This appeal bearing A/24/2022 is directed against the final order dated 27.04.2022 in CC No. 2 of 2022 of Ld. DCDRC, Jalpaiguri
The appellant/complainant case in capsulated form is that her husband Govind prasad a retired rly employee fell down on earth at his residence and received serious injury and better management of his treatment he was shifted to OP hospital. He succumbed to the injury at that hospital on 03.10.2019. His dead body was post mortem in U/D case no. 50/2019 dated 03.10.2019.
After the said sad demise of her husband, she pursued to get required document form 4 and form 8 and in this score she sweared affidavit before the executive Magistrate to substantiate her claim as wife of the deceased Govind Prasad. The OP hospital deliberately and intestinally failed to discharge the obligation to supply the required documents to the wife of the deceased and as a result she had been depriving to raise proper claims for the post death benefits of her husband.
So she filed the instant consumer complaint on account of deficiency in service and unfair trade practice on the part of OP hospital.
The consumer complaint was admitted on merit and notice was sent to OP hospital. The OP recorded the presence before the Ld. District Commission and challenged the jenuinity of the claim of the complainant by filing a petition dated 23.02.2022 and contended that Gobinda Prasad was brought to the hospital on 20.09.2019 by his wife Dolarani De Prasad and son Ajay Prasad who has signed in the various consent forms at hospital and for that reason from -4 and from 8 had been duly hundred over to them. The present complainant has no lone stand to get required documents and she is also not the bonafide consumers as per provisions of CP Act, 2019.
Ld. Dist. Commission heard the said petition and disposed the same on 27.04.2022 with observation that the complainant has not involved in process of sifting Govind Prasad to hospital and she was not entitled to have the form -4 and From-6 in respect of death of Govind Prasad and as such Ld. Commission has dismissed the consumer complaint.
Being aggrieved with this order this appeal follows on the grounds that the observation of Ld. District Commission was erroneous and not vested with law.
The respondent /OP hospital in spite of receiving the notice of Memo of appeal on 15.06.2022 through post did not contest the appeal. Several opportunities was provided to the respondent but did not contest the appeal.
The appellant conducts the hearing of appeal through Ld. Advocate Mr. R. K. Jha.
Decision with reason
During the course of hearing the appeal, Ld. Advocate of the appellant mentioned that the complainant though was not directly involved at the time of admission of Govind Prasad, yet She is entitled to get material documents from the Op hospital regarding the treatment and death of the patient as she is the wife of deceased Govind Prasad.
In support of his argument, he referred the judicial decision of higher Forums as follows: -
- (2009) sec 369
- (2009) CPR 40(S.C)
- 1996, 3 CPR 24(Guj), 1998 CCJ 690(Guj)
- 1997(2) CPR 171(H.C)
- 1.2.R 2004(2) Kerala,150
He further argued, since the year of 2019, soon after the death of the husband of the appellant, Respondent has only given assurance and excuses at different times to the appellant but no any fruitful steps has been taken to solve the problem of the appellant, on last week of December, 2021 Respondent had asked
“The appellant to provide an Executive Magistrate affidavit stating that: "The appellant is/was the legally married wife of her deceased husband Govind Prasad"
Besides Respondent assured that after proving the Executive Magistrate affidavit by the appellant, respondent will provide the appellant the aforesaid form and acknowledgement on 03.01.2022 the appellant provided the said Executive Magistrate affidavit to OP sworn by the appellant on 31.12.2021 before the Ld. Executive Magistrate at Jalpaiguri but till date no fruitful initiative has been taken by the Respondent in this regard.
That the appellant take several attempts on telephone as well as personally to Respondent for providing Form-2, Form-4 and acknowledgement but till date nothing has been done form the end of Respondent and thereafter the appellant sent one legal notice through her counsel Advocate Vishal Before on10.01.2022 and the same has been sent through speed post vide postal receipt no. EW925394436IN and after receiving the same by the Respondent on 11.01.2022 has neither given any reply of the said notice nor he tried to provide Form-2, Form-4 and acknowledgement under such constraint circumstances the appellant has no option other than to file a consumer case before the Ld. DCDRC, Jalpaiguri for appropriate relief or reliefs.
On personal of all necessary documents, it is revealed that OP hospital has already supplied the forum-4 and forum-8 to the persons who brought since deceased Govind Prasad at the Hospital.
Ld. Dist. Commission did not consider whether the complainant was the actual and legal wife of the deceased Govind Prasad. If it is detected that the complainant is the legal wife of deceased Govind Prasad, then as per guidelines of NHRC and other medical regulations prescribed by authority is duty bound to supply the required medical document to the wife of the patient. So without going into merit of the case, the dist. Commission had no occasion in the eye of law to hold at initial stage that the complainant had no locus standi as a consumer to file the case. Rather, after admission of a consumer complaint the legal position is that unless the complainant was given sufficient opportunity to prove his or her case, the consumer forum has not vested with power to reject a consumer complaint in Limine.
Whether the complainant was the legal wife of the deceased Govind Prasad, whether she had any legal right to get required documents form hospital, whether the hospital authority had any Jenunine cause to deprive the complainant in getting such documents, are all mixed question of fact and law and the object of the consumer protection Act, is to protect the interest of the consumers and technical rigidity should not be indulged in the process of adjudication the dispute.
Ld. Forum had the actual option to ask the parties to the dispute to bring evidences to settle the dispute as the consumer complaint was already admitted on the basis of the contents and spirits.
Here, by the final order of the Ld. Dist Commission a person claiming her self as a consumer was deprived her legal right to establish her case in the manner prescribed by the consumer protection Act, 2019.
So, the order of Ld. District Commission appears inappropriate, erroneous and not vested in law.
Thus, the appeal has got the required merits.
Hence it is ordered,
That the appeal be and the same is allowed on merit without cost.
The Final order of Ld. DCDRC, Jalpaiguri dated 27.04.2022 in CC. No.2 of 2022 stands set-aside.
Ld. District Commission, Jalpaiguri is requested to re-open the case and obtain W.V from the OP hospital and after observing all legal procedures the matter/dispute to be adjudicated as soon as possible. Parties to the appeal are asked to appear before Ld. DCDRC, Jalpaiguri on 14.09.2022 for further order. Copy of order to be supplied to the parties free of cost and the same to be communicated to the Ld. Dist. Commission, Jalpaiguri.
