KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM REVISION PETITION 27/09 ORDER DATED 23.6.10 PRESENT SMT.VALSALA SARANGADHARAN -- MEMBER SHRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR -- MEMBER Dr.Rony Thomas, S/0 V.G.Thomas, Udayamvilla Puthen Veedu, -- REV.PETITIONER Kadambanad South P.0, Pathanamthitta. (By Adv.G.S.Kalkura & Ors.) Vs. 1. Smt.Sarojini Devi, Thazhathedathu house, Pala P.O Kottayam, Pin – 686 475. 2. Smt.Sujatha Kunjamma, Thazhathedathu house, Pala P.O Kottayam, Pin – 686 475. 3. Kumari Athira Sunil, D/0 late P.G.Sunil Thazhathedathu house, Pala P.O Kottayam, Pin – 686 475. 4. Master Aravind Sunil, -- RESPONDENTS S/0 late P.G.sunil Thazhathedathu house, Pala P.O Kottayam, Pin – 686 475. 5. Amrita Institute of Medical Science, Edappally, reptd. by its Director. 6. Dr.Shaishav, Kavunkal House, Mannam Road, Edappally North. (R5 & R6 by Adv.K.Srikumar ORDER SRI.M.V.VISWANATHAN,JUDICIAL MEMBER Revision petitioner herein is the second opposite party and Respondents 1 to 4 herein are the complainants and that Respondents 5 and 6 are the opposite parties 1 and 3 respectively in CC.497/08 on the file of CDRF, Ernakulam. The complaint therein was filed alleging deficiency in service on the part of the opposite parties 1 to 3 in treating late Sri.P.G.Sunil at the 5th opposite party hospital. The complainants therein are the legal representatives of late Sri.P.G.Sunil. The second opposite party (revision petitioner) entered appearance in the said CC.No.497/08 and filed IA 95/09 requesting the Forum below to get report (opinion) from committee of doctors to ascertain as to whether there was any negligence on the part of the second opposite party in treating late Sri.P.G.Sunil. The aforesaid request was made in the light of the direction given by the Hon.Supreme Court in Martin F.D’Souza V. Mohd.Ishfaq [ (2009) 3 SCC 1]. The complainants filed objection to the said IA and contended for dismissal of the same. After hearing both sides, the Forum below passed the impugned order dated 8th May 2009 on IA.95/09 in the said CC.497/08 dismissing the aforesaid application. Hence the present revision. 2. We heard the learned counsel for the Revision petitioner and Respondents 1 to 4 (complainants in CC.497/08). The counsel for the revision petitioner (second opposite party in CC.497/08) submitted his arguments on the strength of the grounds in the memorandum of the revision petition and submitted that in order to avoid un-necessary harassment to the revision petitioner, the Forum below ought to have referred the matter for the reports of a committee of Doctors. He also relied on the direction given by the Hon.Supreme Court in Martin F.D’Souza’s case. Thus, the revision petitioner prayed for setting aside the impugned order passed by the Forum below in IA.95/09. On the other hand, the learned counsel for the Respondents 1 to 4 supported the impugned order passed by the Forum below and argued for the position that the decision rendered by the Hon.Supreme Court in Martin F.D’Souzas case regarding obtaining of report of committee of Doctors before issuing Notice to the opposite party/Doctors have no application in the present case on hand, as the notice has already been served on the opposite parties 1 to 3 in CC.497/08. Thus, the respondents 1 o 4 prayed for dismissal of the present revision. 3. The Hon.Supreme Court in Martin F.D’Souza’s case have given a direction to the Consumer Fora and Criminal Courts for getting reports of committee of doctors in order to ascertain whether there is primafacie case of medical negligence to proceed against the Doctors or hospitals. The aforesaid direction was given to avoid un-necessary harassment to doctors and hospitals. But as far as the present case is concerned, Notice to the opposite parties 1 to 3 namely, the doctors and the hospital had been issued and they also entered appearance. It is submitted by the counsel for the Respondents 1 to 4 that the opposite parties 1 and 3 in CC.497/08 on the file of CDRF, Ernakulam have already filed their written version. It is true that the Revision petitioner/second opposite party has not filed his written version in the said CC.497/08. So, the question of ascertaining as to whether there is primafacie case of medical negligence does not arise in the present case because of the fact that Notice to the opposite parties had already been issued and served on them. It is further to be noted that the opposite parties already entered appearance in CC.497/08. So, the direction given by the Hon.Supreme Court in Martin F.D’Souza’s case cannot be followed, as far as this case is concerned. 