KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 531/2023

JUDGMENT DATED: 23.08.2023

(Against the Order in C.C. 384/2019 of CDRC, Thrissur)

PRESENT:

SRI. AJITH KUMAR D.                                                     : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPELLANTS:

1. Jubilee Mission Medical College Hospital, represented by its Director, Thrissur-5.

2. The Director, Jubilee Mission Medical College Hospital, Thrissur-5.

(By Adv. Aniyoor T. Ajithkumar)

                                                Vs.

RESPONDENT:

          Mohammadali, S/o Valiyakath Palliyil Abubacker, Malappuram-679 587.

JUDGMENT

SRI. RADHAKRISHNAN. K.R: MEMBER

This is an appeal filed under section 41 of the Consumer Protection Act, 2019, against the order in C.C. No. 384/2019 before the District Consumer Disputes Redressal Commission, Thrissur (District Commission for short). The appellants are the opposite parties 1 & 2 before the District Commission.  The District Commission by its order dated 31.10.2022 allowed the complaint and directed the opposite parties to pay Rs. 5,50,000/- as compensation to the complainant and Rs. 5,000/- as costs within one month from the date of receipt of a copy of the order, failing which, the entire amount shall carry 9% interest from the date of the order till realization.

2. Facts of the case are as follows:

The complainant/respondent sustained grievous injuries due to a fall from a tree. He was admitted to the 1^st opposite party hospital on 11.04.2017 and undergone medical treatment under the care of 2^nd & 3^rd opposite parties. The injuries were on the hip and ankle of feet. The surgery was done on the day itself and steel rods were installed. He was admitted for 20 days in 1^st opposite party hospital for the treatment. There was severe pain on the  leg and on X-ray it was found that rod installed was bent and broken down and same need to be replaced for which further surgery was advised. The surgery was done and steel rod was replaced immediately. He further continued treatment as in-patient for another 15 days. Thereafter pain increased on the leg and further consulted 3^rd opposite party at 1^st opposite party hospital. 3^rd opposite party advised that infection was there from the steel rod installed and hence the same need to be removed. Further surgery was done and the rod was removed. As pain persisted the complainant went to Amala Cancer Institute for consultation where it was found that all surgeries done in the 1^st opposite party hospital were improperly done causing continued pain. Thereafter he obtained medical opinion from the Gangai Hospital, Coimbatore and Government Medical College, Thrissur and they also advised that the surgeries were wrongly done. Complainant is continuing the treatment at Medical College Hospital, Thrissur. The complainant had to suffer severe pain, loss and mental agony due to the gross negligence on the part of the opposite parties. Hence the complaint was filed alleging deficiency in service on the part of the opposite parties.

3.  Complainant appeared before the District Commission and filed proof affidavit.  Exts. P1 to P7 were marked on his side. Though notice was served on the opposite parties they did not appear before the District commission and file their version. Hence they were declared ex-parte.  As the opposite parties were declared ex-parte, there was no oral or documentary evidence on their side. Hence the complaint has been allowed by the District Commission placing reliance on the unchallenged evidence available in this case against them.   Aggrieved by the said order opposite parties 1 & 2 have filed this appeal.

4.  We have heard the counsel for the appellants and perused the records.  The appellants/opposite parties admitted having received the notice from the District Commission. The learned counsel for the appellants submitted that there has been some delay on the part of the opposite parties in submitting their versions for reasons beyond their control.  When notice was received from the District Commission, the appellants wanted to verify the medical records in order to file the version.  Unfortunately, the records could not be traced. Police complaint regarding missing of records was also given.  Delay in submission of the version was on account of non-availability of the relevant records. Consequently the appellants were declared ex-parte.  Petition for setting aside the ex-parte order was not allowed by the District Commission.  The learned Counsel submitted that even in an ex-parte matter, the District Commission need to examine the merit of the claim rationally on the basis of available records before allowing the same.  In the case of the order under challenge, the District Commission did not scrutinize the documents produced by the complainant carefully to ascertain element of medical negligence on the part of the appellants/opposite parties.  The learned Counsel prayed for setting aside the order of the District Commission or alternatively remanding the case for fresh disposal by the District Commission, giving an opportunity to the appellants to adduce evidence.

5. The crucial issue in this case is regarding service of notice to the opposite parties and their non-appearance before the District Commission. The District Commission has stated in paragraph 2 of the order appealed against that though notice had been served on the opposite party they did not turn up and hence they were set ex-parte. The said paragraph is reproduced below:

“2. On receiving the complaint notice issued to the opposite parties. But the opposite parties neither appeared before the Commission nor submitted any version. Hence the opposite parties called absent and set ex-parte.”

6. The appellants have admitted receipt of notice.  Absolutely, no evidence has been produced by the opposite parties to show that the observation of the District Commission is erroneous in any manner.  The order of the District commission is as per section 38(3) (b)(ii) of the Consumer Protection Act, 2019, which is reproduced below:

“38 (3) The District commission shall, if the complaint admitted by it under sub-section (2) of section 36 relates to goods in respect of which the procedure specified in sub-section (2) cannot be followed, or if the complaint relates to any services,-

(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District commission;

(b): if the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District commission, it shall proceed to settle the consumer dispute –

1. on the basis of evidence brought to its notice by the complainant and the opposite party, if the opposite party denies or disputes the allegations contained in the complaint, or
2. ex-parte on the basis of evidence brought to its notice by the complainant, where the opposite party omits or fails to take any action to represent his case within the time given by the Commission.”

In view of the above specific provision, we do not find any error in the order of the District Commission.

7. As already discussed, this is a case in which no version has been filed by the appellant, though they had received notice from the District Commission.  Therefore, in view of the dictum laid down by the Constitution Bench of the Apex Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757, it is not possible for them to file a written version now.  For the above reason, there is no point in admitting this appeal or calling for the Lower Court Records. This appeal is therefore dismissed.

The amount of statutory deposit made by the appellant shall be refunded to them, on proper acknowledgment.          

           AJITH KUMAR D. : JUDICIAL MEMBER

                                                                        BEENA KUMARY. A         : MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

jb