Date of Filling: 10.07.2018
Date of Disposal: 07.08.2018
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
THIRUVALLUR-1
PRESENT: THIRU.S.PANDIAN, B.Sc., L.L.M. ….PRESIDENT
THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP., …MEMBER
CMP.No.41/2018 IN CC No.38/2016
TUESDAY, THE 07 DAY OF AUGUST 2018
N.Selvaraj,
S/o, late Natesan,
No.9,2nd Cross Street,
Dhandeeswaran Nagar,
Chennai - 600 042. ……. Petitioner/Complainant.
//Vs//
M/s., MIOT Hospital,
Rep.by its Managing Director,
Dr.Prithivi Mohandas,
No.4/112, Mount Poonamalle Road,
Manapakkam,
Chennai - 600089. …..Respondent/Opposite party.
This petition is coming on for final hearing before us on 31.07.2018 in the presence of M/s.R.Karthikeyan, counsel for Petitioner/complainant and M/s.C.Muruganandam, Counsel for the Respondent/opposite party and upon hearing arguments and perused the documents of both sides, this forum delivered the following.
ORDER
PRONOUNCED BY THIRU.S.PANDIAN, PRESIDENT.
This petition is filed by the petitioner/complainant for seeking permission to withdraw and transfer the main complaint for presenting before the District Consumer Dispute Redressal Forum, kancheepuram at chengalpet.
2. The averments of the affidavit is as brief as follows:-
The petitioner herein is the complainant in CC.38/2016 on the file of this Forum. The said complaint filed for the deficiency of service against the opposite party and pending. That the Respondent has filed CMP No.07/2017 before the Hon’ble District Consumer Dispute and Redressal Forum at Thiruvallur for the purpose of dismissing the above said complaint filed by the petitioner herein. The complainant further submits that he preferred an application for the redressal of his grievance before the Hon’ble District Consumer Dispute Redressal Forum at Chennai wherein he was directed orally by the forum to present the same before the District Consumer Dispute Redressal Forum at Thiruvallur and the same is numbered as in CC No.38/2016. That the complaint ought to have been filed before the District Consumer Dispute Redressal Forum at Kancheepuram as the Respondent Hospital falls within its territorial limits. Although the complaint has been numbered as CC.No.38/2016 and pending on the file of the consumer dispute forum at Thiruvallur, the trial has not commenced yet and therefore he filed Tr.O.P.05/2017 before the State Consumer Dispute Redressal Commission at Chennai for transferring the same to the District Consumer Redressal Forum. Kancheepuram District at Chengalpet.
3. That the above said Tr.O.P.5/2017 has been dismissed with a liberty to file a petition to withdraw and transfer the above said complaint before the District Forum, Thiruvallur itself. Thus the verbatim of the judgement runs as follows.
Moreover, for withdrawing the complaint, the petitioner/complainant need not seek the permission of this commission. If at all the complainant feels that the complaint has to be filed before the District forum, Chengalpet, the complainant is at liberty to file the petition before the district forum, Thiruvallur itself, praying for the permission to withdraw the complainant for presenting before the proper Forum. Hence this petition is filed.
4. The contents of the counter filed by the Respondent/opposite party is as follows:-
The respondent deny all the averments contained in the petition seeking withdrawal and transfer as baseless and unsustainable in law except those that are specifically admitted hereunder. The Respondent submit that, pursuant to this complaint the version of the opposite party was submitted to this Hon’ble District Consumer Dispute Redressal Forum Thiruvallur on 22.11.2016. That this Hon’ble Thiruvallur District Consumer Dispute Redressal Forum is barred from entertaining this complaint on the ground of territorial jurisdiction as pet section 11(2) of the Consumer protection Act-1986.
5. That the complainant fails to establish the primary and essential requirement of territorial jurisdiction. That neither is the opposite party located within the Tiruvallur district nor does the cause of action, wholly or in part, arise in the Tiruvallur District. Further submit that MIOT Hospital is situated at No.4/112, Mount Poonamallee Road, Manapakkam, Chennai – 600 089 which is within the territorial limits of the kanchipuram District. That on this ground alone, this Hon’ble Thiruvallur District Consumer Dispute Redressal Forum can dismiss the complaint.