4. It is also to be noted that the complaint in CC.497/08 was filed and Notices were issued to the opposite parties prior to the judgment dated 17.2.09 in Martin F.D’Souza’s case. It is made specific and more clear in the aforesaid judgment in Martin F.D’Souza’s case, that the Consumer Fora or Criminal Courts have to refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, before the issuance of Notice to the concerned doctor or hospital. It is not made clear in the said judgment rendered by the Hon. Supreme Court that reports from doctors or committee of doctors should be obtained in pending matters where Notice had already been issued to the concerned doctor or hospital. Thus, it can very safely be concluded that the Hon.Supreme Court never intended to getting an expert opinion or report from expert doctors in the respective field, with respect to pending matters. This State Commission has already taken a view that such reports are not required, as far as pending matters involving medical negligence are concerned. Thus, the Forum below can be justified in not allowing the request made by the revision petitioner/second opposite party in IA.95/09 in CC 497/08 on the file of CDRF, Ernakulam. The forgoing discussions and the findings thereon would make it clear that there is no illegality or irregularity in the impugned order dated 8th May 2009 passed by CDRF, Ernakulam on IA 95/09 in CC 497/08. If that be so, no interference in the matter is warranted. In the result, the revision petition is dismissed. The impugned order passed by the Forum below on IA.95/09 in CC.497/08 is confirmed. The parties are directed to suffer their respective costs. M.V.VISWANATHAN -- JUDICIAL MEMBER VALSALA SARANGADHARAN -- MEMBER S.CHANDRAMOHAN NAIR -- MEMBER s/L KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM REVISION PETITION 27/09 ORDER DATED 23.6.10 PRESENT SMT.VALSALA SARANGADHARAN -- MEMBER SHRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR -- MEMBER Dr.Rony Thomas, S/0 V.G.Thomas, Udayamvilla Puthen Veedu, -- REV.PETITIONER Kadambanad South P.0, Pathanamthitta. (By Adv.G.S.Kalkura & Ors.) Vs. 1. Smt.Sarojini Devi, Thazhathedathu house, Pala P.O Kottayam, Pin – 686 475. 2. Smt.Sujatha Kunjamma, Thazhathedathu house, Pala P.O Kottayam, Pin – 686 475. 3. Kumari Athira Sunil, D/0 late P.G.Sunil Thazhathedathu house, Pala P.O Kottayam, Pin – 686 475. 4. Master Aravind Sunil, -- RESPONDENTS S/0 late P.G.sunil Thazhathedathu house, Pala P.O Kottayam, Pin – 686 475. 5. Amrita Institute of Medical Science, Edappally, reptd. by its Director. 6. Dr.Shaishav, Kavunkal House, Mannam Road, Edappally North. (R5 & R6 by Adv.K.Srikumar ORDER SRI.M.V.VISWANATHAN,JUDICIAL MEMBER Revision petitioner herein is the second opposite party and Respondents 1 to 4 herein are the complainants and that Respondents 5 and 6 are the opposite parties 1 and 3 respectively in CC.497/08 on the file of CDRF, Ernakulam. The complaint therein was filed alleging deficiency in service on the part of the opposite parties 1 to 3 in treating late Sri.P.G.Sunil at the 5th opposite party hospital. The complainants therein are the legal representatives of late Sri.P.G.Sunil. The second opposite party (revision petitioner) entered appearance in the said CC.No.497/08 and filed IA 95/09 requesting the Forum below to get report (opinion) from committee of doctors to ascertain as to whether there was any negligence on the part of the second opposite party in treating late Sri.P.G.Sunil. The aforesaid request was made in the light of the direction given by the Hon.Supreme Court in Martin F.D’Souza V. Mohd.Ishfaq [ (2009) 3 SCC 1]. The complainants filed objection to the said IA and contended for dismissal of the same. After hearing both sides, the Forum below passed the impugned order dated 8th May 2009 on IA.95/09 in the said CC.497/08 dismissing the aforesaid application. Hence the present revision. 