Haryana

StateCommission

CC/4/2016

RITU VATS - Complainant(s)

Versus

KAMLA DIAGNOSTIC CENTRE - Opp.Party(s)

V.B.SETHI

06 Sep 2018

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  No.04 of  2016

Date of the Institution:07.01.2016

Date of Decision: 06.09.2018

 

1.      Ritu Vats W/o Sh.Vikas Vats, R/o Flat No.17, Ground Floor, Shubh Homes, Kishanpura, Dhakoli, Distt. Mohali, Punjab.

2.      Vikas Vats S/o Sh.Ram Rattan Vats, r/o Flat No.17, Ground Floor, Shubh Homes, Kishanpura, Dhakoli, Distt. Mohali, Punjab.

                                                                   .….Complainants

Versus

 

Kamla Charitable diagnostic Centre, SCF-65, Sector-6, Panchkula.

 

                                                .….Opposite Party

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

 

Present:-    Mrs.V.B.Sethi,   Advocate for complainant.

                   Mr.Pankaj Chandgotia, Advocate counsel for opposite party.

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

The brief facts given rise for the disposal of the present complaint are that the complainant No.1 became pregnant for second time in the year 2013 and routine check-ups was done from Dr. Nupur Sharma, Gynaecologist, Baltana Zirakpur, Distt. Mohali, Punjab.   Treating doctor advised the complainant No.1 for conducting the ultrasound at level-2.  On 25.05.2013, the O.P.No.2 conducted the ultrasound of complainant No.1 in the diagnostic centre of O.P No.1 and as per the report, there was no deformity in the foetus. Treating doctor again advised the complainant NO.1 for final ultrasound scan at 34 weeks of her pregnancy.  On 29.07.2013 the doctor who conducted the ultrasound scan, made it clear in the report that foetus was suffering from some deformities such as Arnold Chiari II Malformation i.e. Hydrocephalus with lubo sacral myelomentingoecele. The doctor made it clear that there was CFL in brain and spine deformation. After receiving the second scan report, the complainants went to treating doctor where the treating doctor suggested her to repeat the ultrasound for confirmation about the deformities of the foetus.  The Radiologists consultant of Alchemist hospital also gave the report on 29.07.2013 and as per the report, there was evidence of fetal ventriculomegaly and Bony Defect was seen in the Lumbo Sacral Region with the soft tissue mass. The reports also mentions that foetus was suffering from Hydrocephalus, Small posterior Fossa and   Myelomenengiocele in the Lumbo Sacral Region (Chiari Malformatior).  After seen the report of complainant No.1, treating doctor refused to take the case and referred her to PGI Chandigarh. The complainant No.1 went to the various doctors including Dr.Mangla Dogra, Gynaecologist, but, they refused to delivery of complainant No.1 and advised her to go to PGI, Chandigarh because the foetus was suffering with serious diseases.  She went to PGI on 17.08.2013 with labour pains and delivered a female baby on 17.08.2015. The infant was suffering from Arnold Chiari II Malformation and child namely Aradhya, three months was operated for Hydrocephalus in PGI Chandigarh. Aradhya was remained admitted in PGI from 05.11.2013 to 13.11.2013.  Her surgery was conducted on 07.11.2013 and thereafter on 01.02.2014. Aradhya got too weak after second surgery. The doctors told the complainant that due to child’s neuro problems, her veins were so connected with each other that she can suffer any time problems relating to kidney, UTI infections and active constipation. Due to the above deformities Aradhya was suffering from many problems.  The VP shunt was inserted in the brain of Aradhya has lot of complications. The complainant No.1 left her job due to treatment of her child.  Aradhya was still under treatment, due to the deficiency and negligency in service by the O.Ps. and she has to undergo for treatment for whole of her life.  The complainants spent about Rs.10/- lacs on the surgery, treatment, medicines etc. and would have to spend much amount on her future treatment.  Thus there was negligence in service and deficiency in service on the part of the O.Ps.

