Ors. 1986 (34) BCJR 663 to make out that decree in favour of a dead person is executable. The same tried to distinguish decree against a dead person by observing that decree against a dead person is voidable at the instance of heir of the deceased. It is not void. Heir of deceased complainant in whose favour decree has been passed will never want to get it upset. The same runs contra to a previous decision of the same High Court in Natthamal Khandalia v. Janki Dev 1983 BLJR 517.
7.     Counsel for appellant also relied upon the decision of Hon’ble Supreme Court in M. Veerappa v. Evelyun Sequeira and Ors. AIR 1988 SC 506.  That was a case of death of plaintiff in whose favour order has been passed in the case of personal injury, during the pendency of the appeal. The same is not applicable to the case in hand.
8.     Counsel for appellant cited the decision of Hon’ble High Court of Delhi in Amarjit Singh and Ors. v. Pramod Gupta and Ors. 43 (1991) DLT 753. In that case objection of the JD regarding the decree being in favour of a dead person was overruled and the decree was executed in favour of LRs of deceased person. No appeal against the dismissal of objection was filed. That is also not applicable. Moreover in para 15 of the said judgment there is a surpassing observation that by now it is well settled that decree in favour of a dead person is not a nullity though it can be set aside in appeal. There is no discussion nor any arguments advanced to show that the decree in favour of a dead person stands on a different footing than decree against the dead person. Reliance has also been placed on decision of Hon’ble Supreme Court in Pragati Mahila Mandal v. Municipal Council AIR 2011 SC 1512. That was a case of public interest litigation in which sole petitioner expired during the pendency of the case. Various alternatives open in such cases were discussed. That is not applicable.
9.     On the other hand, counsel for respondent has relied upon the decision of High Court of Gujrat in Jiviben Lavji Raganath v. Jadavji Devshankaer LAWS (GJH)-1977-6-4. That is a direct decision on the point. What was decided in the said case is whether decree passed in second appeal after the death of sole appellant, in favour of appellant was a nullity. It was held that it is well settled that when a sole plaintiff or a sole appellant dies, the appeal abates. There is no proceeding before the court in which the court is seized of the lis between the parties. In such a case, the court lacks inherent jurisdiction to pass any order and if decree is passed in ignorance of the death of the sole appellant, the decree evidently would be a nullity. This principle must follow from observation of Supreme Court in Hiralal v.  Sri Kali Nath AIR 1962 SC 199. It was held by Hon’ble Supreme Court that validity of decree can be challenged in execution only on the ground that the court which passed a decree was lacking inherent jurisdiction in the sense that it could not have seizin of case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or the decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matters of the suit or either parties to it. In para 2 of the aforesaid judgment it has been held that in that case High Court in second appeal could not have seizin of the case because the sole appellant had died; and therefore it entirely lacked jurisdiction. Division Bench of Bombay High Court made similar observations in Amar Singh Ji v. Desai Umair AIR 1925 Bombay 2009.
10.  In para 3 of the aforesaid judgment it has been held that “we see no principle to distinguish the case of decree in favour of a dead person from the case of decree against a dead person.” The real principle is whether the court have inherent jurisdiction to pass a decree in such a case. It lack inherent jurisdiction because it has no seizin of the case as the sole appellant was dead, and no application for bringing LRs on record was made within the period of limitation. It is obvious that the abatement of a suit or any appeal is automatic and no order of the court is needed therefor. Therefore, in a case where a single or sole appellant died during the pendency of the appeal and in the absence of his LRs, appeal came to be heard and a decree came to be passed in his favour the said decree is a nullity in as much as appellant court was not seized of the case on the account of the death of sole appellant and lacked inherent jurisdiction to pass any decree in such an appeal. The LPA was dismissed.
11. Counsel for respondent has also relied upon the decision of National Commission in LIC of India v. Sunita (since expired represented by LRs) III (2016) CPJ 6. The same squarely applies to the case in hand. There also the complainant expired during the pendency of the case, the case was pursued without informing the court about the death of complainant and without impleading the LRs of late complainant on record. It was held that proceedings conducted by Consumer Court after the death of complainant stood abated because no application for substitution of LRs was filed within the stipulated period. Order of District Forum was without jurisdiction. State Commission committed grave irregularity in confirming the impugned order. Ultimately the revision petition was allowed and the order of the District Forum was set aside and the complaint was dismissed, as abated.  National Commission is the Apex Body so far as Consumer Courts are concerned.
12.  However, I do not find any support from T. Gnanavel v. T S Kangaraj and Anr. AIR 2009 Supreme Court 2367 cited by counsel for respondent. That was a case of death of defendant during the pendency of the case. The question which arose was whether exemption from substituting LRs can be given before the judgment is passed or it can be given even after the judgment was pronounced.
13.  I may add that a plaintiff can be heard to say that he was not aware about the death of defendant and so he could not bring the LRs of defendant on record. But it is a case where the complainant expired. His LRs cannot say that they were not aware about the death of the complainant. No explanation has been put forth by the appellant as to why no application for bringing on record LRs of the complainant was moved within the time prescribed by law.
14.  I do not find any illegality or infirmity in the order of District Forum. The appeal fails and is dismissed.
15.  Copy of the order be sent to the parties free of cost as per rules and one copy be also sent to the District Forum concerned for information.
16. File be consigned to record room.

(Salma Noor)

Presiding Member