2. We heard the learned counsel for the Revision petitioner and Respondents 1 to 4 (complainants in CC.497/08). The counsel for the revision petitioner (second opposite party in CC.497/08) submitted his arguments on the strength of the grounds in the memorandum of the revision petition and submitted that in order to avoid un-necessary harassment to the revision petitioner, the Forum below ought to have referred the matter for the reports of a committee of Doctors. He also relied on the direction given by the Hon.Supreme Court in Martin F.D’Souza’s case. Thus, the revision petitioner prayed for setting aside the impugned order passed by the Forum below in IA.95/09. On the other hand, the learned counsel for the Respondents 1 to 4 supported the impugned order passed by the Forum below and argued for the position that the decision rendered by the Hon.Supreme Court in Martin F.D’Souzas case regarding obtaining of report of committee of Doctors before issuing Notice to the opposite party/Doctors have no application in the present case on hand, as the notice has already been served on the opposite parties 1 to 3 in CC.497/08. Thus, the respondents 1 o 4 prayed for dismissal of the present revision. 3. The Hon.Supreme Court in Martin F.D’Souza’s case have given a direction to the Consumer Fora and Criminal Courts for getting reports of committee of doctors in order to ascertain whether there is primafacie case of medical negligence to proceed against the Doctors or hospitals. The aforesaid direction was given to avoid un-necessary harassment to doctors and hospitals. But as far as the present case is concerned, Notice to the opposite parties 1 to 3 namely, the doctors and the hospital had been issued and they also entered appearance. It is submitted by the counsel for the Respondents 1 to 4 that the opposite parties 1 and 3 in CC.497/08 on the file of CDRF, Ernakulam have already filed their written version. It is true that the Revision petitioner/second opposite party has not filed his written version in the said CC.497/08. So, the question of ascertaining as to whether there is primafacie case of medical negligence does not arise in the present case because of the fact that Notice to the opposite parties had already been issued and served on them. It is further to be noted that the opposite parties already entered appearance in CC.497/08. So, the direction given by the Hon.Supreme Court in Martin F.D’Souza’s case cannot be followed, as far as this case is concerned. 4. It is also to be noted that the complaint in CC.497/08 was filed and Notices were issued to the opposite parties prior to the judgment dated 17.2.09 in Martin F.D’Souza’s case. It is made specific and more clear in the aforesaid judgment in Martin F.D’Souza’s case, that the Consumer Fora or Criminal Courts have to refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, before the issuance of Notice to the concerned doctor or hospital. It is not made clear in the said judgment rendered by the Hon. Supreme Court that reports from doctors or committee of doctors should be obtained in pending matters where Notice had already been issued to the concerned doctor or hospital. Thus, it can very safely be concluded that the Hon.Supreme Court never intended to getting an expert opinion or report from expert doctors in the respective field, with respect to pending matters. This State Commission has already taken a view that such reports are not required, as far as pending matters involving medical negligence are concerned. Thus, the Forum below can be justified in not allowing the request made by the revision petitioner/second opposite party in IA.95/09 in CC 497/08 on the file of CDRF, Ernakulam. The forgoing discussions and the findings thereon would make it clear that there is no illegality or irregularity in the impugned order dated 8th May 2009 passed by CDRF, Ernakulam on IA 95/09 in CC 497/08. If that be so, no interference in the matter is warranted. In the result, the revision petition is dismissed. The impugned order passed by the Forum below on IA.95/09 in CC.497/08 is confirmed. The parties are directed to suffer their respective costs. M.V.VISWANATHAN -- JUDICIAL MEMBER VALSALA SARANGADHARAN -- MEMBER S.CHANDRAMOHAN NAIR -- MEMBER s/L | 