6. In the instant matter, no part of the cause of action arose at Thiruvallur or in any other area in the district where the jurisdiction of the Hon’ble District Consumer Dispute Redressal Forum Thiruvallur can be invoked as per the relevant provision under consumer protection Act, 1986. The right of the complainant, if any, to file a complaint in the instant matter lies before a different forum therefore, due to the lack of territorial jurisdiction, this Hon’ble District Consumer Disputes Redressal Forum Thiruvallur is barred from entertaining the present case and as such the case is liable to be dismissed.
7. That after filing the complaint before this Hon’ble District Consumer Disputes Redressal Forum Thiruvallur and the present complaint case was numbered, and the opposite party filed a miscellaneous petition (CMP.No.7/2017) seeking dismissal of the complaint, the complainant belatedly and as an afterthought filed Tr.OP.No.5/2017 before the Hon’ble State Consumer Dispute Redressal Commission, Chennai. (herein after ‘State Commission’) seeking a transfer of the complaint. That by an order dated 31.10.2017 the Hon’ble State Commission dismissed the aforesaid petition of the complainant stating the following:
Having taken the complaint on file by the District Forum, now the complainant cannot state that the Forum at Thiruvallur does not have jurisdiction. Moreover, for withdrawing the complaint, the petitioner/complainant need not seek the permission of this commission. If at all the complainant feels that the complaint has to be filed before the District Forum, Chengalpettu, the Complainant is at liberty to file a petition before the District.
8. It is further submitted that nowhere in the order of the State consumer Disputes Redressal Commission, Chennai 31.10.2017, it has been stated that the Complainant is entitled to seek a transfer of the case to another Forum. Therefore, it is submitted that the explicit directions of the Hon’ble State Commission mandate that the present complaint cannot be transferred by this Hon’ble District Consumer Disputes Redressal Forum, Thiruvallur. Therefore this Forum must dismiss the petition seeking Withdrawal and transfer as the same remedy has already been sought and denied by the appropriate forum and as this is a vexatious application unsustainable in law.
9. That, the complainant has chosen not to file a petition, as directed by the Hon’ble State commission from 31.10.2017 which is the date of the order passed by Hon’ble state commission – till date and the complainant had not been present before this Hon’ble District Consumer Disputes Redressal Forum, Thiruvallur.
10. That, the present petition has been filed only after the same was brought to the notice of the Hon’ble District Consumer Disputes Redressal Forum, Thiruvallur during the hearingon25.06.2018 and the complainant has not been a vigilant petitioner and has failed to pursue the proper course of action as directed by the hon’ble state commission.
11. The Respondent further submits that the order of the Hon’ble State Commission dated 31.10.2017 does not permit the Hon’ble District Consumer Disputes Redressal Forum,Thiruvallur to transfer the present complaint and the liberty given by the Hon’ble State Commission is only restricted to pray for the withdrawal of the complaint. Hence this petition may be pleased to dismiss the application to withdraw and transfer filed by the complainant with costs.
12. At this juncture the point for determination before this Forum is:-
Whether this petition has to be allowed or not?
13. Arguments adduced on both sides.
14. Point No.1:-
First of all, the learned counsel for the petitioner/complainant would submit that on the point of the territorial jurisdiction, the petitioner herein filed the Transfer O.P.No.05/2017, before the State Consumer Dispute Redressal Commission, Chennai for transferring the case in CC.No.38/2016 on the file of this District Consumer Disputes Redressal Forum, Thiruvallur to District Consumer Disputes Redressal Forum, Kancheepruam Distruct at Chengalpet and the same has been dismissed with direction that the petitioner is liberty to file a petition to withdraw and Transfer the said main complaint before this forum and therefore this petition has been filed.