2.      The complaint was resisted by the O.P.No.1.-Kamla Cheritable by filing a written statement before the State Commission, in which O.P.No.1 stated that complainant was not attached any receipt of payment of any charges.  O.P.No.2 conducted the ultrasound and the complaint was not maintainable as O.P.No.2 the consultant sinologist has expired. The answering OP was not the doctor of the complainant. The ultrasound scans cannot detect all abnormalities.  Owing to technical and statistical limitations, not all abnormalities can be assessed on an ultrasound. In the report, it is written that 2-5% of CMF can be missed on USG. The alleged report was dated 25.05.2013 and complaint has been filed in December 2015 i.e. more than two years and six months after this date.  Thus there was no negligence in service and deficiency in service on the part of the O.P.No.1.  Preliminary objections about accruing cause of action, Limitation, complainants are not consumers etc. were also raised and requested to dismiss the complaint.

3.      When the complaint was posted for recording evidence of the parties, the complainant No.1 in her evidence has tendered the affidavit Ex.CA vide which she has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-89 and closed her evidence. Complainant No.2 also tendered the documents Ex.90 to EX.C-130 and closed his evidence.

4.      During the proceedings, this Commission is intents to dispose of an application filed by O.P. No.1 for dismissal of the complaint. 

5.       Briefly stated that the facts of the present application are that  complaint No.04 of 2016 was instituted against the present application as well as Dr. Ashwani Kumar, Consultant Sonologist, who had already expired on 16.08.2015 even before institution of the complaint.   Therefore the name of the O.P.No.2 was deleted out of the array of the parties vide order dated 20.05.2016. 

6.      It has further been alleged that since the sonologist, who have given the report and appended his signatures had already been expired.  No cause of action survives and the authenticity of the report cannot be taken into consideration. 

7.      It has further been averred that Mewa Lal Aggarwal, the Managing Trustee of Kamla Charitable Trust have expired on 20.06.2018.  The death certificate is also annexed with the application.  Consequently upon the death of Mewa Lal Aggarwal, Kamla Charitable Trust has become defunct and ceased to exist, leave aside the legal formalities, the complaint is liable to be dismissed.           As it is the settled proposition of law that action of tort are destroyed by death of either the insured or the another party and resultantly the complaint is liable to be dismissed.

8.      Notice of the application was issued against the complainant and the reply to the application has been filed wherein the contents of the application have been vehemently denied and refuted and prayed for dismissal of the application on the ground of maintainability of application. Kamla Charitable Diagnostic Centre is still running and it is not closed after the death of the managing trustee namely Mewa Lal Aggarwal. There are other trustees also and as per the knowledge of the complainant, after the death of deceased-Mewa Lal Aggarwal, other trustee are running the trust and recently also, the complainant had gone for the test of blood and  in this regard receipt has also been issued.

9.      On merits, it has further been alleged that at the time of instituting the complaint, answering complainant was not aware of the factum of death of Dr. Ashwani Kumar, consultant sinologist and now only when his name was deleted out of the array of the parties. The employer of Kamla Charitable Diagnostic Centre and another is equally liable for medical negligence.

10.    It has further been alleged that answering complainant does not know about the death of the Managing Trustee namely Mewa Lal Aggarwal but the trust is still exist and is running by the other trustees.  It has been wrongly alleged that the trust has ceased to exist or had become defunct only on the death of one of the trustees. 

11.    It has further been denied that the trust has been closed  and finally it was prayed that the application may be dismissed.

12.              The arguments have been advanced by Sh.V.B.Sethi the learned counsel for the complainant as well as Mr.Pankaj Chandgotia,  the learned counsel for the opposite party.  With their kind assistance the entire record including  application for dismissal  as well as documentary evidence at the time of application, whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

13.               It has been argued by Sh.Pankaj Chandgotia, the  learned counsel for the applicant-opposite party No.1 that since Mewa Lal Aggarwal, trustee has expired and the death certificate is also placed on the record and as per the trust deed, there are two trustees only namely Mewa Lal Aggarwal and Krishan Kumar Aggarwal.  Once Mewa Lal Aggarwal has expired, the trust automatically ceased to exist, as there is only one trustee in order to continue with the trust, there has to be more than one trustee.  Even the elder son of the deceased Mewa Lal Aggarwal had also refused to become the trustee and in this regard he has also sworn the affidavit which is placed on the record. As such, since the very existence of the trust had ceased to exist, the present complaint cannot continue against the trust and the possession of the premises where the trust was running had already been settled to his owner.  Hence the proceedings stands ordered and the complaint is liable to be dismissed and prayed for the same.