15. On the other hand, the learned counsel for Respondent/Opposite party would content that the petitioner herein fails to establish the primary and essential requirement of territorial jurisdiction under section 12(2) Consumer Protection Act 1986 and therefore on the ground alone this forum may dismiss the main complaint. Further, it is submitted that the petitioner filed this petition belatedly and as an afterthought filed Transfer O.P No.05/2017. State Consumer Disputes Redressal Commission at Chennai and by an order dated 31.10.2017 that nowhere in the order, it has been stated that the petitioner herein is entitled to seek a transfer of the case to another Forum and therefore this petition may be dismissed seeking the relief of Withdrawal and Transfer denied by the appropriate Forum, as this is a vexatious application unsustainable in law.
16. At this juncture, on careful perusal of the rival submissions put forth on either side it is learnt that while the CMP.No.07/2017 was filed by the Respondent/Opposite party herein for seeking dismissal of the complaint is pending, the petitioner/Complainant herein filed the Transfer O.P No.05/2017 before the State Consumer Disputes Redressal Commission, Chennai for seeking a Transfer of the Complaint. At the outset, on seeing the order of the Hon’ble State Consumer Disputes Redressal Commission, Chennai Order dated 31.10.2017 it is stated as follows:-
Having taken the complaint on file by the District Forum, now the complainant cannot state that the Forum at Thiruvallur does not have jurisdiction. Moreover, for withdrawing the complaint, the Petitioner/Complainant need not seek the permission of this commission. If at all the complainant feels that the complaint has to be filed before this District Forum, Chengalpet, the complainant is at liberty to file a petition before the District Forum, Thiruvallur itself, praying for permission to withdraw the complaint for presenting before the proper Forum.
17. From the substance of the above said order, it is clearly stated that the relief of Transfer is dismissed. At the same time, there is a direction for withdraw the complaint, the petitioner herein is at liberty to file petition before the District Consumer Disputes Redressal Forum, Thiruvallur itself praying the permission to withdraw the complaint for presenting before the District Consumer Disputes Redressal Forum, Chengalpattu.
18. Such being so, though the Petitioner/Complainant herein come forward to file this petition, but contra to the above said order of the State Consumer Disputes Redressal Commission, Chennai the petitioner herein seeking permission to withdraw and transfer which is vehemently accepted by the Respondent/Opposite party during the arguments. At the outset, this forum wish to state that as rightly pointed out by the learned counsel for Respondent/Opposite party that the relief for transfer already dismissed by the appropriate Forum the State Consumer Disputes Redressal Commission Chennai. Hence, such relief of transfer sought by the petitioner herein is fully devoid of merits. At this point of time, in view of the order passed by the State Consumer Disputes Redressal Commission Chennai, the petitioner/Complainant herein there is a direction to file a petition before this Forum with liberty to pray for permission to withdraw the complaint only before this Forum.
19. At the outset, it is seen from the adjudication that the petitioner herein has presented the main complaint as per the order of the District Consumer Disputes Redressal Forum Chennai. (South) before this Forum and the same has been numbered by this Forum. Now, as rightly pointed out by the Petitioner/Complainant that the territorial jurisdiction comes within the District Consumer Disputes Redressal Forum, Kancheepuram at Chengalpattu.
20. At this Juncture, it is seen from the adjudication that the Respondent/Opposite party herein has filed the CMP.No.07/2017 before this Forum sought for dismissal of the main complaint on the ground of territorial jurisdiction.
21. From the foregoing among other facts and grounds, and in view of the order passed by the Hon’ble State Consumer Disputes Redressal Commission, Chennai in Tr.OP.No.05/2017, this forum without any hesitation, to arrive that there is no harm and no prejudice will be caused to anybody to allow this petition partly in respect of permission to withdraw the main complaint. Thus the point no 1 is answered accordingly.
In the Result, this petition is Allowed in part. Accordingly, the Petitioner/Complainant herein is permitted to withdraw the complaint and thereby the same is returned to the Petitioner/Complainant for presenting before the proper Forum within THREE WEEKS from the date of this order (07.08.2018). Regarding the relief of Transfer, this petition is dismissed. No cost.
Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open Forum of this 07th August 2018
-Sd- -Sd-
MEMBER PRESIDENT