14.              On the other hand, it has been argued by Mrs. Veena Bhutani, the learned counsel for the respondents-complainants that as far as the death of Dr.Ashwani Kumar, consultant sinologist is concerned it was not within the knowledge of the complainants at the time of instituting the complaint.  It is settled proposition of law that officials of the trust can be liable for the medical negligence.  Even if Sh.Mewa Lal Aggarwal had expired, still there are other trustees who are managing the affairs of the trust and governing  its functioning, trust does not ceased to exist and at the most the other trustess  can be appointed by the board of trustees and even otherwise also, the trust is irrevocable and as such, the trust can not be ceased to exist and even as per  sub clause 5 of clause No.4, which deals about board of trustees, it has been categorically mentioned on account of death of trustee, his elder son or his nominee shall become the trustee in his place. Otherwise his legal heir or his wife of the deceased member shall be eligible to become the trustee.  Finally it was prayed that the application has been filed with an ulterior motive and complaint is liable to be dismissed.          In support of these contentions the complainants have placed her reliance upon the celebrated authorities of Hon’ble High Court of Delhi in R.S.A. (OS) 28/2015 titled as Jhang Biradari Housing Residents Society Vs. Bharat Bhushan Sachdeva & Ors. decided on 24.08.2015, C.Nagamanickaya and others Vs. K.Syamanthakamma and others in A.S. Nos.582 and 583 of 2006 decided on 21.02.2012 passed by High Court of Madras and Hon’ble National Commission in Revision Petition No.2158 of 2010 titled as Mrs. Alka Srivastava & Anr. Vs. Base Hospital Delhi Cantt. & Anr. Decided on 02.07.2015 .

15.              In view of the above submission and the careful submission of the entire record, it is true that Kamla Charitable Diagnostic Centre & another was constituted by way of trust deed on 02.08.2006 having its registered office at Panchkula.  There are two trustees namely Mewa Lal S/o S.Karori Ram and Smt. Kamala Devi W/o Sh.Mewa Lal  both resident of house No.421, Sector-7 Panchkula.  As per the death certificate  Annexure A alongwith the application  which is under consideration of this Commission, Mewa Lal Aggarwal had expired on  20.06.2018 was the Managing Trustee of the Kamla Charitable and after his death only one trustee namely Kamla Devi survives and as per the provisions enshrined under the Trust Act at least two trustees are required to run a trust.  In the present case, though as per the terms and conditions incorporated in the trust deed, consequent upon a death of a trustee, his elder son or his nominee shall become the trustee in his place.  Otherwise his legal heir or his wife of the deceased member shall be eligible to become the trustee.  As per clause 4 (v) of the trust deed, the son or the legal heir of the deceased trustee and become or nominated as a trustee. As per the affidavit placed on the record that of Sh.K.K.Aggarwal son of deceased Mewa Lal Aggarwal.  He has sworn an affidavit, wherein he stated that he does not want to run the trust   and infact the initial process has been started for its formal closure.  Once the son of the deceased trustee had refused to run the trust and the process has already been started for closure but for completion of the legal formalities  for the closure of  a trust are tedious and long drawn and will take about six months.  Even the premises where the trust was running, its possession has already been taken by Sh.Vipin Aggarwal on 17.07.2018 as per the certificate given by him and had been placed on the record.

16.              Now the question arises when the concerned doctor had already expired, who was a consultant sonologist, his report cannot be taken into consideration unless and until, it is proved in accordance with law.  One of the Managing Trustee has already expired and consequent upon his death, the trust, as such, ceased to exist and would amount to be its closure.  Smt. Kamla Devi  the wife of deceased Mewa Lal Aggarwal, the only trustee cannot run it as per the provisions and the definition of trust at least two Managing  trustees are required to Manage the affairs of the trust and as such, in the given fact and circumstances, the proceedings stands evaded and cannot continue.   It is the settled proposition of law that once a trust would also remains a trust  like the other proposition that once a mortgage would always remain a mortgage as the property of the trust cannot be allowed to be dissipated in any manner. Resultantly, the complaint accordingly stands dismissed.  However the authority which had been relied upon by the learned counsel for the complainant are based on in ordinarily different facts and circumstances and had not squarely covered the fact of the present case.   A proposition “once a trust always a trust” and “once a mortgage always a mortgage” do not apply to the facts of the present case and vary from the each and every case and cannot generalize in nature.  Resultantly, the complaint accordingly stands dismissed.

 

September  06th, 2018                                              Ram Singh Chaudhary                                                                                                        Judicial Member                                                                                                                   Addl.Bench               

S.K.